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From: wolda002@umn.edu
Date: Tue Mar 09 2010 - 00:53:21 EST
3 Mar 2010
The Danger of Majority Tyranny
Graffiti in Geneva, Switzerland
Switzerland's democracy lies nearer to the dividing line between direct
democracy and tyranny of the majority than most. Last year's decision to
outlaw minarets reflects the dangers of crossing that line, Thomas W
Bechtler writes for openDemocracy.
By Thomas W Bechtler in Zurich for openDemocracy.net
Has the minaret poll in Switzerland helped in creating an atmosphere
against all things foreign and “different”? Minarets, headscarves,
Jewish cemeteries, German professors, international law – judging from
recent debate in Switzerland one might wonder if they are all contrary to
Swiss values.
Who better to define and postulate what is quintessentially “Swiss”
than the people themselves in a referendum, just like the one held on 29
November. But this argument brings a queasy feeling and reminds us that
there are limits on popular sovereignty.
The “yes”’ to banning minarets has brought these limits to mind,
causing a real shock and deep disappointment for many people. I cannot
remember any referendum that has divided our country both politically and
ethically in a similar manner.
In the widely held discussions after the event there were repeated
suggestions that political parties had underestimated the fears some Swiss
have that Muslims might segregate themselves and not respect Swiss customs
and laws. Are such fears real or simply nothing more than a clever
fabrication?
Obviously the responsibility for our political culture has fallen by the
wayside. A solution has been found for a problem that our country is not
faced with. The sad game of discrimination has once again been played
successfully. And, just as in our national playwright and novelist Max
Frisch’s play “The Fire Raisers,” normal citizens and “arsonists”
have become one, this time through a plebiscite.
It is an undisputed fact that Swiss politics are closely linked to the will
of the people than almost anywhere else. The fact that the Swiss are able
to take an active role in deciding issues is a part of our national
identity and is undeniably one of our country’s special qualities.
Democratically reached decisions reflect the will of the people in a given
moment, though, not necessarily a superior wisdom or power. Democratic
decisions can be wrong, unjust and impractical, violate the country’s
constitution and even violate basic human rights. They can even relate to
issues for which the democratic system is quite simply inadequate.
Ironically it was freedom-loving Switzerland,of all countries, that voted
for a measure based on religious discrimination that violates both our own
constitution and Swiss values and also breaches the European Convention on
Human Rights. This is a country renowned for its role in the development of
international law, a state whose neutrality has international roots, a
nation that stands for tolerance and open-mindedness whose prosperity is
based on the global economic network and is home to the International Red
Cross!
The issue boils down to two different conceptions of democracy. Under an
absolutist interpretation, the people decide, no ifs or buts. In a
comparison from the world of art, (Brunnellesci), the central perspective
converges in a point determining the order of the composition. Anything
that may stand in the way of democracy is deemed suspect: judges, elected
representatives, even international law.
In contrast, representatives of a liberal rule of law tend to set out from
the interaction of various elements, as is visible – using the analogy of
the arts once again – in the popular artist Alexander Calder’s mobiles.
The parts are in a constant balance, jointly ensuring the stability of the
whole (“checks and balances”). The democratic principle is essentially
the basis for the decisions of democratically elected representatives and
of the people in direct democracy decision making.
The principle of separation of powers, which forms the basis for judges’
decisions in individual cases, is just as important in a functioning
democracy. Human rights and democracy, rule of law and popular sovereignty
are not mutually exclusive but rather mutually dependent.
International law is also of equal importance. A more stringent formal and
substantive examination of the content of referendums – be it through
parliament, the Federal Council, the Federal Court or a special body – is
in fact urgently needed.
Any argument that the European Court of Human Rights has no place assessing
an issue decided directly by the Swiss people, ignores the role Switzerland
played in developing the Court, and the fact that the court is part of the
Council of Europe, a body that Switzerland currently chairs.
The debate about the limits of popular sovereignty will surely go on in
Switzerland for some time to come. We need to make sure that the discussion
is characterized by clarity of analysis, precision in drawing these borders
and public education. An absolutized concept of democracy can threaten
freedom and is susceptible to misuse. An enlightened people recognizes and
acknowledges the limits of its sovereignty and knows that these limitations
are what strengthen democracy and freedom.
Dr. Thomas W. Bechtler is an entrepreneur and investor based in
Switzerland. He is chairman of the Human Rights Watch Committee, Zurich.
Editor's note:
To view the original article, please click here.