Popular initiatives, populism and the Croatian Constitutional Court

Djordje Gardasevic


Unlike states that have been experiencing a populism agenda which derives from actors already in office, I believe there are two major reasons that explain the fact that in Croatia populist claims against constitutionalism have to be searched for in players acting outside of regular government.[1] The first reason for my claim is the lack, since 2000, of clear and solid parliamentary supermajorities, which over time has inevitably led to the need to create coalition governments. Consequently, in Croatia there has been no clear-cut case of governments taking over other constitutional institutions. Additionally, until the 2013 accession, Croatia was heavily engaged in preparations to join the EU, a task which also included adjustments to the European legal system. This made it quite difficult for a populist agenda to prevail within the institutions themselves. The second - and, for my purposes, more important - reason underlying my opening claim is that in Croatia there exists quite an easy method for organizing popular referendum initiatives. Here I side, quite generally, with Carlo Ruzza, who states that

‘one can often identify populist undertones in the now recurrent calls for greater public deliberation at local levels, and other forms of political participation by non-state actors, such as promoting referenda, which incorporate the actors of protest politics’, and ‘foster participation by social movements in decision-making’.3

From the substantive point of view, the Croatian Constitution allows nearly everything to be decided by a referendum. Apart from constitutional amendments, this includes proposals on bills, proposals on any other issue considered important for the independence, unity and existence of the Republic of Croatia or, even more extensively, proposals on any other issue within the parliament’s competence.4 Procedurally speaking, since the constitutional revision of 2000, referendums in Croatia may also be called through a popular initiative, if requested by at least 10 percent of all the voters in the State. Moreover, since 2010, a positive referendum vote is deemed successful ifit is supported by a mere majority of those who actually participated in voting.5 In addition, according to the strict letter of the Constitution, in the case of a popular initiative the Parliament must call a referendum. The only way to stop this is if the Constitutional Court decides that the question proposed to be put to a referendum vote is not in accordance with the Constitution or that procedural requirements for the call were not met.6

It is thus not a surprise that in recent years, such a fertile ground has triggered a series of popular initiatives.7 Although, with the exception of the 2013 marriage referendum, they were all blocked either by the Constitutional Court or by the subsequent actions of other state bodies

Gary Marotta (eds.) Transformations of Populism in Europe and the Americas: History and Recent Tendencies (Bloomsbury 2016) 136-149. For a general argument that direct democracy can actually cure some of the problems created by populist parties and governments, see John G. Matsusaka, Let the People Rule - How Direct Democracy Can Meet the Populist Challenge (Princeton University Press 2020). For a completely different view, construing ‘a defense of representative government’ which may ‘help to dampen the seductive appeal of the populist rhetoric promoting the expanded use of initiatives and referenda’, see for instance: John Haskell, Direct Democracy of Representative Government? Dispelling the Populist Myth (Westview Press 2001).

  • 3 Carlo Ruzza, ‘Populism, Migration, and Xenophobia in Europe’ in Carlos de la Torre (ed.), Routledge Handbook of Global Populism (Routledge 2019) 204.
  • 4 Article 87 of the Croatian Constitution.
  • 5 It is certain that such an extremely low threshold favors pursuance of ‘majoritarianism’ as one of the key dimensions of the ‘populist constitutionalism’ concept. Paul Blokker, ‘Populist Constitutionalism’ in Carlos de la Torre (ed.), Routledge Handbook of Global Populism (Routledge 2019) 113-128. See also Manuel Anselmi, Populism: An Introduction (Routledge 2018) 87-90.
  • 6 Article 95 of the Constitutional Law on the Constitutional Court. However, notice the different, deferring view, that the Croatian Constitutional Court took in that respect in the last two cases I describe here (the 2018 Initiatives on the electoral system and the Istanbul Convention).
  • 7 For a similar observation that direct democracy should not be discounted in analyses of populism, because relevant research shows that ‘the public is eager to participate in deciding important issues’, see Matsusaka (n 2) 61.

Popular initiatives, populism and the Croatian Constitutional Court 111 (Parliament and the Government),[2] I believe that specific Croatian constitutional arrangements regulating direct decision-making seem to present an almost perfect framework for populists of various sorts. The Croatian example of the popular referendum initiative in this context functions well because the initiative is constitutionalized, it transgresses the boundaries of an advisory institution, and it may be used to decide on a quite extensive range of issues. In this way, as Paul Taggart notes, it well may be a ‘useful lightning rod for attracting attention’ and ‘building up support’ for populist movements, used as ‘a critique of the lack of participation in representative democracy or as an institutional mechanism to add to representative democracy to make it more participatory’. Popular initiative thus ‘may embody a populist impulse’.

My aim here is not to present different and varying definitions of populism, but rather to show its connection to referendums and the relevant practice of the Croatian Constitutional Court in this regard. This indeed is a difficult task. There exist significant theoretical differences both as to which particular direct decision-making institution is most linked to promoting populist ideas (referendums in general, plebiscites or, maybe, popular initiatives in the strict sense) and also as to whether referendums are a constitutive element of definitions of populism. Thus, for instance, Catherine Colliot-Thelene argues that populist movements

certainly show a strong preference for the referendum, rather than for the votes of the elected assemblies, but the referendum is part of the panoply of instruments of modern democracies. And governments that are usually not suspected of being populist also resort to referenda, often with plebiscitary intentions.

On the other hand, my focus here is neither on populist presidents nor on populist political parties or governments already in power. It is certainly well known that all these actors play an inevitable role in theoretical discussions on populism, and it has already been clearly noted that referendums, along with

other strategics, arc used by populist governments to ‘weaken the remaining checks and balances’ inherent in a modern constitutional state.[3] Or, as Steven Levitsky and James Loxton note, in their conflicts with the ‘traditional elite’ presidents often use referenda to ‘circumvent Congress and convoke a constituent assembly aimed at “re-founding” the institutional order’. On the other hand, Ángel Rivero claims that direct democracy, which means ‘the people’s will’, is characteristic of new European populism, where ‘the vast majority of European populist parties, either from the right or from the left, are strong supporters of referenda (or, to be more precise, of plebiscites) as the paramount democratic institution’.

In this contribution, I will rather focus on bottom-up popular referendum initiatives, since they arc typical of the Croatian case. In addition, here I find support from Paris Aslanidis whose research on bottom-up populist social movements suggests that ‘populism is not the exclusive domain of political parties and their leaders’. He stresses, instead, that populism must also be analyzed as a transformation of‘grassroots populism into an institutionalized force’, a process in which a ‘mode of articulation’ of social grievances leads to a ‘collective action frame’ that ‘aims at triggering a cognitive process that transforms discontent into action’.

  • [1] In their recent research dealing with differences between populism in an ideational sense and populism as a political communication style in the Croatian case, two prominent Croatian authors also, except for two cases, have focused on populism as emerging primarily from politicians acting outside of the state government. See Marijana Grbesa and Berto Salaj, ‘Textual Analysis: An Inclusive Approach in Croatia’ in: Kirk A. Hawkins, Ryan E. Carlin, Levente Littvay, and Cristobal Rovira Kaltwasser (eds.), The Ideational Approach to Populism: Concept, Theory, and Analysis(Routledge 2018) 67-89. 2 Here I point to an observation made by Gianfranco Pasquino who states that ‘the search for the conditions that give rise to the emergence of populism must continue’ and, from the methodological point of view, links this, among other things, to the issue of‘the ways by which government by the people is exercised (through representational institutions or through popular initiatives and referendums?)’. Gianfranco Pasquino, ‘Populism and Democracy’ in D. Albcrtazzi and D. McDonnell (eds.) Twenty-First Century Populism: The Spectre of Western European Democracy (Palgrave Macmillan 2008) 19. On the other hand, appeals to popular initiatives and referendums have been integral parts of the populist agenda for a long time. For such an observation in reference to American developments in populist politics, see Camila Vergara, ‘Crisis Government: The Populist as Plebeian Dictator’ in Amit Ron and Majia Nadesan (eds.) Mapping Populism: Approaches and Methods (Taylor and Francis 2020) 212; Ronald Formisano, ‘Populist Movements in US History: Progressive and Reactionary’ in Bridget Maria Chesterton, York Norman, and
  • [2] Here one may notice that the Croatian experience with referendums so far generally conforms to the evaluation which David Butler and Austin Ranney made already in 1994: ‘in the few polities with both government-controlled referendums and popular initiatives, referendum measures referred to the voters by governments have generally succeeded more than measures placed on the ballot by popular initiatives’. David Butler and Austin Ranney, ‘Theory’ in David Butler and Austin Ranney (eds.), Referendums Around the World - the Growing Use of Direct Democracy (The AEI Press 1994) 20. 2 Paul Taggart, Populism (Open University Press 2000) 103-105. On the other hand, from the rhetorical point of view, popular initiatives may serve the goal that Jan-Werner Müller well captures in the following words: ‘The danger comes, in other words, from within the democratic world - the political actors posing the danger speak the language of democratic values’. Jan-Werner Müller, What Is Populism (University of Pennsylvania Press 2016) 6. 3 Catherine Colliot-Thelene, ‘Populism as a Conceptual Problem’ in Gregor Fitzi, Jürgen Mackert, and Bryan S. Turner (eds.), Populism and the Crisis of Democracy, Volume 1: Concepts and Theory (Routledge 2019) 18.
  • [3] Gregor Fitzi, 'Introduction: Political Populism as a Symptom of the Great Transformation of Democracy’ in Gregor Fitzi, Jürgen Mackert, and Bryan S. Turner (eds.), Populism and the Crisis of Democracy, Volume 2: Politics, Social Movements and Extremism ( Routledge 2019) 6. For the same argument, and several examples of European states for this purpose, see also: Klaus Bachmann, ‘The Role of Populist Parties and Movements in Transitions to Hybrid Regimes in Europe’ in Gregor Fitzi, Jürgen Mackert, and Bryan S. Turner (eds.), Populism and the Crisis of Democracy, Volume 2: Politics, Social Movements and Extremism (Routledge 2019) 121-136. For Latin American experiences, see, for instance: Carlos de la Torre, ‘The Contested Meanings of Populist Revolutions in Latin America’ in Bridget Maria Chesterton, York Norman, and Gary Marotta (eds.), Transformations of Populism in Europe and the Americas: History and Recent Tendencies (Bloomsbury 2016) 330-344. 2 Steven Levitsky and James Loxton, ‘Populism and Competitive Authoritarianism in Latin America’ in Carlos de la Torre (ed.) Routledge Handbook of Global Populism (Routledge 2019) 337. 3 Angel Rivero, ‘Populism and Democracy in Europe’ in Carlos de la Torre (ed.) Routledge Handbook of Global Populism (Routledge 2019) 286. 4 Paris Aslanidis, ‘Populism and Social Movements’ in Cristobal Rovira Kaltwasser, Paul A. Taggart, Paulina Ochoa Espejo, and Pierre Ostiguy (eds.) The Oxford Handbook of Populism (Oxford University Press 2017) 305-325. Although Aslanidis’s analysis is further directed to transformations vis-a-vis political parties, I find these general elements very inspiring for my own approach to popular referendum initiatives.
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