Facts and Arguments about the Introduction of Initiative and ...
Facts and Arguments about the Introduction of Initiative and ...
Facts and Arguments about the Introduction of Initiative and ...
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Hierarchy <strong>of</strong> laws<br />
A law that is approved by referendum must be higher in <strong>the</strong><br />
legal hierarchy than laws passed by parliament. There is an<br />
additional provision that a law approved directly by <strong>the</strong> people<br />
cannot subsequently be scrapped by parliament. After all,<br />
if a referendum is held, this means that <strong>the</strong> people want to<br />
express <strong>the</strong>ir own opinions <strong>about</strong> <strong>the</strong> issue concerned. With<br />
<strong>the</strong> referendum, <strong>the</strong> democratic m<strong>and</strong>ate is consequently<br />
placed in <strong>the</strong> h<strong>and</strong>s <strong>of</strong> <strong>the</strong> voters <strong>and</strong> not in those <strong>of</strong> <strong>the</strong><br />
members <strong>of</strong> parliament.<br />
In Switzerl<strong>and</strong>, this superiority <strong>of</strong> <strong>the</strong> people’s law is regulated<br />
at federal level by including <strong>the</strong> people’s law as part <strong>of</strong> <strong>the</strong> constitution.<br />
Because <strong>the</strong> Swiss constitution can only be changed<br />
via a referendum, this means that a decision by <strong>the</strong> people can<br />
only be abolished by ano<strong>the</strong>r decision by <strong>the</strong> people. The disadvantage<br />
is, however, that <strong>the</strong> Swiss constitution has developed<br />
into a strange mixture <strong>of</strong> general provisions (such as those that<br />
usually tend to appear in a constitution) <strong>and</strong> very specific stipulations<br />
(that are normally regulated by ordinary laws).<br />
That serious problems can arise on this point is shown by <strong>the</strong><br />
example <strong>of</strong> Oregon. The binding citizens’ initiative referendum<br />
exists in this US state but, by simple majority, <strong>the</strong> state<br />
parliament can abolish laws that are made by referendum.<br />
This has actually happened. In 1988, for example, a people’s<br />
initiative was carried which provided for longer prison sentences<br />
for violent criminals. This law was subsequently repealed<br />
by <strong>the</strong> legislative chambers.<br />
A popular initiative was later launched (Measure 33) in an<br />
attempt to prevent this type <strong>of</strong> occurrence. It proposed <strong>the</strong><br />
following:<br />
• laws created on <strong>the</strong> basis <strong>of</strong> a people’s initiative can only be<br />
changed in <strong>the</strong> first five years by ano<strong>the</strong>r people’s initiative;<br />
• after five years, a change can only be implemented if it secures<br />
at least 60% <strong>of</strong> <strong>the</strong> votes in both legislative chambers<br />
(Senate <strong>and</strong> House <strong>of</strong> Representatives).<br />
However, <strong>the</strong> proposal was rejected by only a narrow margin<br />
in November 1996.<br />
Participation quorums<br />
In view <strong>of</strong> <strong>the</strong> m<strong>and</strong>ate principle, it is absurd to introduce<br />
participation quorums for direct decision-making. The citizens<br />
who do not take part in a vote are considered to have<br />
given a m<strong>and</strong>ate to those who do. If one introduces participation<br />
quorums, one opens <strong>the</strong> door to boycott actions by minorities.<br />
Suppose, for instance, that <strong>the</strong>re is a participation<br />
quorum <strong>of</strong> 40% <strong>and</strong> that 60% <strong>of</strong> <strong>the</strong> electorate want to vote.<br />
Within <strong>the</strong> group keen to vote, 55% support <strong>the</strong> proposal to<br />
be voted on <strong>and</strong> 45% oppose it. The opponents cannot win<br />
<strong>the</strong> vote if <strong>the</strong>y take part in <strong>the</strong> referendum. But if <strong>the</strong>y stay<br />
at home, however, <strong>the</strong>y can ‘win’, because <strong>the</strong>n <strong>the</strong> 40% quorum<br />
will not be achieved <strong>and</strong> <strong>the</strong> proposal will be rejected,<br />
against <strong>the</strong> will <strong>of</strong> <strong>the</strong> majority [see 2-2].<br />
We have seen that <strong>the</strong> parliamentary m<strong>and</strong>ate is only a derived<br />
form <strong>of</strong> <strong>the</strong> m<strong>and</strong>ate which <strong>the</strong> effective voters receive<br />
in direct-democratic decision-making. A parliament contains<br />
on average only <strong>about</strong> 0.003% <strong>of</strong> <strong>the</strong> population <strong>and</strong> yet it<br />
can still make decisions. So it makes no sense to suddenly introduce<br />
participation quorums <strong>of</strong> 20% or 40% for <strong>the</strong> ad hoc<br />
parliament that is formed by a referendum. The mistake that<br />
1<br />
is made with participation quorums is that <strong>the</strong> people who<br />
stay at home are counted as ei<strong>the</strong>r supporters or opponents<br />
(depending on <strong>the</strong> referendum). In reality, <strong>the</strong>y have chosen<br />
not to voice <strong>the</strong>ir opinion. That must be respected.<br />
Finally, we can also note that <strong>the</strong> turnout for a referendum<br />
must not be compared with <strong>the</strong> turnout for elections. In elections,<br />
all kinds <strong>of</strong> issues are on <strong>the</strong> agenda or in <strong>the</strong> party<br />
manifestos: <strong>the</strong> current ones <strong>and</strong> all <strong>the</strong> new topics that may<br />
present <strong>the</strong>mselves in <strong>the</strong> next four or five years. A referendum<br />
has only one specific issue on <strong>the</strong> agenda, so it is logical<br />
that <strong>the</strong> turnout for this is lower than for elections.<br />
<strong>Arguments</strong> are sometimes put forward for a low quorum,<br />
precisely to avoid possible boycotting. However, this st<strong>and</strong>point<br />
is illogical. Ei<strong>the</strong>r a quorum is so low that it is bound to<br />
be met: <strong>the</strong>n, to be sure, boycotting is ruled out – but at <strong>the</strong><br />
same time <strong>the</strong> quorum itself is pointless. Or <strong>the</strong> quorum is<br />
so high that it is unlikely ever to be achieved: <strong>the</strong>n boycotting<br />
is possible. There is no third possibility.<br />
It also needs to be remembered that participation quorums<br />
are basically impossible for parliamentary or municipal council<br />
elections. After all, if such a quorum were not to be met,<br />
<strong>the</strong> legislative <strong>and</strong> administrative system would just grind to<br />
a halt. There are no good reasons for not having a quorum for<br />
this kind <strong>of</strong> election but insisting on one for referendums. If<br />
<strong>the</strong> group making a decision by referendum is required to<br />
be ‘sufficiently representative’, <strong>the</strong>n <strong>the</strong> same requirement<br />
must apply a fortiori (even more stringently) for parliamentary<br />
elections. Suppose that a participation quorum <strong>of</strong> 25% is<br />
set for a referendum <strong>and</strong> at <strong>the</strong> same time no quorum is set<br />
for parliamentary elections. A referendum in which 20% <strong>of</strong><br />
<strong>the</strong> electorate votes will be declared invalid. But a parliament<br />
that is elected by only 5% <strong>of</strong> <strong>the</strong> electorate, however, can still<br />
make ‘legitimate’ decisions – decisions based on an indirect<br />
citizen participation <strong>of</strong> 5% – whereas <strong>the</strong> rejected referendum<br />
result can boast a direct citizen participation <strong>of</strong> 20%.<br />
That is illogical. Moreover, <strong>the</strong> m<strong>and</strong>ate that is given to parliament<br />
is much more far-reaching than <strong>the</strong> m<strong>and</strong>ate given<br />
to <strong>the</strong> voters by those who stay at home in a referendum.<br />
After all, nothing can be said with certainty <strong>about</strong> what farreaching<br />
decisions will be made by all <strong>the</strong> members <strong>of</strong> parliament.<br />
During <strong>the</strong> course <strong>of</strong> a parliamentary sitting, new<br />
topics <strong>and</strong> draft legislation that could not have been foreseen<br />
are constantly being put onto <strong>the</strong> agenda.<br />
Finally, some supporters <strong>of</strong> a participation quorum refer to <strong>the</strong><br />
so-called danger <strong>of</strong> ‘compartmentalisation’. By this <strong>the</strong>y mean<br />
that citizens would only vote for <strong>the</strong> issues which <strong>the</strong>ir own<br />
group is concerned <strong>about</strong>. For instance, in a referendum on<br />
an action plan to deal with farmyard manure, only <strong>the</strong> small<br />
section <strong>of</strong> <strong>the</strong> population who are cattle farmers would vote.<br />
This objection rests on <strong>the</strong> false premise that people only<br />
vote to defend <strong>the</strong>ir own group’s interests. The reality is different<br />
(see chapter 6, point b). In countries or states without<br />
participation quorums, such as Switzerl<strong>and</strong> <strong>and</strong> California,<br />
<strong>the</strong>re is no evidence <strong>of</strong> ‘compartmentalisation’. The practical<br />
progress <strong>of</strong> direct-democratic votes makes any ‘compartmentalisation<br />
effect’ improbable a priori. For example, on any<br />
one referendum voting day in Switzerl<strong>and</strong> <strong>the</strong>re are almost<br />
always several referendum issues to be voted on at <strong>the</strong> same<br />
time. These referendums are on <strong>the</strong> most diverse subjects<br />
<strong>and</strong> concern not only <strong>the</strong> federal <strong>and</strong> cantonal levels, but also<br />
<strong>the</strong> municipal level. Thus people are not normally called to<br />
<strong>the</strong> ballot box for <strong>the</strong> sake <strong>of</strong> one single specialised issue.