Can democracy be too direct?

​Andreas Auer

A harsh wind is blowing in the land of direct democracy. After a handful of referendum decisions that have been problematical in terms of human rights, and in view of a never-before experienced flood of referenda both imminent and pending, more and more voices are being raised at home and abroad that are demanding limits on civic rights.

Does Switzerland have too much direct democracy? No. Neither on a federal nor a cantonal level are the institutions of direct democracy dictated from above. They are initiated from below and have prevailed in different ways with regard to the constitution, the legal system and international treaties. Plebiscites can neither be instigated nor prevented by the authorities. We all vote on changes to the constitution that are proposed either by parliament or through valid referenda, just as we vote on laws and treaties when the people initiate a referendum against them. Different proposals for expanding civic rights with regard to legislative initiatives, financial referenda and consultative votes have been rejected, as have proposals for expanding the referenda affecting international treaties.

If the institutions of direct democracy are to survive, they have to be utilised. Do the Swiss utilise them too intensively? For many decades that was not the case. At present, it cannot be denied that there is occasional misuse of the right of initiative. The big opposing parties already have enough influence in both parliament and government, and they have no inhibitions about hogging the people’s attention by launching whole series of popular initiatives to keep their core supporters on track – especially when elections are looming. So-called ‘enforcement initiatives’ have damaged the Federal Assembly’s indispensable role in implementing popular initiatives, while at the same time they have aided those who wish to denigrate those same elected authorities. Would-be moral prophets appeal to our instinctual aversion to everything that is foreign, unfamiliar or unloved, and they compel the authorities to indulge in knee-jerk action that in constitutional terms is simply undignified. They flatter the ‘will of the people’, assigning it an absolutist status supposedly even superior to that of the constitution.

Does this then mean that direct democracy should be restricted? No. Most suggestions for reform boil down to giving parliament greater powers to declare popular initiatives invalid. That would make direct democracy a plaything for the politics of the day in matters for which parliament is simply not responsible. An abstract decision by the political majority cannot determine authoritatively whether or not a popular initiative infringes human rights, or whether it contravenes or is incompatible with international law. Those decisions can only be made by judges in concrete, individual cases. But parliament, self-willed as it is, is not prepared to give more power to the judges. The fairy tale about ‘judges running the country’ merely helps those in power to keep their grip on it.

Lastly: can direct democracy be limited? Yes, but only by the people themselves. Swiss direct democracy – as Friedrich Dürrenmatt once nearly said – is a prison in which the people are the jailers.Andreas Auer, professor emeritus in public law at the University of Zurich and co-founder of the Centre for Democracy Studies Aarau (ZDA), is a consultant at the legal firm Umbricht Rechtsanwälte.

Anna Christmann

Mass immigration, deportations, the ban on minarets – why are people abroad, along with a large number of Swiss, so concerned about decisions that have been legitimated by a popular majority? Is it perhaps possible to have too much democracy?

Direct democracy, rightly, is a very popular instrument. Our European neighbours generally look on with envy when reminded of the comprehensive rights of participation enjoyed by citizens on all political levels in Switzerland. Some recent referendum decisions, however, have tarnished the good reputation of Swiss ‘semi-direct’ democracy, which is unique in the world. Why are these results of democratic referenda regarded as ‘bad’ and as a discredit to the very institution of referendum?

There are no right or wrong decisions in a democracy. It’s the proposal that gets a political majority that is implemented – not the one that’s supposedly ‘right’. This is essentially the same for a representative democracy as for a plebiscite. After hundreds of years of experience, however, a quite specific form has crystallised in the established democracies: the ‘liberal democracy’, also known as the democratic constitutional state. Such a state today is not constituted alone by majority decisions, but also by guaranteed basic rights that according to John Locke protect citizens from each other and from the state. They also prevent the ‘tyranny of the majority’ that Theodor Heuss used to fear. So what is at stake here can’t be about getting ever ‘more’ democracy. What is crucial is establishing a balance between majority democratic rule and the protection of basic rights.

This equilibrium can be upset by an expansion of direct democracy coupled with weak constitutional control. The impact can be seen when we compare Switzerland with the State of California in the USA. In both states, referenda that curtail basic rights or the rights of minorities receive an above-average rate of acceptance. Direct democracy can thus pose a latent threat to basic rights. This is why, in California, a large number of initiatives are rejected by the courts after having been accepted by the people. The most recent example was the introduction of same-sex marriage. In Switzerland, on the other hand, the people famously have the last word. There is no constitutional court that can adjudicate these matters in a way that would be binding.

A more stringent assessment of the compatibility of popular initiatives with our basic rights, human rights and international law would pose no threat to direct democracy. Switzerland has too long a tradition of civic rights for there to be any danger of that. And we need to show more courage in this respect – such as by establishing a mandatory constitutional jurisdiction.

If there were greater control it would also solve an image problem. At present, both the Federal Council and the parliament have a tendency to stick merely to a partial implementation of initiatives where they prove problematical. The ‘Alp Initiative’ of 1994, for example, is still waiting to be brought into effect. When parliament handles the result of a plebiscite according to political considerations instead of legal obligations, then frustration is bound to result.

Putting legal boundaries in place would not weaken direct democracy – it would merely guarantee its functionality and its effectiveness.Anna Christmann, a political scientist, was engaged in research at the National Center of Competence in Research (NCCR) Democracy at the University of Zurich until 2013. Today she works in Stuttgart at the Ministry of Science of the German state of Baden-Württemberg.
(From "Horizons" No. 102, September 2014)