On 18 May 2016, Velimir Jukic, the director of the BiH Agency for Statistics, unlawfully issued a decision purporting to adopt a unified data processing program for the BiH census. Director Jukic issued his decision without consulting the Entity statistics institutes, the Central Statistics Bureau, or even his own agency. Director Jukic had no legal authority to unilaterally adopt a data processing program, and the program he adopted uses unlawful and inaccurate methodology. Publishing census results according to this unlawful program will undermine the rule of law and the credibility of the census.
It is inconsistent with international standards for the census to be published in violation of the procedural and substantive law of BiH. If implemented, the census results will be rejected by a large number of citizens within BiH and result in injury to citizens’ political and human rights. On 21 June 2016, the RS National Assembly, with the unanimous support of all Serb parties, passed a resolution condemning Director Jukic’s program as unlawful. The Croat member of the BiH Presidency, Dragan Covic,[1] as well as his colleague, Mladan Ivanic, the Serb member, have called for cancellation of the Jukic decision. The RS National Assembly has announced that it will take appropriate legal action to oppose Director Jukic’s unlawful program and the publication of census results based on it. The international community, including the IMO, should not endorse illegal and inaccurate census data now simply for reasons of expediency.
Lack of Legal Authority
It was unlawful for Director Jukic to adopt a data processing program without the participation of the Entity statistical institutes. The Census Law makes clear that the Entities have the legal right to participate in the creation of the unified data processing program and other census methodology. Article 21(d) provides that the Entity institutes are to “[t]ake part in the data entering, processing and control of the data.” More generally, Article 19(1) provides, “The Census shall be organized and conducted by the statistical institutions” in BiH, including, specifically, the “Institute for Statistics of Republika Srpska.” Article 20 obligates the BiH Agency to “[c]ooperate with the entity statistical institutes and other competent institutions involved in the Census in preparing, organising and carrying out of the Census.” Under Article 20, both the BiH level and the Entities have the shared right and obligation to “Publish results of the Census” and to “carry out other tasks of preparing, organizing and carrying out of the Census.” Article 21(b) provides that that the Entity institutes are to “[t]ake part in the development of the methodology with common definitions of enumeration units and topics, common classifications and content of the processing and publishing tables according to unified data processing programme and unified criteria and programmes of logic control for detecting and automatically correcting errors in the Census material.” No provision of the Census Law or any other law authorizes the BiH Agency to unilaterally adopt the unified program.
Director Jukic also lacked the authority, in his position as director of the BiH Agency, to issue unilaterally his decision adopting the program. In the BiH legal system, an individual may only issue an act if he is authorized to do so by law. According to the BiH Law on Statistics, the director “issues regulations when authorised to do so by the applicable laws of Bosnia and Herzegovina and issues other acts which he is authorised to issue.”[2] There was no authorization in the BiH Law on Statistics, Census Law, or any other law for Director Jukic to issue his decision. Director Jukic’s lack of authority for his decision is particularly clear in light of his failure to involve the Entity statistical institutes, which, as explained above, is required by the Census Law.
Article 24(2) of the Census Law requires that the Central Census Bureau examine the program for processing census material. Director Jukic’s program had never been examined by the Central Census Bureau. Instead, Director Jukic adopted a program that was 14 pages shorter than the program proposal submitted by the BiH Agency. Because the unified program adopted by Director Jukic had never been examined by the Central Census Bureau, its adoption violates the Census Law.
Moreover, there is no “chief statistician” under BiH law, as some claim.[3] Rather, the statistical system of BiH consists of three statistical institutes, none “higher” than the other—two at the Entity level and one at the BiH level—regulated by the BiH and Entity laws on statistics. Article IV of the Decision on Establishment of the Agency for Statistics of BiH stipulates that decisions within the Agency must be taken by consensus among the director and deputy directors of the Agency, who represent the three constituent peoples in BiH.
There is also evidence that Director Jukic’s decision was influenced by pressure from the BiH Prosecutor. In March 2016, the BiH Prosecutor’s Office announced a criminal inquiry into delays in processing census data. Director Jukic visited the BiH Prosecutor’s Office just before his decision to unilaterally adopt the program in violation of the law. U.S. Deputy Chief of Mission Nicholas M. Hill observed in 2015 that the BiH Chief Prosecutor is “largely believed to be heavily influenced by Bosniak political forces” and that there are “complaints that the prosecutor’s office has too many strong-willed SDA acolytes on its staff.”[4]
Violation of Substantive Law
Director Jukic’s program would artificially increase the population of BiH by approximately 196,000 persons by assigning the status of residents to persons not legally entitled to it. Implementing Director Jukic’s program would result in an unlawful and inaccurate census that distorts allocation of resources and gives policymakers faulty information. Director Jukic’s program violates the census law and distorts census data in three main ways:
- Director Jukic’s program violates Article 7 of the Census Law, which defines the persons who are to be counted as residents of BiH in the census as those who live or expect to live in the place of the enumeration for a continuous period of at least 12 months.[5] In many questionnaires, people who claimed to be a resident of BiH in Questions 1 to 7 later answered in Question 40 that at the time of enumeration they were working or studying in non-neighboring countries, such as Germany. The International Monitoring Operation (IMO) that has been assisting BiH and the Entities with the census earlier recognized the importance of taking Question 40 into account when determining place of residence, especially because there were campaigns urging people to answer Questions 1 to 7 in such a way as to be counted as residents.[6] Director Jukic’s program would ignore Question 40, resulting in thousands of nonresidents who claimed to be studying and living in non-neighboring countries to be unlawfully counted as residents.
- Director Jukic’s program allows inclusion of questionnaires completed by children under 15 years of age despite the fact that Article 11(2) of the Census Law explicitly rules this out. This requirement is essential to ensure that accurate data is provided. In a 16 June 2015 letter, the IMO recommended that these specific questionnaires be excluded from the census.
- Director Jukic’s program would require the BiH Agency to use the probabilistic method to fabricate answers to questions that census respondents left blank, violating clear provisions of the Census Law. The Census Law specifies who is to provide answers to the questions on census forms[7] and nowhere authorizes imputation of missing answers. In addition to violating BiH law, the program’s use of the probabilistic method violates international practice and would produce unreliable data. The probabilistic method has never been used to determine resident population in any country that applied the traditional method of enumeration.
Empirical evidence supports the RS position that including these three types of data in the published census would not only violate the law but also inflate the true population of BiH. Preliminary results of the Post-Enumeration Survey indicate an over-coverage of 11%.
Conclusion
Director Jukic’s unilateral decision and census program violate the procedural and substantive law of BiH. If implemented, the program would result in a census that is seriously flawed and that would result in injury to BiH citizens’ constitutionally protected rights. Both the Croat and Serb members of the BiH Presidency have called for its cancellation and Republika Srpska’s National Assembly has rejected it. The international community should not endorse Director Jukic’s decision and program. Rather, it should support a census that is accurate and consistent with BiH law and that is the result of consensus among the BiH and Entity institutions that are legally empowered to organize, conduct and publish it.
[1] SRNA, Covic: Previous Agreement Violated, Mistake To Be Corrected, 22 June 2016.
[2] BiH Law on Statistics, Art. 9(2).
[3] Indeed, the recently appointed director of the BiH Agency for Statistics is not even a professional statistician.
[4] Nicholas M. Hill, Moving Beyond Narrow-Minded Politics, Mreža Za Izgradnju Mira 8 July 2015.
[5] Article 2(a) of the Census Law provides, “‘place of residence’ shall mean the place where a person lives and normally spends the daily period of rest . . .”
[6] See, e.g., Steering Committee of the International Monitoring Operation on the Population and Housing Censuses in Bosnia and Herzegovina, Thirteenth Assessment Report, 27 September – 18 October 2013 (13th Assessment Report”), at para. 29.
[7] See, e.g., Law on Census, Art. 11.
