The Constitution and the electoral laws as toys in the hands of Constitutional Court judges

26. September 2015.

The Constitutional Court reacts late yet again, and changes the rules of the electoral game one minute before it begins, right before the dissolution of the Parliament, when there is nothing to be done to fix the flaws of the legal framework. The decision is politically coloured in favour of the political elite and against legal certainty and the level of citizens’ trust in political institutions and actors, and serves to confuse the public, voters, candidates, media, as well as the institutions entrusted with the execution of the elections.  The impression left is that the decision was made with the upcoming re-election of the Constitutional Court judges in mind.

GONG finds the following to be problematic:

1. The timing of the Constitutional Court’s decision

      - The request for the constitutional review of changes of the Act on Election of Representatives to the Croatian Parliament was submitted in March 2015, which we find to be an irresponsible prolongation of decision-making right until the moment of the dissolution of the Parliament
    - The Venice Commission's recommendation is that the electoral laws should not be changed one year before the election, but the Constitutional Court decided to ignore this, leading to legal uncertainty and preventing candidates and voters from knowing the rules of the elections
    - It remains an open question if the Constitutional Court will eliminate any more articles before the elections, or even after the results are published

2. Lifting the ban on running in elections

    - The decision on lifting the ban on running in elections to those convicted of abusing their position and authority benefits the political elites, further undermining citizens' trust in the institutions and weakening the proclaimed zero-tolerance policy on corruption

3. Repealing the provision of gender equality as the precondition of the validity of the list of candidates

    - Gender equality, as one of the highest values of Constitutional order and an important element of democratic strengthening and inclusiveness in the political system, gets weaker with repealing the provision setting a minimum of 40% of members of each gender
    - We find devaluing of gender equality in regard to multiparty democratic competition in the electoral process, as well as the established competition of the two values, to be unacceptable

4. The inequality of votes in different constituencies

    - The rejection of the proposal to review the constitutionality and legality of the Croatian Parliamentary Election Constituency Act enables the legality of the elections in certain constituencies to be questioned, due to the inequality of votes
    - The lack of a newer report of the Constitutional Court on this problem adds to the uncertainty of the legality of the next parliamentary elections

In order to lessen the influence of the political calculations on the decisions of the Constitutional Court, GONG suggests changes of the Constitution and the Act on the Constitutional Court, preventing the re-election of the Constitutional Court judges and limiting the number of their terms to one. From the next Government and the next assembly of the Croatian Parliament, we expect timely, all-embracing and good-quality regulation of electoral and referendum legislature, with an active contribution of the State Electoral Commission and the Constitutional Court to the process.