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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tives immediately after <strong>the</strong> introduction <strong>of</strong> <strong>the</strong> new system.<br />
(In Germany, one speaks <strong>of</strong> citizens’ initiatives at municipal<br />
level <strong>and</strong> <strong>of</strong> popular initiatives at state <strong>and</strong> federal level.)<br />
In terms <strong>of</strong> <strong>the</strong> subjects <strong>of</strong> <strong>the</strong>se referendums, three emerge<br />
head <strong>and</strong> shoulders above <strong>the</strong> rest:<br />
• public infrastructure <strong>and</strong> public utility companies (23%)<br />
• development plans (23%)<br />
• road <strong>and</strong> traffic projects (20%)<br />
In <strong>the</strong> period from 1995 to 2005, a municipal council’s position<br />
was more <strong>of</strong>ten ratified by <strong>the</strong> citizens (49%) than rejected<br />
(45%); <strong>the</strong> remaining cases could not be classified as<br />
ei<strong>the</strong>r one or <strong>the</strong> o<strong>the</strong>r. A municipal proposal <strong>the</strong>refore has<br />
an almost one in two chance <strong>of</strong> not surviving <strong>the</strong> citizens’<br />
vote. The average turnout during this period amounted to almost<br />
50 percent; turnout is proportionately higher <strong>the</strong> fewer<br />
residents a municipality has.<br />
As stated previously, in some cases, <strong>the</strong> threat <strong>of</strong> a referendum<br />
was sufficient for an undesirable council decision to be<br />
scrapped. Rehmet <strong>and</strong> Wenisch (2005, p. 5) give an example<br />
from Augsburg, where a coalition <strong>of</strong> pr<strong>of</strong>essors, teachers <strong>and</strong><br />
bookshop owners collected signatures for <strong>the</strong> opening <strong>of</strong> a<br />
new town library. When <strong>the</strong>y submitted a collection <strong>of</strong> many<br />
more signatures than <strong>the</strong> minimum requirement, <strong>the</strong> municipal<br />
council rapidly adopted <strong>the</strong>ir plan.<br />
Resistance from <strong>the</strong> courts<br />
However, <strong>the</strong> ruling class does not simply allow this situation<br />
to exist unchallenged. In addition to <strong>the</strong> opposition from <strong>the</strong><br />
CSU politicians, Mehr Demokratie had to face even greater<br />
resistance from <strong>the</strong> Bavarian Constitutional Court. In Bavaria,<br />
judges are appointed by <strong>the</strong> (CSU-dominated) state<br />
parliament (L<strong>and</strong>tag), so 80 percent <strong>of</strong> <strong>the</strong> judges are CSU<br />
supporters or sympathisers. Constitutional Court rulings are<br />
final because <strong>the</strong>re is no possibility <strong>of</strong> appeal.<br />
At <strong>the</strong> same time as <strong>the</strong> popular initiative to improve <strong>the</strong> referendum<br />
system at <strong>the</strong> municipal level was launched, Mehr<br />
Demokratie had also started a second popular initiative to improve<br />
direct democracy at <strong>the</strong> state level. These were both<br />
submitted within a short space <strong>of</strong> time in 1994. The second<br />
popular initiative was challenged by <strong>the</strong> Bavarian senate on<br />
far-fetched legal grounds <strong>and</strong> <strong>the</strong>refore had to be presented<br />
to <strong>the</strong> Constitutional Court. Everyone expected that <strong>the</strong> parliament’s<br />
objections would be rejected, or in any case that<br />
most <strong>of</strong> <strong>the</strong> components <strong>of</strong> <strong>the</strong> popular initiative would remain<br />
intact. But in an unparalleled argument, <strong>the</strong> CSU judges<br />
declared <strong>the</strong> entire popular initiative to be invalid. “Utterly<br />
incomprehensible”, <strong>the</strong> south-German newspaper Süddeutsche<br />
Zeitung wrote in an editorial on 15 November 1994, <strong>and</strong><br />
voiced <strong>the</strong> suspicion “that <strong>the</strong> Constitutional Court, with <strong>the</strong><br />
majority <strong>of</strong> its judges nominated <strong>and</strong> appointed by <strong>the</strong> CSU,<br />
h<strong>and</strong>s down judgements that it believes will meet with <strong>the</strong><br />
approval <strong>of</strong> <strong>the</strong> CSU-controlled state government.”<br />
In 1999, Mehr Demokratie once again submitted a popular initiative<br />
for <strong>the</strong> improvement <strong>of</strong> <strong>the</strong> referendum at state level.<br />
This time <strong>the</strong>y had formulated <strong>the</strong>ir initiative in such a way<br />
that it would not be subject to <strong>the</strong> same veto. This time <strong>the</strong><br />
Constitutional Court wheeled out Section 75 <strong>of</strong> <strong>the</strong> Bavarian<br />
Constitution, which reads: “Proposals for amending <strong>the</strong> constitution<br />
that are contrary to <strong>the</strong> basic democratic principles<br />
<strong>of</strong> <strong>the</strong> constitution are not allowed.” This section had once<br />
been introduced to protect <strong>the</strong> population against <strong>the</strong> intro-<br />
0<br />
duction <strong>of</strong> a new dictatorship. In this case, however, it was<br />
used to protect <strong>the</strong> domineering politicians against greater<br />
democratic rights for <strong>the</strong> population. In March 2000, <strong>the</strong><br />
Constitutional Court ruled that “democracy” was <strong>the</strong> same<br />
as <strong>the</strong> representative system <strong>and</strong> that it could be damaged,<br />
because <strong>the</strong> popular initiative was asking for <strong>the</strong> abolition <strong>of</strong><br />
some exceptions, <strong>and</strong> for a reduction <strong>of</strong> <strong>the</strong> signature threshold,<br />
etc. Previously, in September 1999, <strong>the</strong> Constitutional<br />
Court had already seized on a citizen’s complaint <strong>about</strong> a referendum<br />
result in order to set a higher approval quorum <strong>of</strong><br />
25% for referendums at <strong>the</strong> state level (promptly introduced<br />
by <strong>the</strong> L<strong>and</strong>tag), again referring to <strong>the</strong> “basic democratic<br />
principles” <strong>of</strong> Section 75.<br />
But <strong>the</strong> Constitutional Court also pursued its attack at <strong>the</strong><br />
local level. In 1999, again following a citizen’s complaint,<br />
<strong>the</strong> Court had ruled that “basic democratic principles” also<br />
dem<strong>and</strong>ed <strong>the</strong> introduction <strong>of</strong> a participation quorum for <strong>the</strong><br />
municipal referendum, which had been abolished by <strong>the</strong> referendum<br />
that Mehr Demokratie had won. The quorum had<br />
thus been re-introduced. When Mehr Demokratie launched<br />
<strong>the</strong> popular initiative ‘Protection <strong>of</strong> <strong>the</strong> municipal referendum’<br />
to reverse <strong>the</strong> reintroduction <strong>of</strong> <strong>the</strong> participation quorum,<br />
<strong>the</strong> Constitutional Court was not able to (mis)use <strong>the</strong><br />
“basic democratic principles” argument again. After all, <strong>the</strong>y<br />
would have needed to use this reason to reject Mehr Demokratie’s<br />
first popular initiative in 1994. This time, <strong>the</strong>refore,<br />
<strong>the</strong> Court had <strong>the</strong> principle <strong>of</strong> municipal autonomy up its<br />
sleeve: <strong>the</strong> abolition <strong>of</strong> a municipal participation quorum via<br />
a state law. The perversity <strong>of</strong> this argument should be clear.<br />
In Germany, <strong>the</strong> federal states have <strong>the</strong> power to organise<br />
local democracy. Democratic rules, including those for citizens’<br />
initiatives <strong>and</strong> referendums, must always be regulated<br />
in state laws. The Constitutional Court – a state institution<br />
– was <strong>the</strong>refore intervening in <strong>the</strong> municipal state <strong>of</strong> affairs<br />
itself with its decision on municipal approval/participation<br />
quorums. But if a citizens’ initiative wants do this, <strong>the</strong>re is<br />
suddenly talk <strong>of</strong> a serious violation. The situation is even<br />
more depressing if we consider that <strong>the</strong> principle <strong>of</strong> municipal<br />
autonomy was originally introduced to give local citizens<br />
as much control as possible over <strong>the</strong>ir own community. The<br />
same principle was now being used high-h<strong>and</strong>edly by politicians<br />
in order to actually reduce that control.<br />
In all, out <strong>of</strong> <strong>the</strong> five popular initiatives launched by Mehr<br />
Demokratie between 1995 <strong>and</strong> 2000, three were blocked by<br />
<strong>the</strong> Constitutional Court, <strong>and</strong> one – without <strong>the</strong> support <strong>of</strong><br />
any relevant legislation – was subjected to far-reaching obstruction<br />
by cutting it into two popular initiatives <strong>and</strong> subsequently<br />
requiring citizens to go to <strong>the</strong> town hall on separate<br />
occasions to add <strong>the</strong>ir signatures. Mehr Demokratie only had<br />
<strong>the</strong> capacity to persevere with one initiative <strong>and</strong> that failed to<br />
achieve <strong>the</strong> sky-high second signature threshold.<br />
Germany: Hamburg<br />
Hamburg was <strong>the</strong> second place in Germany where Mehr<br />
Demokratie succeeded in allowing citizens <strong>the</strong>mselves to decide<br />
<strong>about</strong> <strong>the</strong>ir direct democracy (Efler, 2001). Hamburg,<br />
with 1.7 million inhabitants <strong>and</strong> Germany’s second largest<br />
city, is a city-state: a city with <strong>the</strong> status <strong>of</strong> a state.<br />
In 1996, <strong>the</strong> Hamburg parliament, inspired by <strong>the</strong> emergence<br />
<strong>of</strong> referendums everywhere in Germany, had introduced<br />
<strong>the</strong> binding citizens’ initiative referendum at city level.<br />
The thresholds <strong>and</strong> exceptions were so extensive, however,