Learning from Swiss direct democracy in a comparative perspective
Daniel Bochsler, 20.11.2009, (0)
The author argues that applying direct democracy might be a responsible
institutional choice only in a country where the main political issues
do not overlap with the communal ones, as the case is with Switzerland.
In Bosnia and Herzegovina, he claims, it could only bolster the
majority rule.
Tags:
The author argues that applying direct democracy might be a responsible institutional choice only in a country where the main political issues do not overlap with the communal ones, as the case is with Switzerland. In Bosnia and Herzegovina, he claims, it could only bolster the majority rule.
Introduction
Nenad Stojanović sketches out the potential of referenda and popular initiatives to create a unified polis, where non-ethnic issues might be deliberated and decided, and he discusses the expected effect that this has on the creation of a national political identity, mainly drawing on the example of Switzerland. A great idea for institutional engineering elsewhere, including ethnically divided democracies, such as Bosnia and Herzegovina. It relies on a tempting formula: if direct democracy has helped in Switzerland to promote political issues that cross-cut communal divides, to reduce these divides, and if it has lead to democratic stability, then other multicultural countries should imitate the Swiss model. However, is the – certainly provocative – way how Stojanović combines different variables, the right one, or should the formula be arranged the other way round? Direct democracy might be a responsible institutional choice, preserve a country’s stability, and not increasing the communal divides only then, when it is applied in a country, where the main political issues do not overlap with the communal ones, as it is the case in Switzerland. Then, direct democracy might flourish on issues that are not related to the communal divide, and help to create a common polis, without discriminating the same minorities. Elsewhere, however, its effect might be a detrimental, and result in a permanent political domination through the communal majority group. This, in turn, would limit the transferability of the ‘Swiss effect’ on other countries, especially the clearly divided ones.
Indeed, the impact of direct democracy has vividly been discussed for minority policies, and these findings offer crucial insights about the effect of direct democracies on communal divides. The discussion about majority decisions and minority protection goes back at least to the ‘Federalist Papers’ by Hamilton, Jay und Madison (1787). Given that the protection of civil rights and minority rights is an important element of any democratic state, they might, some argue, be better protected by a system of checks and balances than through direct legislation through the citizens. Especially in an ethnically divided country, direct democracy might thus be poisonous for the stability and inter-ethnic conciliation. A permanent domination by the majority would be little acceptable for a minority group, if the domination regards the most viable political questions, leave alone if most political questions are decided along the same majority – minority line. Hence, one might wondering whether direct democracy might not be poisonous for ethnically divided societies, in which – by definition – the most important political issue is the ethnic divide, that separates a majority and a minority group. At least, this might be concluded from a broad literature that reflects the fears of a tyranny of a majority through the empirical study of direct democracy on majority-minority relations in context, where social or cultural differences are highly divisive.
Let the people decide?
The prospects of direct democracy for divided societies depend heavily on the issues that are subject to referenda, and on who proposes these bills. While Stojanović expects that direct democracy will promote political questions that do not go along ethnic divides, exactly such majority-minority issues have been discussed widely in a comparative literature about direct democratic decision-making. Minority issues have taken an important place in the study of the usage of direct democratic institutions and of their effect. The impact of direct democracy has been analysed namely for the rights of same-sex couples (Haider-Markel and Meier 1996, Gerber and Hug 2002, Donovan, et al. 2008, Bowler, et al. 2006, Donovan and Bowler 1998, Donovan and Bowler 1997, Gamble 1997, Haider-Markel and Lindaman 2007, Nicholson-Crotty 2006, Matsusaka 2007), abortion rights (Bowler and Donovan 2004, Matsusaka 2007) or parental notification requirements for teenage abortions (Gerber 1996, Gerber 1999, Matsusaka 2007), “English-only” laws, prescribing English as the only language to be used for state action in US states (Gamble 1997, Gerber and Hug 2002, Matsusaka 2007) or English as only language in schools (Bowler, et al. 2006), affirmative action for racial or ethnic minorities (Gerber and Hug 2002, Bowler, et al. 2006), recognition of religious minorities (Christmann 2008), citizenship rights (Helbling and Kriesi 2004, Bolliger 2004), death penalty (Gerber 1999, Hug 2004), anti-discrimination laws for job discrimination (Matsusaka 2007), housing and accommodation, school desegregation policy, AIDS policies (Gamble 1997), or same-sex marriage (Matsusaka 2007). Hajnal et al. (2002) and Frey and Goette (1998) look at a broad set of minority-relevant referenda.
The debate has been fuelled by Gamble’s (1997) study, which reported that those referenda and initiatives that would increase civil rights of mino¬rities are most frequently rejected at the polls. Investigating direct democratic votes on issues that are sensitive to different minority groups, she finds that in 78% of the cases, the result is little favourable of the minority. Differently, Donovan and Bowler (1998) show that a tyranny of a majority is most likely in small communities. Direct legislation that would strengthen the rights of homosexual minorities is most often being rejected in referendum votes in states with small populations. In large states, however, gay rights seem not to suffer strongly under direct democracy1.
Should the Swiss model be imitated?
Certainly, it is not necessarily the case that questions related to ethnic or cultural identities are decided as negatively as other minority rights. However, even in the Swiss case, praised by Stojanović to foster non-cultural political issues, the respect for the rights of societal minorities is not always too satisfactory. Vatter (2002, 305-11) argues theoretically that direct democratic instruments are then particularly protective of minorities, if they can be triggered by a minority of voters, and if they are related to particular quorums. However, such quota are not applied in Swiss cantonal or local referenda. Stojanović, however, convincingly considers such quorums for local referenda in Bosnia and Herzegovina.
Still, a key question when transferring the right to legislate from legislative assemblies to the people is how the people typically decide. The Swisss experience again shows that in the case of socially well accepted minorities, direct democracy might even protect their rights against little favourable bills by parliament. But the same people's verdict can in contrary be devastating for them, if the degree of integration within a society is low (Vatter and Danaci 2009). For one of the most sensitive problems of majority-minority relations in Switzerland, the issue of naturalisations, Helbling and Kriesi (2004) show that minorities can easily become victims of political mobilisation, and that on such a sensitive issue, voting at the polls in local referenda puts minorities in disadvantage. However, we need also to be aware that usually only the direct, immediate effect of direct democratic institutions is becoming visible, in bills that pass, or get rejected at the polls. Once lawmakers are aware that the referendum hurdle might be a tricky one, they try to anticipate a possible people's verdict (Gerber 1996, Gerber and Hug 2001, Hug 2004). Christman (2008) impressively shows how the rights of religious minorities are restricted in several Swiss cantons, but cantonal parliaments avoid bringing the sensitive topic of religious minority rights to a referendum, because they fear the negative consequences that a rejection by the people might have. This is in line with comparative studies (Gerber 1996, Gerber and Hug 2001, Hug 2004, Matsusaka 2007, Bochsler and Hug 2009) that show how the effect of direct democracy on minority rights mainly depends on the distribution of opinions on a certain issue. Hence, the results of the bulk of empirical studies suggest that direct democracy is likely to become an instrument that is in the hand of the majority population, and cuts the rights of the minority, if it is exercised on vulnerable issues in divided societies – where, by definition - there is a clear divide between the majority and the minority of the population.
Against this background, the idea to introduce direct democracy at the local level might look as a particularly dangerous perspective for divided societies, keeping in mind that especially in small communities and along sensitive social divides, the majority is likely to outvote repeatedly the minority, and not to guarantee its rights. However, Stojanović adds an important restriction to local referenda: Direct democratic decisions should only be practised for issues that are not related to cultural divides. Indeed, this would allow that minorities are not per se losers of direct democratic decisions, but rather, as members of the majority, every voter might once belong to the winners, and once to the losers, depending on the issue.
But could the exclusion of very crucial issues from referendum practice not rather look like a restricted direct democracy? If it is the nature of political conflicts in ethnically divided countries that they go often along communitarian lines, then the restriction to non-divisive issues would hinder referenda on the most salient issues. And in an ethnically divided environment, it might often be an easy game for the leaders of the campaign to put a referendum question – even of a non-ethnically defined issue – strategically in an ethnic light, if this might either help one of the blocs to win the referendum. Or alternatively, lawmakers might give a bill an ethnic touch, if this allows them to circumvent the referendum procedure.
Several post-communist countries in Europe have experimented with referenda, and introduced possibilities for referenda or popular initiatives in their constitutions (Hug 2005). It might not come as a surprise, however, that in many of these countries, human rights can not be subject to referenda and, apart from Hungary, referenda have remained rare.
Certainly, only an empirical application might show whether the Swiss example might be fruitfully – and most of all peacefully – duplicated in Bosnia and Herzegovina. The empirical experience, however, adds to theoretical fears that referendums might lead to an enduring and hardly acceptable domination by the majority.
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1These results are contested, however, by Haider-Markel and Lindaman (2007), who show that after including additional variables, the hypothesis about liberal outcomes in large states can be dismissed.
