Constitutional Changes in Croatia: Technical Formality, a Political Breaking Point or Party Interests?

Additional Suffrage for National Minorities: Positive or Negative Discrimination?

Although many analysts and specialists for Croatian domestic politics predicted that the changes to the Croatian Constitution will be passed relatively swiftly, in order to timely conclude the European Union accession process and fulfill all legislative requirements for full membership, several issues have proven to be stumbling stones. One such issue is the possibility of an additional/supplementary suffrage for members of national minorities which has caused much discord between the HDZ (Croatian Democratic Union) - led government and the opposition led by the Social Democrats (SDP).

The political representation of national minorities in Croatia via guaranteed parliamentary seats is a practice that surpasses the standards for minority protection in EU member states. It reflects the specific traits of democratic transition in Croatia and relations in the Croatian political system. While in the Croatian case national minorities are guaranteed fixed parliamentary seats, EU member states showcase a plethora of different models. In Poland, national minority parties (e. g. Party of Silesian Germans) do not have to pass the 5 % electoral threshold, while in the case of the Hungarian minority in Slovakia there is no system of positive discrimination as the sheer size of this minority community guarantees its representation in the National Council of Slovakia.

Chapter 23 "Judiciary and Fundamental Rights" of the EU Accession Process (the Netherlands recently lifted its blockade of this Chapter for Croatia's Accession Process) stipulates a high level of protection of minority rights. However, European Commission reports on Croatia's progress in this area are mostly concentrated on the issue of return of refugees and their tenant rights, as well as their (proportional) employment in government and local self-government bodies, while the system of political representation on the highest (parliamentary) level does not present an open issue.

Sections of the current text of the Croatian Constitution, which is based on the so called "Christmas Constitution" (passed on December 22, 1990, with amendments in 1997, 2000 and 2001) which deal with the protection of minority rights represent an attempt of distancing from the Constitution of the former Socialist Republic of Croatia which defined the country as a national state of Croats and Croatian Serbs (the most numerous minority had a status of a constitutional nation). For this reason, the Historic Foundations of the Croatian Constitution (which form an introductory note to the constitutional text) mention, additionally to Croats, all autochthonous national minorities in Croatia (Bosniaks, Slovenians and Roma were left out, this omission will be corrected with the current constitutional changes). Chapter 15 of the Croatian Constitution explicitly states that laws may be passed which will entitle national minorities, additionally to the universal suffrage, a special suffrage for national minority representatives in the Croatian Parliament.

The Croatian government, led by HDZ, has in its proposal of constitutional changes exposed no remarks to this Chapter. In other words, the government's stand is that the current practice and active electoral laws are in line with this constitutional provision and does not need to be changed or supplemented by special laws of lower ranks, as members of national minorities already have guaranteed parliamentary seats and can decide on election day whether to make use of their universal suffrage or their special, national minority suffrage. The constitutional changes proposed by the opposition, presented in the Croatian Parliament by MPs from the ranks of SDP, HNS (Croatian People's Party) and IDS (Istrian Democratic Assembly) hold that Chapter 15 of the Croatian Constitution stipulates the passing of additional laws that would, parallel to universal suffrage, enable a second vote for members of national minorities.

Although positive discrimination through an additional vote for members of national minorities represents a step forward in democracy development from the perspective of protection of minority rights, a view from the perspective of a general equality of all citizens before the law would deem such a solution as discriminatory against the majority population which would have a single vote at elections, while members of national minorities would effectively be given two votes.

Bearing in mind the practice of political bartering amongst political parties and electoral engineering, we should point out to the maneuvering space and interests of the parties which submitted their proposals of constitutional changes. The ruling coalition led by HDZ includes national minority parties (SDSS –Autonomous Democratic Serb Party), as well as other national minority MPs. Although HDZ holds that national minorities are well protected and represented by the current model and clearly opposes a second vote for minorities, in order to maintain the stability of the coalition and the parliamentary majority, it will have to carefully access the demands of its national minority coalition parties. On the other hand, the oppositional proposal of a second vote for national minorities reflects several traits of the Croatian party system. SDP (to a greater extent) and HNS (in a smaller scope) are a preferred political option for many members of national minorities. At the latest local elections in May and June 2009 SDP won the majority in several municipalities with a Serb national majority (e. g. Vojnić and Donji Lapac). A second vote for national minorities would increase the Social Democrats' chances at winning additional votes in the Serb minority electorate, which under current electoral laws have to make a choice whether to vote for a minority party such as SDSS or a national party according to universal suffrage. IDS, as a regional party with an accent on the multiethnic and multicultural identity of Istria, would benefit from the additional minority suffrage and thus gain (even) more votes among members of the Italian national minority. Also, as HDZ, from the first democratic parliamentary elections onward, represents the strongest party amongst Croatian nationals living outside of Croatia (Bosnia and Herzegovina, Diaspora), the oppositional proposal of a second vote for national minorities can be understood as an attempt of counter-balancing of this, quite specific, trait of the Croatian political and party system.

Finally, bearing in mind that HDZ clearly opposes a second vote for national minorities, the fact that SDP as the key actor proposing this constitutional change did not manage to pass such a solution while the Social Democrats and Social Liberals were in power (2000-2003) and include it in constitutional amendments of 2001, as well as knowing that such a solution would is in no way a prerequisite of the EU accession process, we should not expect that the parliamentary debate will lead to the adoption of the additional suffrage for members of national minorities.

The Referendum and Suffrage for the Diaspora: A Quest after a Viable Model or a Struggle for Party Interests?

According to the constitutional provision about Republic of Croatia joining alliances and unions with other states, a referendum is required. A parliamentary decision backed by a two thirds majority has to be confirmed on a referendum by the majority of the whole electorate. Regarding the current provision which requires a strict majority a change was proposed which would enable a successful referendum outcome by defining a minimal vote turn-out. The reason stated for such a change is a large numbers of electoral abstainers among Croatian nationals living outside of Croatia. In a case of a referendum, their abstaining from elections would automatically represent a vote "against". Therefore, the government has proposed that a for a successful referendum outcome, a majority of voters who have cast their vote in the Republic of Croatia would count.

The oppositional proposal (SDP, HNS, and IDS) does not explicitly state a solution which would ensure a successful referendum on EU accession. The opposition proposed a supplement of Chapter 45 of the Constitution on casting ballots on elections in the Republic of Croatia. According to this proposal, all voting stations outside of the country (i.e. in embassies and consulates) are to be abolished. A universal suffrage for all Croatian citizens would stay intact, but the Diaspora would have to cast their votes at voting stations in the Republic of Croatia. On the basis of that constitutional provision, additional changes to electoral laws, as well as laws on electorate lists and resident laws would be made.

The opposition is clearly trying to use these constitutional changes in order to fulfill its goals at restricting the voting rights of the Diaspora (an electorate which rarely votes for the Social Democrats). Namely, all previous parliamentary elections have shown that the Diaspora exclusively brings additional parliamentary seats to the ruling HDZ. In this light, the opposition is trying to make use of the fact that a two thirds parliamentary majority (which includes both the coalition and the opposition parties) is needed for changes to the Constitution and thus pass changes which would limit the influence of the Diaspora on party power relations in the Republic of Croatia. As the ruling HDZ will surely not renounce the support of the Diaspora according to the oppositional proposal, a compromise solution will be needed. From possible solutions, we should single out the limitation of voting stations outside of Croatia, or, more likely, a fixed number of parliamentary seats reserved for the Diaspora. It is very likely that HDZ will try to keep Chapter 45 of the Constitution unchanged and propose a solution through the passing of a general, non-constitutional law. In that case, changes to Chapter 45 of the Constitution could be prolonged until the next parliamentary elections, or, more precisely, until a possible government change.

Constitutional Changes and Transitional Justice

Democratic transition and privatization in Croatia were conducted according to laws. Formally, these processes seem legal. Despite this, the general public often describes the privatization process as a "legalized robbery of the century". Privatization represents the economic dimension of democratic transition in Croatia. Although the privatization was conducted according to legal provisions, it is deemed "reeking of crime". We can see that the rule of law has failed.

The theory of democratic transition describes the rule of law as one of the most important social arenas of successful democratic transition. In the Croatian case, we can state that the arena of the rule of law is a social arena not yet established. This fact has and still does impede Croatia's progress on its way towards EU membership. Changes to the Constitution are meant to establish and fulfill the rule of law in Croatia, in order to create a more civilized Croatia. During the economic transition and privatization many injustices and damages to the development and future of the society were conducted. The key players of the Croatian model of economic transition as the "legalized robbery of the century" committed an economic crime against its own compatriots, restricting their existence, development and future. Such a model of privatization enabled organized crime and corruption which can only be defeated by the establishment of the rule of law and transparent rules.

The Croatian model of privatization calls for the introduction of transitional justice. Transitional justice includes the punishment of key players of privatization who nominally acted lawfully, although the laws themselves were not an embodiment of justice. The fulfillment of demands after transitional justice and its implementation effectively represent the establishment of the rule of law and the re-establishment of trust in the constitutional and legal system of the Republic of Croatia, the building of social trust and full establishment of the rule of democracy which cannot be achieved without the rule of law and the trust in the system.

The negative social climate surrounding privatization, the ever growing demand of the public after dealing with this part of the national past, the top-down pressure (EU) and the strategic plan of EU accession have all had its influence on the political elite and its initiative of constitutional changes and the supplement of Chapter 31 of the Croatian Constitution. This is the case of paragraph 4 which stipulates the lifting of time limitation for corporate crimes conducted during the process of privatization. This change is proposed both by the government (September 2009) and the opposition (October 2009). Although the two proposals differ, they are both grounded in the idea of the establishment of the rule of law and transitional justice (a posteriori).

The government proposal admits the failure of the economic transition in Croatia as most of the citizens and nationals of Croatia did not benefit from it. Amongst other things, the proposals states that "during the privatization process the expected economic goals were not achieved". A lifting of the time limitation for crimes committed during the privatization process and the expropriation of assets gained from such conduct.

The oppositional proposal is much more detailed than the government proposal, as it invokes international conventions and international law which bind the Republic of Croatia. This proposal calls for punishment of perpetrators of heavy crimes in the process of privatization. It also advocates "the usage of taxation mechanisms to return a portion of the unjustly distributed national wealth to the society". Also, it states that "the speed and shamelessness of enrichment of individuals is a heavy blow to moral values of the Croatian society". The proposal made by the opposition calls for a revision of the privatization process. The proposal states that the Croatian State Audit Office recorded 1936 cases of privatization irregularities. Regarding the State Audit Office, the proposal implies that "the final report of the State Audit Office ascertained that for the majority of recorded irregularities which represent a felony, a time limitation has already passed, while 1215 cases of irregularities do not represent a felony, i.e. no sanctions are foreseen. The State Audit Office has filed 71 charges with the State Attorney's Office for irregularities which were, according to reasonable doubt, presumed to be felonies, as well as 107 charges in the form of reports which contain all elements of a criminal charge."

The advantage of the oppositional proposal in comparison with the government's proposal is its elaboration of the legal basis of the changes called for. The legal basis is founded on the Croatian Constitution, the Criminal Code, the European Human Rights Convention and the International Covenant on Civic and Political Rights. The proposal refers to the issue of retroactivity in penal law and European verdicts which deemed "retroactivity acceptable and not contrary to the protection of basic human rights." Several cases supporting the claims are mentioned, as well as confirmations from academic and professional literature. In the end, the proposal states that "all data submitted support the claim that the proposed constitutional changes would lead the lifting of time limitation for all cases for which the time limitation has not already been reached."

Regarding both proposals, we must mention the critical voices which rose among lawyers and attorneys. Some of them hold that such a constitutional change is unnecessary and represents only an act of political manipulation to be used for purposes of domestic party politics, as well as international relations (EU). Namely, it is stressed out that even before these proposals for constitutional changes were submitted, a legal basis for taking action regarding time limitations for felonies conducted in the privatization process existed. A legal basis already existed in the Croatian Constitution, as well as in the Croatian Criminal Code, as well as the European Convention for the Protection of Human Rights and Fundamental Freedoms adopted by the Council of Europe. Bearing in mind the existing domestic and international regulations, one must state that the judiciary institutions could have acted well before the constitutional changes were proposed. Yet, they did not act for one reason only - there was no political will to do so and political interests were above the rule of law. On the other hand, strong overlapping of interests of political and state elites and underground elites (organized crime) barred the implementation of laws.

How should we, then, look at the proposal of changes to Chapter 31, § 4 of the Croatian Constitution? Strictly legally speaking, we must ask ourselves, in the light of taking of retroactive measures against actors who unlawfully appropriated material assets, is it still possible to do so. The oppositional proposal makes us believe it is possible. We can also view both the government's and the oppositional proposal as a constitutional amendment which will from the very beginning bring about little change due to low levels of political legitimization and decreased trust in the legal and political system of the Republic of Croatia. Additionally, we can call these proposals attempts at upgrading the existing laws and regulations, with the goal of establishing the rule of law and enabling transitional justice.

Finally, this proposal of constitutional changes can be also understood as ideological political adulation of the political elite to the citizens in order to win political points in the struggle against organized crime, corruption and failed economic transition which has brought about more losers than winners.

Anđelko Milardović
Davor Pauković
Višeslav Raos