Human rights and direct democracy

Human rights and direct democracy

Democracy as a guardian of human rights

by Dr rer publ Werner Wüthrich

cc. Democracy and direct democracy in particular are questioned again since quite some time. An assertion which should heat the minds in Switzerland, but not only there, is the question of whether there is a conflict between direct democracy and human rights, in which the will of the people had to stand back behind human rights. The following fundamental, legal, political and historical treatise shows that the current conflict is an artificially constructed one and human rights are best preserved by the people.

About 500 years before Christ, Greek philosophers have started to develop the idea of natural law. In the Renaissance – almost 2000 years later – the natural law has been developed in connection to Christianity further – in the context of the christian doctrine (Thomas Aquinas, School of Salamanca) – and later after the reformation also in protestant countries (Hugo Grotius, Samuel Pufendorf, John Locke). The law of nature became very important in the thoughts of the enlightenment, as it was taken as a basis of the first democratic constitutions of the emerging nationstates. The most impressive documents from this and the more recent times are referred to here in short.

The Declaration of independence of the USA of 1776

“All men are by nature equally free and independent and have certain rights inherent in them”, it says in the Declaration of Independence of the USA of 1776. The Constitution of the United States of 1789 terms these liberties in special additional articles: freedom of religion, freedom of expression, freedom of the press, freedom of assembly and the right to petition.

Declaration of human rights and civil rights in Paris in 1789

The guiding principle of the Declaration of human and civil rights of 1789, and the battle cry of the French Revolution “Liberté, Égalité, Fraternité” went around the world. The main points of the Declaration are: “People are born free and equal in rights and remain so” (Art. 1). “The purpose of any political association is the conservation of the natural and inviolable human rights. These are the right to life, to liberty, the right to property, the right to security and the right of resistance against oppression”(Art. 2).
“The freedom is to be allowed to do everything, which does not harm another. […] The limits of freedom rights can be determined only by the law”(Art. 4). “The law is the expression of the collective will. All citizens have the right to participate personally or through their representatives in its formation” (Art. 6).
This way guiding principles and guiding ideas were incorporated in 1793 in the first Republican Constitutions of France (Constitution girondine and Constitution montagnarde). In addition to the freedom rights, also elements of direct democracy were included in both – the referendum as well as the right of initiative of the people. But they were never applied due to the revolutionary turmoil.

The Declaration of human rights of the United Nations in 1948

After the horrors of the Second World War, the UN General Assembly passed in 1948 the Universal Declaration of Human Rights: it determined the human rights much more comprehensive compared to the declarations in the past: personal freedom, freedom of religion, freedom of expression, freedom of assembly, the right to property, the right to education, the right to work and much more items are listed in this extensive document. There are also rights that are understood differently. For example, the communists understand the right to work as a duty of the government to create jobs for all. In the privately organised, social market economy in the industrial countries, however, the unemployed are supported and trained in an ideal case with the aim that they do not suffer hardship and find a job again quickly.
In 1949 the Council of Europe was founded (including today 47 countries). In 1950 its Parliamentary Assembly voted in the European Declaration of Human Rights (ECHR). In 1959, the European Court of Justice for human rights was established in Strasbourg – but only with limited powers. Only 1998, the current Court was created as a full-fledged Court, which significantly interferes with the legal system of the individual countries. Switzerland joined the Council of Europe in 1963 and ratified the ECHR in 1974 – without a referendum, because Federal Council and Parliament assumed that human rights are anyway contained in the Federal Constitution.

An example out of Swiss history

Today the human rights are included in the constitutions of almost all countries. But there are differences, coming from national characteristics, different cultures and political conditions. In Switzerland, the economic freedom (formerly trade and industrial freedom) is anchored as a fundamental right and closely connected with the direct democratic formation by the people. This phenomenon goes back to the period after 1830, when seven cantons began to include the economic freedom as a fundamental right alongside the classical freedom rights such as religion or freedom of expression in their constitutions.
In the then already heavily industrialised Canton of Glarus the Landsgemeinde (Cantonal Assembly) of 1836 agreed to a new Constitution, which said in article 9: “trade and industry are free. Reserved are the regalian rights and legal provisions, which are required by the public welfare.” The economic freedom doesn’t mean “laisser faire”, but the fundamental right was embedded in the social compound and the Landsgemeinde democracy. In 1864, the Glarus people issued the most advanced factory law in Europe at that time again in an open vote and appointed the cantonal physician
Fridolin Schuler as the Factory Inspector. Three proposals were on the table: a request by the Landrat (Cantonal parliament, which represented the position of the employer), by four factory workers and by Fridolin Schuler. His proposal was accepted by the people. The canton of Glarus established this way a social framework ensuring economic freedom and market economy, that guaranteed economic freedom as a fundamental right and provides for an economic order corresponding to the community and the common good. The legal developments in other cantons were similar and influenced the Federal Constitution of 1874 and the overall Swiss economy until today.
This example shows impressively that it is not only about anchoring human rights in a document and in the national constitutions, but what is much more important is the way in which human rights are enforced. The expert in constitutional law and rector of the University of Zurich, Professor Dr. Zaccaria Giacometti, who comes from the famous family of artists in the Val Bregaglia, concentrated on this very central question on the 121st Foundation Celebration of the University of Zurich on April 29, 1954.

“Democracy as a guardian of human rights” (Zaccaria Giacometti)

Giacometti pointed out in the introduction, that some politicians and contemporaries would spontaneously negate the question, whether the democracy could be the guardian of human rights – because history has shown that even democratically determined human rights can be set out of force or swept away by political events. The Jacobins under Robespierre had set up so a reign of terror in the first years after the revolution on the basis of emergency law, and the Declaration of human rights of 1789 and following the two constitutions of the 1st Republic of 1793 were not able to prevent this. There are unfortunately quite a few such examples in the history. Also Hitler succeeded in overriding the human rights contained in the Weimar Constitution relatively easily and permanently by relying on emergency legislation (Emergency Ordinance and enabling Act of 1933). How can this be prevented?
The Universal Declaration of Human Rights of the UN 1948 requires that human rights should be protected by the rule of law. Giacometti opens his presentation with basic considerations on the law, which he divided into the natural law and positive law, which differ in principle because they belong to different normative standards.

Positive law

The positive law is written law. In Switzerland it consists of the currently valid laws, so the Federal Constitution, federal laws and regulations. The right of the cantons, that stands above the provisions of approximately 2600 municipalities, is subordinate to federal law. Lawyers speak of a hierarchy of law. The Federal Supreme Court as a Constitutional Court checks the cantonal decrees on compliance with federal law. But the Federal Court can’t verify federal law. The people are entitelt here to the highest level of control using the referendum. In Germany and in the United States, however, the Constitutional Court reviews the federal laws and the policy of the Government on their constitutionality.

Natural law

The law of nature, however, that underlies the various declarations of human rights, derives from the nature of man, and is based on psychological, philosophical and religious convictions. Behind it is a view of the people and the world – and by that a piece of a belief system. The law of nature established ethical demands to the Government. After Giaccometti it is a “thought and felt right”, so it’s no right in the sense of enforceable standards.
In natural law – so Giacometti – there are different approaches, because it occurs in different shades: as a Catholic natural law (Thomas Aquinas), as Protestant natural law (Hugo Grotius, Samuel Pufen-dorf), as a rationalist natural law (John Locke, Emanuel Kant, Rousseau, Montesquieu and many more), as liberal natural law (David Hume, John Stuart Mill). In the different schools of thought, there are however common basics. For the Marxists, however, not the nature of the people is important, but they want to overcome capitalism and set up a “fair economic order” in which “man becomes human” (being determines consciousness.).
Optimally, the development of the law works – according to Giacometti – when the law of nature combines with the positive law and there are not two conflicting systems facing each other.
Who should protect human rights?
After these introductory remarks Giacometti turns to the central question, who should protect human rights and ensure, that the law of nature or human rights are genuinely enforced and lived. He asks: Can democracy be the guardian of human rights?
The 1948 UN Declaration of human rights demands that all people are entitled to equal protection by the law (art. 7). After the second world war, in 1948, the creators of the German Constitution have builtin barriers, which are supposed to protect human rights. Vital parts must not be changed at all or are difficult to change (i.e. with a two third majority in the Parliament). Germany anchors the law of nature (which is above the Constitution) in its constitution and reaffirms that human dignity is sacrosanct and that there are inviolable and inalienable human rights not to be changed even by the constituent committee. Parts of the German Constitution feature a “eternity clause” in this way. Quite in contrast to Switzerland, where the Federal Constitution is an “perpetual” construction site and continually changed. The continued existence of human rights in the constitution is for the Swiss sovereign self-evident.
Giacometti was doubtful. He paid tribute to the efforts in Germany after the war. He doubted, however, whether such barriers can really work in the constitution and the constituent institutions can control themselves, and wether the judges may align to the political circumstances or to the “Zeitgeist”. His question: Can the positive law really prevent that the Constitution will be reinterpreted and bypassed, its provisions are not complied with or even swept away by political events?
Today Giacomettis view is confirmed: In the German Constitution it is forbidden, for example, that Germany wages a war of aggression. Every aggressive war is a fundamental violation of human rights, therefore war must not start from German territory. But what is the reality? German soldiers are in Afghanistan for several years, and are directly or indirectly involved in the wars in Yugoslavia and the war in Iraq, and they are involved as well in the Syrian war. – The barriers built into the Constitution and the Constitutional Judges have not prevented that.
The law of nature – so Giacometti – is interpreted by the governments. Therefore, subjective and political assessments play a role. The appointment of a federal judge in the United States for example is a highly political matter, because the US President uses to appoint mostly a judge with the same ideological point of view. Giaccometti: “the law of nature can be even harmful for the constitutional state, when it is misused as an instrument of policy. […] In the arsenal of natural law almost every political regime as well as every ideology finds spiritual weapons fitting for their ideological defence. “

A contemporary example: Law jurisdiction of the Europea Court of Justice for Human Rights (ECHR)

Recently Switzerland was absurdly convicted in Strasbourg of torture. The court hold Switzerland liable for an asylum seeker sent back to his country of origin being tortured there. This, even though Swiss diplomats visited him there and brought him after his release back to Switzerland.
A panel of judges renders such judgements decisive in 47 countries. It is not surprising that in some countries the Strasbourg judges are increasingly perceived as “foreign judges” lacking legitimacy. Human rights understood in this way are becoming an instrument of dismantling national states.
The judges in Strasbourg are criticized, because they often do not judge in a generic way (corresponding to the spirit of the ECHR) in more recent times, but extend the human rights for political or for reasons of development of their own power. The question of human rights gets out of hand, so that the judges sit on a pile of a few thousand of uncompleted cases today. There are discussions, whether a crucifix may hang in the classrooms of Italy or whether there’s a human right on a minaret, whether Muslim students must take part in the swimming lessons, etc. Such judgements, which are supposed to impact even beyond the affected countries, weaken democracy in the concerned countries and distract from the very essence of human rights. And especially they distract from noticing that today the most elementary human rights in many parts of the world are starkly violated – especially in the crisis regions, and as a result of the war policy which is conducted by countries which have ratified the ECHR.

The people as a guardian of human rights: Conditions for the direct Democracy

Professor Zaccaria Giacometti referred in the second part of his presentation to the crucial point: Can the people be guardians of human rights?
Human rights are essential for man: “It immediately suggests itself that the people and the representatives of the people as the beneficiaries of the rights of freedom in a sense are intrinsically entitled to guaranteed human rights. At least this should be presumed. People enjoying freedom rights are intrinsically supposed to have the duty of being guardians of human rights.”  Zaccaria Giacomettis point of view of humans is expressed in a beautiful way in such statements. He trusts people as social and rational beings, to ensure the order that corresponds to them by their nature.
Democracy – so Giacometti – offers the greatest chance of achieving the freedom rights. Giacometti: “the people must be prepared for the liberal democracy, must be politically mature. People appear mature for real democracy, if they meet certain requirements”:
Idea of freedom: “firstly the idea of freedom of the individual and the people has to be alive and the constitutional law of nature must be effective not as a law but as an ethical force.”
Political conviction: “liberal values must prevail, but not euphoric moods or opportunistic intuition on the spur of the moment but as deep political beliefs that dominate the consciousness of the people all the time and is supported by the driving forces of political life.”
Historical consciousness: “the people must have a liberal tradition. The liberal beliefs have roots in such a tradition. As a result, tradition is historical consciousness and therefore liberal tradition is liberal historical consciousness. But a democracy has such historical awareness in the case that it is based on a liberal past, so that the previous generation has handed a treasure trove of liberal political ideas, views and experiences to the living generation. […] What you have inherited from your fathers, acquire it to make it your own.”
Political education: “the living generation has to appropriate this ancestral treasure in liberal political insights and liberal political experiences, to grind out through appropriate political education, proving and probation as constituents and as a simple legislator of genuine democracy.”
Giacometti came to the conclusion: “A great political education means is the referendum.”
Since the introduction of the referendum law at the federal level in the year 1874, active citizens have taken the referendum about two hundred times successfully resulting in voting on a bill. About as many times there was voting on people`s initiative. Additionally, there were numerous referendums in the cantons and municipalities.

The principle of division of forces as guarantor of human rights

Giacometti hinted out a further point in the constitutional state that protects human rights: the principle of division of power according to Montesquieu is a cornerstone of democracy and human rights: the state power is to be divided into the executive (government), legislative (legislature) and the courts. These three branches of power inhibit and check each other, which prevents misuse of power and protects civil rights and liberties. In direct or semi-direct democracy, with referendum and popular initiative, the people is – alongside the parliament – an important part of the legislative power incl. the constitution. Giacometti said: “Active citizenship as a sub-organ of the constitutional and the legislative powers discharges this inhibiting function against Parliament and the administration.”
Giacometti then explained how the principle of the division of power has kept Switzerland in the difficult time between the two world wars from reducing democracy and restricting civil rights and liberties substantially – as has happened in most countries at the time.

Federalism as guarantor of the Human rights

Giacometti cites Federalism as a further constitutional principle which respects human rights. By dividing federal authority between the cantons and the Confederation, Federalism protects citizens’ individual freedom. A similar effect can also be observed in the cantons, where the municipalities have a far-reaching autonomy with their own fiscal sovereignty and in which the citizens actively participate in community affairs. The “community people” themselves take care of civil rights and liberties.
Giacometti hinted at an important point in federalism: “The smaller the community is, the more intense seems the participation of the liberal-minded citizens in the exercise of public functions.” This argument has recently been central to statements against community fusions. In the canton of Glarus, for example, the interest in community events (especially in the municipal councils) has clearly diminished after the merger of the small municipalities into three large communities.

Protection of human rights in times of crisis

The times immediately after the First World War were difficult, so that the authorities in Switzerland often sought refuge in emergency law without complying with the ordinary legislative procedure and, in particular, without allowing the referendum. The measures were urgent and had to be put into force quickly, was the reasoning in each case.
In particular, in the thirties, the Federal Council and Parliament attempted to combat the crisis by means of economic control measures (generally binding federal resolutions), which could indeed be explained by the emergency situation, but were mostly infringing the fundamental right of trade and commercial freedom. The decrees were “urgent”, i.e. they were immediately put into effect with a simple majority of the Parliament, usually limited to two or three years (and often extended later). In total, the authorities sought refuge in the inter-war period about a hundred and fifty times (thus eliminating the referendum and preventing popular votes).
For example, in 1934 the Confederation forbade the opening of new department stores or the expansion of existing department stores with new branches. This measure was directed against the founder of Migros, Gottlieb Duttweiler, who had begun to expand the Migros system area-covering all over the country (thus threatening the existence of many detail shops). Duttweiler (who had certainly taken the referendum against the ban), however, let himself not be deterred by the emergency right. He sent trucks as mobile sales warehouses to the neighborhoods of the cities and villages and extended the Migros sales network in this way. And shortly afterwards, he founded a new party, the Landesring der Unabhängigen (country ring of independants), which in 1936 submitted a popular initiative to “safeguard the constitutional rights of the citizens” (which was rejected by the people in 1939). In the years and decades after, the Landesring should still submit many popular initiatives and take referendums.

Controversial legal basis of the emergency law

Federal Council and Parliament based their emergency policy on Article 89 of the then Federal Constitution:
“Federal laws, as well as generally binding federal resolutions, which are not of an urgent nature, should, moreover, be submitted to the people for acceptance or rejection if they are demanded by 30,000 voting Swiss citizens or eight cantons.”
In the inter-war period, the authorities very often opted for an emergency law by claiming that a general-binding federal decision was “urgent” and thus excluded the referendum. But no one knew exactly what “urgent” meant. An explanation was always found, because the times were really difficult and the authorities tried to combat the crisis. Many active citizens, however, found that the emergency law was used too often and the reason would lay in the bureaucracy’s struggle for more power. Abroad, there were enough examples in which politicians used the crisis to eliminate the civil rights and liberties, to break down democracy, or even to establish a dictatorship.
Zaccaria Giacometti, who was Rector of the University of Zurich after the war, and was one of the most influential experts in constitutional law of his time, said in his speech in 1954 that

“the adoption of a large part of the urgent federal resolutions, inacted during the two decades between 1919 and 1939, [...] was not for reasons of shortage of time, but for fear of negative popular decisions, for example, of the rejection of economic control measures. [...] While these popular decisions [...] largely served to defend the restrictions on freedom linked to the governing measures, this fear of negative popular decisions [...] was based on the fear of the people as guardian of the civil rights and liberties.”

This statement is as up-to-date today as it was then. Today, there is also a risk that in the context of globalization and international law the nation-state will be weakened and democracy and civil rights and liberties will be reduced. Such dangers also exist in the context and as a result of the fight against terrorism.

Fight against too much emergency law in the inter-war years

It is interesting how the people in the inter-war period responded to the many emergency laws and fulfilled its role as guardian of civil rights: the possibility to call for a referendum was often blocked – but not to launch a people’s initiative. A total of 25 national initiatives were submitted during the inter-war period – among them five people’s initiatives from different political camps all of them aiming at containing emergency law and defining its legal requirements more closely and more precisely.
The so-called Richtlinienbewegung (guidelines movement), which was supported by the economic opposition such as the SP (socialist party), the trade unions, the employee associations, the farmers’ home movement and the Free Trade Association, was successful. In its initiative for urgent decisions it required a majority of two-thirds in Parliament and a time limit of three years for those decisions. The initiators collected more than 300,000 signatures. So strong was the need to rectify the unsatisfactory legal situation! The Federal Council agreed with the direction of impact of the people’s initiative. However, he weakened it drafting a counter-proposal, which was adopted by Parliament. Later, the initiative was withdrawn. Article 89, revised by Parliament, read as follows:

“General binding federal decisions, the enforcement of which cannot be postponed, can be declared urgent by the majority of all members in each of the two Councils. In these cases the popular vote cannot be demanded. The term of validity of urgent federal decisions is to be limited. “

The people agreed on 22 January 1939, on the eve of the Second World War, with almost 70 per cent. The new article clarified the situation to some extent, but he changed the legal situation just slightly.
During the war, Federal Council and Parliament had an extensive authority, which largely excluded referenda and people’s votes on federal decisions. But even during these difficult years, the commitment to freedom and democracy did not rest. Active citizens submitted six people’s initiatives, which, however, just came to vote after the war. They related to key questions of a future economic order, agriculture, pension provision and family policy, and they set the direction to lay in the course of a number of popular votes the foundations for social market economy as we know it today. This shows that even in the threatening situation of the war, active citizens were politically concerned to improve the living together and the state order (see Current Concerns 22.2.2016).

Constitutional Court as a way out?

A committee composed mainly of lawyers and professors of constitutional law –  among them Giacometti – submitted in 1936 a people’s initiative “On the Protection of the Constitutional Rights of the Citizens” with 58,000 signatures. The legal experts demanded that a Constitutional Court be established with the task of checking federal decrees (for which the possibility to launch a referendum was excluded) on its compliance with the Constitution and of assessing its urgency. On the one hand, the initiators wanted to put a stop to the emergency practice of the federal authorities. On the other hand, they wanted to lay the foundations for establishing a constitutional court. The voting campaign evoked strong emotions. – On 22 January 1939 it came to the vote. The result was clear: almost three-quarters of the voters and all cantons said no. It is not the judges to decide on such important political questions – but the people.
After the Second World War, Giacometti changed his mind and in 1954 he commented on a proposal that judges should decide on fundamental constitutional questions: “The judge over the constitution! This is an intolerable idea in a constitutional state.”
There is a correlation between the debate on emergency law at that time and the discussion on the so-called “international law” of today. Today, the Parliament tends to not implement people’s initiatives because some parliamentarians assume a “primacy of international law” (which means bilateral treaties with the EU in particular), which is said to be above federal law. The Federal Court has contributed to this paradigm shift without legitimacy of the Constitution and of the people. In October 2012, for the first time, the Federal Court declared non mandatory international law to stand above the Federal Constitution and this was justified as follows: “If there is a genuine conflict of laws between federal and international law, Switzerland’s obligation under international law will in principle be applied. This is true even for agreements which do not relate to human or fundamental rights.” This is new and reduces considerably the legal framework for direct democracy. Judges would have a task which they hadn’t had yet. Justly, critics speak of a silent coup d’état. The answer came promptly: in August 2016 the self-determination initiative “Swiss law instead of foreign judges” was submitted. Further initiatives relating to the agreement with the EU enabling the free movement of persons have been submitted or are being prepared.

Return to direct democracy after the Second World War and today

The debate on the constitutional basis of the emergency law soon resumed after the Second World War. The legal situation was still unsatisfactory because it gave the authorities too much scope to prevent referendums and to circumvent plebiscites.
In 1949 the popular initiative “Return to direct democracy” was adopted in popular vote. All the major parties had previously opposed it. Giacometti was decisively involved in the initiative. The people’s initiative decreed that emergency resp. urgent law should continue to be possible and could be put into force immediately in the councils with simple majority. However, if it violates the Constitution, it must be voted on within a year. If it is immediately put into effect, but is not contrary to the constitution, the referendum can be taken within a year. – This rule still applies today. The popular vote of 1949 caused the emergency law to be applied only in a few cases.
At that time, the Swiss People has, in constant commitment to democracy and freedom, hindered the dismantling of democracy and the development of power of government, parliament and courts, and protected human rights. Today, in times of globalization and EU integration, the road to protecting and maintaining human rights and direct democracy is at least as rocky as in the difficult times then. We are faced with a very similar situation to that after the Second World War: it is about the return to direct democracy. At that time, it was possible to find a constitutional solution for the emergency law, which has not been questioned to this day. It is to be hoped that such clarification will also be achieved in today’s debate on “international law” – that is, treaties with foreign countries – which should limit the framework for direct democracy.

Crowning concluding words of the great expert of constitutional law Zaccaria Giacometti in the year 1954

“In Switzerland, the people is actively – comprehensively and immediately – a direct protector of human rights, and our country is therefore characterized, in spite of all, by a harmony of extensive individual and political freedom. This harmony is conditioned by a free-spirited atmosphere, based on liberal political values, on long time liberal tradition, on long-standing, liberal political experience and probation. Yes, Switzerland is a unique case of democracy, where the people as the legislator is itself the guardian of human rights, and thus gives, in the most beautiful way, the living proof of the possibility of existence of a genuine, a liberal democratic state.”
The presentation ended with the well-known words of the Zurich poet, Gottfried Keller:

“The country is just right,
Is not too good and not too bad,
Is not too big and not too small,
To be a free man inside! “

“Die Demokratie als Hüterin der Menschenrechte” (Democracy as guardian of human rights). Ceremony of the Rector of the University of Zurich Prof. Dr. Zaccaria Giacometti, held at the 121st Founding of the University of Zurich on April 29, 1954. Annual Report 1953/54

Linder, Wolf; Bolliger, Christian; Rielle, Yvan. Handbuch der eidgenössischen Volksabstimmungen 1848–2007 (Manual of the federal people ‘s votes 1848–2007). Bern 2010

Kölz, Alfred. Neuere Schweizerische Verfassungsgeschichte. Ihre Grundlagen in Bund und Kantonen seit 1848 (mit Quellenbüchern). Bern 2004 (Recent Swiss constitutional history. Its basic lines in the Confederation and the cantons since 1848).

Glarner Heimatbuch, Glarus 1992 (Glarus homeland book)

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