THE ROLE OF THE CONSTITUTIONAL COURT IN THE ELECTORAL PROCESS

The effective resolution of electoral disputes is central to the integrity of any electoral process. Challenges to controversial outcomes or allegations of interference must be resolved in an impartial manner in such a way that the final results can be respected by the winner and loser alike. According to article 98 of the election law, electoral disputes are resolved in the first instance by the Central Election Commission. The Central Election Commission is regarded by many Croatian NGOs as biased toward the ruling party, as demonstrated by its unwillingness to permit domestic nonpartisan election monitoring in the 1997 election.52 Ultimate responsibility for the resolution of electoral disputes rests with the Constitutional Court, however. Article 100 indicates that any decision by the Central Election Commission can be appealed to the Constitutional Court, which also supervises "the legality and constitutionality of the elections" (article 96). In a positive development, the outgoing Constitutional Court established a Constitutional Court Council for resolving electoral disputes on December 2. The council consists of the three members of the outgoing court who will also be members of the new court, which will ensure continuity in the court's work on the elections and should enhance public confidence in the integrity of the electoral process.

As noted above, the Constitutional Court can also play a vital role in the post-electoral period, ensuring that the will of the people is not overruled, as it was during the Zagreb crisis in 1996, when the executive overturned a presidential decision dissolving the opposition-controlled Zagreb city council. More generally, the Constitutional Court has consistently served as a check on the excesses of executive authority that contravene the Croatian constitution. The court's principled upholding of the constitution is remarkable given the domination of the ruling HDZ party in Croatian political life since 1991, and the weakness and dependence of the judiciary as a whole. Although the government has frequently failed to implement its rulings, the court's insistence on constitutionality and the rule of law have made it one of Croatia's most respected institutions both at home and abroad. Moreover, the new Constitutional Law on the Constitutional Court adopted in September 1999 clarifies the obligation of government agencies and other state institutions to implement decisions of the court and allows appeals before all other means are exhausted, including cases of administrative silence, which human rights lawyers in Croatia regard as a positive development.53

Recent rulings by the Constitutional Court include a determination that the government's interpretation of the conditions for citizenship by naturalization was incorrect, thereby greatly increasing the chances of Croatian Serb refugees obtaining citizenship; a decision that confirmed the right of individuals dispossessed of property to receiveadequate compensation if the property could not be returned; and a decision that strengthened the right to public assembly (discussed above). A 1999 report by the Council of Europe Monitoring Committee stated that the court "has made numerous important rulings affecting individual rights," and noted "it is especially important that there has been extensive use of the right to individual appeals to the Constitutional Court."54 The court has also worked with international advisers from the Council of Europe on cases involving minorities.

The term of the outgoing Constitutional Court expired on December 6, 1999, leaving eight of the eleven posts on the court open for appointment. Regrettably, the ruling HDZ party took advantage of the end of this term to attempt to rob the court of its independence and potentially destroy its reputation. Despite a prohibition against the appointment of persons to the Constitutional Court who are members of a political party, the majority of the candidates approved by the parliament on October 22 have been selected for their political affiliations. Several, including prominent HDZ nationalist parliamentarian Vice Vukojevic, are officials in the ruling party and at least two have little or no experience as judges. Appointments to the court are for a period of eight years. Although all the candidates resigned their party memberships prior to taking up their appointments, many observers, including Vladimir Primorac, former Supreme Court judge, regard the manner of the appointments and the appointments of some of the candidates as a violation of the spirit of the law.55

In exchange for two seats on the new court, opposition members of the Judicial Board approved the entire list of new candidates, although most opposition representatives boycotted the vote in parliament. Rather than debating and voting on each candidate separately, both houses of parliament voted for the entire pre-selected candidate list on a straight yes-no vote. Aside from the outgoing president of the court, Jadranko Crnic, who had already made clear his determination to retire at the end of his term a year ago, none of the other seven outgoing members of the court were asked if they would like to remain on the court.56

The result is likely to be a weakened court, which has neither the juridical expertise nor the political independence to carry out its duties as the final arbiter of electoral disputes and to curb the excesses of the executive. In the words of one Croatian human rights lawyer, "the first danger is the elections, but in the long-term, [the danger] is the effect on the constitution."57 A political scientist pointed to another concern, suggesting that it was "likely that the Constitutional Court will inhibit the legislative process for the life of the next parliament."58 Justice Crnic was damning in his assessment of the manner in which the new members of the court had been appointed: "my view is that in the appointments to the court, [the political parties] went over the boundary of politeness and are coming close to crossing the line of constitutionality."59

Justice Crnic has indicated, both to Human Rights Watch and in a variety of press interviews, that he believes that the stipulation that the president must inform the parliament six months in advance that the Constitutional Court's mandate will expire is intended to provide for a lengthy and public selection process for the members of the new court.60 He made clear to Human Rights Watch his dismay at the procedure that was used:

There should be a public debate for every candidate [member of the Constitutional Court]. [Each candidate] should be interviewed about his role because...the court can, under its jurisdiction, review every decision of every court and body of the government. We have to have persons who are of professional quality to be able to make such decisions. It wouldn't be appropriate that I talk about names, but during these eight years there has only been noise once about a judge, whereas in recent days, there has been a great deal of noise.61

The new members of the court took up their posts on December 7. The decision of the outgoing court to appoint the three continuing members to the Constitutional Court Council, as noted, will substantially enhance confidence in the electoral process and limit concerns of political interference in elections. Justice Crnic believes that only a change in the Constitutional Law on the Constitutional Court and the Law on the Status of Parliament to clarify the manner of appointments will avoid such an outcome in the future. He appears optimistic about the possibility of such a change: "I have to believe that in future the Constitutional Law and [Law on the Status of] Parliament will be changed and that it will be the first and last time that this [manner of appointment] will happen."62