Direct Local Elections – Ambiguities Prior to and After the Elections

27. January 2009.

An expert conference under the title: “Local self-government and Direct Elections – Ambiguities Prior to and After the Elections”, jointly organized by the Faculty of Law in Zagreb and GONG was held in Zagreb on Tuesday, 27 January 2009.

SUMMARY OF THE PRESENTATIONS AND DISCUSION FROM AN EXPERT CONFERENCE

Appeal to the Government of the Republic of Croatia and to the Croatian Parliament to amend and improve the legal framework for local elections and the functioning of local and regional self-government

An expert conference under the title: “Local self-government and Direct Elections – Ambiguities Prior to and After the Elections”, jointly organized by the Faculty of Law in Zagreb and GONG was held in Zagreb on Tuesday, 27 January 2009.

The conference was opened by Vladimir Šeks, the Vice President of the Croatian Parliament, Prof. Josip Kregar, D.Sc., the Dean of the Faculty of Law in Zagreb, Suzana Jašić, the President of GONG and Antun Palarić, the State Secretary of the Central State Administration Office.

The conference presented analytical approaches to challenges and possible problems pertaining to the forthcoming local elections, as well as possible problems in the functioning of municipalities, cities and counties after the local elections.

The presentation of Robert Podolnjak, D.Sc., pointed out positive and negative sides of direct elections. Among the positive sides of direct elections he included the following: 
- greater legitimacy, as well as a decrease in political corruption, which could result in the more stable Executive Authorities, 
- less dissolutions of the Representative Bodies and a fact that a possible dissolution of the Representative Body will not affect the Executive Authorities to a large extent, 
- elected Heads of Municipalities, Mayors and County Prefects will not have greater competences under the new system, as it is generally thought, but their competencies will actually decrease, because a part of the competences are transferred to the Representative Bodies, e.g. property management, as a consequence of the dissolution of the Municipal Authorities / City Authorities / County Authorities [Poglavarstvo] (hereinafter: the Authorities)
- financial savings – with the dissolution of the Authorities, the number of compensations for politicians, former members of the Authorities, will decrease.

Negative sides of direct elections, according to Dr. Podolnjak, are reflected in the following:
- a model of direct elections is seen in the American model, which does not correspond to the Croatian political system, and, apart from that, the stated model has not been completely elaborated, because it has failed to regulate some of the key areas, e.g. to specify the competences of the Executive Authorities and of the Representative Body. A change of the electoral system for the Representative Bodies should also be considered, because if the Executive Authorities are elected directly, then members of the Representative Bodies should also be elected directly, especially in municipalities and small towns, and not, as it is the case now, to elect them through a proportional system. Direct elections of members of the Representative Bodies will result in the election of abler councillors and those with greater motivation for work.
- Since it is foreseen that Deputies are also elected directly, there is no reason for Heads not to be replaced by their Deputies, if their mandate should be interrupted for some reason, as it is the case in the U.S. (although, the question is which one of the two [Deputies]). According to the foreseen model, a Head is not replaced by a Deputy in Croatia, but early elections for both functions must be called. A question arises as to what if the Deputy’s mandate has also been interrupted? In European countries, for instance Slovenia, it is customary that a Deputy is elected by the Head himself, which motivates the forming of post-electoral coalitions. The model foreseen in Croatia, according to which Deputies are elected directly, jeopardizes the stability of local government, since - who will replace a Deputy if he has ceased to perform his duty?
- The division of competences between the executive and Representative Bodies has not been completely determined and the adoption of many laws which should stipulate more detailed competences is overdue. For instance, the existing Law on Communal Economy assigns certain competences to the Authorities, but it has not been regulated and it is, therefore, unclear as to whom those competences would be assigned in the new model. There are dozens of laws in need of amendment before the elections in order to define the competences of the Executive Head and the Representative Body, so that each of them knows their functions.
- The model foreseen in Croatia also contains vague wordings. For instance, what will happen in the case of cohabitation, that is, conflict, or in other words, when the majority in the Representative Body is not held by the same parties which have the majority in the Executive Authorities?! Such a situation could particularly be reflected upon the process of determining the Executive Authorities’ salaries, since the salary level of the Heads has not been determined by the law. In other words, while the relationship between the Representative Body and the Executive Authorities in Germany, for instance, is regulated down to the smallest detail, in our country it is stipulated only that councillors pose questions to the Head, and he submits reports to them.
- The supervision of the Representative Body over the Executive Authorities is poorly determined, and the budgetary supervision is particularly lacking. There is also a danger that the Executive Authorities would be irremovable, since the probability that 50% of a total number of voters would turn out for the referendum is very low. For example, in some countries there is a supervisory board and some also have special judicial supervision.
- The right to perform the duty of a Head (and Deputy) is not limited by time, thus, in that sense, a concept of limiting their re-election should be introduced, that is, a maximum of two mandates.

Ivan Kopric, D.Sc., pointed out the role of citizens in municipalities, cities and counties, and explored whether possible democratization of the local level also brings about greater efficiency of local self-government units.

In his opinion, there is a deficit in democratic culture at local-level units, in addition to underdeveloped, that is, almost nonexistent civil society. A research conducted by Dr. Kopric has shown that Executive Authorities have behaved similarly in all the countries of the region, regardless of the manner of their election, directly or by a Representative Body.

Dr. Kopric wondered whether this system supports the change of political culture or revives the authoritarian political culture? He stressed that every change comes at a cost, and the experiences of other countries have shown that the voter election turnout increased only at the first elections after the change of the model. Otherwise, direct elections are not the only model applied in the U.S., and in the areas where it is implemented it has been shown that the level of professionalism of local officials has decreased. Foreign experiences also indicate that the style of conduct has remained the same regardless of the elections, i.e., no modernization occurred, therefore Dr. Kopric wondered why are we then changing the system at all when this has not contributed to the quality of services for citizens outside our country? He proposed introduction of supervisory boards or professional heads of administration. Furthermore, he noticed that a problem at the local level in Croatia lies in the lack of civil society and professional electoral administration.

Prof. Nenad Zakošek, D.Sc., also alerted to the democratic deficit at the local level, as well as a decrease in citizen’s participation. In case of direct elections, he predicts, participation will be greater only in those places in which a good-quality opposition candidate appears, i.e. in which real competition among candidates will take place.
The new model of elections, in his opinion, also brings about a strong personalization of politics. Direct elections will attract rich individuals who will be forming different coalitions and trying to come into power in that manner, i.e., to turn their social power into political power. Insufficiently elaborated control mechanisms of the Executive Authorities are also a downside of the new model, according to Dr. Zakošek. There is a danger that all will be reduced to the “division of the spoils” after the arrival in power, which represents a fertile ground for the creation of clientelism.

Dr. Zakošek pointed out that political parties will in any case have an advantage in relation to independent candidates, because they have a party infrastructure, indispensable for the organization of pre-election campaigns.

Nevertheless, in his opinion, direct election at local elections represents a chance for greater democracy, however, with certain preconditions: the supplementation of the legal framework by certain mechanisms such as stronger control and regulation of the campaign financing, all with the aim of preventing the emergence of clientelism.

Dr. Zakošek considers that the democratic deficit is an indisputable motive for introducing the new model, that is, the fact that in the heretofore model the voters have not had a means through which they could decide on who would be in power. Thus, participation in the elections was decreasing and it went below 40%, which has caused concern. Now there will be no doubts regarding the voters’ will, and the competition will also increase. Dr. Zakošek also drew attention to the fact that tendencies towards personalization of politics are present in Europe as well.

Vanja Škorić, M.Sc., GONG Legal Adviser, brought out remarks and problems with regard to the legal framework for local elections and the functioning of local self-government.

As Ms. Škorić pointed out, the provisions regulating the issue of electoral campaign financing are superficial, i.e. they do not regulate key areas and are considerably ambiguous. The Law on the Campaign Financing of Political Parties, Independent Slates and Candidates will be partly applied in the election campaign, whereby the limits on donation amounts are too high, there are no limits on campaign expenditures, there are no sanctions for the failure to issue provisional and final reports on funds received and spent, and candidates can again state parties as donors (the same as at the 2005 presidential elections).

Furthermore, it is still not known whether the harmonization of the Statutes of Municipalities, Cities and Counties with the latest confirmed voters’ lists from 2007 has been conducted, in compliance with Article 20, Paragraph 7 of the Constitutional Law on the Rights of National Minorities (prior to any elections, the formal census results on the number of members of national minorities in a local and regional self-government unit are harmonized with possible changes registered in the latest confirmed voters’ list of that unit)?

Ms. Škorić also alerted to problems regarding the media coverage of local election campaigns. Local media are due to provide all candidates with a possibility to present and explain their electoral programme. However, what if the media do not abide by this provision? There are no sanctions or an Ethics Commission which would supervise the media campaign during the elections. Furthermore, the precise obligations of the local media have not been specified, along with the division of the private from the public media.
Just as during the former parliamentary elections, among a multitude of messages, voters will again not be provided with quality information.

Furthermore, Ms. Škorić pointed at the fact that from the technical aspect of the conduct of elections there is a series of differences between direct elections and the elections for Representative Bodies, which could cause problems in the conduct of the elections:
- the arrangement of polling stations (the elections will be held in the same premises),
- the criteria for the selection of members of electoral commissions and voting committees (the same bodies will be conducting the elections),
- instructions for voting with a certificate (voting for the Bodies and the Heads takes place at the same time),
- signing of the minutes on the work of a voting committee (the same body conducts both types of elections),
- provisions on monitors,
- provisions on the documents necessary for voting.

Ms. Škorić also pointed out that, since it has not been possible so far to unify the election results according to polling stations, there is an earlier as well as present failure to regulate the public announcement of the election results according to polling stations, and although technical possibilities would allow it, the announcement of results will still depend on the good will of individual commissions.

Moreover, she indicated that one of the problems appearing at each local elections are surplus mandates, due to the method of conversion of results into mandates, which is not a pure d’Hondt’s method, but its derivative.

DISCUSSION

MP Leko pointed out in the discussion that while discussing this topic one must look at the big picture, that is, all the laws regulating local self-government. He recalled an EU Directive which foresees that all those who have permanent residence in a certain area should vote in local elections, which also includes foreigners. He also recalled the manipulations with voters’ lists and fake permanent residences. He wondered whether the different programs of the two slates which had won the elections (one the representative, and the other the executive power), are a future source of conflict, that is, dualism, and who controls electoral campaigns?

Ms. Greta Augustinović from the City of Zagreb was of the opinion that this model actually represents a weakening of the executive function, because the Representative Bodies are receiving many competences which previously belonged to the Authorities.

Prof. Koprić pointed out in the discussion that politics and administration are not the same thing and that one should insist on the professionalization of administration.

Teodor Antić, from the Constitutional Court, problematized the education of law-drafting personnel, since laws are very poorly written. He also explained the problems relating to the protection of electoral right when, at local elections, municipal and city commissions bypass the State Election Commission (SEC), and go directly to the Constitutional Court, which is untenable.

Ms. Helena Masarić, from the Association of Cities, agreed with Mr. Antić concerning the poorly written laws and recalled that the latest amendments to the Law on Local and Regional Self-government (“Official Gazette”, No. 125/08), which are introducing two Deputies, will enter into force no sooner than 18 May, that is, the day after the elections!

CONCLUSION

Despite a lot of disagreement, it was concluded that direct elections certainly represent a source of stronger legitimacy. Direct elections can be a chance for democratization, if the system is supplemented with:
- additional mechanisms of control, that is, supervision,
- stronger administrative capacities,
- a possibility of easier relief from duty
- the scope of activities, that is, competences of the representative and executive authorities stipulated in detail,
- elimination of technical deficiencies pertaining to elections, with a special emphasis on media campaigns and campaign financing.

RECOMMENDATIONS

Conference participants agreed that it is necessary to resolve the dilemmas, vague wording and doubts presented in the discussion. They directed an appeal to the Government and the Parliament to amend, adopt and harmonize the regulations governing the issue of local elections and the functioning of local self-government as soon as possible.

The continuation contains recommendations for the elimination of numerous gaps and open questions, as well as collisions and inconsistencies presented at the Conference.

1. To define the competences of executive authorities and the competences of representative authorities as soon as possible. It is necessary to adopt and harmonize the laws defining the competences and obligations of local self-government.

2. To define by a law, and not by a statute, the relationship and procedures between the Executive Authorities and the Representative Body (the issues of councillors, biannual reports, reports on particular issues, the duty of attendance of the Head of the Executive Authorities at the meetings of the Representative Body, clear criteria for determination of the salaries of Heads and Deputies).

3. To mitigate the effects of cohabitation, for instance, through the existence of a neutral arbiter (the Constitutional Court), as recommended by Prof. Podolnjak, in accordance with the Venice Commission Recommendations.

4. To ensure efficient control/supervision over the work of Executive Authorities in the sense of control of individual acts and financial transactions.

5. If the mandate of an Executive Head should cease prior to its expiration date, there is no reason for him not to be replaced by his Deputy instead of calling new elections. However, it should be determined who replaces the Head in that case, the first or the second Deputy?

6. In case a Deputy Head leaves for another duty or in case of his death, the Executive Authorities will function with difficulties until the end of the mandate. One of the solutions can be that the Head, in agreement with a coalition partner, appoints a new Deputy, with or without the confirmation of the Representative Body, in order to ensure stability and the possibility of performing all functions within the competence of municipalities, cities and counties.

7. To consider a possibility of introducing a professional head of administration, who would not depend on the changes of government and election results, therefore it is necessary to determine in detail the relationship between the Executive Authorities and the administrative apparatus, that is, the Head of Administration [pročelnik].

8. To harmonize all statutes of municipalities, cities and counties with the latest confirmed voters’ list in order to ensure the representation of members of national minorities in compliance with the Constitutional Law on the Rights of National Minorities, while the Government should supervise the harmonization of municipal, city and county statutes with the Constitutional Law on the Rights of National Minorities.

9. To regulate the electoral campaign financing: to decrease the limits on donation amounts, introduce limits on campaign expenditures, oblige all candidate slates in the elections for Representative Bodies to issue provisional and final reports, as well as introduce sanctions for the failure to issue provisional and final reports on funds received and spent, ensure independent supervision of campaign financing and the publication of all financial reports in one place (website), as well as of the results by polling stations (the SEC website).

10. To sort out the permanent residence records in order to be able to determine the real number of voters with regard to the fact that there is a possibility of initiating a recall on the part of voters, as well as of voting a recall through at a “referendum”.

11. To organize a national campaign to inform and educate voters about local elections and on the new system of division of competences in the local and regional self-government.

12. To distinctly separate the obligations of privately and publicly owned local media, and introduce a higher-quality model of equality of presentation of candidates and slates, e.g. proportional presentation of candidates’ programmes which would not ensure equal media space for all candidates and parties, but would rather be based on the results of support expressed by the electorate, for instance, in polls, or on the party representation in a council or assembly.

13. Regarding the protection of electoral right, it is necessary to determine that all objections in the appellate procedure against decisions of municipal, city and county electoral commissions must arrive for decision-making to the SEC, and not automatically to the Constitutional Court, in order to unburden the Constitutional Court.

14. To harmonize and facilitate the technical conduct of elections (introduce the “pure” d’Hondt’s method in order to avoid surplus mandates) and clearly determine whether a candidate for a head of municipality, mayor or county prefect also has the right to run for the Representative Body at the same time or be the leader of a slate for the Representative Body?


Translation provided by the OSCE Mission to Croatia

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