Politics again turned out to be the deciding factor in the election last week of a judge for the Constitutional Court of Bosnia and Herzegovina (BiH).
Members of the House of Representatives of the Federation of BiH (FBiH) Parliament June 26 eliminated the two candidates with the most professional experience, Sevima Sali-Terzić and Faris Vehabović, in favor of the least professionally qualified candidate, Mirsad Ćeman. He has spent most of his legal career as a lawyer for a spark plug company and was a former high official and MP of the ruling Democratic Action Party (SDA). Some say the fact that the two candidates with the strongest party credentials were finalists for the post is further evidence that political affiliation plays the key role in choosing a judge, and that this needs to be changed.
An original list of 14 candidates was cut to five by the Parliamentary Commission for Selection and Appointments. In the first of four rounds of voting, Ćeman received 31 votes, three more than his chief opponent, Damir Arnaut, who is advisor of constitutional and legal matters for BiH Presidency member Haris Silajdžić. Supported by the Party for BiH (SBiH), he received his Ph.D. degree in law with honors from one of the premier universities in the United States.
Ćeman and Arnaut advanced to a new round of voting ahead of three opponents. Vehabović is a former lawyer for the office of the Human Rights Ombudsman of BiH, a former registrar for the Constitutional Court of BiH, and a judge in the Constitutional Court of FBiH. Sali-Terzić has been a senior legal advisor in the Constitutional Court for four years and spent two years each as a lawyer in the Stari Grad Municipality and a judge in Basic Court in Sarajevo. Amor Mašović is a high official of the SDA and also a director for the State Committee for the Search of Missing Persons.
Ćeman said that before he decided to run for judge, some members of the academic community assured him that he could do the job, and that he would not like to believe he was elected solely on the basis of his political affiliations.
‘Politics are not irrelevant, because the members of Parliament choose the judge’ he said. ‘So either I or someone else had to be chosen by a combination of votes of many political parties.’
The selection commission suggested that voting be secret so that MPs could vote without fear of pressure from their political parties. Member of the SBiH, Munib Jusufović, countered that voting should be public ‘because of the politicizing of the appointment and the doubts that were raised.’ Other party members pointed out that more important decisions were made by public voting.
Aida Čikić, an MP for the SBiH, said, ‘Laws and constitutional changes are made publicly in this Parliament. Everything here is done publicly, so I see no reason why this should not be.’
As a compromise, the two top candidates were elected by secret ballot, but Ćeman’s appointment was confirmed in a public, roll-call vote. In that vote, he received 54 of 98 votes. Many MPs said they believe he was a good choice, although they did not deny that his political background significantly affected the outcome.
‘Appointment of judges of the Constitutional Court is a political matter, and there is no doubt about that’ said Damir Mašić, an MP for the Social Democratic Party, the leading opposition party.
Mašić said that Ćeman was not his favorite in the first round, but that he believes Ćeman is a better choice than Arnaut. Nevertheless, Mašić emphasized that people should not delude themselves that the candidate with the best professional qualifications was chosen for the job.
Mato Franjičević, an MP for the Croatian Democratic Party (HDZ), pointed out that party support can sometimes coincide with professional qualifications.
‘I do not doubt that he will make a good judge of the Constitutional Court because of his political experience, maybe precisely because of that’ Franjičević said.
Writer Marko Vešović, MP for the SBiH, said he thinks prominent political figures should not be judges, but there is no prohibition against it.
‘Since the law allows that, we must either respect it or alter it’ Vešović said.
The BiH Constitution, which is part of the Dayton Peace Agreement, states only that the judges, which have the highest judicial authority in BiH, must be ‘prominent jurists of high moral standing.’ Such vague criteria leave much room for interpretation.
In 2005 and in April of this year, the Office of the High Representative suggested that Parliament establish better criteria. The suggestion was not acted upon.
MP Muhamed Ibrahimović suggested last week that that Parliament or the working group in charge write regulations on the criteria for judge appointments. That went ignored as well.
Mašić said more precise criteria should be established so that ’embarrassing situations like the one that occurred during the last election of a judge for the Constitutional Court would not happen again.’
In 2005, Seada Palavrić, vice president of the SDA, who did not have much work experience, was appointed over her opponent Kasim Trnka, a prominent legal expert, professor and judge of the Constitutional Court of FBiH.
‘The whole country, literally everyone, laughed at the Parliament because of the last election of a judge to the Constitutional Court’ said Mašić.
One reason the FBiH Parliament did not consider Ibrahimović’s proposition in more depth is that the new criteria would not have influenced Ćeman’s appointment, and the next judge opening is not anticipated for years. The Constitution allows judges to serve until age 70 or until they retire or are removed by the other judges. The FBiH Parliament is charged with filling four judgeships on the court, and currently the oldest of those officeholders, Mato Tadić, has 14 years to serve. The Republika Srpska selects two judges and of those, the oldest is Krstan Simić, who is a decade away from mandatory retirement.
Franjičević said politics influences the choice of judges, but this does not mar the reputation of the court. He said he hopes the judges will be able to differentiate between arguments and political desires and pressure ‘despite the fact they came to their position due to political affiliation.’
Vehabović said politically influenced appointments ‘become an epidemic fatal to the work of the Constitutional Court.’ Interference of politics in the election of judges can result in mistrust on the part of the citizens, he said.
‘Personally I have nothing against the elected candidate, but the way judges are appointed is something that is going to leave far greater consequences on the work of this court’ Vehabović said.
Sali-Terzić also said she believes that the judiciary is tainted by politically motivated appointments. She said the procedure was ‘a farce’ and unnecessary.
‘The Constitution does not specify that there should be a contest at all, so parties should conveniently arrange it among themselves and pick someone without a contest and without pretending their work is actually transparent, because, as we could see, that has nothing to do with the way things are’ said Sali-Terzić.
Arnaut said he believes the only real problem is ‘when political affiliation alone determines the election of judges. Everywhere in the world political institutions appoint judges to the highest courts. The problem in our country is that political affiliation is the sole criterion.’
Hatidža Hadžiosmanović-Mahić, the judge Ćeman will replace, would not comment directly on his appointment. ‘Those others were appointed, too, Mrs. Palavrić, [Krstan] Simić, who until recently was associated with [RS Prime Minister] Dodik, and nothing happened. If they could come, why shouldn’t he? I’m not surprised’ she said.
Hadžiosmanović-Mahić said she can’t predict how Ćeman’s political affiliation will influence his work and reputation.
As president of the court, ‘I did not let them do whatever they want. Whether these [judges] will or not, I cannot tell’ she said.
