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CDL (2002) 17 rev
Or. eng.
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EUROPEAN COMMISSION
FOR DEMOCRACY THROUGH LAW
(VENICE COMMISSION)
COMMENTS ON THE law
on the election OF MEMBERS
of the representative bodies
of local and regional self-government units
of croatia
by:
Mrs Hanna
SUCHOCKA
(Member,
Poland)
I. General remarks
1. In the first
place, attention should be drawn to certain general premises, both of a
political as well as a legal character, which in my view lay at the basis of
the preparation of this law [the Local Election] in this particular form.
1. There is no doubt that political considerations have
played an essential role in the formulation of individual regulations of the
law [Local
Election Law],
especially in the context of
guaranteeing minority rights. That is clearly indicated by the complex,
many-year-long discussion surrounding changes of the Constitutional Law of 1991
on human rights and freedoms and rights of ethnic minorities in the Republic of
Croatia as well as by the preparation of new legislation in this area [compare
Opinion on the Constitutional Law on the rights on national minorities in
Croatia. adopted by the Venice Commission at its 47th Plenary Meeting, 6-7 July
2001].
I believe that the experiences connected in particular with the preparation of
a new minority-rights law may lead one to conclude that certain
minority-related matters had consciously not been precisely regulated in the
election law. There had been no intention
to ultimately resolve and close certain issues. Instead they were left open in
the assumption that they would be verified in practice and concretely resolved
in the event that a conflict erupted or objections were raised in the course of
elections. The proximity of the census and local-council elections also appears
to point to such a political intention. One may assume that in its political
evaluation the law was to play the role of a kind of verifier of minority
problems in individual districts of the country. Only such an assumption can
justify the incompleteness of this law.
2. The situation is additionally complicated by the fact
that the law (Local Election Law) is the most important if not the only law
pertaining to local government elections. Apart from it, there exist a number
of laws dating from different periods which also must be taken into account
when elections are held. Apart from the Constitution of Croatia constituting
the bases of all laws, mention should be made in particular of: the Law on
Citizenship, the Law on Voter Lists [1992]; the Law on Local Self-Government and Administration;
and the Law on Political Parties. The
Law on Election Rights does not
constitute any cohesive ‘code of local government elections’. That is probably
the reason for the gaps and incomplete regulations contained therein. The
law-giver must have most likely deemed it unwarranted to regulate the totality
of election-related issues in a single law, preferring to approach all the
binding laws as complementary. But even a cursory evaluation of that approach
(if such indeed had been the deliberate intent of the legislator) evokes a
number of reservations. In the first place, the current law is a new one,
drafted in completely changed political and legal circumstances than those
mentioned above. For that reason, the solutions, especially certain concepts
and definitions contained in various laws, are not always coherent (including
the concept of minority so essential to our opinion.) The law does not define the
concept of a minority, nor does it create a list of minorities -- a solution deserving of high marks. At the
same time, other basic doubts arise regarding which laws are to be invoked when
defining minorities. The new law on minority rights is, after all, still in the
draft phase. For that reason, the incompleteness of the regulations in the
present law, regardless of its political intent, must evoke legal doubts. Binding laws provide no answer to many other
doubts surrounding the election process. A number of such problems have been
raised in the OSCE opinion which formulated questions to which existing law as
such, no the election law alone, had no answer. [Compare OSCE, Republic of
Croatia, Local Government Elections 20 May 2001, Final Report, p. 6].
3. The date this law went into effect, very close to
election day, has raised numerous doubts in terms of guaranteeing electoral
rights [especially
those of different nationalities]. The issue of the proper vacatio legis is one of the
key principles of a law-abiding state. Its significance has been emphasised by
both scholarly literature as well as courtroom practice. It should be noted
that an election law is a special kind of law which requires a longer vacatio
legis owing to the very nature of electoral procedures. Too brief a period
between the time the law goes into effect and the actual voting does not
provide sufficient guarantees for preparing and holding elections. That is
particularly important amid Croatia’s complicated nationality situation, unresolved
problems of the citizenship law, a lack of clarity as to what individual
categories of people can take part in the elections, create ballots and vote.
All that requires particularly careful preparations and, above all, it requires
time. Otherwise it creates the basis of manipulation with regards to smaller or
more poorly organised groups. That aspect of the law, which may be regarded as
formal, does not pertain to its content, but owing to its guaranteeing
character has been criticised in all submitted opinions [compare for instance the
OSCE Final Report op. cit. p-3-5].
2. All those
general remarks would indicate that the law now under analysis should be
regarded as a periodic law which in its present forms should apply to only one
election, even though such had not been the intent when it was being drafted.
II. Detailed remarks
1- The principle of proportionality
1. Acceptance
of that principle is correct, because unlike the majority principle it favours
smaller groups is therefore more advantageous to minorities. However, the way
it has been approached in the law under discussion raises doubts. Its
principles are imprecise. As the OSCE opinion has stated: ‘The principle for
minority representation is therefore articulated in the Election Law, but the
procedures for the implementation of the principle are not fully addressed.’
The reservations are of two types. The first pertains to concepts used in the
law, the second involves the principle’s implementation. As regards the first
reservation, it applies in particular to the comparison of articles 9 and 61.
Article 9 states that ‘statutes of local and regional self-government units
shall determine the number of members of representative bodies from amongst
Croatian citizens, members of ethnic and national communities or minorities, in
accordance with the proportional
share of their members in the total population of the unit.’ But article 61
uses the terms ‘the principle of adequate
representation’. The question arises as
to there different degrees of representation are meant. Does article 61 soften the criteria arising out of article 9
to the disadvantage of minorities? It would be difficult to
find an answer to that question in the law itself. The doubts are all
the greater, since there is no other law that might precisely regulate those
questions. It is true that the Constitutional Law on the rights on national
minorities has not yet become binding.
However, extensive consultations on the draft of that law have been held.
During those discussions its highly framework-like character was criticised [by ia
experts of the Venice Commission]. In response to that objection came the explanation
that the constitutional law was intended to provide a general framework to be
filled in with other specific laws. That is how article 13 of the Draft
Constitutional Law should be understood when it states: ‘Members of national
minorities shall, along with the general and equal right to vote for members of
representative bodies of the local and regional self-government units, have the
right to elect a certain number of members of representative bodies in
proportion to the percentage they make up within the total population of the
unit, in accordance with a special law and statute.’ Without a doubt, the law currently under analysis is just such a
special law. And it should therefore be filled with unequivocally precise and
exhaustive content that leaves no room for doubt as to the scope of the
principle of proportionality. Not every law can or should be a legislative
framework.
2. The question
also arises whether the d’Hondte method of counting votes is the best way which
most effectively guarantees minority rights. In general, that method of vote
counting combined with the 5% clause gives preferential treatment to larger
groupings.
2. Another problem evoking doubts is the way the names of
candidates are arranged on the ballot and the resultant manner of voting for a
slate of candidates. The solutions of the current law contain pitfalls that
could adversely effect the implementation of minority rights. Article 15 of the
law accepts the principle that there can be as many names on the ballot as
there are vacancies to be filled in the body to be elected. But it provides no
mechanism for filling a vacancy in the event a candidate gets disqualified.
Because of the lack of legislative solutions, the Constitutional Court ruled
that in such a case the entire slate must be disqualified. That solution is
obviously disadvantageous for every political grouping. In the case of minorities,
it has an especially negative dimension since it can bring about the
elimination of a minority slate, thereby completely violating the principle of
proportionality defined in article 9. Imprecisely formulated provisions of the
law therefore lead to internally contradictory principles within the framework
of a single law. That shortcoming of the law
must be eliminated. That may be
accomplished either by requiring the number of candidates on a ballot to exceed
the number of vacancies or by adopting
a slate-supplementation procedure that would prevent elimination of the entire
slate.
3. Much
discussion has been evoked by the manner of list voting. In that regard,
Croatia is not alone. In all countries adopting new election laws disputes have
erupted over whether to introduce a system allowing preferential voting within
the confines of a list by indicating a concrete candidate or by voting for the
leader of the slate. Different arguments favour each of those alternatives, and
neither oversteps the bounds of democratic standards. The Croatian election law
has adopted the method of voting for the party leader and does not allow
preferential voting within the limits of the slate. That solution undoubtedly
strengthens individual parties, especially the party leader, who has a decisive
say in how the names of candidates are arranged on a slate. The order in which
candidates are listed determines who gets elected. The electorate exerts a
smaller influence on the concrete personal composition of a given representative
body. That manner of drawing up slates and voting leads to the greater
consolidation of candidates during the election campaign and rules out
conducting one’s own campaign against candidates on the same slate which is the
case when preferential voting for individual candidates take place. But that
voting method may, however, disrupt the principle of proportionality. It may be
guaranteed at the time the slate is being drawn up, but because a candidate may
not be elected owing to his position on the slate, the principle of
proportionality may not get implemented. For that reason, such a solution
appears to be inferior in terms of guaranteeing minority rights. At the same
time, in view of what has been already mentioned above, the adoption of another
solution, ie voting for a concrete candidate other than the list leader in
Croatia’s concrete situation might not produce positive results where the
solution of nationality problems is concerned. Such a solution could, on the
one hand, evoke the general fear of including a minority candidate on a
‘general’ party slate rather than a minority slate. On the other hand, the
inclusion of such a candidate thereon might cause strains as a result of a kind
of an internal campaign including nationality appeals within the bounds of a
gicven slate, thereby exacerbating or unleashing hidden tensions. It should be
emphasised, however, that in the pursuit of legal solutions from amongst
existing possibilities, those which are less likely to trigger conflicts should
be promoted. Therefore, even if voting for an indicated candidate would appear
to constitute a better safeguard of minority rights, I do not believe that is
always the rule. Depending on a given
district’s nationality cross-section, that may be disadvantageous to a minority
candidate. On the other hand, according
the minority candidate a high rank on a general ballot, when the principle of
voting for the leader is in force, gives him a greater chance of being elected
on condition that the slate garners enough votes to achieve the 5% threshold.
It therefore appears that the adopted solution, despite numerous misgivings, is
probably the better solution in Croatia’s concrete situation.
3. An exceptionally important problem, to which the proper
importance is not always attached, especially in what are known as the new
democracies, is the issue of compensating campaign costs -- a problem dealt
with in article 21. That provision, however, is exceedingly general. Obviously,
the manner in which political parties are financed has generated heated
disputes in individual countries. The basic problem boils down to whether the
state is to finance political parties or whether they should be left entirely
to their own resources. Various arguments favour this or that alternative. The
law under analysis has opted for a solution whereby the state provides
compensation for elections. Political parties and leaders of independent
slates, who gain a minimum of one member in a representative body at the
elections, shall be entitled to the compensation of electoral campaign
expenses. But the details have been left to the government’s discretion. That
is a bad solution. One thing is certain: regardless of which system is chosen,
it must be precisely defined in the election law or possibly in the law on
political parties. In this concrete instance, the new election law has afforded
such an opportunity. But that opportunity has not been tapped, and that
constitutes a major shortcoming of this law. Leaving the matter entirely up to
the government without any clearly legislated rules always spawns the threat of
corruption. Historical examples of such phenomena have been in no short supply.
Hence, that is one of the more serious defects of this law.
4. The
nationality situation in Croatia continues to be in a state of flux. The
present law therefore would seem to constitute a certain framework which should
be imbued with precise substance before the next election takes place. And I
wish to reiterate that the present law should be exclusively treated as a
periodic piece of legislation, constituting the legal basis of elections that
have already taken place. But a new law should definitely be adopted at the
proper time and with the proper vacatio legis before the next election
is held.
