Electoral law and national minorities. The work of the council of europe’s venice commission / Pierre Garrone
Head of the Division of Elections and Referendums at the Secretariat of the Venice Commission (Council of Europe), PhD (Geneva University), Master of Advanced European Studies (College of Europe), titulaire du brevet d'avocat (Switzerland).
He was inter alia strongly involved in the drafting of the the Code of Good Practice in Electoral Matters, which is the Council of Europe reference document in the electoral field.
His publications address in particular the following issues: electoral law; Swiss and comparative constitutional law; European Union law - the freedoms of the European single market.
The issue of national minorities has been central for the Council of Europe since the fall of the Berlin wall. This issue, the importance of which is generally higher in the Eastern than in the Western part of the continent, had been forgotten during the time of “real socialism”, however the issue of the multi-national state was put on the table in a brutal way when the war broke out in Yugoslavia. Fortunately, in most instances, it has been settled in a more peaceful way, even if all conflicts have not been put to an end.
The Council of Europe’s work in this field led in particular to the adoption of two international treaties, the European Charter for Regional or Minority Languages² and the Framework Convention for the Protection of National Minorities. ³ Whereas the former, as is clear from its title, focuses on language issues, the latter is much more general. It has been ratified by 39 out of 47 member states, the main exceptions being Belgium, France, Greece and Turkey.
The Framework Convention does not deal expressly with electoral matters; however, it provides that “The Parties shall create the conditions necessary for the effective participation of persons belonging to national minorities in cultural, social and economic life and in public affairs, in particular those affecting them” (Article 15).
In turn, the Venice Commission has also been very active in the field of minority protection. As the main body in charge of electoral matters (except for election observation) in the Council of Europe, it was natural for it to approach the issue of electoral law and national minorities, through general texts or guidelines as well as through specific opinions on member states.
This report is aimed at presenting the general documents of the Council of Europe in the field of electoral law and national minorities. It will also summarise the most recent Venice Commission opinions in this field, which concern Montenegro.
II. Guidelines and studies of the Council of Europe in the electoral field
1. The Code of Good Practice in Electoral Matters
According to the Code of Good Practice in Electoral Matters, the reference document of the Council of Europe in the electoral field:
a. Parties representing national minorities must be permitted.
b. Special rules guaranteeing national minorities reserved seats or providing for exceptions to the normal seat allocation criteria for parties representing national minorities (for instance, exemption from a quorum requirement) do not in principle run counter to equal suffrage.”?
Other references are made to national minorities as follows:
- whereas the requisite period of residence for obtaining the right to vote in local or regional elections should not exceed six months, a longer period may be required (only) to protect national minorities;?
- constituency boundaries should be defined without detriment to national minorities; if necessary, representatives of national minorities should be members of the boundary committee in charge of redrawing constituencies;?
- official information on elections should be available in the languages of the national minorities.?
This means that special rules may be used for ensuring the representation of national minorities in the elected bodies. However, this is not the rule, as comparative documents of the Venice Commission show.
The main study in this field is entitled
2. Electoral law and national minorities?
In 2000, the Venice Commission adopted a detailed study on ‘Electoral law and national minorities’ based on contributions from 37, mostly European, states.? This study did not focus on specific rules directed at the representation of national minorities in elected bodies. On the contrary, it underlined that rules specifically providing for the representation of minorities are rather rare (the most important ones exist in Croatia, Romania and Slovenia).
Other systems, which facilitate the representation of minority organisations without providing for guaranteed seats, are not very frequent either, such as exemption from threshold rules practiced in Germany and Poland. There may also be a system establishing a balance between groups (in the case of Belgium, linguistic groups). The study found that the representation of minorities is actually
mostly ensured through the normal functioning of electoral systems. Therefore, the report had first to address the issue of electoral systems and their effects in general, before dealing with their specific effects on the representation of minorities. It concluded that:
- The impact of an electoral system on the representation of minorities is felt most clearly when national minorities have their own parties.
- Although parties representing national minorities are very widely permitted, their existence is neither the rule nor indispensable to the presence of persons belonging to minorities in elected bodies.
- The more an electoral system is proportional, the greater the chances dispersed minorities or those with few members have of being represented in the elected body. The number of seats per constituency is a decisive factor in the proportionality of the system.
- When lists are not closed, a voter's choice may take account of whether or not the candidates belong to national minorities. Whether or not such freedom of choice is favourable or unfavourable to minorities depends on many factors, including the numerical size of the minorities.
- Unequal representation [such as uneven distribution of seats between constituencies] may have an influence (positive or negative) on the representation of concentrated minorities, but the replies to the questionnaire do not indicate any concrete instances.
- When a territory where a minority is in the majority is recognised as a constituency, this helps the minority to be represented in the elected bodies, especially if a majority system is applied.
To sum up, the participation of members of national minorities in public life through elected office results not so much from the application of rules peculiar to the minorities, as from the implementation of general rules of electoral law, adjusted, if need be, to increase the chances of success of the candidates from such minorities.¹?
After the adoption of that study, the Venice Commission addressed the issue of specific rules of electoral law aimed at the representation of minorities in elected bodies.
The first document on the issue is entitled “Report on Electoral Rules and Affirmative Action for National Minorities’ Participation in the Decision-Making Process”¹¹, whereas the second one focuses on the very issue of dual voting for persons belonging to minorities.¹²
3. Electoral Rules and Affirmative Action for National Minorities’ Participation in the Decision-Making Process
a. Scope of the report
The report focuses on specific rules, intended to ensure national minorities’ representation in the elected bodies. It understands affirmative action as applying to those electoral rules which go beyond the principle of non-discrimination.¹³
The term ‘minority’ is also interpreted broadly, so that the scope of the study is not limited to minorities as recognized in national or international law, but refers more broadly to ethnic, linguistic or religious communities when they benefit from specific rules of electoral law.
According to this study:
The most frequently used affirmative action electoral rules are found in the following areas:
• The electoral system in general (proportional or mixed system)
• The voting right (dual voting right and special voters lists)
• The numerical threshold
• The electoral districts (their size, form and magnitude)
• Reserved seats
• Representation (over-representation)
• Use of the national minorities language in the electoral process.¹?
b. Case study
The report mentions thirteen European countries where affirmative action in favour of minorities as defined above could be identified (at the time of the study, that is in 2005). They may be classified as follows:¹?
- The major (e.g. ethnic) groups are taken into account in the repartition of seats. This is systematical in Bosnia and Herzegovina and in Belgium. In Switzerland, language groups or regions must be adequately represented in the executive and judicial branches of government.
- Reserved seats for minorities. In particular, Croatia and Slovenia provide for a special election to seats reserved to national minorities at national level. In Slovenia, such a rule applies also at local level. In Cyprus, a representative of each of the Maronite, Armenian and Latin religious groups is elected to the House of Representatives, albeit with a consultative status.
- Threshold exemption. In Germany and Poland, organizations of national minorities are exempted from the 5% threshold requirement.
- Other types of deviation from the general rules on allocation of seats. In Romania, organizations of citizens belonging to national minorities, which fail to obtain the number of votes for representation in Parliament, have the right to one deputy if they have obtained throughout the country at least 5% of the average number of validly expressed votes necessary for the election of a deputy.
Special rules apply to candidatures by organizations of national minorities for local elections. In Italy, specific rules make the election of candidates of national minorities easier for European elections, whereas in Hungary, it is at local level that such exceptional rules apply.
- Deviation from the normal repartition of seats between constituencies. Provisions of some subjects of the Russian Federation (Carelia, Daghestan) help minorities to be represented in the elected bodies through deviations from the rule of equal representation of the population in the legislative bodies.
- Design of electoral districts in order to ensure representation of national minorities. This is the case in “the former Yugoslav Republic of Macedonia”, including through the design of municipalities.
On the basis of this comparative study, the report remarks that specific rules which may be considered as providing an affirmative action mechanism are generally introduced as isolated elements and have limited range, while in a few countries, they are introduced in a more systematic way.¹?
The study furthermore underlines that affirmative action electoral rules are particularly efficient when applied in local elections.¹?
In conclusion, the study affirms the following principles, which may be found, explicitly or implicitly, in the Code of Good Practice in Electoral Matters of the Venice Commission, ¹? which is the reference document of the Council of Europe in the electoral field:
a. Parties representing national minorities must be permitted. Yet the participation of national minorities in political parties is not and shall not be restricted to the so-called ethnic based parties.
b. Special rules guaranteeing reserved seats for national minorities or providing for exceptions to the normal seat allocation criteria for parties representing national minorities (for instance, exemption from a quorum requirement) do not in principle run counter to equal suffrage.
c. Neither candidates nor voters should be obliged to reveal their membership of a national minority.
d. Electoral thresholds should not affect the chances of national minorities of being represented.
e. Electoral districts (their number, the size and form, the magnitude) may be designed with the purpose of enhancing the minorities' participation in the decision-making processes.¹?
4. Dual voting for persons belonging to minorities²?
Dual voting can be defined as the possibility – for persons belonging to minorities - to vote separately for mainstream parties and candidates and for candidates belonging to national minorities. It is but one of the ways to guarantee that persons belonging to minorities are represented in the elected body.
In Europe, dual voting is applied as such only in Slovenia, where two representatives of the Italian and Hungarian minorities elected on special lists have full status as members of Parliament. However, in Cyprus, as well as their general right to vote as members of the Greek community, the members of each of the Maronite, Armenian and Latin religious groups elect a deputy to the House of Representatives, but with a consultative status. The issue of introducing dual voting has also been raised from time to time in Croatia.
The Venice Commission considers that dual voting goes prima facie against the first aspect of equal suffrage, the one-person one-vote principle (or equal voting rights).²¹
However, this right is not absolute. Exceptions are admissible if they pursue the public interest and respect the principle of proportionality.
The aim to be reached—the public interest—is a proper representation of minorities. However, the long-term objective is inclusiveness. The specific representation of minorities may be considered as being in the public interest and may therefore be envisaged only if the system appears not to be inclusive enough. The principle of proportionality has to be respected under all its aspects: in particular, a measure is admissible only if the targeted aim cannot be reached through a less intrusive measure. Measures of a general character (not specific to minorities), such as greater proportionality of the electoral system, delimitation of constituencies or some forms of preference voting may be sufficient in order to guarantee sufficient representation of minorities, without infringing at all the equality principle. Moreover, if the aim to be pursued is inclusiveness, the best situation is when no measures are needed to ensure representation of minorities in elected bodies, since this representation results from the normal functioning of the system. In that case, no exception is made to equal voting rights and solutions which would imply such exceptions are not admissible. Dual voting, as an exception to the “one person—one vote” principle, has to be generally considered as a more serious infringement of the principle of equal suffrage than other measures intended to ensure a proper representation of minorities.
In conclusion, the Venice Commission considers that “[t] he long-term
interests of minorities and of societies as a whole are in principle better served by representation under the “ordinary electoral system” which guarantees equal rights to citizens, irrespective of the group to which they are initially affiliated. However, this does not exclude specific measures of a transitional nature when needed in order to ensure the proper representation of minorities. These solutions include inter alia exceptions to the rules on threshold, reserved seats and over-representation of districts in which the minority is in a majority.”²² “[D]ual voting is an exceptional measure, which has to be within the framework of the Constitution, and may be admitted if it respects the principle of proportionality under its various aspects. This implies that it can only be justified if:
- it is impossible to reach the aim pursued through other less restrictive measures which do not infringe upon equal voting rights;
- it has a transitional character;
- it concerns only a small minority.”²³
III. A case study: the authentic representation of national minorities in Montenegro
According to Article 79(9) of the Constitution of Montenegro “Persons belonging to minority nations and other minority national communities shall be guaranteed the rights and liberties, which they can exercise individually or collectively with others, as follows:
9) the right to authentic representation in the parliament of the Republic of Montenegro and in the assemblies of the local self-government units in which they represent a significant share in the population, according to the principle of affirmative action”.
In joint opinions with the OSCE/ODIHR²? , the Venice Commission assessed two successive versions of a draft law on Amendments and Supplements to the Law on the Election of Councillors and Members of Parliament of Montenegro.²?
As regards the ethnic composition of the country, according to a 2003 census, 43 per cent of Montenegro’s population identified themselves as Montenegrins, 32 per cent as Serbs, 12 per cent as Bosniacs and Muslims, 5 per cent as Albanians, 1 per cent as Croats, while 7 per cent were categorized as “others”. The Roma population is also estimated to be around 20,000, including refugees from Kosovo.²?
Legislation in force at the time of the opinion allowed only Albanians special representation, more precisely five seats out of 81, which roughly corresponds to the number of Albanians in the whole population (about 5 %).
The drafts submitted to the Venice Commission and the OSCE/ODIHR for opinion aim at introducing a system of “authentic” representation of minorities in line with the constitutional text.
According to the last version of the draft:
- affirmative action is extended to all minority groups (not only the Albanian minority as previously);
- groups of citizens may submit lists of candidates (not only political parties and coalitions);
- two different kinds of measures of affirmative action are foreseen for larger minority groups and for the smallest group (the Croatian minority);
- the declaration of belonging to a minority group is purely voluntary;
- each national minority is eligible to benefit from the affirmative measures provided in the law and the limitation in a previous draft that excluded a national minority constituting more than 1/6 of the population has been removed;
- the votes expressed in favour of a particular minority are not lost if the number of votes received by the minority reaches the minimum requirement of 0.7 per cent of the valid votes (0,4 per cent for the Croatian minority).
More precisely, if none of the lists of candidates of the same specific minority or minority national community reaches the general threshold of 3 per cent, but some of the lists individually gain not less than 0,7 per cent of the valid votes, the latter lists take part in the allocation of the seats corresponding to a maximum of 3 per cent of the total number of valid votes. It must be understood that this upper limit applies irrespectively of the actual number of votes individually obtained by the participating lists. Even if the total is, say, 6 per cent, the “aggregated” list will only participate in the allocation corresponding to the 3 per cent upper limit.
Such specific rules in favour of the representation of minorities in Parliament may be considered as implementing the above-mentioned Article 15 of the Framework Convention for the Protection of National Minorities.
The Venice Commission welcomes the amendments extending affirmative action to all minorities in a non-discriminatory manner, in line with the constitutional requisite. It also underlines that the possibility of the representation of the same minority by several lists is in accordance with European standards; the Venice Commission²? had in fact previously criticised a legislation which favoured in practice one organisation as representative of a national minority. ²? Moreover, it welcomes an amendment in the second draft which made clear that the participation of a candidate list of a specific minority nation or minority national community in the pre-election coalition with candidate lists of political parties or civic groups not representing minority rights specifically shall not prevent other submitters of candidate lists of that minority nation or minority national community from benefitting from the exemption of the 3% ²? threshold.
In the first version of the draft law submitted to the Venice Commission, a specific preferential treatment was reserved to “a minority national community participating in the total population to 2%”; in the second version, this quantitative criterion had been substituted for “the minority national community of Croats”, which is the same in practice. However, the Venice Commission and the OSCE/ODIHR are of the opinion that it would be preferable to maintain an objective, quantitative criterion in order not to stigmatise one specific group and, more importantly, not to create a possible basis for discrimination in the Constitution, should, in future censuses, the Croats reach a higher percentage or other minority groups reach lower percentages.³?
More generally, distinctions according to the size of minorities are welcomed by the joint opinion. For national elections, lists of a political party or a group of citizens representing less than 2 % of the population need to be supported by 300 signatures, whereas 1000 signatures are needed for bigger minorities (and 1 % of the electorate for other lists—that is nearly 5000). The issue could be raised whether the number of signatures should not depend on the size of the minority also for municipal elections.³¹
The Venice Commission and the OSCE/ODIHR conclude that “regarding the authentic representation of minorities, the use of a general model for all minority nations or other minority national communities without reserved seats is introduced by the draft law, with a lower quorum requirement which partially takes into account the actual population of minorities. This model is original and balanced, is in conformity with the Constitution and applicable international standards, and therefore deserves a positive assessment.” ³²
On 8 September 2011, the parliament of Montenegro adopted the Law on the Amendments to the Law on Election of Councillors and Members of Parliament of Montenegro. The three main controversial points had been settled as follows: a quantitative criterion of less than 15 % of the population had been introduced in the definition of minorities; the need to provide proof of Montenegrin citizenship before 31 December 2012 had been introduced; the maximum number of seats to which aggregate lists can aspire had been established at 3 seats.
The Venice Commission’s work in the field of participation of persons belonging to national minorities in elected bodies, and in particular its documents of a comparative nature, is based on the following principles:
- the long-term objective of any political system is inclusiveness;
- representation of national minorities in elected bodies is in the public interest, and may lead to exceptions to strict equality if in conformity with the principle of proportionality;
- this means that specific rules on representation of national minorities are admissible only as long as measures of a general character do not ensure proper participation of these minorities in elected bodies; they should therefore be limited to those territories and periods of time where they are necessary;
- exceptions to the “one person—one vote” principle, such as dual voting, should applied only as ultima ratio.