Facts and Arguments about the Introduction of Initiative and ...

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Hierarchy of laws A law that is approved by referendum must be higher in the legal hierarchy than laws passed by parliament. There is an additional provision that a law approved directly by the people cannot subsequently be scrapped by parliament. After all, if a referendum is held, this means that the people want to express their own opinions about the issue concerned. With the referendum, the democratic mandate is consequently placed in the hands of the voters and not in those of the members of parliament. In Switzerland, this superiority of the people’s law is regulated at federal level by including the people’s law as part of the constitution. Because the Swiss constitution can only be changed via a referendum, this means that a decision by the people can only be abolished by another decision by the people. The disadvantage is, however, that the Swiss constitution has developed into a strange mixture of general provisions (such as those that usually tend to appear in a constitution) and very specific stipulations (that are normally regulated by ordinary laws). That serious problems can arise on this point is shown by the example of Oregon. The binding citizens’ initiative referendum exists in this US state but, by simple majority, the state parliament can abolish laws that are made by referendum. This has actually happened. In 1988, for example, a people’s initiative was carried which provided for longer prison sentences for violent criminals. This law was subsequently repealed by the legislative chambers. A popular initiative was later launched (Measure 33) in an attempt to prevent this type of occurrence. It proposed the following: • laws created on the basis of a people’s initiative can only be changed in the first five years by another people’s initiative; • after five years, a change can only be implemented if it secures at least 60% of the votes in both legislative chambers (Senate and House of Representatives). However, the proposal was rejected by only a narrow margin in November 1996. Participation quorums In view of the mandate principle, it is absurd to introduce participation quorums for direct decision-making. The citizens who do not take part in a vote are considered to have given a mandate to those who do. If one introduces participation quorums, one opens the door to boycott actions by minorities. Suppose, for instance, that there is a participation quorum of 40% and that 60% of the electorate want to vote. Within the group keen to vote, 55% support the proposal to be voted on and 45% oppose it. The opponents cannot win the vote if they take part in the referendum. But if they stay at home, however, they can ‘win’, because then the 40% quorum will not be achieved and the proposal will be rejected, against the will of the majority [see 2-2]. We have seen that the parliamentary mandate is only a derived form of the mandate which the effective voters receive in direct-democratic decision-making. A parliament contains on average only about 0.003% of the population and yet it can still make decisions. So it makes no sense to suddenly introduce participation quorums of 20% or 40% for the ad hoc parliament that is formed by a referendum. The mistake that 1 is made with participation quorums is that the people who stay at home are counted as either supporters or opponents (depending on the referendum). In reality, they have chosen not to voice their opinion. That must be respected. Finally, we can also note that the turnout for a referendum must not be compared with the turnout for elections. In elections, all kinds of issues are on the agenda or in the party manifestos: the current ones and all the new topics that may present themselves in the next four or five years. A referendum has only one specific issue on the agenda, so it is logical that the turnout for this is lower than for elections. Arguments are sometimes put forward for a low quorum, precisely to avoid possible boycotting. However, this standpoint is illogical. Either a quorum is so low that it is bound to be met: then, to be sure, boycotting is ruled out – but at the same time the quorum itself is pointless. Or the quorum is so high that it is unlikely ever to be achieved: then boycotting is possible. There is no third possibility. It also needs to be remembered that participation quorums are basically impossible for parliamentary or municipal council elections. After all, if such a quorum were not to be met, the legislative and administrative system would just grind to a halt. There are no good reasons for not having a quorum for this kind of election but insisting on one for referendums. If the group making a decision by referendum is required to be ‘sufficiently representative’, then the same requirement must apply a fortiori (even more stringently) for parliamentary elections. Suppose that a participation quorum of 25% is set for a referendum and at the same time no quorum is set for parliamentary elections. A referendum in which 20% of the electorate votes will be declared invalid. But a parliament that is elected by only 5% of the electorate, however, can still make ‘legitimate’ decisions – decisions based on an indirect citizen participation of 5% – whereas the rejected referendum result can boast a direct citizen participation of 20%. That is illogical. Moreover, the mandate that is given to parliament is much more far-reaching than the mandate given to the voters by those who stay at home in a referendum. After all, nothing can be said with certainty about what farreaching decisions will be made by all the members of parliament. During the course of a parliamentary sitting, new topics and draft legislation that could not have been foreseen are constantly being put onto the agenda. Finally, some supporters of a participation quorum refer to the so-called danger of ‘compartmentalisation’. By this they mean that citizens would only vote for the issues which their own group is concerned about. For instance, in a referendum on an action plan to deal with farmyard manure, only the small section of the population who are cattle farmers would vote. This objection rests on the false premise that people only vote to defend their own group’s interests. The reality is different (see chapter 6, point b). In countries or states without participation quorums, such as Switzerland and California, there is no evidence of ‘compartmentalisation’. The practical progress of direct-democratic votes makes any ‘compartmentalisation effect’ improbable a priori. For example, on any one referendum voting day in Switzerland there are almost always several referendum issues to be voted on at the same time. These referendums are on the most diverse subjects and concern not only the federal and cantonal levels, but also the municipal level. Thus people are not normally called to the ballot box for the sake of one single specialised issue.
On the contrary, it is the parliamentary system that is highly exposed to the temptation of compartmentalisation. Interesting examples of this are precisely the farmyard manure action plan or the prohibition of tobacco advertising in Belgium. Economic interest groups can, via their contacts with a small group of ‘specialised’ members of parliament, exercise unprecedented pressure on the decision-making. Directdemocratic decision-making would make it much more difficult for such interest groups to play a winning hand. The quorum in the parliament Sometimes the participation quorum for referendums is defended by making a comparison with the quorum that applies in many parliaments. Votes in the parliament are often only valid provided at least 50% of the members of parliament cast their vote. In the analogy, a popular vote could only be valid provided at least 50% of the people cast their votes. The analogy is false, however. We have seen that the parliament is logically equivalent to those who vote in a referendum, not with the total number of people entitled to vote. A member of parliament has a current contract with the citizens: he or she has entered into this contract for a specific period to undertake the social decision-making insofar as the citizens themselves do not want to decide. The Member of Parliament (MP) must theoretically always be present at the votes in the parliament, therefore. If he or she intentionally stays away, this is a breach of the contract with the voters. The 50% quorum in the parliament is a weak reflection of this obligation. It is not a happy arrangement, because it works in favour of the polarisation between majority and minority in the parliament. In its turn, this polarisation is irreconcilable with the contract that exists between members of parliament from the minority, and their voters. If these members of parliament are part of the minority, they can justifiably claim that their presence in the parliament is pointless: they can never affect the decisions. These members of parliament are, therefore, unable to honour their contracts with the voters, which is not their own fault, but a result of blocking by their colleagues from the majority. It would be better to replace the 50% quorum in the parliament by a rule in which the absence of a member of parliament would be sanctioned by dismissal and replacement by an unelected candidate from a different party. The referendum’s area of authority It must be possible to hold a referendum on all the issues for which a representative decision is also possible. It is in conflict with the right of initiative to deny the citizens the right to direct decision-making on certain issues. However, direct decision-making must be subject to the restrictions that also apply to representative decision-making. Three points are especially important in this context: • The decision-making must occur at the proper level. For example, one cannot reform the social security system at provincial level, or abolish the generation of nuclear power at municipal level. • The proposals to be voted on must be in accordance with the basic rights and freedoms as established in the constitution and the international treaties concerning human rights. • However, the people must have the right to change the constitution by referendum and must also be given direct-democratic control over entering into treaties. Treaties must always be subject to a time limit and be terminable. In any other case, the people’s sovereignty would be restricted in an unacceptable manner. 1 The political elite has a strong tendency, prompted by distrust, to exclude direct-democratic decision-making for certain subjects. One finds this attitude not only among political leaders, but also among academics and professors. An example is the ‘Recommendation issued by the scientific committee of the commission for political renewal’ (2000) for the committee of Belgian members of parliament who are concerned with political renewal. In this we can read: “Tax matters are excluded from a popular vote in most countries; the reason is based on the justified fear that in the referendum or the popular consensus the people will almost always opt for a lowering of the expenses they bear, whereas at the same time they demand that the government provide the same or even better services”. Following on from this, the professors advocate the exclusion of issues that exclusively or mainly concern tax or budgetary topics. Their argument is not only anti-democratic; it is also false to the extent that they do not mention the clearly contradictory example of Switzerland. Here there are no restrictions on referendums on tax issues, without this adversely affecting the national budget (see also chapters 5 and 6). Right of petition Smaller groups of citizens (e.g. 0.1% of the electorate, about 45,000 signatures in Great Britain) must be able to put something onto the parliamentary agenda (right of petition), even if insufficient signatures were collected to obtain a referendum. This is a direct result of the nature of the parliament itself: it is the institution where decisions are made about socially relevant issues on which the citizens themselves do not want to decide. The fact that several thousand citizens submit a petition already makes the subject into a socially relevant issue. The right of petition and the citizens’ initiative referendum are linked in a multi-stage direct-democratic procedure. A citizens’ initiative starts as a petition group. If, for example, 43,800 signatures are collected, the citizens’ proposal enters parliament as a petition. If the parliament adopts the proposal, the initiative ends. In the other case, the citizens’ initiative can force a referendum if it has a higher number of signatures (e.g. 2% of the electorate, around 900,000 in Great Britain). The voters must then also be informed of the parliament’s recommendations or considerations, which will certainly form a significant part of the social debate. The parliament can also be granted the right to submit an alternative proposal in addition to the people’s proposal. Then, in the referendum, the voters have the choice between three alternatives: the status quo, the people’s proposal, or the parliamentary alternative (this type of system exists in Switzerland and Bavaria). This kind of measure can ensure that there is a closer bond between the parliament and the people (see also chapter 6, point e).
Page 1: Jos Verhulst & Arjen Nijeboer Direc
Page 4 and 5: ISBN 9789078820031 Jos Verhulst & A
Page 6 and 7: Contents Acknowledgements . . . . .
Page 8 and 9: Indeed, a majority of people in Wes
Page 10 and 11: 1-1: Do people want direct democrac
Page 12 and 13: 2. What is democracy? Democracy var
Page 14 and 15: The public assembly is not practica
Page 18 and 19: 2-1: The public assembly. The publi
Page 20 and 21: a municipality close to Reutlingen,
Page 22 and 23: 3. Federalism, subsidiarity and soc
Page 24 and 25: Democracy is pre-eminently suited t
Page 26 and 27: as coinciding with the communal int
Page 28 and 29: Between the hammer and the anvil: h
Page 30 and 31: in which ethnically or religiously
Page 32 and 33: 3-1: NIMBY - or citizenship and dem
Page 34 and 35: tically affected his or her life an
Page 36 and 37: 4. The democratic person Democracy
Page 38 and 39: is identical in all humans - as ide
Page 40 and 41: People need food, but also the long
Page 42 and 43: a learning relationship, they do no
Page 44 and 45: The availability of the citizens’
Page 46 and 47: Another question is: how do people
Page 48 and 49: these issues. But popular initiativ
Page 50 and 51: Do citizens by definition always vo
Page 52 and 53: • Frey, Kucher and Stutzer (2001)
Page 54 and 55: in the autumn of 1977, when the cam
Page 56 and 57: has been spent in California on cit
Page 58 and 59: the proposition and the highest off
Page 60 and 61: tives immediately after the introdu
Page 62 and 63: Partly thanks to its successes in B
Page 64 and 65: • Provide the media with document
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Lithuania This Baltic republic has
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6. Possible objections to direct de
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national debt: debt is incurred to
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1971 - through a referendum in whic
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tion, the only way initiatives make
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Suppose that a citizen supports a c
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of these states with a relatively e
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to drug addicts, the protection of
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ut ultimately no generally accepted
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or on principle. Voluntary particip
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The parliamentary system The name
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An older Act (the 1972 Local Govern
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Bibliography R. Abers (2000), “In
Page 92 and 93:
B. Kaufmann / R. Büchi / N. Braun
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W. Weihrauch (1989), “Der freie M
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About the publishers of this work D
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