Explaining the ineffective implementation of constitutional rulings through the concept of policy networks: the case of public policy towards 'the erased' in the Republic of Slovenia.

• Author: Zeleznik, Ana
• Position: POLSCI PAPERS - Report

Introduction

Public policy towards 'the Erased' in the Republic of Slovenia has been embedded into a very strong national political context. During the transition period in 1991, Slovenia has started its new path away from the communist regime towards capitalism and democracy, both accompanied with a strong neoliberal discourse. The previous Slovenian political tradition under the communist regimes and related political culture caused a general denial of the 'Erased' problem (not only by the national officials but also by the European Union), while the newly formed state was unable to develop the concept of citizenship and human rights; it went through a rather significant tension in order to create an 'absolute collective innocence.' In comparison with other types of erasure in the EU, the Slovenian case was one of the most dramatic symptoms of European exclusion (Zorn & Cebron 2007; Jalusic 2003).

This article focuses on the implementation of two constitutional rulings during the period between 1999 and 2012, in which Slovenia moved from the status of a newly independent country in 1991 to accession and then full EU membership in 2004. In this context, public policy towards 'the Erased' first came about when national authorities illegally removed the former-Yugoslav population (3) from the Register of Permanent Residence (RPR) in 1992. In order resolve this problem, the Constitutional Court issued two constitutional rulings on the unconstitutionality of the government's decision. Considering the broader potential of Dunsire's implementation gap for our research framework, and even for explaining the policy's ineffective implementation, it is necessary to note the visible gap between the goals of a policy in the formulation phase (laid down in the constitutional rulings) and its realisation in the implementation phase. The whole process of ineffective implementation is based on the gap between two different decision-making processes: political on one side and constitutional on the other. The first is characterised by various government attempts to bypass the content of both constitutional rulings, while the second represents the main criteria for the legislature to resolve the problem within six months. Thus, a gap between what political actors wanted to do and what they were constitutionally obliged to do could be seen as a primary research gap concerning and explaining ineffective implementation. Since the whole process of amending the existing legislation and its potential implementation proved problematic, with numerous actors emerging at the state, civil and European level in two established policy networks, the research question thus remains: to what extent does the relationship between policy actors affect the policy implementation process, and what are the main factors contributing to ineffective implementation? In studying the factors contributing to ineffective implementation, some scholars placed their research focus on a particular national case study within various socio-economic and political contexts of a particular country (Mirovic 2014; Cairney 2009), while others highlighted public opinion (Casillas, Ennsand & Wohlfarth 2010; Hall 2014; Wilson 1993) and the transparency of the political environment, public support and the interests of legislative majorities (Vanberg 2001). Our article will test the often overlooked thesis that the combination of mezzo level (the relations between policy actors) and macro level (the structural strength of the state and social political groups in parliament) may be crucial variables that contribute to the effectiveness of policy implementation.

We begin by setting a research question and framework and by reviewing the existing data on the implementation failures and structural levels of policy networks as variables that influence policy outcomes and in particular ineffective implementation. We will then review a case of public policy implementation by considering 'the Erased' in the context of Slovenia's legislative history and active policy actors. In the final part, we will compare two developed policy networks and highlight their impact on the policymaking process. In the conclusion, we will discuss our main findings and their theoretical implications.

Research question and framework

The existing literature on ineffective implementation primarily focuses either on the mezzo-level (the relationship between the policy actors) or on the structural factors impacting policymaking processes. Therefore, our main objective is to address this gap by answering the following research question: What are the main factors contributing to the ineffective implementation of public policy towards 'the Erased'? To do this, we need to understand how the complex dynamics of policy change and implementation apply at the various levels (both the mezzo and macro political level, as well as at the state and European level), and in particular we need to understand the conditions and factors behind these interactive processes. Our thesis is that the failures to implement the two constitutional rulings were due to the conflicting and non-cooperative relations between the policy actors at the national, civil and European level (the mezzo-level), and that the implementation of the constitutional rulings ultimately only occurred as a result of change at the macro political level (the structural change of social political groups in parliament) which contributed to a change in the policy network at the mezzo level. Benson (as cited in Atkinson and Coleman 1992) argued that from the 1960s onwards it became generally accepted in the literature on public policy that policymaking occurs in subsystems and thus in the relationships between policy actors involved in policy networks. The concept of policy networks emerged in order to define policymaking more effectively and has more advantages than traditional approaches (corporatism, pluralism, Marxism) in terms of flexibility and behavioural aspects (Besussi 2006, p. 12). It may also contribute to an understanding of the socio-political changes by taking into account the contextual variables that affect the (re)design or transformation of networks and its internal dynamics (Fink-Hafner 1998, p. 817, Fink-Hafner & Krasovec 2013 and Fink-Hafner & Knep 2015). This article adopts a structural approach to the study of policy networks, using the mezzo and macro levels of policy networks as the potential research frameworks for our empirical analysis. Using a mezzo-level analysis implies that policymaking largely takes place within multi-layered networks. Thus, a mezzo-level analysis should be used alongside other levels of analysis (macro-level) to overcome the limited range of variables and causal pathways (Evans 2001, p. 543). We adopt the views of Daugbjerg (1998) and Marsh & Smith (2000) that policy networks have an explanatory power, especially in terms of integrating the mezzo and macro levels of analysis (see also Daugbjerg 1999; Evans 2001; Van Waarden 1992; Green 2005). Due to the influence of European actors on policy networks and therefore on the implementation process, we are interested in the study of multi-level governance. Understanding the implementation of public policy makes more sense in the context of multi-level governance (Hill & Hupe 2002, pp. 13-15).

The number of empirical works in the field of EU policymaking is growing, emphasising the usefulness of the policy network concept: various policy actors involved in policy formulation and implementation (Borzel 1997; Peterson 1995; 2003; Bressers, O'Toole & Richardson 1994) and its capacity to present a system in which the power is divided between different levels of governments, or between transnational, sub-national and national level decision-making (Hooghe & Marks 2001).

Theoretical framework: Failures of implementation

It should be the object of government to create sound public policies which are capable of being effectively implemented in order to solve social problems. Recently, however, there have been a number of studies on ineffective implementation and on the Dunsire's implementation gap between government legislation and policy transformation (Hogwood & Gunn 1984). These studies first came to prominence in the 1970s in the United States and Great Britain, with the realisation that the measures and reform attempts introduced by national officials in practice had a limited impact. Various approaches to implementation can be found in the implementation literature. Elmore (1979-80) introduced a backward mapping approach to implementation from the bottom-up perspective. He highlights delivery level in policy-making where created policies have to make sense in order to be successful at the top of the system. On the other hand, Hogwood & Gunn (1984, pp. 209-218) developed a political approach which perceives power and conflict between and among social groups in parliament (coalitions) as a major influential factor on the success of public policy. This approach highlights the impact and the relationship between governmental and nongovernmental organisations, their level of conflict relations and the ideology of political parties in parliament.

Implementation failures are not uncommon and cannot be explained merely by administrative procedure but rather by reference to complex social activity where questions of power, resources, values and interests of competent public policy actors play an important role (Lajh 2007, p. 158). Regarding the implementation problem of court decisions, Vanberg (2001, pp. 346-347) argues that it is urgent for constitutional courts to oversee and constrain the exercise of political power by legislative majorities or governmental agencies. Implementation of human rights (in our case constitutional rulings concerning the human-rights violations of 'the Erased') can be influenced by interested non-state actors who mobilise treaty norms...