Institutionalisation of ethnicity is a phenomenon known, wide present and researched in the Western Balkans politics. Another phenomenon, that has not been seriously researched yet is a fact that ethnicity is being used for assuring certain positions and assuring benefits. Simultaneously, clientelistic position of minority political elites is prevailing factor for creation of governments in e.g. Croatia, Macedonia and Kosovo. In spite of normatively well developed minority protection across the Western Balkan region, being a minority is beneficial only for a narrow segment of minority population; predominantly those who were smart enough to recognize and use the normative-institutional settings that assure minority representation in politics. As a result, there are minority political elites, who are close to the state controlled funds entitled to minorities and often benefit on a private basis too.
The Croatian Constitutional Court passed on 29 July a set of decisions dealing with minority rights. One of them concerns abolition of dual voting right, some of Croatian minorities were granted in the latest amendments of the Constitutional Law on the Rights of National Minorities, passed on 16 June 2010.
Eight national minorities MPs have been coalitional partners of the central-rightist government in the two latest consecutive governments, and such amended voting mechanism was part of a coalitional share. What, however, surprises, is a fact that solution government put forwards is apparently unconstitutional and contrary to the principle of equality. Obviously, a ‘bastard’ voting mechanism that set apart national minorities was approved in the parliamentary procedure. Since the Constitutional Law on the Rights of National Minorities is an organic law, the amendment required that more than 2/3 of all MPs support the changes. In other words, oppositional political parties were not finding such provisions suspectful in the parliamentary procedure. However, one of the proposed amendments (that would recognize the Council of Municipalities of Eastern Slavonia, Baranja and Western Syrmium as a legal entity) was not accepted due to the warning of oppositional liberal politician Vesna Pusić, who argued such a solution would put up a territorial autonomy of several Serb-dominated municipalities (which NB is not foreseen in any Croatian legal source).
Back to arguments that inspired several constitutional complaints (submitted by following applicants: NGOs, Srpski demokratski forum, Socijalistička partija Hrvatske, Hrvatski helsinški odbor za ljudska prava, GONG, and individual Đuro Kalanja ). Firstly, the voting amendments anticipated that national minority that constitutes less than 1.5% of the population (all but the Serbs) got a double voting right (which they exercise first in a special electoral district for minorities, that is applied nationwide, and secondly in one of their residence). Secondly, amendments foresaw a exceptional voting mechanism for the Serbs that would assures at least 3 MP seats but also gave them a chance to score the 4th MP seat (this electoral mechanism is known as a premium system).
The Serb politicians legitimised such dual solution for NM through their numerical size (NB, Serbs constitute a little bit less than 5% of population, in accordance to the latest official census results from 2001), saying this gives them a right to a specially designed electoral system. Interestingly, the vice-president of the Parliament Vladimir Šeks legitimised such a voting model through the three years ago issued Venice Commission’s Report on Dual Voting for Persons Belonging to National Minorities that states the smaller minorities only should be granted double voting rights.
In spite of legitimization provided by those who put forward the amendments, the strange novelty foresaw that the Serb electoral lists would run in all electoral districts, but each party with a single list across the country (the Law on Election of Representatives to the Croatian Parliament, Electoral Law) prescribes that political parties or independent lists must have a special list for each and one electoral district)!
This, of course, is contrary to the principle of equality, cause Art. 4 (4) of the Constitutional Law on the Rights of National Minorities prescribes that any discrimination based on affiliation with a national minority is prohibited, and that the members of national minorities shall be guaranteed equality before the law and equal legal protection (similarly to the equality principle enshrined as one of “highest values of the constitutional order”)! Therefore, it’s indeed short-sighted to pass provision that allow one minority achieving the right to political representation through universal suffrage (that is actually also not equally universal to the voting right of other (majority) citizens who as well elect their MS through universal suffrage). Exactly this line of reasoning is the one on which constitutional complaints were structured. They argued that it is discriminatory and contrary to the equality principle if not all minorities are guaranteed the double voting right.
One CC judge mentioned to me once in a corridor conversation the abolished special voting mechanism for the Serbs resembled the former Constitional solution of Socialist Republic of Croatia, which granted Serbs the status of the co-nation. I disagreed back then with him, cause the state-forming status would imply much more rights than a special voting mechanism that favours coalitional partner of the current government, believing that the CC can only rule that the provisions of the Electoral Law is unconstitutional and violated the equality principle.
Croatian CC decision annulled evidently amendments that prescribed new voting mechanism for NM, arguing that dual voting right cannot be possible only for some national minorities and endow just one minority with a single voting mechanism. Not only that abolished mechanism would create inequality among minorities, but it would also be discriminatory towards some Serb political parties: namely, as such - it would be beneficial exclusively for the current coalitional partner - the Independent Democratic Serb Party (SDSS). The CC decision prescribed that the "old" voting mechanism remains in place until the Parliament passes new legislation.
However, clientelistic position of minority political elites as stands for the time being requires re-conceptualisation and reconsideration if political participation of Croatian national minorities wants to become truly democratic. In my opinion, once elected to the Croatian Parliament, eight minority MPS are not merely representing national minority electorate, but the entire Croatian population. Therefore, their engagement should not only be restricted to achieving benefits for national minorities (and through that assuring a subsequent mandate in the Parliament) but also taking care and striving to building a tolerant, inclusive society. Ethnic political engineering simply cannot serve as a means to this end.