EUROPEAN COMMISSION
FOR DEMOCRACY THROUGH LAW
(VENICE COMMISSION)
REPORT
ON ELECTORAL RULES AND
AFFIRMATIVE ACTION
FOR NATIONAL MINORITIES’
PARTICIPATION
IN DECISION-MAKING process
IN EUROPEAN COUNTRIES
Adopted by the Council for Democratic Elections
at its 12th meeting
(Venice, 10 March 2005)
and the Venice Commission
at its 62th Plenary Session
(Venice, 11-12 March 2005)
on the basis of comments by
Mrs Mirjana LAZAROVA TRAJKOVSKA
(Member, “The Former
Yugoslav Republic of Macedonia”)
TABLE OF CONTENTS
Pages
Introduction.. 3
1. Affirmative
action. 3
2. Affirmative
Action and electoral rules. 5
2.1 Belgium.. 6
2.2 Bosnia
and Herzegovina. 7
2.3 Croatia. 8
2.4 Cyprus. 10
2.5 Germany. 10
2.6 Hungary. 11
2.7 Italy. 11
2.8 Poland. 12
2.9 Romania. 12
2.10 Russian
Federation. 13
2.11 Slovenia. 13
2.12 Switzerland. 14
2.13 “The
Former Yugoslav Republic of Macedonia”. 14
CONCLUSION.. 15
APPENDIX,
ELECTORAL LAW AND NATIONAL MINORITIES (documentCDL-INF(2000)004), CONCLUSION 17
1. A motion for a resolution on “Electoral rules
and affirmative action for national minorities’ participation to the
decision-making process in the European countries” was submitted to the
Parliamentary Assembly of the Council of Europe by Mr
Frunda and others on 23
June 2004. It deems in particular that the well-known
expertise of the European Commission for Democracy through Law (The Venice
Commission) would be valuable in order to draft a comprehensive analysis and
recommendation in this regard.
On 25 June, the Bureau of the Assembly sent this motion to the Venice
Commission for consultation. A formal request was sent to the Venice
Commission on 22
September 2004. The Venice
Commission then decided to do a comparative study on this question first, on
the basis of the practice of the member states of the Council of Europe.
2. The aim of this report is to review the
electoral rules on affirmative action in the European countries. The members of
the Venice
Commission provided information about provisions in this field in the following
countries: Belgium, Bosnia
and Herzegovina, Croatia, Cyprus, Germany, Italy, Hungary, Poland, Romania, the Russian
Federation, Slovenia, Switzerland and
“The Former Yugoslav Republic of
Macedonia”. Electoral legislation, in
general, is very dynamic and it will continue to adapt to the new challenges of
policies and practices of the affirmative action.
3. The material that was reviewed is presented
country by country followed by general conclusions. The analysis of the accessible
national electoral rules is based on the conceptual and classificatory
frameworks developed in social science during the last decades, presented
briefly in the following sections. The report also refers to studies, documents
and recommendations of the Council of Europe,
OSCE, UN and other international organisations relevant in the field of
interest. Yet, we need to be aware that the issue of affirmative action is
controversial in science and law as well as in politics and policy. From this
perspective the definitions accepted need to be taken only as working tools.
4. This report was adopted by the Council for
Democratic Elections at its 12th meeting (Venice, 10 March 2005) and
the Venice
Commission at its 62nd Plenary Session (Venice,
11-12 March 2005).
5.
The idea of affirmative action is a very controversial one. In politics
but also in social science contested concepts and definitions are in use. Even
the terminology is not universally and unanimously accepted. There is a number
of competing terms denoting this idea. Our term used here, "affirmative
action" is sometimes equivalent to and sometimes different from the terms
of "positive action", "preferential treatment", "positive
discrimination" and sometimes even "reverse discrimination".
Affirmative action is sometimes considered as transitional in nature. In
connection to this, it needs to be emphasised that the concept accepted here
encompasses also the notion of protection measures for minorities in the field
of electoral rules, which are permanent and lasting in nature.
6.
With this controversy in mind, the Commission favours a broader concept
of affirmative action. It is based on two general presumptions:
a. In the every day functioning of the social systems (economy,
education, legislation, culture etc.) there are different historical and
structural inequalities and stereotypes
b. The affirmative action is a mechanism for overcoming these
inequalities by creating equal opportunities with the historically privileged
groups.
7.
On the basis of these presumptions, the affirmative action is defined as
a set of "policies and practices which favour groups (mainly ethnic groups
and women) who have historically experienced disadvantages".
This definition does not neglect the relevance of the function and, in
particular, of the practical aim of policies and practices implied. The
emphasis is rather on the political and the legal grounds on which the policies
are developed and justified. On these grounds, the definition overrides the
distinction between the narrow concept of "affirmative action" stricto sensu, and the concept of
"special measures".
8. Somehow traditional arenas of the policies and
practices of affirmative action have been education and employment. Yet in the
last two decades the affirmative action has been introduced in the field of
conflict management and prevention, and particularly in the area of protection
and development of national minorities. Among the ground breaking efforts in
this area the opinions of the Advisory Committee on the Framework Convention
for the Protection of the National Minorities in connection with Article 15 of
the Convention are to be recognised. Here we would also mention Recommendation
1623 (2003) of the Parliamentary Assembly of the Council of Europe. The
Assembly recommends to the "...state parties to pay particular attention
... to ensure parliamentary representation of minorities".
9.
In this regard our report is focussed on the achievements of one of the
latest developments of affirmative action in the sphere of electoral rules as a
mechanism for participation of national minorities in the decision making
processes. The participation in the decision making process of members of
national minorities relates not only to the exercise of general human rights,
but also to the exercise of special minority rights. That means that members of
national minorities, when they appear in the politics as nationals of the
state, are at the same time as nationals with special minority needs.
10.
Affirmative action in connection with the national minorities can be
defined as conferring special benefits upon individuals by virtue of their
membership in a certain minority group. Viewed from the individual or from the
group standpoint this principle seems of essential importance for the
establishment of de facto not only de jure equality.
11.
Yet, the principle of affirmative action is very often subjected to
criticism. Usually the arguments are that measures, which are taken as an
affirmative action, are leading to the discrimination of the majority. This is
the reason why the action taken must be proportional to the real needs of the
minority group in question and directed to providing means for achieving equal
opportunities. Affirmative action must be seen as a mechanism which does not
establish privileges for the minorities but effective rights that members of
the majority already enjoy.
12.
As mentioned above, the extension of the interest for the protection of
national minorities in the field of their participation in the decision making
is a relatively late development. But its importance has already attracted the
attention of the relevant international organisations and bodies. Among the
most prominent ones in this area, the efforts and achievements of the OSCE High
Commissioner on National Minorities (HCNM) and Office for Democratic
Institutions and Human Rights (ODIHR) need to be mentioned.
The Venice Commission has also accepted the challenge and
conducted its study on Electoral law and National Minorities.
13.
Both studies are focused on the more general issue of the
"importance of the electoral process for facilitating the participation of
minorities in the political sphere". In this respect, the Lund
Recommendation on elections: No. 7 appeals that the "States shall
guarantee the right of persons belonging to national minorities to take part in
the conduct of public affairs, including the rights to vote and stand for
office without discrimination."
14.
The study of the Venice
Commission on the Electoral Law and National Minorities, includes important
general conclusions which provide a solid starting ground for the future
efforts to develop the discussion on affirmative action in the field of
electoral rules for national minorities' participation in the decision making.
According to this conclusion the participation of members of national
minorities through elected office is more a result of the implementation and adaptation
of the general rules of electoral law than of the application of rules peculiar
to the minorities. The unabridged text of the conclusions of this study is
appended.
15.
In the light of this position, the present report intends to take the
discussion one step further, by focusing on specific rules applying to national
minorities in the electoral field. Following the accepted definition on
affirmative action, we could talk about affirmative action electoral rules if
they go beyond the principle of non-discrimination. For an electoral rule
(constitutional provision or law) to be categorised as an affirmative action
electoral rule it needs to fulfil the following conditions:
- To
provide national minorities (individually or collectively) with effective
rights already benefitting the members of the majority ;
- The
preferences established by the electoral rules should only be limited to
creating equal opportunity for the participation of the members of national
minorities in the decision making.
16.
In theory, such affirmative action electoral rules can be formulated for
the various dimensions of the electoral system and the electoral law. In
practice, various measures in the form of electoral rules are also implemented
in the different European countries. The most frequently used affirmative
action electoral rules are found in the following areas:
·
the
electoral system in general (proportional or mixed system)
·
the voting right (dual voting right and special voters
lists)
·
the numerical threshold
·
the electoral districts (their size, form and
magnitude)
·
reserved seats
·
representation
(over-representation)
·
use of the national minorities
language in the electoral process.
17. In what follows we present the findings on
the presence of the various affirmative action electoral rules at two levels:
the constitutional law and electoral law. The countries presented have been
selected because they have already introduced some affirmative action electoral
rules. Some of them are still today treated as such, i.e. as affirmative action
measures, stricto sensu, while others
or the same measures in other countries are understood as protection measures
for minorities.
18. This study does not aim at providing a
definition of national minorities. Actually, its scope is not limited to
minorities as recognised in national or international law, but refers more
broadly to ethnic, linguistic or religious communities when they benefit from
specific rules of electoral law.
2.1
Belgium
19. The Constitution of Belgium(1970)
does not use the concept of national (ethnic or linguistic) minorities, and
therefore, there are no special constitutional provisions regarding electoral
participation of such groups. The concept of minority is used only in terms of
ideological and philosophical minorities (Article 11). Yet a number of
constitutional and legal provisions regulating the complex constitutional relations
are interesting from the affirmative action perspective.
20. The Constitution stipulates that the
establishing of the constituencies or electoral colleges is governed by law,
and that the elections are carried out by the system of proportional
representation, as determined by the law. Concerning elections to the Senate,
for which voters in the whole country are divided into two electoral colleges,
the French electoral college and the Flemish electoral college, responsible for
electing 15 and 25 senators respectively, voters from the constituency of
Brussels-Hal-Vilvorde can vote for a Flemish list or a French-speaking list and
thus belong, according to the choice made, to the one or the other college.
Brussels-Hal-Vilvorde is also a special constituency for the elections to the
House of Representatives and to the European Parliament. Every province is a
constituency for the House of Representatives, except Flemish Brabant (which
includes the district of Hal-Vilvorde); the Belgian Court of Arbitration found
this situation discriminatory in principle and asked the legislator to modify
it.
Finally, for both Chambers, voters from the two districts with linguistic
facilities of Fourons and Comines-Warneton have the right to vote in a district
situated on the other side of the linguistic border.
21.
Among the different linguistic communities of Belgiumthe Dutch speaking and the French speaking communities are in a co-dominant
position at federal level, even if the French speaking one is numerically in a
minority. In order to protect the interest of both groups the Constitution
establishes a number of procedures such
as laws to be voted with a double majority, i.e. a general majority and a
majority in each linguistic group, the parity in the Council of
Ministers (Article 99), in the judicial bodies as well as in the highest
administrations and the so called "alarm-bell procedure" (Article
54). Both communities are also considered as co-dominant in the region of
Brussels-capital, where the Dutch speaking one is in a numerical minority and
the executive level in based on quasi-parity. Only the German speaking
community is generally recognised as a national minority.
22. Bearing in mind Articles 87, 87bis and 89bis
of the Code on elections it is obvious that electoral rules are establishing
legal grounds for citizens who are from different linguistic communities to be
represented in the elected bodies (Senate and House of Representatives).
2.2
Bosnia and Herzegovina
23. In Bosnia and Herzegovina, the various affirmative action
electoral rules are built at three levels: local, entities and federal
elections. Guaranteed seats, proportional model of elections, special list of
national minority candidates are mechanisms chosen.
24. The Election Law of Bosnia and Herzegovina
does not use the term national minority in the context of the election of the
deputies at the elected body on any level. In its Article
10.10, the Law stipulates that among fifty eight (58) delegates to the House of
Peoples of the Federation of Bosnia and Herzegovina,seventeen (17) from among Bosniaks, seventeen (17) from among Serbs, seventeen
(17) from among Croats and seven (7) delegates will be elected from “others”.
The term “others” can be considered as referring to those who are members of
national minorities. Bearing in mind this presumption we may say that the Law
does use the mechanism of guaranteed
seats for members “of others”.
25.
Another mechanism used in this Law is proportional representation of the population of the canton as
reflected in the last census of each constituent people and group of others to
the House of Peoples of the Federation of Bosnia and Herzegovina. In Article 10.12 the Law prescribes that the
number of delegates from each constituent people and group of others to be
elected to the House of Peoples of the Federation from the legislature of each
canton shall be proportionate to the population of the canton as reflected in
the last census. The Election Commission will determine, after each new census,
the number of delegates elected from each constituent people and from the group
of others that will be elected from each cantonal legislature.
26.
Yet, the term national minority is used in the context of local
elections under Chapter 13A, Participation of Members of National
minorities in the Elections for Municipality Level. In this part of the law,
the affirmative action electoral rules are more obvious. The legislator states
that members of all national minorities in Bosnia and Herzegovina shall have the right to
elect their representatives in Municipal Councils/Municipal Assemblies. To achieve
this in Article 13.14 it is stipulated that members of all national minorities
which make up to 3% of the total population of a municipality shall be guaranteed at least one seat in a
Municipal Council/Municipal Assembly.
27. Members of all national minorities, which
make over 3% of the total population of a municipality, shall be guaranteed at least two (2) seats in a Municipal
Council/Municipal Assembly. This law leaves it to the Municipal Statute to
establish the number of members of national minorities to be elected in a
Municipal Council/Municipal Assembly. For that purpose the representation of
national minorities is established on the basis of the last census conducted by
the state of Bosnia and Herzegovina.
28. Another mechanism of affirmative action
implemented in this part of the Law is the special
list of national minority candidates. Political parties, coalitions, lists
of independent candidates, independent candidates, national minorities’
associations and citizen groups consisting of at least forty (40) citizens who
have a general right to vote shall have the right to nominate candidate members
of national minorities to Municipal Councils/Municipal Assemblies.
2.3 Croatia
29. Affirmative action electoral rules in Croatia are to be found in the Constitution, the
Constitutional Act and in the electoral laws.
30. Article 15 of the Constitution of Croatia stipulates that besides the general electoral right,
the special right of the members of national minorities to elect their
representatives into the Croatian Parliament may be provided by law.
31. The Constitutional Act on the Rights
of National Minorities from 2002
in its Article 19 stipulates that the Republic of Croatia shall guarantee to the
members of national minorities the right of representation in the Croatian
Parliament.
32.
According to the Act on the
Elections of Representatives to the Croatian Parliament
two different types of electoral systems are provided in parliamentary
elections in the Republic
of Croatia:
the (general) proportional electoral system and the (special) relative-majority electoral system for the
election of national minority representatives.
33. The law specifies that out of 140 seats,
eight seats are guaranteed in
advance for national minority members and they shall be distributed among the
minorities: the Serb national minority elect three representatives; the
Hungarian national minority elect one representative; the Italian national
minority elect one representative; the Czech and Slovak national minorities
elect one representative together; the Austrian, Bulgarian, German, Polish,
Roma, Rumanian, Ruthenian, Russian, Turkish, Ukrainian, Vlach and Jewish
national minorities elect one representative together; Albanian, Bosniac,
Montenegrin, Macedonian and Slovenian national minorities elect one
representative together.
34.
The Constitutional Act on the Rights of National Minorities in its
Articles 20-24 stipulates that the Republic of Croatia shall guarantee to members of national minorities the right to
representation in the representative bodies of local self-government units and
in the representative bodies of regional self-government units. On the basis of this Act and as a result of the Law on the amendments to the Law on
the Election of Members of Representative bodies of Local and Regional
Self-government Units
a new Chapter (VIIIa – Elections of Members of
the Councils of National Minorities in Self-government Units) was introduced.
35.
According to the above mentioned legislation if at least one member of a
national minority, which participates in the population of the local
self-government unit with more than 5 % and less than 15 %, is not elected in
the representative body of the self-government unit on the basis of universal
suffrage, the number of members of the representative body of the
self-government unit shall be increased by one member. If a national minority
which accounts for at least 15% of the population of a local self–government
unit is not represented by a number of members proportional to its share in the
population of the local self-government unit, the number of members of the
representative body of the self-government unit shall be increased up to the
number that is necessary to exercise the representation. Those members of a
certain minority, who were not elected, according to the order of proportional
success of each slate in the elections, shall be considered elected. The
legislator prescribes that in situations when even by adopting such an approach
the number of national minority representatives will not be achieved,
by-elections shall be called in the self-government unit in compliance with the
Constitutional Act and law regulating the election of members of representative
bodies of local and regional self-government units. To achieve such results the
proportional model will be used. The official census results shall be relevant
to the determination of the number of members of a national minority for the
implementation of this mechanism.
36. Each minority group that accounts for more
than five percent of the regional self-government unit’s total population is
entitled to proportional representation. If proportional representation was not
achieved during the regular elections, the number of representatives in the
county government is to be increased by a number necessary to reach this level
for each such minority group.
2.4 Cyprus
37.
The members of the Maronite, Armenian and Latin religious groups are
entitled to the same political rights as other Cypriot citizens and a Maronite
was once elected to the House of Representatives. Furthermore, according to the
Religious Group
(Representation) Laws of 1970 to 1996 (Sections 3 and 4), a representative of
each of these religious groups is elected to the House of Representatives with
a consultative status. Each representative is entitled to submit the views of
his group on any matter relating to such group or to make necessary
representations on such matters relating to his group before any organ or
committee of the House of Representatives or any organ or authority of the
Republic, with regard to the matters which fell within the competence of the
Greek Communal Chamber before this Chamber was abolished and its legislative
functions were undertaken by the House of Representatives in 1965, by virtue of
Law 12 of 1965.
2.5
Germany
38.
National minorities are those groups of German citizens who are
traditional residents of Germany, but who differ from the majority population through their
own language, culture and history and who wish to preserve their identity (the
Danish minority, the Sorbian people, the Frisians in Germany, and the German Sinti and Roma). Except for the latter,
they have their respective traditional settlement areas in some federal states
of the Federal Republic of Germany. These are the Land of Schleswig-Holstein, the Free State of Saxony, and the Brandenburg and Lower
Saxony.
39.
As an affirmative action electoral rule, Germany has chosen to implement no limitation of threshold for political parties representing
national minorities. While for other political parties the threshold is 5%,
political parties representing national minorities are exempted from the five percent threshold established by
the Electoral Act.
40.
In practice, minorities are not so important at national level that this
exemption from the threshold regulation helped them to obtain seats at federal
level. This is different for the election of the parliaments of Länder
where minorities are also exempted from the 5% threshold (Schleswig-Holstein,
Danish minority; Brandenburg, Sorbian minority).
41.
In this way, members of national minorities are encouraged to register
political parties that will represent their interests and needs. The final
participation of national minorities in the elected bodies further depends on
the electoral model, and other electoral rules.
2.6 Hungary
42. Hungaryimplements the affirmative action electoral rules in the electoral laws. Such
laws are based on the Constitution of the Republic of Hungary.
Article 68 of the Constitution prescribes that the Republic of Hungary shall protect national
and ethnic minorities and ensures their collective participation in public
affairs, the fostering of their cultures, the use of their native languages,
education in their native languages and the right to use their names in their
native languages. The laws of the Republic of Hungary shall ensure
representation for the national and ethnic minorities living within the country
(paragraph 4). Such laws or pieces of legislation were up to now not adopted in
order to ensure the representation of minorities in elected bodies. National
and ethnic minorities shall have the right to form local and national bodies
for self-government (paragraph 4).
43. On this basis, the Act on Election of Local Municipal Government Representatives and
Mayors (1990),
under chapter XI – Protection of the Rights of
National and Ethnic Minorities, provides that the provisions of the Minorities Act with the alterations and
amendments contained in this part of the law shall be applied for the
nomination and election of national and ethnic minority self-government
representatives. If no candidate of the same minority receives a mandate as a
result of list voting, then the number
of votes, which is equal to the half of the number of votes that were
validly cast on the candidate receiving a mandate by the smallest number of
votes, shall be calculated. Every minority candidate who did not receive a
mandate shall receive it in the case that the number of votes cast on them
shall be greater than the number determined in the above way; should there be
more than one such minority candidate, then the one with the greatest number of
received votes is elected. If there are two or more such candidates who have an
equality of received votes, then the mandate shall be decided according to the
drawing of lots specified in paragraph (4) of Article 28 of the same law.
44. Affirmative action in favour of minorities is
provided in the Italian law on the election of the Italian representatives to
the European Parliament. A list of
candidates proposed by parties or political groups of the French-speaking
minority of Valle d’Aosta, of the German-speaking minority of the Bolzano province and of the Slovenian-speaking
minority of Friuli-Venezia-Giulia is allowed to join another list of candidates
of the same constituency with the purpose of sharing the distribution of seats
assigned to this second list. Every voter has the right to express three
individual preferences – including one for a candidate of the minority list.
After the allocation of the seats to the lists, the candidates of a list or of
joined lists are elected according to their number of preferences. However,
when no candidate of the minority list is elected, the one with most
preferences is proclaimed elected instead of a candidate of the other list if
he or she obtains at least 50000 preferences.
2.8
Poland
45. Affirmative action electoral rules are found
in the Parliamentary Election Law in the form of certain threshold "exemptions." As special rules on elections to
the Sejm, the Parliamentary Election Law
in its Article 134 stipulates that the lists of election committees created by
electors associated as registered organisations of national minorities are
exempt from the requirement of threshold. In order to benefit from this
exemption, electors associated as registered organisations of national
minorities are required to submit to the National Electoral Commission a
relevant declaration no later than five days before the poll.
46.
Together with the declaration, the committee shall be obliged to submit
a document issued by the appropriate statutory body of an organisation of a
national minority in which the creation of the committee by electors – the members of such organisation – is confirmed.
2.9
Romania
47.
In Romaniaaffirmative action electoral rules are found in the Constitution and in the
electoral law. In both cases the approach adopted is in the form of guaranteed
representation.
48. According to Article 62 of the Constitution
of Romania,th14_04.04.01.01; th14_04.05.03.01;
th14_05.02.01.04; th14_05.03.38.03; th14_05.03.38.04; th14_04.09.06;
organisations of citizens belonging to
national minorities, which fail to obtain the number of votes for
representation in Parliament, have the right to one Deputy seat each, under the
terms of the electoral law. Citizens of a national minority are entitled to be
represented by one organisation only. The number of Deputies and Senators shall
be established by the electoral law, in proportion to the population of Romania.
49. The Law No. 68/1992 on the Election to
the Chamber of Deputies and the Senate in its Article 4 stipulates that legally
constituted organisations of citizens belonging to each national minority,
which in the elections has not obtained at least one Deputy or Senator mandate
shall have the right to a deputy mandate, if they have obtained throughout the
country at least five percent of the average number of validly expressed votes
throughout the country for the election of one Deputy. The organisations of
citizens belonging to national minorities participating in the elections shall
be, as far as electoral operations are concerned, juridical equivalent to
political parties.
50. On these legal grounds, the Romanian system
ensures representation of legally constituted organisations of citizens
belonging to a national minority. If organisations of a national minority do
not obtain a seat in either house through ordinary electoral procedures, but
receive at least 5% of the average number of votes validly cast over the entire
country for the election of a member of the Chamber of Deputies, one organisation
of this minority is entitled to a seat in this house.
51. The Romanian law for the election of local public administration authorities
provides that candidatures for local elections may be put forward by the
organisations of citizens belonging to national minorities represented in
Parliament. Candidatures may also be put forward by other lawfully established
organisations of citizens belonging to national minorities, if their number of
members is not less than 15 % of the total number of citizens who, at the
latest census, have declared their belonging to that minority. If the number of
members needed exceeds 25000 persons, the members’ list shall include at least
25000 persons residing in at least 15 counties of the country and in the Bucharest municipality, but no less than 300 persons for each
of those counties and for the Bucharest Municipality. In summary, candidatures from the organisations of citizens belonging
to national minorities represented in Parliament are rendered easier, but the
procedure is rather cumbersome for other such organisations. No special seat is
ensured to national minorities at local level.
2.10 Russian Federation
52. The federal legislation provides, as a matter
of principle, national minorities with the possibility to realise their
electoral rights in elections and referendums.
53. In a more precise manner, provisions of subjects of the Federation help
minorities to be represented in the elected bodies through deviations from the
rule of equal representation of the population in the legislative bodies. In
the Republics of Carelia and of Daghestan, the deviation from the average norm
for the representation of deputies in constituencies created in areas of
concentrated residence of non-numerous autochthonous people may exceed the
normal deviation norm, but not by more than 40 %.
2.11
Slovenia
54. The Slovenian affirmative action electoral
rules are elaborated constitutionally as well as in the law. The mechanisms
used are various: guaranteed representation and guaranteed seats, dual voting
right, special voting list, special district and proportional elections.
55. The Slovenian National Assembly consists of
90 deputies, elected by proportional electoral system. According to Article 64
of the Constitution of the Republic of Slovenia the Italian and Hungarian ethnic
communities shall be directly represented at the local level and shall also be
represented in the National Assembly. This guarantee to the members of the two
national minorities is further developed in Article 80 of the Constitution
which defines that "the Italian and Hungarian ethnic communities shall
always be entitled to elect one Deputy each to the National Assembly."
Members of these two national minorities have dual voting rights, so Italian
and Hungarian deputies are elected by all members of those national minorities
with voting rights but voters from national minorities can vote at the same
time for ordinary candidates.
56.
According to the National Assembly
Elections Act, for the election
of deputies of the Italian and Hungarian national communities, electoral
commissions for special constituencies shall be nominated.
57. The Law on Local Self-government, in its Article 39, stipulates that Italian
and Hungarian national minorities in ethnically mixed areas inhabited by
members of both national minorities shall have at least one representative in
the municipal council. The Law on Formation of Municipalities and the
Determination of their Territories (from 1994) prescribes in detail the number
of members of the Italian, Hungarian and Romany national minorities in the
first municipal council. Elections for the municipal council members from among
the minorities are conducted according to the majority principle in a special
electoral district comprising the territory of the municipality. Candidates for
members of the municipal council – representatives of the Italian or Hungarian
national minority are chosen by the voters – members of the ethnic community in
the municipality, with the signature of at least 15 voters.
2.12
Switzerland
58. In Switzerland, a number of provisions guarantee a representation of
the language groups or regions. At federal level, care must be taken to ensure
that the various language regions be adequately represented in the Federal
Council (government).
A similar provision applies to the Federal Court.
59. At cantonal
level, in the mainly German-speaking Canton of Berne, a seat in the
seven-member government is reserved to a French-speaking citizen residing in
one of the three French-speaking districts (Bernese Jura).
A minimum of twelve seats in the cantonal Parliament (out of 160) is guaranteed
to the Bernese Jura. An equitable representation has to be secured to the
French-speaking minority of the Bienne-Seeland constituency.
2.13
“The Former Yugoslav Republic of Macedonia”
60.
In “The Former Yugoslav Republic of Macedonia”, the affirmative action
has traditional as well as constitutional grounds. Yet the laws on elections,
as well as other laws, do not contain specific affirmative action mechanisms.
61.
The constitutional grounds are
established by the Amendment 6 of the Constitution. This amendment introduced
the concept of "appropriate and equitable participation of communities
(i.e. national minorities) in the state organs and the public institutions at
all levels" as one of the fundamental values of the constitutional order
of the Republic.
62.
There are a number of political
parties established by members of the national minorities, representing
them in the Parliament and local elections. Together with the introduction of a
proportional election system the minorities have the chance to be better
represented.
63.
Another, rather strong affirmative action mechanism has been implemented
in the design of the electoral districts.
Some of the electoral districts are so designed to favour the minority
representation. This is the case, for example, with the municipality of Suto Orizari, in the capital of Skopje.
This district was established "to enable the election of a representative
of the Roma community."
64.
Preferential use of Minority Language in the election
materials is regulated by the Law on Election of Members of Parliament (Article
71).
65. The country by country reviews show that
there are already in existence interesting electoral rules that have
affirmative action goals, in the broader meaning of the concept accepted here. These are of course not the only rules of
electoral law allowing for a representation of minorities (see appendix). In
most of the countries such rules are introduced as isolated elements while in a
few of the countries they are introduced in a more systematic way. In the first
case, the affirmative action electoral rules are introduced directly in the
law. In the second case such rules are deducted from the more general
constitutional provisions. The second pattern is more common among the newly
democratised countries.
66.
In general, the electoral rules that favour affirmative action have
limited range. The number of beneficiaries of such electoral rules is clearly
and sharply determined either by the Constitution or the Law or by other
accompanying legislative acts. For example, the number of parliamentary seats
guaranteed to minorities is almost always lower than the number of minorities
present in the country. Affirmative action may apply only at national,
regional, local or even European level, and/or only in a part of the country.
This means that the original inspiration for such electoral rules is not purely
legally based, but probably political. The legislators are forced to use
political criteria for classifying and treating a number of national minorities
as one group for the purpose of election of a joint representative. The great
differences in the number of members of particular minorities reduce the
electoral chances of some minorities, because seats go to the candidate of the
minority with the largest number of voters. This is a particularly relevant
problem of affirmative action having in mind that the definitions of national
minorities applied in each country are ad hoc, vague and vary significantly.
67.
Another legal as well as political issue for the affirmative action
electoral rules is the question of the nature and the meaning of the
representation. The mechanism of guaranteed mandates for members of national
minorities in Parliament or at local or regional level, for example, opens the
question of the nature of the representation and of the mandate of those
deputies. Is their mandate strictly on matters affecting minorities and
minority rights only (imperative mandate) or is it an ordinary (open or
political) mandate?
68.
The affirmative action in the sphere of electoral rules opens other
relevant legal issues. This again proves the controversial nature of
affirmative action in general. Yet, its rationale is strong and on the basis of
it countries will develop a wide diversity of mechanisms in accordance with
their historical and legal traditions, and the political system. In that
direction the Venice Commissions' Code of goodpractice in electoral matters provides some of the basic principles for
developing electoral affirmative action rules in accordance with the Europe'selectoral heritage. Among them we will emphasise here the following principles:
a.
Parties representing national
minorities must be permitted. Yet the participation of national minorities in
political parties is not and shall not be restricted to the so-called ethnic
based parties.
b.
Special rules guaranteeing
national minorities reserved seats or providing for exceptions to the normal
seat allocation criteria for parties representing national minorities (for
instance, exemption from a quorum requirement) do not in principle run counter
to equal suffrage.
c.
Neither candidates nor voters must
find themselves obliged to reveal their membership of a national minority.
d. Electoral
thresholds should not affect the chances of national
minorities to be represented.
e. Electoral
districts (their number, the size and form, the magnitude) may be
designed with the purpose to enhance the minorities' participation in the
decision-making processes.
69. Affirmative action electoral rules, as the
experience of the OSCE High Commissioner on National Minorities shows, are
particularly productive when applied in local elections. Furthermore, in territories
where national minorities represent a substantial part of the population, the
delimitation of territorial entities (constituencies, municipalities), in such
a way as to prevent dispersal of the members of a national minority, may favour
the representation of minorities in the elected bodies, as underlined by Recommendation
43, on Territorial Autonomy and National Minorities, of the Congress of
Local and Regional Authorities of the Council of Europe.
70.
The above mentioned principles can provide a basis for developing common
European frameworks, if not yet standards for affirmative action rules,
for national minorities' participation in the decision-making.
The wide variety of electoral systems have
been grist to generations of legal specialists, political analysts and
mathematicians and will continue to be so. It is true that they do not all
without exception guarantee that national minorities are fairly represented,
but the main conclusion which may be drawn from the foregoing analysis is that
there is no absolute rule in this field. Indeed, the electoral system is but
one of the factors conditioning the presence of members of minorities in an
elected body. Other elements also have a bearing, such as the choice of
candidates by the political parties and, obviously, voters' choices, which are
only partly dependent on the electoral system. The concentrated or dispersed
nature of the minority may also have a part to play, as may the extent to which
it is integrated into society, and, above all, its numerical size.
Nevertheless, the electoral
system is not irrelevant to the participation of members of minorities in
public life. On the one hand, certain states - but they are few in number -
have specific rules designed to ensure such participation. On the other hand,
it may be that neutral rules - for example, those relating to the drawing of
constituency boundaries - are applied with the intention of making it easier
for minorities to be represented. More often than not, however, the
representation of minorities is not a deciding factor in the choices made when
an electoral system is adopted or even put into practice. However, as regards the
presence of members of minorities in elected bodies, the following general
remarks may be made.
- The impact of an
electoral system on the representation of minorities is felt most clearly when
national minorities have their own parties.
- It is uncommon for
political parties representing national minorities to be prohibited by law and
highly unusual for this in fact to happen. Only in very rare cases does this
constitute a restriction upon the freedom of association, which nonetheless
respects the principle of proportionality, and is consistent with the European
constitutional heritage.
- Although parties
representing national minorities are very widely permitted, their existence is
neither the rule nor indispensable to the presence of persons belonging to
minorities in elected bodies.
- The more an electoral
system is proportional, the greater the chances dispersed minorities or those
with few members have of being represented in the elected body. The number of
seats per constituency is a decisive factor in the proportionality of the
system.
- When lists are not
closed, a voter's choice may take account of whether or not the candidates
belong to national minorities. Whether or not such freedom of choice is
favourable or unfavourable to minorities depends on many factors, including the
numerical size of the minorities.
- Unequal
representation may have an influence (positive or negative) on the
representation of concentrated minorities, but the replies to the questionnaire
do not indicate any concrete instances.
- When a territory
where a minority is in the majority is recognised as a constituency, this helps
the minority to be represented in the elected bodies, especially if a majority
system is applied.
To sum up, the
participation of members of national minorities in public life through elected
office results not so much from the application of rules peculiar to the
minorities, as from the implementation of general rules of electoral law,
adjusted, if need be, to increase the chances of success of the candidates from
such minorities.
