In the wake of the failure of the Joint Interim Parliamentary Commission tasked with proposing amendments to the BiH constitution and election law to ensure BiH compliance with the 2009 European Court of Human Rights (ECtHR) decision in the Sejdic-Finci case, many observers were interested to see the reactions of various interested parties. This was the second attempt of the Commission to find solutions since it was established in autumn 2011. There had been some hope that some partial and mostly cosmetic and technical reform might be possible; but no hopes for any real reforms that would erase the institutionalized discrimination that permeates not just the constitution but public life. Mary-Ann Hennessey, the Head of the Council of Europe in BiH, noted that the real problem related to the non-agreement is related to the fact that leaders must recognize that the country cannot continue to be divided solely among the three constituent peoples, as this has been shown to be discriminatory. A number of other organizations that might have been expected to comment have been rather silent.
However, perhaps the most original spin on the failed commission has been offered by the European Parliament in its resolution of 14 March. In paragraph 10, the resolution notes that the Parliament, “considers the work of the Interim Joint Committee a significant step forward since for the first time BiH politicians have established an institutionalized way of discussing constitutional amendments without the presence of the international community, with the involvement of civil society and in an open and publicly transparent manner.” The simple fact that the Commission existed, met and failed not just once, but twice, is apparently enough to be not just a step forward, but a significant step forward.
Double-speak and hyperbole are common features in diplomacy, and followers of the diplomatic arts know well when to read between the lines to find the “punch” buried amidst the platitudes. However, one must wonder why the Parliament felt it was necessary to praise the failed Commission so gratuitously, when that paragraph could have been simply eliminated and the rest of the resolution adopted. The inclusion of such praise in an environment of abject failure sends a signal to BiH citizens that expectations for the behavior of the country’s politicians are not only embarrassingly low, but that there is actually a belief that there ever was actually sufficient good will and intent by the parties to address the discrimination clearly identified by the ECtHR.
It is particularly egregious to see the Parliament praising “the involvement of civil society.” The involvement of civil society was limited to two 90-minute sessions in November after the majority of Commission members debated why civil society input was necessary at all, reminding one another that the Commission members themselves are the legitimate, democratically elected representatives of the people of BiH. With such experts on the Commission, why would civil society need to be engaged? Rather than crafting a Commission work process that would have engaged civil society experts in a meaningful way – with experts, lawyers, academics, and activists rolling up their sleeves to look at ideas, options and opportunities for common ground – the minimalist 90-minute session approach was reluctantly agreed. There would be one session for the Council of National Minorities, and one session for other civil society groups. On the day in which civil society groups were able to present their ideas, several groups (including Forum Gradjana Tuzla, the Law Institute and ACIPS) presented clear, cogent and specific proposals for reform that had been developed over many months, in consultation with experts from both entities, all constituent peoples, and national minorities. Some other civic actors used the forum to promote their own less specific political agendas. That is the risk of participation and free speech; sometimes you can’t control what is said. However, after the civil society session, under the guise of preventing “outbursts” from disgruntled civic actors, several of the sessions were in fact closed to the public.
However, those NGOs that did present reasoned arguments for reform were asked no questions; the listening parliamentarians requested no clarifications, required no follow up and made no references to the proposed amendments that had been shared in advance. It was a one-way, pro forma transmittal of information. There was no subsequent consultation, follow up or discussion of these expert proposals.
Any of the three NGO proposals noted above would have the result of allowing BiH to ensure constitutional reform in compliance with the ECtHR. Adoption of such amendments would also un-freeze BiH’s SAA process, making it possible to begin to think about EU candidacy. They also would have made BiH a much less discriminatory place. But none of these civic, expert proposals were taken seriously by the Commission. The role and work of the Commission – and its true competence and mandate – became clear in February when, unable to move forward in terms of discussion, compromise or joint work, the Commission decided it was time to invite the political parties for their input in a closed session. Any faith any citizens or civic actors might have had in the process were shattered with that move, which demonstrated in a very transparent manner that the Commission was neither empowered nor inclined to make any decisions without the blessings of the parties. This “democratic theater” had been predicted by many from the beginning, and in fact led many activists to opt out of the process entirely rather than lend any legitimacy to a process that had been flawed and cosmetic from the start.
The European Parliament could have used paragraph 10 in a much better way, substituting unfounded praise with a sentence questioning why the Commission failed to take seriously proposals developed by their own citizens. The wording could have been quite simple: “The Parliament questions why the Commission failed to engage in a more meaningful way with BiH’s own human and civic resources, and the rich ideas for reform offered by several expert NGOs. The failure of elected officials to respect and integrate these home-grown ideas is concerning, possibly reflecting a lack of interest in real reform by the political parties the Commission members represent. The Parliament urges the Commission to reconsider these specific civic proposals, and to put the people of the country rather than the parties first.”
THAT would have been a resolution worth reading.