Direct Democracy in Modern Europe - Springer LINK

Direct Democracy in Modern Europe

Editors:T. Schiller, Marburg, GermanyB. Kaufmann, Falun, SwedenW. Marxer, Bendern, LiechtensteinZ. T. Pállinger, Budapest, Hungary

Th e interdisciplinary series will present studies on direct democracy in theory and em-pirical research in modern Europe on the local, national, and European level. Subjects will include country reports, legal aspects, special referendums, comparative studies, and analyses of policy impacts and the contribution of direct democracy to the development of democratic systems.

EditorsTh eo SchillerMarburg, Germany

Bruno KaufmannFalun, Sweden

Wilfried MarxerBendern, Liechtenstein

Zoltán Tibor PállingerBudapest, Hungary

Wilfried Marxer (Ed.)

Direct Democracy and Minorities

ISBN 978-3-531-18581-1 ISBN 978-3-531-94304-6 (eBook)DOI 10.1007/978-3-531-94304-6

Th e Deutsche Nationalbibliothek lists this publication in the Deutsche Nationalbibliografi e;detailed bibliographic data are available in the Internet at http://dnb.d-nb.de.

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EditorWilfried MarxerBendern, Liechtenstein

Contents

Foreword Wiifried Marxer

Popular Votes and Minorities - the Historical Perspective

The Plebiscites in Carinthia and Sopron-t">denburg after World War I - two Cases of

7

Direct Democracy in Action 15 Franz Cede

Popular Votes and Independence for Montenegro 22 Rolf Friedrich Krause

Minorities and Direct Democracy - the Theoretical Perspective

The Emergence of Direct Democracy - a Typological Approach Theo Schiller

Direct Democracy and the Rule of Law - Assessing a Tense Relationship Anna Christmann

The Disruptive Potential of Direct Democracy in Deeply Divided Societies Jonathan Wheatley

Ethnic Governance and Direct Democracy: Perils and Potential Elisabeth Alber

Minorities and Popular Votes - Case Studies

Direct Democracy, the Rule of Law and the Protection ofMioorities: The Case of

33

47

64

74

Huogary 91 Zollan Tibor Pallinger

Direct Democracy and Lioguistic Mioorities io Switzerland and South Tyrol- A Comparison 106 Thomas Benedikter

6 Contents

Minorities and Direct Democracy in the USA: Direct Legislation Concerning Minorities and Instruments of Minority Protection 123 Hermann K Heujlner

Is the Irish Referendum a Majoritarian Device? 145 Bill Kissane

The Minaret Ban in Switzerland: An Exception to the Rule? ISS Deniz Danaei

Minorities and Direct Democracy in Liechtenstein 165 Wiifried Marxer

Use of Direct Democracy in the Jura Conflict 181 RolfBueehi

Winning without Victory? The Media Coverage of Minority Affairs in Swiss Direct Democratic Campaigns 194 Frank Marcinkowski und Andre Donk

Transnational Direct Democracy

The Transnational Spillovers from Pledging EU Referendums: The Case of the European Constitotion 215 ](ai Oppermann

Transnational Citizens' Initiative - How Modem Direct Democracy can make the European Union a Better Place for Minorities 230 Bruno Kaufinann

The Commission's Regulation Proposal on the European Citizens' Initiative 245 Johannes W Pichler

The Authors 253

Foreword

Wi/fried Marxer

This anthology contains the texts of presentations given on the occasion of the symposium on "Direct Democracy and Minorities" held on 23-24 April, 2010 at the Liechtenstein Insti­tute, Bendem, Liechtenstein.' The symposium is the third in a series organised conjointly by the Liechtenstein Institute, the Research Center on Civic Participation and Direct De­mocracy at the University of Marburg, Germany, the Initiative and Referendum Institute Europe, and the Andnissy University Budapest The first two symposia were devoted tu the themes of "Direct Democracy in Europe - Developments and Prospects" (plillinger et al. 2007) and "Direct Democracy in Local Politics in Europe" (Schiller 20 II). This latest sym­posium was once again successful in bringing tugether notable academics from just under a dozen countries who have a research interest in direct democracy, whether from an histori­cal, theoretical or empirical perspective.

Against a background of crises of political legitimacy and problems over the practical implementation of political decisions, direct democracy has become a key concept within modem democracy (Lindaman 2011). Recent decades have seen a global mushrooming of direct-democratic procedures i.e. effective political inputs by citizens and binding popular votes by means of referendums and citizens' initiatives. The increase in direct-democratic decision-making has in tum fostered increased attention from researchers, approaching the subject from both jurisprudential and social/political scientific perspectives, as can be seen in a growing number of related books and articles. And though Switzerland continues to be the prime example of a country with an extensively developed tradition of direct democra­cy, other European and non-European countries now also have their own direct-democratic procedures, whether at the national, regional or local level (cf. LeDuc 2003; Initiative and Referendum Institute 2007; Freitag 2007; Setii1ii & Schiller 2009; Heussner & Jung 2009; Eder 2010; Feld et al. 2010; Altman 2011; Schiller 2011; Setii1ii & Schiller forthcoming).

One reservation with which direct democracy sees itself repeatedly confronted is the issue of the protection of minorities. There is a fear that popular votes may be used to cur­tail the rights or the status of minorities - reflected in the ominous slogan ''the tyranny of the majority". In this respect, the liberal constitutional state - based on the rule of law - is put to the test (Kirchgiissner 2010) and what emerges as the determining factor is the prac­tical design of a direct democracy which hovers somewhere between the twin democratic concepts and principles of popular sovereignty and submission to the constitutional rule of law (Marxer & Pallinger 2007). Public opinion in Europe was recently shocked to see the veritable figurehead of direct democracy, Switzerland, approving extremely controversial initiatives - the ban on the bnilding of minarets and the proposal for a law to deport crimi-

I Special thanks go to the co-organisers of the conference, Thee Schiller, Bruno Kaufmann and Zolt8n T. PAllinger, to Paul Carline for the English-language ediling, to Frank Schlndler, Verena Metzger and their staff at the VS Verlag, to Roswitha Meier and the Liechtenstein Institute for their support in organising the meeting in Bendem. and to the Swiss National Science Foundation for financial assistance.

8 Wilfried Marxer

nals who are not Swiss citizens (cf. contributions in Vatter 2011). It was thus pertinent to look more closely at the question of the theoretical threat to ntinorities posed by direct de­mocracy, and to see what empirical evidence exists to support or counter the claims. In doing so, it was also important to look at the exteot to which what we are dealing with here are systematic differences between two political systems: those with effective direct­democratic rights, and those with a purely representative form of democracy. The compari­son also relates to the question of public communication (cf. Mitteodorf 2009). In a wide­ranging review of the existing research literature, Kirchgassner cornes to the conclusion that the question - as to whether direct-democratic rights represent a particular threat to minori­ties, or, on the contrary, that such rights actnaily protect them better than in purely repre­sentative systems - must remain open (2010, 85). In examining this contentious area with the tools of social, political and jurisprudential science, particular value will be placed on the presence or absence of functioning systems of control - such as an effective constitu­tional court (cf. Miller 2009).

This anthology presents additional research findings on possible conflicts between di­rect democracy and the protection of minorities and/or threats to ntinorities. The concept of ''minority'' was inteotionally allowed a broad interpretation, to include not ouly ethnic, national, linguistic and religious minorities, but also social and political marginal groups and people with specific identifying characteristics - such as non-dontinant sexnal orienta­tion, or disability. The central question was whether and how direct-democratic rights and procedures contribute to resolviog conflicts, or - on the contrary - to exacerbating them. An answer to the question was sought both through looking at historical experience of terri­torial conflict and through theoretical approaches and case studies.

In the referendums in Carinthia in 1920 and Odenburg in 1921, Franz Cede presents two successful examples of conflict resolution through direct-democratic decisions. A spe­cial feature of these referendums is that they included specific protection for the minorities affected by the referendum outcome, which not ouly brought about stability in the region but, in the opinion of the author, represented an early example of the now much-discussed concept of "good governance". Rolf Friedrich Krause describes a second case - the refer­endum on independence for Montenegro - in which the principle of the territorial integrity of a state led to a direct-democratic decision. Despite the reservations of the EU and the USA and the opposition of the pro-Serbian faction, a qnalified majority voted in 2006 for an independent Monteoegro, ending an historic chapter of European history. In his analysis of the function of popular votes on territorial independence, Jonathan Wheatley reaches a less optintistic conclusion. Looking at the separating out of new states from the former Soviet Union and Yugoslavia, he concludes that political elites used referendums rather as instruments of political power (referendum-as-a-weapon) than as a means to a resolution of conflicting interests (referendum-as-a-solution). Consequently, he suspects that in conflict situations direct-democratic procedures teod rather to intensifY conflict than produce viable solutions to it. In his article, Rolf Biichi stresses the point that the design of the direct­democratic rights is a co-deterntinant of their poteotial to produce solutions to conflict situ­ations. Taking as his example the Jura issue in Switzerland, he maintains that in this in­stance direct democracy was an ''indispensable tool of conflict regulation and resolution". Theo Schiller raises the question of specific circumstances that lead to the introduction of direct-democratic instruments in different countries. In a typological approach the paper identifies three basic models of emergence of direct democracy: deep internal conflict,

Foreword 9

national independence, and system transformation. They may lead to some typical profiles of direct democracy design.

Several of the articles turn the spotlight on individnal countries in an examination of the points of friction between direct democracy and the protection of minorities. Taking Hungary as his example, ZoltAn T. POllinger finds that the toolkit of direct-democratic in­struments in that country is rather meagre and that the referendums that took place tended to affect political (the minority parties) rather than ethnic minorities. On the other hand, minorities in Hungary are doubly protected, on the one hand through a preliminary vetting procedure which excludes constitutional rights from direct-democratic intervention; and on the other, through the legislative monopoly of the parliament. As a final failsafe mechanism there is the possibility of a judicial review by the constitutional court as guardian of last resort of the rule oflaw. By contrast, direct democracy enjoys a rather higher status in vari­ous federal states of the USA and in the Principality of Liechtenstein, as the articles of Hermann Heussner and Wilfried Marxer make clear. In his analysis of referendums relating to minorities, Heussner concludes that the judicial review practiced in the USA significant­ly reduces the legal effect of approved initiatives. Greater protection for minorities could be achieved by instituting a more effective preliminary vetting procedure. Liechtenstein has such a vetting procedure in both formal and material respects, so that citizens' initiatives which contravene the constitution and international law are inadmissible. Moreover, there is also the jurisdiction of the constitutional court to maintain the rule of law. Minorities are most likely to be affected by direct-democratic procedures when the latter work to block or delay an extension of rights; much less when direct democracy is used to dismantle rights. In his article on direct-democratic procedures in South Tyrol, Thomas Benedikter is critical of the participation quorum of 40 percent, suggesting that it may lead to a devaluation of citizen-initiated referendums. The quorum is supposed to protect lingnistic minorities, but in the light of the Swiss experience this does not appear to be imperative. In any case, citi­zens' initiatives which aim to change the constitution - and thus also the South Tyrol stat­ute of autonomy - are inadmissible. Benedikter makes some suggestions as to how direct democracy could be strengthened in South Tyrol without nmning the risk of incurring dis­crimination against lingnistic minorities. Taking the example of Ireland, Bill Kissane exam­ines the question as to whether referendums are actually instruments of the majority. His analysis of three issues - proportional representation, Church-State relations, and European integration - shows that Irish referendum outcomes are not a simple reflection of the major­ity-minority relationship and do not lead to an infringement of minority rights. Within the institutional structure of representative democracy and constitutional court jurisdiction, direct democracy has won for itself a place in the Irish system of checks and balances. It also plays a part in controlling the party-political majority. In 2009, it was a religious mi­nority which became the focus of direct-democratic attention in Switzerland with the "min­aret initiative", aimed at blocking the construction of new minarets. In his article, Denis Danaci notes that this was the first citizen-initiated referendum aimed at restricting the rights of Muslims in Switzerland. Previous direct-democratic decisions affecting religious minorities were about expanding religious rights or blocking such expansion. The author suggests a strung constitutional court as a way of preventing discriminatory decisions, us­ing either a preliminary vetting procedure (as in the German federal states and municipali­ties) or post-referendum constitutional appeals (as in California). Anna Christmann comes to the same conclusion in her theoretical comparison of concepts of democracy and of the

10 Wilfried Marxer

friction between direct democracy and the constitutional rule of law. In this sbe contrasts the logic of a populist system with that of a constitutional system. She argues that direct­democratic procedures ought to be embedded within a broader system of checks and bal­ances since they can be misused in a system context founded on a populist logic.

Elisabeth Alber tackles the general question as to whether direct democracy constitutes a threat to minorities. In this she focuses maiuly on the sub-national context of South Tyrol. Her concluaion is that direct democracy and representative democracy are to be seen as complementary and not iucompatible with the protection of minorities. Certaiu requirements need to be fulfilled, however, iucludiug iu particular legal and political guarantees for minor­ities agaiust the misuae of direct-democmtic iustruments. Irrespective of referendum out­comes, minorities can nonetheless be among the losers if the accompanyiug public debate tends to cast them iu an unfavoumble light. In their co-authored article, Frank Marcinkowski and Andre Donk pursue this theme iu the Swiss context. Their content analysis of newspaper articles on popular votes on eased naturalisation between 1983 and 2004 shows that referen­dum campaigns also present opportunities for minorities. Attention is focused on specific issues and the public media tend to sympathise with the concerns of minorities, even when the referendum outcome is not what the minority or minorities wanted.

The final part of the anthology is devoted to transnational direct democracy iu the Eu­ropean context. In his article, Kai Oppermann iuvestigates the contagious effect of direct­democratic decisions (referendums) on the issoe of European iutegmtion. He identifies two trends. On the one hand a debate ensues as to what counts as appropriate ways of deciding European issues and on the other referendums iutensify the party-political contestation over Europe. In this respect the European Citizens' Initiative (ECI) also holds out some promise. Johanues W. Pichler does not believe that the ECI - iu its current form - will be very suc­cessful and fulfill the expectations people have of it. Nonetheless, he anticipates that it will develop a dynamic of its own which will lead to greater citizen iuvolvement iu political issues and, depending on the perceived importance of the subjects addressed by ECI organ­isers, to higher regard for it as an iustrument of direct democracy. In his article, Bruno Kaufmann explaiua how the ECI came iuto beiug and how it works. He believes that the ECI offers minorities a new and tmnsnationally oriented way of securiug a heariug for their concerns. However, he wams that the regulatory framework must be desigued iu such a way that the ECI does not become a tool ouly for the powerful.

The contributions to this anthology show that direct democracy and the protection of minorities are not mutually exclusive. Nonetheless, the operation of direct democracy can be something of a tightrope walk, siuce the popular vote/referendum which is the ultimate aim of the process may also aggmvate conflict, or be misused - for example, by political parties anxious to eubance their public profile or to put pressure on minorities. A great deal depends on whether the checks and balances in a political system are adequately developed. This does not ouly relate to the role of organs of the state, iucludiug an effective constitu­tional court, which can guarantee the protection of fimdamental human and civil rights. Additional iuternational commitments to observiug human rights, media which hold power to account, an alert civil society, and a political culture based on achieving peaceful con­sensua create further favoumble preconditions for a direct democmcy which does not iu­friuge the rights of minorities. The foregoiug applies juat as much to purely representative democratic systems, which are likewise not immune to making decisions at the expense of minorities. Direct democracy offers minorities a way of bringing their concerns to a wider

Foreword 11

public and perhaps even securing legally binding remedies for them. Contextual factors and the details of the institutional design of direct democracy are crucially important for the potential of direct democracy to either help or harm minorities.

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