The IXth World Congress of IACL, Oslo 16 - 20 June 2014
Direct democracy (Workshop no. 16)
Constitutional Reforms of the Citizen Initiated Referendum:
Causes of Different Outcomes in Slovenia and Croatia
Robert Podolnjak⃰
Introduction
Referendums and citizens' initiatives have become a significant supplement to
representative democracy in many countries in the last few decades, especially in relation to
decisions on important constitutional and political questions.
On the other hand, it should be noted that the institute of referendum, especially one
connected with a citizens’ initiative, is often critically judged because of the possibilities of
abuse of direct democratic decision-making by the people, violations of fundamental human
rights and freedoms, and in some cases also because of disruptions to the regular functioning
of representative democracy institutions.
The Parliamentary Assembly of the Council of Europe stated in its Recommendation
on referendums1 from 2005 that they are “one of the instruments enabling citizens to
participate in the political decision-making process“. I would also like to emphasize the
Assembly’s recommendation that, as to the initiators of referendum, “popular initiative should
always be possible” (paragraph 13.b). However, when we speak of popular or citizens’
initiative, it should be noted that there are two main applications of this instrument of direct
democracy. They bear different names not only in English, but also in other languages.2 In
this paper, the terms “citizens initiated referendum” and “citizens’ legislative initiative” will
be used to refer to the two instruments.
⃰ Associate Professor of Constitutional Law, University of Zagreb, Faculty of Law, Department of Constitutional
Law, E-mail: [email protected].
1
Recommendation 1704 (2005): Referendums: towards good practices in Europe, available at
http://assembly.coe.int/Main.asp?link=/Documents/AdoptedText/ta05/EREC1704.htm
(last
accessed
on
February 6, 2014).
2
As remarked by Markku Suksi „there exists no universal referendum terminology“ (Suksi,, Bringing in the
People: A Comparison of Constitutional Forms and Practices of the Referendum, Martinus Nijhoff publishers,
Dordrecht/Boston/London, 1993, p. 10.
2
The citizen initiated referendum gives to the voters the right to vote in a referendum on
a constitutional, political or legislative question proposed by a certain number of citizens,
without any initiative or proposal by a state authority (e.g. government, parliament or
president). The essential requirement for this type of referendum is that the initiators must
collect a number of signatures prescribed in the constitution or a statute.
On the other hand, the citizens’ legislative initiative (or agenda initiative) is a
procedure whereby the citizens may propose to the parliament to debate on and eventually
adopt a legislative proposal (e.g. a draft law). As with the citizen initiated referendum, a
certain number of signatures are needed for the initiative to be valid. However, in the case of
legislative initiative there exists no obligation to put the proposal to a referendum, in case of
parliament’s refusal to adopt it, but rather it is possible for the parliament to put the proposal
to the vote. In this paper I shall only deal with the citizen initiated referendum, which ends, as
a rule, with a popular vote in a referendum and is, therefore, often referred to as a full-scale
initiative.3 It should be said that the other institute – the citizens’ legislative initiative – is not
provided for in the Croatian Constitution or legislation, but makes part of the Slovenian
constitutional order.4
Although referendum is well established as a means of direct decision-making by the
people in most European countries, it is equally true that the institute of citizen initiated
referendum is uncommon in the older Western European countries – only Switzerland and
Italy (and the tiny country of Lichtenstein) have forms of citizen initiated referendum. On the
other hand, almost all newly adopted Eastern European constitutions provide for various
instruments of direct democracy5, and what is even more interesting for my analysis, the
constitution-makers in the new democracies of Central and Eastern Europe seem to have
embraced much more enthusiastically, at least in terms of the number of countries, the idea of
allowing the people to initiate referendums on constitutional or other matters under the
jurisdiction of their respective parliaments. The citizen initiated referendum is part of the
constitutional order in many post-communist countries, such as Latvia, Lithuania, Slovakia,
Ukraine, Hungary, Slovenia, Croatia, Albania, Macedonia and Serbia.
3
Theo Schiller & Maija Setälä, Introduction, in Maija Setälä & Theo Schiller eds., Citizens' Initiatives in
Europe: Procedures an Consequences of Agenda-Setting by Citizens, Palgrave Macmillan, 2012, p. 1.
4
According to Article 168 of the Slovenian Constitution at least thirty thousand voters may introduce a proposal
to initiate the procedure for amending the Constitution, and according to Article 88 laws may be proposed by at
least five thousand voters (The Constitution of the Republic of Slovenia, available at http://www.usrs.si/media/constitution.-.en.14.11.2013.pdf (last accessed on February 6, 2014)
5
Georg Brunner, Direct vs. Representative Democracy, in Andreas Auer & Michael Butzer eds., Direct
Democracy: The Eastern and Central European Experience, Ashgate, Aldershot, 2001, p. 222.
3
The constitutions of these countries provide for different forms of citizen initiated
referendums. In only a minority of them is it possible for citizens to initiate a constitutional
referendum like in Switzerland, or an abrogative legislative referendum like in Italy. The rules
for validity of referendum results contain many differences as to the questions that may be put
on the ballot, the number of signatures that must be collected or turn-out and/or approval
quorums. There is no single predominant model.
Having in mind the experience with citizen initiated referendums in the last two
decades in the new democracies of Central and Eastern Europe, it could be concluded that the
constitutional provisions related to citizens’ initiatives, at least in some of these countries,
were designed without due knowledge of comparative experiences and without necessary
constitutional safeguards. As for the comparative experiences at the national level, only
Switzerland and Italy could have served as models. Paradoxically, the two countries with the
most experience in different forms of citizens’ initiatives on the sub-national level, the United
States and Germany, have had no experience of direct democracy at the national level.
This paper deals only with two new democracies which have constitutionalized
citizens’ initiatives – Slovenia and Croatia. These neighbouring countries are both former
federal republics of Yugoslavia and member states of the European Union.6
In the opinion of many Slovenian and Croatian scholars, the constitutional and
legislative designs of citizen initiated referendums in their countries have numerous flaws.
Referendums initiated by citizens have caused many unexpected political and/or economic
problems, preventing much needed economic and social reforms as in the case of Slovenia, or
bringing the country to the brink of a constitutional and political crisis, as was recently the
case in Croatia. Over the years several unsuccessful constitutional reforms of the institute of
referendum have been attempted both in Slovenia and in Croatia. However, in May 2013 the
Slovenian Parliament amended the provisions of the Constitution pertaining to the design of
the legislative referendum. Half a year later, the Croatian Parliament’s attempt to amend the
constitutional provision relating to the citizens’ initiative came to nothing. In this paper I will
try to elaborate why the Slovenian constitutional reform was successful, and why the Croatian
one failed. Before that I will briefly outline the similarities and differences of the original
designs of referendums and citizens’ initiatives in Slovenia and Croatia, followed by an
account of the experiences with these institutes of direct democracy in the two countries.
6
Both countries have been neglected, in my opinion, in comparative analyses of the citizens' initiatives. The
earlier mentioned collection of articles in Maija Setälä & Theo Schiller eds., Citizens' Initiatives in Europe:
Procedures and Consequences of Agenda-Setting by Citizens, confirms this observation.
4
The original designs of referendums and citizens’ initiatives in Slovenia and Croatia:
similarities and differences
Both Slovenia and Croatia were born through a referendum. The Slovenian
referendum on sovereignty and independence was held in December 1990, and a similar
Croatian plebiscite took place in May 1991. Both countries also held referendums on EU
membership (Slovenia in March 2003, and Croatia in January 2012). According to Stephen
Tierney’s methodology7, all these referendums were in a broad sense constitutional
referendums, although formally the subject matter of these referendums was not a
constitutional provision. The referendums on independence and EU membership are the most
comparable cases in the history of direct democracy in Slovenia and Croatia.8 Also, both the
Slovenian and Croatian Constitutions do not require an obligatory referendum on enacting or
amending the constitution. Only the facultative constitutional referendum is prescribed.
On the other hand, the forms of direct democracy found in the constitutional orders of
these two countries differ to a great extent.
The Slovenian Constitution provides for the institute of popular constitutional
initiative. According to Art. 168 “a proposal to initiate the procedure for amending the
Constitution may be made by twenty deputies of the National Assembly, the Government or
at least thirty thousand voters”. 9 Such a proposal is decided upon by the National Assembly
with a two-thirds majority vote of deputies present. The National Assembly adopts acts
amending the Constitution by a two-thirds majority vote of all deputies (Art. 169 of the
Constitution). However, the Constitution gives to the parliamentary minority (a minimum of
thirty deputies) the option to demand confirmation of the proposed constitutional amendment
by referendum (Art. 170). A constitutional amendment is adopted if a majority of those voting
in a referendum vote in favour, provided that a majority of all voters participated in the
referendum. The validity of results of a constitutional referendum depends therefore on the
fulfilment of the participation quorum. The Slovenian constitution has been amended several
7
Stephen Tierney, Constitutional Referendums: The Theory and Practice of Republican Deliberation, Oxford
University Press, Oxford, 2012, p. 11.
8
There is another comparable case. In both countries citizens had the opportunity to vote against the same-sex
marriage – in Slovenia against the Family Code in 2012, and in Croatia for the constitutional amendment on the
marriage as a union of woman and man in 2013.
9
The Slovene Constitution, as amended until 2006, is available at http://www.servat.unibe.ch/icl/si00000_.html
(last accessed on February 6, 2014).
5
times, but the optional constitutional referendum demanded by 30 deputies has never been
initiated.10
A much more interesting part of the Slovenian constitutional arrangement of
referendum was the original design of the legislative referendum. Article 90 of the
Constitution prescribed that the National Assembly may call a referendum on any issue which
is subject to regulation by the law on its own initiative; however, it must call such a
referendum if so requested by at least one third of the deputies, by the National Council (the
second house), or by forty thousand voters. Slovenian constitutional scholars have
emphasized that, comparatively speaking, the number of proponents allowed to initiate a
referendum was very high.11 It is also very important to note that, unlike in the case of the
constitutional referendum, the decision in a legislative referendum would be valid if a
majority of those voting cast votes in favour. So, the participation quorum or the acceptance
quorum were not required in the constitutional provision on the legislative referendum drafted
in 1991. And finally, the Constitution prescribed that any issue subject to regulation by the
law could be the subject of a legislative referendum.
The original Croatian Constitution adopted in 1990 envisaged only the facultative
referendum on constitutional or legislative matters (Art. 86 of the original Constitution, today
Art. 87).12 The Croatian Parliament may call a referendum on a proposal to amend the
Constitution, on a bill, or on any other issue within its competence. The President of the
Republic may, at the proposal of the Government and with the counter-signature of the Prime
Minister, call a referendum on a proposal to amend the Constitution or any other issue which
he considers to be important for the independence, unity and subsistence of the Republic of
Croatia. Neither the Parliament nor the President have ever called a referendum on a proposal
to amend the Constitution.
A turnaround came in 2000 when the citizens’ initiative was constitutionalized. Upon
the proposal of a small parliamentary party (the Croatian Party of Rights), whose votes were
necessary for achieving the two-thirds parliamentary majority for accomplishing the most
significant constitutional transformation of the original semi-presidential into the
parliamentary system, Art. 86 was amended to set out that the Croatian Parliament shall call a
10
The answer is simple. The National Assembly has 90 deputies and 2/3 majority (60 MP’s) is required for
passing constitutional amendments. Only in the case that no more than 60 deputies vote for the amendments in
the National Assembly, there would be enough MP’s in the minority to call a constitutional referendum.
11
Igor Kaučić ed., Zakonodajni referendum, GV Založba, Ljubljana 2010 (see Summary: Legislative
Referendum – Law and Practice in Slovenia), p. 281.
12
The only obligatory referendum prescribed in the Croatian Constitution is the referendum on association or
disassociation of the Republic of Croatia into alliances with other states.
6
referendum upon any issues that may be put to a referendum by the Croatian Parliament or the
President, when so requested by ten percent of all voters in the Republic of Croatia.
With this constitutional provision the Croatian citizens acquired the right to a fullscale popular constitutional initiative (to demand a constitutional referendum), whereas the
Slovenian citizens have at their disposal only the weaker form of popular constitutional
initiative (the agenda initiative), which must only be debated by the Parliament and will under
no circumstances lead to a referendum.
The final change as to the design of the institute of referendum in the Croatian
constitutional order and one highly relevant for the success of future referendums was the
elimination of any quorum as a condition for the validity of the results of a referendum in
2010. The original Croatian constitution13 contained both the acceptance (or approval)
quorum and the participation quorum. Article 135 (today Art. 142) prescribes obligatory
referendum as a final formal step required to allow association of Croatia with other states (or,
for that matter, disassociation). Most importantly, the decision concerning the Republic's
association had to be reached by a majority vote of the total number of voters (the acceptance
quorum of 50% + 1). For all other instances of state referendums the Constitution had
provided (in Art. 86) that the decision was to be made by a majority of the votes cast,
provided that the turnout is above 50% of the electorate (the participation quorum).14
It was obvious to a vast majority of Croatian politicians and constitutional scholars
that the approval quorum for the referendum on state alliances was too high a barrier and that
it could present the strongest obstacle in the process of accession of Croatia to the EU,
considering that this organization is a sort of union of states (and not simply an international
organization). For this reason, the Constitution was amended in 2010 and (among other
changes) all quorum-related requirements for the validity of referendum decisions were
deleted.15 The intention of the constitution makers was only to facilitate the decision in the
forthcoming EU referendum, but the consequences have been much broader. It is important to
note that it is now much easier to reach any decision in a state referendum, even to amend the
Constitution itself, by a simple decision of the majority of votes cast.
13
The text of the original Constitution is available at http://www.servat.unibe.ch/icl/hr01000_.html (last
accessed on February 6, 2014).
14
See Siniša Rodin, Country Report - Croatia, in Andreas Auer & Michael Butzer eds., Direct Democracy: The
Eastern and Central European Experience, Ashgate, Aldershot, 2001, pp. 29-30.
15
See Branko Smerdel, The Constitutional Order of the Republic of Croatia on the Twentieth Anniversary of the
'Christmas' Constitution – The Constitution as a Political and Legal Act, in The Constitution of the Republic of
Croatia, Novi Informator, Zagreb 2010, p. 93.
7
As for similarities between the Slovenian and Croatian constitutional arrangements
regarding citizens’ initiatives, two seem to be of utmost importance. The first is the lack of
any kind of participation or approval quorums which would prevent referendum decisions
supported by a small minority of interested voters (for Croatia this applies from 2010) from
being adopted. The second is the possibility to call a referendum on any legislative issue (in
Croatia also on a constitutional issue), which has had as a consequence that in both countries
only the constitutional courts could determine whether a certain issue is constitutionally
allowed to be decided in a referendum. The legal basis for the authority of the Slovenian
Constitutional Court is contained in Art. 21 of the Referendum and Public Initiative Act,
which states that “if the National Assembly deems that unconstitutional consequences could
occur due to the suspension of the implementation of a law or due to a law not being adopted,
it requests that the Constitutional Court decide thereon“.16 The legal basis for the Croatian
Constitutional Court is contained in Art. 95 of the Constitutional Act on the Constitutional
Court: “At the request of the Croatian Parliament, the Constitutional Court shall, in the case
when ten percent of the total number of voters in the Republic of Croatia request calling a
referendum, establish whether the question of the referendum is in accordance with the
Constitution and whether the requirements in Article 86, paragraphs 1-3, of the Constitution
of the Republic of Croatia for calling a referendum have been met.” 17
Having in mind the Slovenian referendum experience, Professor Ciril Ribičič, also a
former judge of the Slovenian Constitutional Court, wrote in 2011 that the arrangement,
according to which the Constitutional Court rules on whether a referendum would be allowed
or not should be changed. That arrangement, in his opinion, gives to the Constitutional Court
such broad discretion with regard to referendums that its decisions, even if they are well
elaborated, are always deemed arbitrary by at least one side involved in the dispute over a
possible referendum on some legislative act.18
The referendum experience in Slovenia and Croatia
16
See http://www.us-rs.si/en/about-the-court/legal-basis/the-referendum-and-public-initiative-act/ (last accessed
on February 28, 2014).
17
The
Constitutional
Act
on
the
Constitutional
Court,
available
at
http://www.usud.hr/default.aspx?Show=ustavni_zakon_o_ustavnom_sudu&m1=27&m2=49&Lang=en
(last
accessed on February 28, 2014).
18
See Ribičič, Slovenija in referendum: Referendumsko odločanje ne sme nadomeščati vloge parlamenta
(Slovenia and referendum: Referendum decisions cannot replace the role of the Parliament), available at
http://www.dnevnik.si/mnenja/komentarji/1042425320, last accessed on February 28, 2014).
8
As to the number of referendums held, Slovenia is fourth in Europe after Switzerland,
Italy, and Ireland, and third when it comes to citizen initiated referendums. In Slovenia 21
referendums have been held to date, while in Croatia only three. Of these, as noted above, two
in each country concerned the same issues (sovereignty and independence, and EU
membership). Some referendums called by the Slovenian Parliament on its own initiative (one
on NATO membership and an advisory referendum on the establishment of regions) are not
relevant for this paper, which leaves 16 legislative referendums held in Slovenia in the period
between 1996 and 2012. Less than half of them were held on the initiative of the citizens.
Nine referendums were called at the request of one third of the deputies of the National
Assembly, seven were called at the request of 40,000 voters, and two were called at the
request of the second house – the National Council (the first referendum on the electoral
system was called on the initiative of all three authorized subjects). It is very important to
emphasize that the successful Slovenian constitutional reform of the legislative referendum
pertained not only to the reform of the citizen initiated referendum, but also to the so-called
‘opposition referendum’.
Slovenia was, together with Denmark, the only European country to constitutionalise
the legislative referendum required by a parliamentary minority, and it is precisely this form
of referendum which was ‘to blame’ for the majority of legislative referendums held in
Slovenia. In other words, almost every time the government was about to implement a
legislative project, the Parliamentary opposition would initiate the procedure of demanding a
referendum on a law passed by the Parliament, practically moving the ‘legislative battle’ onto
the referendum field. This use of the legislative referendum, as a sort of a weapon of the
defeated parliamentary opposition against the government of the day, became almost a rule. In
that way, the referendum was used not as an instrument of the citizens, but as an instrument of
opposition parties against the policies of the government. Implementation of important
economic and social reforms was prevented and each legislative referendum was just another
decision manifesting distrust of the government.19
Between December 2010 and March 2012 there were six legislative referendums in
Slovenia concerning important laws that had been passed by the National Assembly, and in all
of them the majority of voters voted against the law. At the request of the parliamentary
opposition (most of which were representatives of the Slovenian Democratic Party, the
strongest opposition party at the time) the legislative referendums were held on the National
19
See e.g. Drago Zajc, O referendumu, Državnem svetu in spremembah Ustave (On referendum, the National
Council and the changes of the Constitution) Pravna praksa, no. 30/2012, p. 11.
9
Radio and Television Company Act in December 2010, the Act on the Prevention of Illegal
Work and Employment, and the Act on Amendments to the Act on Protection of Document
and Archive Materials and Archives in June 2011. At the request of the voters the legislative
referendums were held on the so-called Mini Jobs Act in April 2011, the Act on Pension and
Disability Insurance in June 2011, and on the Family Act in March 2012. In each of these
cases large majorities of voters (over 70%) voted against the laws passed by the National
Assembly (except in the case of the Family Act where ‘only’ 55% of the voters voted against
the law).20 However, the turnout in these referendums was relatively low: less than 15% in the
referendum on the National Radio and Television Company Act, 30% in the referendum on
the Family Act, and about 40% on the three referendums held on the same day in June 2011.
In the view of Slovenian scholars the rejection of the very important Act on Pension and
Disability Insurance had the most damaging economic consequences21 as it prevented the
necessary reform of the pension system, and presumably led to the downfall of the Social
Democratic government in September 2011. Just before the referendums on the pension
reform and on the prevention of illegal work, and on the so-called ‘mini jobs’, the Prime
Minister of the day Borut Pahor predicted that if these laws were to be repealed, the credit
rating of Slovenia would drop and the state would find itself in a debt crisis.
After the early election for the National Assembly held on 4 December 2011 the new
centre-right government was formed. However, the structural reforms of the new government
immediately led to the already familiar model of vetoing essential legislative projects by
demanding a legislative referendum. This time it was Positive Slovenia, the strongest
opposition party, accompanied by a number of trade unions (who submitted its members'
signatures) who demanded a referendum on the Slovenian National Holding Company Act,
which had been designed to manage all state capital funds, and on the so-called ‘Law on Bad
Banks’ (Act on the Measures of the Republic of Slovenia to Strengthen the Stability of
Banks), whose purpose is evident from its full title.
The Government required from the Constitutional Court to prohibit the referendums
on these two laws claiming that their rejection would have unconstitutional consequences.
20
Even before these referendums the Slovenian constitutional scholar Ciril Ribičič commented in early 2011: „It
is inconsistent with the constitutional idea of referendum that referendum becomes an everyday final phase of
the legislative process and threatens to become the inglorious end to all the major legal projects. Today it is not
difficult to predict that a referendum vote could be called on any substantial law, and also that the law would fail
on the referendum.” (Ciril Ribičič, Slovenija in referendum: Referendumsko odločanje ne sme nadomeščati
vloge parlamenta (Slovenia and referendum: Referendum decisions cannot replace the role of the Parliament),
available at http://www.dnevnik.si/mnenja/komentarji/1042425320, last accessed on February 28, 2014).
21
A revised Act on the pension reform, agreed among all social partners, was unanimously adopted by the
National Assembly in December 2012.
10
Surprisingly for many Slovenian constitutionalists the Constitutional Court declared the
referendums on both laws unconstitutional. The Constitutional Court held that the delay or
rejection of these two laws at referendums would have unconstitutional consequences. Having
weighed two conflicting constitutional values (the right to request a call for referendum on the
one hand, and safeguarding efficient functioning of a state and guaranteeing the exercise of its
vital functions on the other) the Constitutional Court held that the right to request a call for a
legislative referendum is subordinate to ensuring undisturbed exercise of state functions,
including the creation of conditions for the development of the economic system, to ensuring
respect for the rights guaranteed by the Constitution, in particular the rights to free enterprise,
social security, health care, the rights of disabled persons, and security of employment,
together with respect for the fundamental principles of international law and international
treaties, and to ensuring the effectiveness of the legal order of the European Union.22 The
Court’s decision, which was reached almost unanimously (8:1), was met with harsh criticism.
It seemed that the Court had altered its earlier adjudication on the admissibility of referendum
having in mind the changed economic circumstances.23
With this unprecedented decision the Court effectively limited the right of the
opposition or the voters to call for a legislative referendum on essential economic and social
legislation. What is even more important, this decision influenced to some degree the
willingness of political parties in the Slovenian Parliament (and especially of the opposition)
to amend the Constitution as to the design of the legislative referendum, after several earlier
unsuccessful attempts. The former leading opposition party (the Slovenian Democratic Party),
which had successfully used the legislative referendum against the government’s policies
several times, was now the governing party experiencing itself all the ‘evils associated with
the legislative referendum demanded by the opposition’. On the other hand, the opposition
parties, especially Positive Slovenia and the Social Democrats, realized that the referendum as
a weapon against economic policies of the government could now be successfully blocked by
the Constitutional Court, and had, therefore, lost its power as a means to bring down the
Government. It is therefore not a coincidence that the process of amending the Constitution
22
The decision of the Constitutional Court U-II-1/12, U-II-2/12 (in English), available at http://odlocitve.usrs.si/usrs/us-odl.nsf/o/399443A23488727DC1257AFA004A8AC6 (last accessed on February 6, 2014).
23
See France Bučar, Prepoved referenduma – za kaj v resnici gre (The Ban of the Referendum – What is actually
going on), Pravna praksa, January 10, 2013, p. 3. For the opposite argumentation see Matej Avbelj, Konec ali
začetek slovenskega ustavnega prava (The End or the Beginning of the Slovene Constitutional Law), Pravna
praksa, January 10, 2013, pp. 6-8.
11
progressed quickly after the Constitutional Court's decision to prohibit referendums on the
Slovenian National Holding Company Act and the so-called ‘Law on Bad Banks’.24
In comparison to Slovenia, Croatia’s experience with referendums is limited. As
mentioned above, Croatia has only had three referendums to date. A vast majority of the
Slovenian referendums have been legislative referendums whereas all three referendums in
Croatia have been constitutional. Seven referendums have been held in Slovenia at the request
of the voters, while in Croatia there has only been one such referendum – the already much
debated referendum on the constitutional definition of marriage.
It is hardly surprising that the number of citizen initiated referendums is much higher
in Slovenia seeing as only 40,000 signatures (about 2.5 % of all voters) need to be collected in
45 days. In Croatia, constitutionally are required signatures of at least 10 percent of all voters
(which is around 450,000 signatures), to be collected in only 15 days. The constitutional and
legislative requirements for collecting the signatures in Croatia are the most stringent in
comparison to other European countries which provide for citizens’ initiative. Therefore, it is
extremely difficult to collect the required number of signatures for calling a referendum on
citizens’ initiative in Croatia. It is obvious that accomplishing this requires excellent
organization or association.25 In other countries with citizen initiated referendums, like
Switzerland, Italy or Slovenia, political parties are often behind some initiative, lending it
their support and necessary infrastructure. In Croatia parties are, as a rule, in the background.
The leading role belongs to trade unions, war veterans associations, religious organizations
etc.
The constitutional provision concerning citizens’ initiative came to the forefront of the
Croatian public for the first time in April 2001. The leaders of certain war veterans
associations presented to the President of the Croatian Parliament a petition with more than
400,000 signatures, requesting a legislative referendum that would provide to the Croatian
Homeland War defenders the same legal treatment as for members of the winning and
liberation armies in World War II and exempt them from prosecution for war crimes that they
may have committed during the Homeland War. However, the parliamentary majority was
24
See The report on the Draft to start the procedure of amending the Constitution of the Republic of Slovenia
with the Draft Constitutional Law), that was submited to the National Assembly on January 15, 2013. Available
at http://imss.dz-rs.si/imis/f9650d809e82f514027c.pdf (last accessed on February 28, 2014).
25
In October 2011 the Slovenian scholar Cirila Toplak wrote that „in Croatia the Constitution provides for the
possibility of referendum, under such conditions that it is virtually impossible to hold one…Therefore, it is not
surprising that Croatia had a single referendum so far, the one on secession from Yugoslavia in 1991… Only the
largest political parties in Croatia have the infrastructure to collect nearly half a million votes necessary to call
for a referendum and none has done it yet”. See her paper ‘Referendum: a measure against democratic deficit vs.
tool of political blackmail', CEPSA Annual Conference, Vienna, October, 2011, p. 12 (available at
www.cepsa.at/ablage/2011/paper toplak.docx (last accessed on February 28, 2014).
12
disinclined to call a referendum on the basis of such a petition, since the Referendum Act of
the time did not provide for a procedure of organizing a citizen initiated referendum, meaning
that the conditions and the criteria under which a referendum could be implemented had not
been defined.
In the following years several citizens’ initiatives tried to collect the necessary number
of signatures to demand a referendum on some important matters, but all of them were
unsuccessful (repealing the Constitutional Act on the Cooperation of the Republic of Croatia
with the International Criminal Tribunal, NATO membership, the Arbitration Agreement
between Slovenia and Croatia on the maritime border issue26). After these three unsuccessful
initiatives Croatian citizens succeeded in collecting the necessary number of signatures in the
following three attempts.
In June 2010 the Croatian trade unions collected more than 800,000 signatures
requesting a referendum against the Government’s Draft Act Amending the Labour Act,
which contained provisions that would limit the continuation of worker’s rights established by
collective agreements to six months after the expiration or termination of the agreement, and
would also provide for cancellation of collective agreements concluded between trade unions
and employers. The government quickly withdrew the proposed draft from parliamentary
procedure, after which the Parliament refused to call a referendum claiming that there was no
law to be decided upon. The trade unions sued the Parliament to the Constitutional Court
arguing that lawfully collected signatures could not be ignored and that the trade unions have
no guarantee that the government would not resend the same draft to the parliament several
months later. If this had been the case, would the trade unions need to collect the signatures
again to bring the issue to a referendum?
The Constitutional Court ruled that there were no grounds for a referendum initiated
by trade unions considering that the government had withdrawn from Parliament its
amendments to the labour law. The decision was severely criticized by centre-left opposition
parties (the Social Democrats and the Labour party), who claimed that the Court was
influenced by the governing Croatian Democratic Union. The President of the Republic Ivo
Josipović, also a distinguished professor of law, publicly expressed his dissatisfaction with the
Court’s decision, openly stating that he would have voted differently. He was of the opinion
26
Interestingly, the referendum on the same issue was held in Slovenia in June 2010 (called by the National
Assembly on its initiative), and 51,54% of voters voted for the law ratifying the arbitration agreement. The
official results of the referendum are available at http://www.dvk-rs.si/index.php/si/arhivreferendumi/referendum-o-zakonu-o-arbitraznem-sporazumu-6-junij-2010 (last accessed on February 28, 2014).
13
that the Court’s decision could provoke further dissatisfaction among citizens and exacerbate
the popular distrust of national institutions.27
The second and the most successful citizens’ initiative in Croatia to date was the
initiative of the organization ‘In the Name of the Family’28, backed by the Catholic Church, to
call a referendum on the question: “Are you in favour of the constitution of the Republic of
Croatia being amended with a provision stating that marriage is a life union between a woman
and a man?” The initiative was a response to alleged Government plans to legalize same-sex
marriage. In May 2013 the initiative collected nearly 750,000 signatures29, thereby fulfilling
the basic requirement to call the first citizen initiated constitutional referendum in Croatia.
This initiative divided the Croatian public to a large extent regarding the definition of
marriage and caused considerable controversy and different constitutional interpretations by
individual actors within the Croatian Parliament and outside with respect to the treatment and
obligation of state authorities with regard to decision-making and the possible consequences
of decisions made by citizens in a constitutional referendum.
The most important controversies were the following: Is the Parliament obliged to call
a referendum in any case when required by a popular initiative and provided that the initiative
meets the constitutional requirements? Can the process of constitutional change through a
referendum be carried out outside and beyond the procedure for amending the Constitution
provided for in Chapter IX of the Constitution? Can the Croatian Parliament in any way
obstruct the will of the people, expressed either by signing the petition for a referendum or
through voting in a referendum? May MPs vote against calling a referendum required by a
citizens’ initiative claiming that they have no imperative mandate? Can the people decide in a
referendum on an issue which many consider to be discriminatory against a certain group of
people? Should the Constitutional Court issue an opinion on the constitutionality of the
referendum question, even if not requested by the Croatian Parliament? These and other
contentious issues have become the subject of intense political and scholarly discussion. The
opinion of some leading MPs belonging to the governing coalition was that the Parliament
could not be forced to call a referendum whose aim is to diminish rights of same-sex couples,
27
‘Constitutional Court decides against referendum on labour laws’, Croatian Times, available at
http://croatiantimes.com/?id=14570-newentry (last accessed on February 14, 2014).
28
Some information about the initiative may be found on its website - http://uimeobitelji.net/category/u-imeobitelji-eng/ (last accessed on February 4, 2014).
29
Officially only 683,948 signatures were accepted by the state authorities, but that was also more than was
needed to call a referendum.
14
and that the Parliament is the only body which, under the Constitution, has constitutionmaking power.30
A joint statement issued by all professors of constitutional law from the law faculties
in the country stated that such opinions could lead to an unprecedented constitutional and
political crisis. The following is an excerpt from this statement:
“The Croatian Parliament is obliged to hold a constitutional referendum if requested
by 10 percent of the total number of voters… Refusal of the Croatian Parliament to
call a referendum, even if the initiative has fulfilled all necessary formal and legal
requirements, would constitute a denial of the very essence of citizen initiated
referendum and could have immeasurable repercussions on the constitutional stability
of the country. Any decision of the citizens in a constitutional referendum would be, in
the nature of things, a decision of a constitutional nature, and would be binding on all
state authorities. It would represent a change in the Constitution, coming into force
upon a confirmation that a referendum was held in accordance with the
Constitution.”31
The request for a referendum by the citizens' initiative “In the Name of the Family"
pointed again and more than ever before to all the shortcomings of the constitutional and
statutory regulation of the institute of popular initiative.32
The six months long debate on the citizen initiated referendum culminated in the
Parliament’s decision in November 2013 to call the referendum, and in several decisions of
the Constitutional Court declaring that the referendum is constitutionally admissible. It should
be emphasized that the Constitutional Court had intervened several times before the calling of
the referendum and warned the Parliament to respect the Constitution, not only in terms of its
obligation to call a citizen initiated referendum, but also in terms of respecting the results of
the referendum vote as an act of constituent power of the people to change the constitution.33
30
The above mentioned Chapter IX titled 'Amending the Constitution'(Articles 147-150) prescribes only the
parliamentary route of the amending process. The constitutional referendum is mentioned only in Art. 87. The
Constitution is available in English at http://www.sabor.hr/Default.aspx?art=2405 (last accessed on February 28,
2014).
31
The statement (in Croatian) is available at http://www.pravo.unizg.hr/?@=6fkw (last accessed on February 4,
2014).
32
This much was confirmed also by Professor Jasna Omejec, the president of the Croatian Constitutional Court,
when she, after the referendum on marriage, stated: „The legislator has not sufficiently developed the rules of
procedure and the method of implementation of the popular constitution-making initiatives within
the…constitutional norms until now. Therefore, the Croatian Constitutional Court had to build up in its practice
the rules which must be followed when it comes to the implementation of the popular constitution-making
initiatives”. See Jasna Omejec, Narodna ustavotvorna inicijativa i razgraničenje nadležnosti između Hrvatskog
sabora i Ustavnog suda (The Popular Constitutional Initiative and the Delimitation of Competences between the
Croatian Parliament and the Constitutional Court), Informator, No. 6258, February 26, 2014, p. 1.
33
See especially Warning with regard to the Proposal of a Decision of the Committee on the Constitution,
Standing Orders and Political System of the Croatian Parliament to call a national referendum, of October 24,
2013,
available
(in
English)
at
http://sljeme.usud.hr/usud/prakswen.nsf/Novosti/C12570D30061CE54C1257C12004D2CCE?OpenDocument,
(last accessed on February 4, 2014), and the Communication on the citizens' constitutional referendum on the
15
The first referendum based on popular initiative was held on December 1. With a
relatively modest turnout of 37, 9% almost two-thirds of voters (946,433 or 65, 87%) voted in
favour of amending the Constitution to include the definition of marriage as a union of a man
and a woman.34
Almost at the same time, another initiative of a number of war veterans associations
(officially ‘The Committee for the Defence of Croatian Vukovar’) succeeded in collecting the
necessary number of signatures for a referendum to amend the Constitutional Act on the
Rights of National Minorities. They wanted the Act to be amended in such a way that
minority language rights would only be granted in local self-government units where at least
half of the population belongs to an ethnic minority. Under the current legislation in Croatia,
national minorities must represent at least one third of the population to be able to claim these
rights. The problem with minority language rights escalated with the installation of bilingual
public signs in Vukovar, where the Serbian minority, according to the latest census, represents
more than a third of the total population.35 To date the Croatian Parliament has not done
anything to implement this citizens’ initiative. It has not requested that the signatures be
officially verified, it has not referred the referendum question to the Constitutional Court for
review of its constitutionality, nor has it officially refused to call the referendum. It should be
noted that, among many other unregulated issues of the legislative framework for citizen
initiated referendums, no deadlines are prescribed for the Parliament to call a referendum after
it has received a petition with the signatures.
Constitutional reform of citizens’ initiatives: success in Slovenia, failure in Croatia
In May 2013 the Slovenian Parliament consensually, with the support of all parties,
amended Article 90 of the Constitution regulating the legislative referendum after several
unsuccessful attempts made over the years. On the other hand, several attempts of the
Croatian Parliament to amend the constitutional provision relating to citizens’ initiative,
including the last one in December 2013, have as yet been unsuccessful.
definition of marriage
(SuS-1/2013, November 14, 2013), available (in English) at
http://sljeme.usud.hr/usud/prakswen.nsf/Novosti/25A41945980A470EC1257C240047ECBE?OpenDocument
(last accessed on February 4, 2014).
34
The State Electoral Commission of the Republic of Croatia, The Report on the National Referendum held on
December
1,
2013,
available
at
http://www.izbori.hr/izbori/dip_ws.nsf/0/1E214A4855D86146C1257C3D00410D9F/$file/Izvjesce_o_provedeno
m_drzavnom_referendumu_0122013.pdf,( last accessed on December 20, 2013.).
35
See ‘Anti-minority referendum in Croatia to go to the Constitutional Court for review’, available at
http://www.minorityrights.org/12252/press-releases/antiminority-referendum-in-croatia-to-go-to-theconstitutional-court-for-review.html (last accessed on February 28, 2014).
16
Slovenian constitutional experts have long criticised the constitutional arrangement
and the practice of legislative referendum in their country, although, it must be said, they were
not of the same opinion in proposing alternative solutions. Basically, the consensus of the
constitutional scholars was that the legislative referendum should be left exclusively as an
instrument of the citizens. It should no longer be a means for parliamentary opposition (or the
second house) to undermine not only the government of the day, but also the parliamentary
system as a whole. Furthermore, there was an agreement in principle that some issues were
not suitable for deciding in a referendum, but opinions again varied as to the precise
formulation of those issues. Finally, there were also significant differences in relation to the
issue of whether to designate a specific type of quorum for validity of a referendum decision.
The space available for this paper does not allow me to comment on all the initiatives
submitted to the Slovenian National Assembly aiming to reform the constitutional
arrangement of the legislative referendum. There were several unsuccessful initiatives before
2013, and none of them won the two-thirds majority of MP votes. The Slovenian
constitutional scholar Igor Kaučič commented that “the changes of the Constitution are
completely in the hands of the representatives – they shaped them and they are the ones who
decide whether to let the people confirm them – the voters are completely excluded from the
process”.36 Therefore, the long-awaited constitutional reform of the legislative referendum
could be accomplished only at a particular constitutional moment. That moment finally came
with the severe economic and financial crisis in Slovenia (which had been partly brought
about by many referendum decisions). Moreover, the party that used the referendum as 'the
opposition's weapon’ in 2010 and 2011 became the governing party after the early elections in
December 2011. With the changing of the role the party changed its benevolent attitude
towards the opposition-initiated referendum. And finally, opposition parties were prevented
from using the referendum as a tool for subverting the government when the Constitutional
Court changed its view on the right to request a call for a referendum vs. ensuring the
undisturbed exercise of state functions. These were, in my opinion, the crucial preconditions
for setting the stage for a successful constitutional reform.
In September 2012 fifty deputies of the National Assembly submitted the Draft
Proposal to amend the Constitution, and the amendments to Articles 90, 97 and 99 of the
Constitution37 were accepted by 86 MPs in May 2013 (only one MP was opposed). The
36
Igor Kaučič, Interview, available at http://www.dnevnik.si/objektiv/intervjuji/1042553184,( last accessed on
February 27, 2014)
37
See Constitutional Act Amending Articles 90, 97, and 99 of the Constitution of the Republic of Slovenia.
Adopted on 24 May 2013 and entered into force on 31 May 2013 (Official Gazette of the Republic of Slovenia
17
amendments were adopted by consensus after a long public debate, and with the support of
Slovenian constitutional scholars.
The first and the most important adopted change is that in the future the National
Assembly would be obliged to call a referendum on the entry into force of a law that it has
adopted if so required only by forty thousand voters, while the right for the parliamentary
minority (30 MP’s) or the second house to do so was abolished. This part of the reform was a
sine qua non of any meaningful reform of the legislative referendum, and it was the least
controversial for all involved actors in the constitution-making process (except, of course, the
second house - the National Council). However, the accepted solution was elaborated as a
consistent application of the principle that only the voters should have the right to require a
referendum as they do not directly participate in the law-making process.
The second important aspect of the reform was the exclusion of certain issues from
referendum voting. A popular vote would in the future be forbidden on laws concerning
urgent measures to ensure the defence of the state, security, or the removal of consequences of
natural disasters, laws on taxes, customs duties and other compulsory charges, and on laws
adopted for the implementation of the state budget, laws concerning the ratification of treaties,
and on laws eliminating unconstitutionality in the field of human rights and fundamental
freedoms or any other unconstitutionality. The most controversial aspect of these restrictions
was the exclusion of financial issues from referendum voting. The original formulation in the
Draft Proposal had been even more restrictive than the one that was adopted.38 The Expert
Group of constitutional scholars, appointed by the Constitutional Commission of the National
Assembly, explained in its opinion on the Draft Proposal that the definition of laws on
financial issues that would be excluded from referendum voting was too restrictive and that it
could in practice translate as “a ban on referendum for the majority of laws, since they
dominantly regulate fiscal issues, or at least, have a direct or indirect impact on them”.39 The
Expert Group’s opinion was accepted by the National Assembly, but some constitutional
scholars still found the final formulation to be too restrictive.40
No.
47/2013
of
31
May
2013.
Available
at
http://www.us-rs.si/en/about-the-court/legalbasis/constitution/constitutional-acts-amending-the-constitution-of-t/ (last accessed on February 28, 2014).
38
The draft included the formulation that referendum would be forbidden not only on all laws on taxes, customs
duties and other compulsory charges, but also on the laws of which depends a direct execution of the state
budget, and the laws that have impact on other public expenditures or guarantees. It was rightly responded in
the public debate that such a formulation excludes almost all laws from referendum voting, because there is
hardly a law that does not have an impact on public expenditures.
39
The Opinion of the Expert Group is available at http://imss.dz-rs.si/imis/f9650d809e82f514027c.pdf (last
accessed February 28, 2014), p. 13.
40
Miro Cerar reminds that Slovenia changed its Constitution at the same time, not only by adopting a new
constitutional design of the legislative referendum, but also by adopting the rule of the balanced budget
18
The third innovation was the adoption of the model of ‘rejective’ referendum41
according to which a law will be rejected in a referendum if a majority of voters who have
cast valid votes vote against the law, provided that at least one fifth of all qualified voters
have voted against the law. The initial concept formulated in the Draft Proposal submitted by
50 MPs from September 2012 was completely different. It had prescribed that the law comes
into force if supported by a majority of voters, with the additional condition that the result will
be deemed valid if at least 35% of the citizens who have the right to vote attended the
referendum.42 The Expert Group was against this participation quorum, rightfully pointing to
negative experiences with this type of quorum (e.g. in Italy), and proposed instead an
approval quorum, which is in the Slovenian context in fact a quorum of rejection of a law
passed by the National Assembly.
The National Assembly accepted the concept of ‘rejective’ referendum, but in the final
phase of the adoption of the constitutional amendments it changed the percentage of voters
needed to reject the law from 25%, recommended by the Expert Group, to 20%. This decision
has been strongly objected to by a majority of constitutional scholars.
Let us now turn to the Croatian attempts to reform the constitutional design of citizen
initiated referendum. There have been three initiatives of this kind to date and all of them
were unsuccessful. The first one came in the process of amending the Constitution in 2010.
(“Revenues and expenditures of the budgets of the state must be balanced in the medium-term without
borrowing”,
Art.
148,
para.
2)
available
at
http://www.us-rs.si/en/about-the-court/legalbasis/constitution/constitutional-acts-amending-the-constitution-of-t/ (last accessed on February 28, 2014). Fiscal
issues may not be subject to a referendum in the future, but there might be a possible impact of each legislative
referendum on the balancing of public finances. Therefore, it would be necessary to analyse in each particular
case whether a demand for a legislative referendum would have an impact on the balance of public income and
expenditure. Having in mind that the Constitution also contains the principle of social state and certain social
rights, only the Constitutional Court could decide about a possible conflict of these constitutional principles. See
M. Cerar, Dve pomembni ustavni spremembi (Two important constitutional changes), available at
http://www.iusinfo.si/DnevneVsebine/Kolumna.aspx?id=99045, last accessed on February 28, 2014).
Among the Slovenian constitutional scholars Ivan Kristan has been the most critical as to the content of the
constitutional amendments regarding the legislative referendum, considering that the bans on future legislative
referendums are too broadly defined, and while before these constitutional changes people could decide on all
laws, and in the future they would not be able to decide on any law of importance. Consequently, Kristan argues
that the people in Slovenia have lost their sovereignty, regardless what the Constitution says about it. See Ivan
Kristan, Plebiscit 1990 in sprememba Ustave 2013 (The Plebiscite of 1990 and the Change of the Constitution of
2013), Pravna praksa, No. 49/50, December 19, 2013, pp. 16-19.
41
The most significant features of this model are: the subject of a referendum is a complete law, and not only its
specific provision; a referendum is subsequent (on a law that is already adopted by the National Assembly, but it
is still not published and enforced); in a referendum the voters decide on the enforcement of a law (the so called
suspensive referendum, because the calling of a referendum delays the enforcement of this law until the
referendum decision); the voting on a referendum is about rejection, and not about validation of a law. See Igor
Kaučič, Zavrnitveni zakonodavni referendum (The Rejective Legislative Referendum), Javna uprava, No. 12/2013, p. 37.
42
The proposal to initiate the procedure for amending the Constitution with the Draft of the Constitutional Law
is
available
(in
Slovene)
at
http://stres.a.gape.org/prenova_slo/Prenova_SLO/sprememba_ustave_RS/Predlog_sprememb_ustave_13_9_12.p
df (last accessed on February 28, 2014).
19
The opposition parties of the day (the Labour party and the Social Democrats) proposed the
lowering of the number of signatures to call a citizen initiated referendum from 10% (around
450,000 signatures) to 200,000. The Social Democrats also proposed that some issues should
be excluded from referendum voting: those which diminish the constitutionally defined
human rights, fundamental freedoms and equality and the protection of minority rights, as
well as proposals relating to the tax system and the state budget. However, the Social
Democrats did not insist on their proposal in the final negotiations with the governing
Croatian Democratic Union over the package of constitutional amendments, which mainly
pertained to Croatia’s EU membership.
The second initiative came after the last parliamentary election in October 2012. The
proposal by MPs from the Labour party (which has been the most referendum-friendly party
in recent years) and certain other opposition parties (mainly the representatives of the
Croatian Democratic Union) was to lower the number of signatures to call a citizen initiated
referendum to 200,000. As emphasized by proponents of the initiative, since the 2000, when
the citizens’ initiative was introduced in the Croatian Constitution, not one referendum
demanded by citizens was called, which represented an “obvious substantial democratic
deficit”.43
The government of the Prime Minister Zoran Milanović (the Social Democratic Party)
did not accept the initiative, claiming that the referendum on citizens’ initiative is
constitutionally well positioned and that for a country the size of Croatia “10 percent of
voters is not an excessive but rather a sensible number”. He announced that the Referendum
Act would be changed and that the deadline for collecting signatures would be extended from
15 to 30 days, considering it a sufficient move towards further ‘liberalization’ of citizens’
initiatives. The Prime Minister concluded that, in his opinion, referendums were “the ideal
space for populists and that they are likely to be presented as the pinnacle of democracy and
popular decision-making”.44 It should be said that his government has not to date proposed
amendments to the Referendum Act with the purpose of extending the deadline for collecting
signatures. It should be noted that Zoran Milanović had been much friendlier to citizens’
initiatives as the leader of the parliamentary opposition in 2010. He publicly signed the
43
The Draft proposal to initiate the change of the Constitution, with the Draft of the changes of the Constitution
of
the
Republic
of
Croatia),
available
at
http://www.vlada.hr/hr/naslovnica/sjednice_i_odluke_vlade_rh/2012/61_sjednica_vlade_republike_hrvatske
(last accessed on February 28, 2014).
44
The citations are provided on the basis of the audio recording of the session of the Government held on
November
15,
2012,
available
at
http://www.vlada.hr/hr/naslovnica/sjednice_i_odluke_vlade_rh/2012/61_sjednica_vlade_republike_hrvatske/aud
iozapis_61_sjednice_vlade_republike_hrvatske (last accessed on February 28, 2014).
20
request for the referendum on the amendments to the Labour Act, and formally proposed the
lowering of the required number of signatures for citizen initiated referendum to 200,000.45
The third and almost successful initiative to amend the constitutional provision on the
citizen initiated referendum came in November 2013, unintentionally coinciding with the call
of the first citizen initiated referendum. The initiative to amend the Constitution had been
started by governing Social Democrat MPs several months earlier with the draft of
constitutional amendments according to which there would be no statute of limitations for
politically motivated murders.46 In September 2013 the proposal was changed demanding the
removal of the statute of limitations from the constitution for all first-degree murders and not
just politically motivated murders. However, the parliamentary majority needed the support of
some smaller opposition parties for achieving the two-thirds majority necessary for amending
the Constitution as the main opposition party – the Croatian Democratic Union – was
unwilling to support the proposed constitutional amendment. One of the opposition parties
(the regional Croatian Democratic Alliance of Slavonia and Baranja – HDSSB) insisted on
constitutional recognition of regions, and the other party (Labour) conditioned its support with
the lowering of number of signatures for citizen initiated referendums to 200,000, which it
had proposed several times since 2010. The demands of these opposition parties were
accepted, and so for the first time since the introduction of citizens’ initiative in the Croatian
Constitution this institute became the subject of wider constitutional and political debate.
In the Draft amendments to the Constitution, proposed by the Parliament’s Committee
on the Constitution, Standing Orders and Political System, three significant changes were
proposed as to the citizen initiated referendum. Firstly, the number of necessary signatures
would be lowered to 200,000. This part of the proposal was acceptable to all involved actors
in the process of amending the Constitution. Secondly, some issues would be excluded from
referendum voting: issues relating to restriction or reduction of human rights and fundamental
freedoms, issues referring to Croatia's international obligations, the adoption and
implementation of the state budget and the tax system, defence and national security issues,
45
It seems to me that the best analysis of different opinions of Zoran Milanović in 2010 (as the opposition
leader) and 2012 (as the Prime Minister) on the value and usefulness of citizens’ initiatives is given in the
following words of Bruno Frey: “The decision-makers in all political areas, be it the executive, the legislative or
the legal branch, find it difficult or even impossible to imagine that the citizens are motivated and capable of
participating in politics. This is a general feature of all such decision-makers – once they are in power. The
reason is simple: they do not want to share power with the population. Many opposition parties and opposition
movements strongly favour citizen participation in politics, but once they get into power, they very quickly see
things differently and no longer want to give up part of their power. ” (Bruno S. Frey, Direct Democracy for
Transition Countries, Journal of Institutional Innovation, Development and Transition, Vol. 7, 2003, p. 44).
46
This was related to the problem of application of the European arrest warrant to some Croatian citizens, after
the Croatian Parliament had adopted the controversial Law on cooperation in judicial matters with the EU
Member States (the so-called ‘Lex Perkovic), but this is not the subject of this paper.
21
and appointments within the scope of the Croatian Parliament. This proposal had two errors as
concerns the constitutional design of citizen initiated referendum, as was emphasized by
Professor Branko Smerdel: “Firstly, the list of situations on which a citizen initiated
referendum would be forbidden is too extensive and undefined. By citing whole chapters of
the Constitution, instead of specific provisions, half of the Constitution is excluded. If such a
proposal were accepted, almost any referendum would become impossible. This solution
practically abrogates the right to a referendum. Secondly, it is not defined who is to decide
whether a specific referendum issue belongs to the prohibited areas. I do not think that this is
accidental, but rather a deliberate attempt to eliminate the Constitutional Court”.47 The third
aspect of change was the introduction of the participation quorum: the referendum would be
valid only if a minimum of 40% of all voters attended it.48
In a very short and almost nonexistent public debate49, and without any formal
advisory role of Croatian constitutional lawyers, the final Draft Proposal of constitutional
amendments was submitted to the Parliament in early December 2013, with only one change
in relation to the initial draft. The participation quorum of 40% of all voters was replaced by
the approval quorum, as a result of objections by some scholars and non-governmental
organizations. According to the new proposal the Constitution could be changed in a
referendum only if the change was supported by more than 50% of all eligible voters, organic
laws with the support of at least 35% of all voters, and ordinary laws with the votes of more
than 25% of the electorate.50
An extraordinary session of the Parliament was convened with the sole purpose of
adopting the proposed constitutional amendments. Just one day before the parliamentary
voting the Croatian Democratic Alliance of Slavonia and Baranja demanded a postponement
and asked for a prolonged public debate on some of the proposed amendments. Without the
MPs of this party the necessary two-thirds parliamentary majority could not be achieved. Why
the HDSSB changed its mind is not clear – one of the possible reasons could be that this party
was the only rightist party in the Parliament to support the amendments initiated by the
centre-left government. At the beginning of 2014 there were some signs of possible reopening
47
Interview of Professor Smerdel (SDP vrijeđa Josipovića), Jutarnji list, January 27, 2014, p. 10.
The Proposal to establish the Draft bill of the change of the Constitution), November 2013, (available at
www.sabor.hr/fgs.axd?id=26061, last accessed February 28, 2014).
49
Professor Branko Smerdel, the doyen of Croatian constitutionalists, commented that „he had never heard of a
secret public debate, like the one that is taking place now on the constitutional changes. This kind of thing was
unheard of even in the former (communist) regime“ (available at http://www.vecernji.hr/hrvatska/je-li-ustavnisud-prekoracio-ovlasti-905695, last accessed on February 28, 2014).
50
Draft proposal of the Change of the Constitution, December 2013, available at http://www.sabor.hr/prijedlogpromjene-ustava-republike-hrvatske (last accessed on February 28, 2014).
48
22
of the debate on the constitutional amendments, but it seems that the constitution making
moment has passed.
All initiatives to amend the constitutional provision related to citizen initiated
referendum in Croatia usually came in moments when an initiative had succeeded to collect
the necessary number of signatures (in 2010 when the trade unions demanded a referendum
on the Labour act; in 2013 when the Catholic and war veterans associations demanded
referendums on marriage and the language rights of national minorities) and when the calling
of a referendum became the most important political issue of the day. It could therefore be
predicted that the next constitutional debate might arise with another controversial citizens’
initiative.
Conclusion
The Slovenian and Croatian constitutional lawyers and other scholars have for years
argued that the constitutional design (and in the case of Croatia the legislative design, as well)
of citizen initiated referendums in their respective countries has serious shortcomings. The
most important among them is the possibility to call a referendum on any constitutional (in
Croatia) or legislative (in both countries) issue, leaving the constitutional courts to determine
whether a certain issue is constitutionally allowed to be decided in a referendum. Another
shortcoming in both countries is a lack of some kind of participation or approval quorum
which would prevent referendum decisions supported by only a small minority of interested
voters from being adopted.51 In Slovenia, there is the additional problem of abuse of the
referendum initiated by the parliamentary minority.
The shortcomings of the Slovenian legislative referendum have caused serious
economic problems, preventing necessary economic and social reforms. In Croatia,
constitutional problems came to the forefront, especially because of the popular constitutional
initiative and the subject matter of the first constitutional referendum (the definition of
marriage). Nevertheless, there are similarities in Slovenian and Croatian subject matters of
citizen initiated referendum. In both countries citizens demanded a referendum with the goal
of banning same-sex marriage – in Slovenia it was a vote against the Family Code in 2012,
and in Croatia it was a vote for the constitutional definition of marriage as a union of a
woman and a man in 2013. Also, the legislative regulation of labour relations was a
referendum issue in both countries.
51
This problem manifested itself in Croatia after the constitutional amendments in 2010, when all types of
quorums were removed.
23
In both countries several unsuccessful attempts to reform the constitutional design of
the referendum had been made before 2013. In 2013 Slovenia finally reached its
‘constitutional moment’ in which it was possible to reach an almost universal consensus in the
National Assembly to constitutionally redesign the legislative referendum. This consensus
was a result of several interconnected factors: the negative experiences with citizens’
initiatives over a long period; the major parties (especially the Social Democrats and the
Slovenian Democratic Party) being faced, both in the opposition and as governing parties,
with the problems caused by successful citizen’s initiatives; and the Constitutional Court
effectively limiting the right of the opposition or the voters to call a legislative referendum on
essential economic and social legislation, causing referendum to lose most of its value for the
opposition parties as an alternative way to continue the legislative battle. Of course, the
serious economic and social crisis was also instrumental in bringing together the relevant
parties to accept the necessary constitutional amendments.
The Slovenian constitution-makers concentrated exclusively on the reform of the
institute of legislative referendum, and that reform encompassed the three most important
aspects: the creation of a model of ‘rejective’ legislative referendum which can only be
initiated by the voters, the exclusion of certain issues from referendum voting (limiting the
role of the constitutional court, which had been unpredictable in its rulings on the
admissibility of referendums), and the installation of a quorum of rejection of a law passed by
the National Assembly.
On the other hand, the several attempts of the Croatian Parliament to amend the
constitutional provision relating to the citizens’ initiative have come to nothing. The fact is
that such attempts were made only in 2010, 2012 and 2013 in response to some successful
initiatives, and because the elimination of all quorums prescribed for validity of referendum
decisions in 2010 exacerbated the problem of successful initiatives. Unlike in Slovenia, the
major parties in Croatia (the Social Democrats and the Croatian Democratic Union) did not
play a direct role in supporting or proposing citizens’ initiatives – this was mainly reserved for
various organizations and associations of war veterans, trade unions, Catholic associations
etc. However, these initiatives were indirectly supported by certain parties, when it suited
them. The fact remains that the major political parties have not initiated the constitutional
reform of the citizen initiated referendum in recent years (this was done by the small Labour
Party), and even when they officially supported a proposal for a constitutional amendment to
redesign citizens’ initiatives (the Social Democrats in 2010, the Croatian Democratic Union in
2012), it was never at the same time and always when they were in the opposition. Both major
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parties experienced great problems in dealing with successful initiatives (the Croatian
Democratic Union in 2010, and the Social Democrats in 2013), but this did not motivate their
leaders to propose a new constitutional arrangement of citizens’ initiatives. An additional
problem in Croatia is that the Constitutional Court is not perceived by all parties as a neutral
umpire, especially when dealing with the citizen initiated referendum.
The process of amending the Croatian Constitution that took place in the second half
of 2013 was fraught with several unrelated difficulties, and the regulation of the institute of
citizen initiated referendum was only one of them. From the outset the process was hostage to
political trade-offs in which the two major parties were on the opposite sides. The process of
amending the Constitution was extremely short and for the most part secret, without a serious
public debate and with almost no formal participation of the community of Croatian
constitutionalists. Their opinion from the beginning was that the Parliament should establish
an Expert Group of professors of constitutional law to prepare a draft of amendments related
to the issues of citizen initiated referendum (and also related to other issues within the scope
of the proposed constitutional changes), as had been done by the Slovenian National
Assembly. This suggestion was never accepted, although such expert groups of constitutional
lawyers were appointed in 2000 by the President of the Republic and in 2009 by the
Government to prepare the draft amendments. In both cases the members of these groups
formulated drafts which went on to be passed by the Parliament in 2000 and 2010 with minor
modifications.
In conclusion, it can be said that Croatia, unlike Slovenia, is still waiting for its
‘constitutional moment’ to solve the pressing problem of its exceptionally dysfunctional
constitutional (and legislative) framework of citizens’ initiatives.