review of central and east european law 42 (2017) 263-293 brill.com/rela Concepts of National and Constitutional Identity in Croatian Constitutional Law Jurij Toplak University of Maribor, Faculty of Law, Maribor, Slovenia Alma Mater Europaea ECM, Maribor, Slovenia <[email protected]>; <[email protected]> Djordje Gardasevic University of Zagreb, Faculty of Law, Zagreb, Croatia <[email protected]> Abstract The Croatian Constitutional Court recently rendered two important decisions con- cerning two national minorities’ rights: the right to vote in parliamentary elections; and the right to use minority language. In both decisions, the Court relied on a newly developed concept of Croatian national identity. This article explores and critically explains the wider social, political and legal context that has produced the emergence of the idea of a constitutional identity in Croatian constitutional jurisprudence. In addition, it evaluates the potential effects this new constitutional concept may have for future developments in Croatia’s political and constitutional system. This article also compares Croatian and Slovenian solutions to certain questions as the Slovenian Constitutional Court has ruled on strikingly similar issues, but arrived at different conclusions. Keywords national identity – minority representation – minority protection – right to vote – language – constitutional court © koninklijke brill nv, leiden, 2017 | doi 10.1163/15730352-04204001Downloaded from Brill.com09/26/2021 02:21:29PM via free access <UN> 264 Toplak and Gardasevic 1 Introduction The implementation of European standards of minority protection in Croatia has been a strenuous effort.1 In that connection, in 2011 and 2014, the Croatian Constitutional Court delivered two important decisions on two national mi- norities’ rights: the right to vote in parliamentary elections; and the right to use a minority language. The controversy in the first case, set out in a decision dated 29 July 2011, arose from amendments to the Constitutional Act on the Rights of National Minorities and the Act on Parliamentary Elections, which introduced a new voting model for national minorities. According to this new model, persons belonging to certain minorities were given ‘dual’ voting rights, while other mi- norities were guaranteed ‘reserved’ seats in the parliament within the wider scheme of a general right to vote granted to all citizens. The Court struck down the amendments and explained that this new voting model violated the prin- ciples of equality and a democratic multiparty system. In addition, the Court ruled that the disproportional representation of various national minorities was not justified. The second case, set out in a decision dated 12 August 2014, dealt with the popular referendum initiative, which sought to amend this same Act by pre- scribing that minority languages in local units could be used officially only where minorities made up at least half of the population. The Court declared the initiative unconstitutional and explained that the Constitution was not a value-neutral document, but was rather based on principles of national equal- ity, non-discrimination, and respect for human rights and the rule of law. It also explained that a democracy based on the rule of law and on the protection of human rights represents the only political model recognized by the Con- stitution; that pluralism requires respect for diversities and particular identi- ties, as well as dialogue and search for a balance which negates any abuse of a dominant position. The Constitutional Court ruled that national minorities’ languages must be qualified as universal and constant values which determine the identity of the Croatian constitutional state. Consequently, according to the Court, any increase of the threshold required to activate the collective rights of minorities must be rationally justified, must have a clearly expressed 1 For more detail on the difficulties in implementation of international minority-rights law in Croatia and other Western Balkan states, see Alice Engl and Benedikt Harzl, “The Inter- relationship between International and National Minority-Rights Law in Selected Western Balkan States”, 34(4) Review of Central and East European Law (2009), 307–355. review of central and east europeanDownloaded law from 42 Brill.com09/26/2021 (2017) 263-293 02:21:29PM via free access <UN> Concepts of National and Constitutional Identity 265 legitimate aim that is in the public interest, and must be necessary in a demo- cratic society. Most notably, in these two decisions the Court offered and referred to a newly emerged ‘benchmark’ tool of constitutional interpretation – the idea of ‘constitutional identity’. Arguing that it stems from the various provisions and principles of Croatia’s founding document, including its Preamble, the Court not only generally implied that the concept may not be abrogated, but that it should be used as the most stringent means of scrutinizing governmental or popular legal initiatives. The aim of this article is to explore and critically explain the wider social, political and legal context that has produced the emergence of the idea of a constitutional identity in Croatian constitutional jurisprudence. Furthermore, the article evaluates the potential effects this new constitutional concept may have for future developments in Croatian constitutional law. It first describes the two cases and compares them to the case law of the Slovenian Constitu- tional Court. The Slovenian Court ruled on strikingly similar issues, but some- times came to different conclusions. The article then presents and discusses the wider implications of such constitutional-law concepts as Croatian nation- al and constitutional identity. 2 Representation of Minorities in the Parliament 2.1 Parliamentary Representation of Minorities in Croatia Numerous authors have stressed the importance of including minorities in decision-making processes at both the local and national level. Lijphart called for coalition governments in which “all significant segments of the plural society”2 are represented through a proportionality system, a mutual veto, and other measures, which enhance power sharing. Later on, he developed his ar- gument further and showed that ‘consensus democracies’ are far better than ‘majoritarian’ ones, as they have numerous advantages for divided societies.3 However, there is less consensus in both academia as well as in societies that live together, with regard to how their interrelationships should be organized. Marko, after examining models for integration, assimilation, autonomy and segregation, and after demonstrating that both the ‘multinational state with territorial delimitation’ as well as the ‘neutral-civic-state-nation’ concepts are 2 Arend Lijpjart, Democracy in Plural Societies: A Comparative Exploration (Yale University Press, New Haven, 1977), 25. 3 Arend Lijphart, Patterns of Democracy (Yale University Press, New Haven, 1999). review of central and east european law 42 (2017)Downloaded 263-293 from Brill.com09/26/2021 02:21:29PM via free access <UN> 266 Toplak and Gardasevic unsuccessful, presents and suggests a ‘Unity in Diversity’ model.4 Other au- thors have focused on the economic effects of ethnic diversity and the inclu- sion of minorities.5 Whereas each country is different, there is still much to be learned from a selection of good examples.6 The current Croatian electoral system was defined in 1999 by the Act on the Elections of Representatives in the Croatian Parliament.7 This Act established three categories of voters. First of all, Croatian citizens vote in ten ‘general’ electoral units, with each unit providing fourteen representatives. The second group consists of citizens who reside outside of the state, the so-called ‘diaspo- ra’. They elect their special representatives in the eleventh electoral unit. Sub- sequent to the 2010 amendments to Croatia’s Constitution, the diaspora voters can now, through a fixed quota model, elect three representatives in total. Finally, citizens who are of other nationalities elect eight representatives in the twelfth electoral unit in accordance with a special formula: Serbs elect three representatives; Italians and Hungarians elect one representative each; Czechs and Slovaks elect one representative together; Albanians, Bosnians, Montenegrins, Macedonians and Slovenians also elect one representative to- gether; and all other minorities also elect one parliamentary representative. Therefore, the Croatian Parliament has one hundred and fifty-one representa- tives. Authors have stressed that this particular scheme provokes the greatest number of problems in cases where minorities together elect one parliamenta- ry representative.8 Apart from that, the Croatian Constitution, as amended in 4 Joseph Marko, “United in Diversity: Problems of State-and-Nation-Building in Post-Conflict Situations: The Case of Bosnia-Herzegovina”, 30(3) Vermont Law Review (2006), 503–550. 5 See primarily Alberto Alesina and Eliana La Ferrara, “Ethnic diversity and economic perfor- mance”, 43(3) Journal of Economic Literature (2005), 762–800. While most of the literature shows the benefits of the inclusion of minorities, opposite views also exist. Nikolov and Bro- sio, for example, argue that the ethnic diversity of Macedonia’s local authorities has a nega- tive impact on the efficiency of municipalities. Marjan Nikolov and Giorgio Brosio, “Efficient Delivery of Local Public Services in Ethnically