–Matija Miloš, Faculty of Law, University of Rijeka, Croatia
What does it mean to “represent” the electorate? This issue is in the core of ongoing controversies raised by citizens’ initiatives, a form of direct democracy made a part of the Croatian Constitution almost twenty years ago. While direct democracy is normally reduced to an unmediated decision of “the people” and as such opposed to representation, citizens’ initiatives in Croatia have been vitally shaped by conflicting understandings of what representation is and what would remain of it once the initiative is carried through.
Two different understandings of representation dominate in the Croatian case. The first is representation as a political practice of speaking and acting for “the people”. Secondly, representation is understood to be a distinct, ongoing procedure that is constituted by law and can thus be legally separated from processes that may intersect with it. The main actor in shaping both is the Constitutional Court, the result being a form of direct democracy that poorly engages the electorate and simultaneously funnels political disputes, sometimes intensely political, into constitutional adjudication. While the Court emerges empowered, the contours of direct democracy and representation in Croatian law remain hazy.
Different visions of representation in Croatian direct democracy
When the Croatian Constitution was amended in 2000, it included a new provision on direct democracy. It provides that 10% of the electorate may initiate a referendum on a broad spectrum of issues, ranging from constitution-making to legislation. Since then, several civil society organizations have attempted to trigger referendums. Only one referendum has been held, and it introduced the definition of marriage as a heterosexual union into the Constitution. Other initiatives have either been declared unconstitutional or were not supported by enough voters. These were dedicated to a panoply of issues, ranging from discriminatory amendments to legislation protecting national minorities, particularly endangering Serbian nationals, to initiatives seeking to amend specific economic policies and reshaping the law of elections.
Even though initiatives diverge in terms of their subject matter, they follow a similar script. Each initiative is normally touted by its supporters as a space for pronouncing a more authentic vision of representation, a political argument that is merely meant to correct the short-sightedness of the political elite. On the other hand, those opposed to the initiative argue that, rather than being a mere argument that can displace current policies, the initiative represents an unconstitutional change in the workings of the representative process. The latter is depicted as a legally created construct that needs to be protected against the incursion of a direct decision of the electorate. The Constitutional Court is subsequently expected to adjudicate the dispute, and it normally defines the boundaries of the representative process in order to determine whether allowing a referendum to occur would the framework of regular political representation.
There are considerable problems with the way citizens’ initiatives operate under Croatian law.
Topics for a referendum are delineated by the Constitution in a troublingly broad fashion, which may mean that a small group may formulate a question that potentially amends the Constitution, enacts legislation and even rules on matters of overriding political importance that need not result in law.
The question may be formulated without engaging the broader electorate. All voters emerge as actors only once gathering signatures for the initiative commences. At this stage, they may only support the already suggested project or reject it. Should they support it, they form a part of “the people” that simultaneously fuses with a question it supports. It is only after this phase that the Constitutional Court may decide whether the initiative is constitutional.
Because of this configuration of the procedure, sometimes intensely political disputes, in which thousands participate, must be funneled into legal arguments. A complicating factor in the process is that the subject that is presumed to advance the initiative, the demos, is a mass of equal, disembodied and decontextualized signatures that may be given substance either by appealing to the political or legal context of the initiative.
Naturally, the Constitutional Court relies upon the legal context, postulating that representation, as a legally constructed process, is a rule. Any form of direct democracy, on the other hand, is an exception that may be clearly separated from representation. Should this exception violate the framework of representation in a way that is constitutionally deviant, the Court declares the initiative unconstitutional and the referendum never occurs. Imagining the initiative supported by enough voters as a political argument and a form of a more authentic representation apparently has no bearing on the case.
Mediating between different visions of representation
This apparently simple and uncontroversial approach of the Constitutional Court conceals a negotiation between different visions of representation. Should one read the Court’s case law systematically, it is apparent that it does not merely affirm key representative processes above the exceptional direct democracy, but that it also provides some space for an alternative reading of citizens’ initiatives. In this sense, the Court to some extent separates the legal dimension of the initiative, contained in an amendment to the existing law, from the political context. Even though an initiative may be unconstitutional for its law, the political message it contains, the argument from representing the people more authentically, receives a different treatment.
The Court delved into these efforts from the beginning of its work on citizens’ initiatives. Deciding on an early attempt to amend labor law legislation by way of a referendum, the Court found that the referendum need not be held because the executive abandoned its reform once the voters provided enough signatures in support of an alternative plan.
This finding is not significant on its face, given that courts in other jurisdictions have also found that referendums are unnecessary if the essence of the demand was already met by the legislature. Instead, this decision is significant because the Court drew a line between an argument contained in the initiative and its legal force. A change in policy that was not yet adopted by the legislator was sufficient to prevent a referendum, and signatures given in support for a referendum were interpreted to be given in support of a specific outcome.
Although the Court claimed that this was only a case-specific solution, the “will of the people” would gain independent force in subsequent cases. In the case of the marriage referendum the Court found that introducing the definition of marriage as a heterosexual union into the Constitution was not contrary to the fundamental act of the country insofar as the definition remained a symbol. In other words, it may express an aspect of the Croatian society, but it may not be a legal restriction on equality. While an initiative discriminating national minorities, particularly Serbian minority, was declared unconstitutional, the Court acknowledged that applying the law in some parts of the country may require adjustments specific to grievances related to the Homeland War, which were expressed by the organizers of the initiative.
Thus, while the Court steadfastly affirms the boundaries of representation, its work leaves behind segments of the initiative that contain arguments from representation and may affect the political space even if the initiative itself is declared unconstitutional. In some cases, this may relativize the way the Court is defining the scope and the content of representation. The initiative can thus be used to strengthen specific arguments drawing from representation, sometimes even if no referendum occurred. Experiences grounded in the war or pertaining to Croatian traditions may then be affirmed as being worthy of special regard. By deciding that initiatives are unconstitutional, the Court is simultaneously describing representation. It yet remains to be seen how its work will continue with the latest initiative, dedicated to undoing some segments of the ongoing retirement reform. Should the Parliament decide to adopt some of the demands, the Court will have to decide whether this is sufficient to avert a referendum and will thus continue to draw boundaries in this contested terrain.
Suggested Citation: Matija Miloš, Visions of Representation in Croatian Direct Democracy, Int’l J. Const. L. Blog, Sept. 3, 2019, at: