Table Of ContentDirect Democracy in Modern Europe
Editors:
T. Schiller, Marburg, Germany
B. Kaufmann, Falun, Sweden
W. Marxer, Bendern, Liechtenstein
Z. 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.
Editors
Th eo Schiller Wilfried Marxer
Marburg, Germany Bendern, Liechtenstein
Bruno Kaufmann Zoltán Tibor Pállinger
Falun, Sweden Budapest, Hungary
Wilfried Marxer (Ed.)
Direct Democracy
and Minorities
Editor
Wilfried Marxer
Bendern, Liechtenstein
ISBN 978-3-531-18581-1 ISBN 978-3-531-94304-6 (eBook)
DOI 10.1007/978-3-531-94304-6
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Contents
Foreword 7
Wiifried Marxer
Popular Votes and Minorities - the Historical Perspective
The Plebiscites in Carinthia and Sopron-t">denburg after World War I - two Cases of
Direct Democracy in Action 15
Franz Cede
Popular Votes and Independence for Montenegro 22
RolfF riedrich Krause
Minorities and Direct Democracy - the Theoretical Perspective
The Emergence of Direct Democracy - a Typological Approach 33
Theo Schiller
Direct Democracy and the Rule of Law - Assessing a Tense Relationship 47
Anna Christmann
The Disruptive Potential of Direct Democracy in Deeply Divided Societies 64
Jonathan Wheatley
Ethnic Governance and Direct Democracy: Perils and Potential 74
Elisabeth Alber
Minorities and Popular Votes - Case Studies
Direct Democracy, the Rule of Law and the Protection ofMioorities: The Case of
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 Insti
tute, Bendem, Liechtenstein.' The symposium is the third in a series organised conjointly
by the Liechtenstein Institute, the Research Center on Civic Participation and Direct De
mocracy 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 sym
posium 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 histori
cal, 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 democra
cy, 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 cur
tail 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 prac
tical 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 de
mocracy, 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 direct
democratic rights, and those with a purely representative form of democracy. The compari
son also relates to the question of public communication (cf. Mitteodorf 2009). In a wide
ranging 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 minori
ties, or, on the contrary, that such rights actnaily protect them better than in purely repre
sentative 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 constitu
tional court (cf. Miller 2009).
This anthology presents additional research findings on possible conflicts between di
rect 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 orienta
tion, 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 terri
torial 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 spe
cial 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 refer
endum 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 direct
democratic rights is a co-deterntinant of their poteotial to produce solutions to conflict situ
ations. Taking as his example the Jura issue in Switzerland, he maintains that in this in
stance 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 in
struments 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 vari
ous 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 significant
ly 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, citi
zens' initiatives which aim to change the constitution - and thus also the South Tyrol stat
ute 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 dis
crimination against lingnistic minorities. Taking the example of Ireland, Bill Kissane exam
ines 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 major
ity-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 mi
nority which became the focus of direct-democratic attention in Switzerland with the "min
aret 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, us
ing either a preliminary vetting procedure (as in the German federal states and municipali
ties) 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
