30 November 2013

Federal plebiscite

Besides three main till now described branches of state power of a European federation, there are other that should in my opinion be present in the constitution of the European federation but I want to interrupt writing about them and to deal with something else now.

Most bodies that constitutions mention exercise (or at least should exercise) the people's will indirectly. It is possible to debate how much they really exercise the people's will and to what extent they only formally refer to it; it is however important that most state systems in Europe takes only very limitedly direct exercise of the people's will into account. From a point of view one could even say that the people in Europe grew mature not yet from the 19th century when modern society came into existence and that it is necessary that “experts” think and decide for the people. And it has to be remarked that what is called democracy has not substantially evolved since then to now, at most by spreading universal suffrage. Nothing is naturally black and white, the society of today is very complex and managing public affairs really needs experts. On the other hand, only in fairy tales political authorities work only for welfare of the people, in reality also the power is associated with state (or more broadly public) offices and it not rarely serves to interests of the powerful. It is not only a theory, political practice of European states (transferred also on the common European level) speaks expressively. In order that this is restricted as much as possible it is necessary that the people has a possibility to decide on itself without professional politicians acting as mediators. Also the people naturally can decide wrongly but in that case it takes consequences of its bad decision itself whereas a caste of professional politicians is protected from consequences of its bad decisions both by its high salaries and contacts above standard with the powerful and rich. So it is a question of fairness; in addition to that I wrote earlier that a European federation, from its very beginning, must be based on the will of the people expressed by itself, not – unlike in existing unification of Europe – on the will of politicians for which the people is only passive viewer of their decisions.

So I will write here about the way of decision-making which usually is called a referendum. I will call it in other way in my proposal, a plebiscite because I like this word more than the previous one. Moreover, it is also etymologically more suitable because translated from Latin it means “decision of the people” whereas there is nothing similar in a word referendum though someone can object that in ancient Rome the word “plebs” denoted not the entire people but only its part, the unprivileged people – but it is appropriate in a way of speaking because the privileged ones do not need plebiscites to press their interests. Because I will discuss a plebiscite within the European federation I will call it a federal plebiscite.

Now I will pursue basic parameters that a federal plebiscite in my opinion should have in the European federation. The first thing is obligatory character and a form that comes up from the plebiscite. A plebiscite (referendum) can be either consultative or mandatory. The first one has no place in my concept. The meaning of a plebiscite is that the people can get around the will of professional politicians by means of it and decide about itself. In that case a plebiscite that only would give a recommendation to political elites lacks any purpose (all the more so that it would waste resources). If I proceed from the assumption that the people should be a ruler and politicians should be only its servants, it cannot be allowed that the people beg its servants by a not binding inquiry of public opinion. It l however also logically follows from it which form the plebiscite has to have. In referendums of the present time it is usual that a question is submitted to the people and it responds with “yes” or “no”. But again, if I proceed from a condition that the people is a sovereign and politicians are its servants, it is not an acceptable way. The people decide whether yes or no but politicians have again a final decisions in their hands and they can handle the result – though within certain limits – in a way that the people's decision devalues and adapts to their interests (or interests of their sponsors). It is therefore necessary that the federal plebiscite in the European federation has such outcome which could not be changed by politicians in any way. The only way how to satisfy this condition is to propose a draft bill but made by citizens, not a parliament or a government. Citizens would so answer “yes” or “no” not to a question “Do you agree that it is done…?” but whether they agree with a proposed bill which then directly comes or comes not into force. It could be also possible to propose more bills regarding one matter and the citizens would elect the proposal which is the most acceptable for them. It certainly offers greater possibilities for the people to decide than a mere yes-no to a question about which concrete implementation into a law (or into actions of the executive power) it decides no more after. I consider also to be necessary that every international treaty is approved by the plebiscite, again not as an answer to a question “do you agree that the European Union makes a treaty with… dealing with…?” but in the form of approval or disapproval of the final wording of a negotiated treaty. International treaties, subsequently integrated into the system of law of the state, are usually very momentous, they not a little influence lives of people and sometimes unfortunately, they serve the powerful to press their interests in a way that tries to circumvent the people and democratic procedures belonging to it (as a typical example, one can remark events around an international treaty ACTA and continuing tries to sneakily smuggle some its principles despite a rejection in other treaties or a treaty about trade partnership between USA and EU being secretly negotiated in these days which is to radically reduce democratic supervision over supranational corporations). I have to highlight in conclusion that it is insufficient to me that citizens can only give their opinion to laws passed by the parliament as the thing is arranged in Switzerland. The citizens of the European federation must have a right to propose and to pass any law in a plebiscite without necessity to be approved by the federal parliament. It is worldwide unique (as I know, only in the USA in the level of (some) member states this happens) but the present crisis age requires new forms of democracy if the present ones fail.

The citizens of the European federation should have the right to express their will in a plebiscite whenever they consider appropriate but in some cases, to hold a plebiscite must be obligatory. First, it is ratification of the federal constitution and any its changes which I wrote in my earlier posts about, second, ratification of every law that expands the constitution with further provisions (such law is pointed out by words like “the law stipulates details”). Further it is ratification of an international treaty that was mentioned in the previous paragraph and also accession of the European federation to an international organization or a military pact – a reason is that by accession to such organization a state conform to interests of other states in a certain extent or – in the present world – rather of certain elites linked with states only loosely (trade organizations of today are a typical example). Another example of an obligatory plebiscite that I also wrote earlier about is admission of a new member of the federation and I add one case more, namely voting about status of a federal territory: I wrote earlier that federal territories unlike “full” member states should have a possibility to adapt their relation to the federation in a specific way but because their status should not be generally unified yet exceptional it is necessary to approve every such exception by all citizens; this voting is of the same kind as a plebiscite about admission of a new member because both give assent to a change of internal conditions in the federation.

Opponents of plebiscites (referendums) from ranks of politicians admit only sporadic use of them about questions which themselves propose to the people. Argumentation in principle is that the people is not enough mature or knowing to decide about itself and also that the people could initiate voting about some very important matter having significant influence on the entire society and after that adopt a very bad decision. It is offensive in a way, as if the people was small children that need leadership of adults, on the other hand, it is true that irrational emotions really could outweigh prudence. For example, there is a danger that in a crisis the people willingly votes for extraordinary powers for some “saviour” who will “make order”. It is obvious that a plebiscite (referendum) is really not possible about some matters because it would disturb the ground of democracy itself and the human rights. It is therefore necessary in the text of the European federation to outlaw a plebiscite about restriction of democratic order (for example in a form of extraordinary powers) and of the rights listed in the constitution, in particular in the case of prohibition of death penalty, torture, slavery and similarly. Also the people must restrict itself in some things, Cicero's “We are slaves of the law to be able to be free” has its value here in hundred percent.

Now, it is turn of practical questions of accomplishment of a federal plebiscite. The first thing is an initiative leading to it. It is clear from what I have written that it is not acceptable that citizens only ask for holding a plebiscite and politicians decide whether they comply or not. A plebiscite must be held every time when the people decides to decide a public matter through it, the question is only what number of citizens should be necessary to initiate a plebiscite. Practice in the only European state that can serve as an example, in Switzerland, is a guideline for me. In that state it is necessary to collect 50000 signatures of citizens so that a facultative referendum about laws (already passed by the parliament) is held. It is circa 0,63% of all inhabitants of Switzerland and my opinion is that there is no obstacle to use this share also in the European federation. Not all inhabitants however are also citizens entitled to vote, a number of citizens certainly is lower and in the constitution, a required number of initiators of a plebiscite has to be related just to citizens with the right to vote, not inhabitants generally. I will proceed from a condition that voters are 80% of state's inhabitants (so is the actual number in the Czech Republic) although it may vary by some percents up or down in various states. In the concrete case of above mentioned Switzerland, the number of 50000 signatures corresponds to a share of 0,78% of voters if I use that 80% voters of entire population. As the formulation of a concrete number in the text of the European constitution is concerned the problem is that it cannot be known at present how the European federation will look, namely how many inhabitants and voter it will have. In addition, it can be expected that it will be a growing state similarly like the USA in the 19th century. Therefore it cannot be possible to give an absolute number (though it would look better) and what is only left is to give a share, namely the mentioned 0,78% of voters. And the federal structure of the European Union has not be forgotten so there is again a condition of citizens' signatures from more member states – I chose more than six states as in other similar cases mentioned earlier because the thing here is of greater significance: so I decided for eight member states.

Realization of a federal plebiscite will be in hands of the executive power, that is of the Council of Chancellors. So, to announce a concrete date of voting will be its power. The date should not be too early in order that the citizens are able sufficiently to talk over a topic of voting but also not too late. The first is not so grave because already collection of signatures will procure attention to a topic of a potential plebiscite, voting must however not be deferred too much after necessary signatures are collected so as thus artificial lowering of citizens' interest in a topic of voting is not caused. If it is necessary to take account of necessity to technically prepare voting I consider the term of 200 days as a deadline.

I have another three general remarks to organization of the federal plebiscite. If some topics should be subjected to a mandatory plebiscite, it is useless to collect citizens' subscriptions to initiate it, only the initiative of the Council of Chancellors suffices in that case. I believe further that it is suitable that there is a possibility to propose any law passed in the federal parliament to the people to a binding statement on initiative of the Council of Chancellors. It would a kind of a parallel to a Swiss facultative referendum which essence is also emendation of parliament's measures but in this case, it would be rather means of controlling the legislative power by the executive power and the people. The last of three mentioned remarks refers to repeating the plebiscite. It is naturally not possible to eliminate from the public space forever a matter rejected in a federal plebiscite; it is however necessary as well to give sufficient space to the people to newly reconsider the thing if a demand to solve it via a plebiscite still endures. The term of three years after which voting will repeat is most suitable in my view.

Other provisions specifying conditions of holding the federal plebiscite are divided by me in two subsections in compliance with a topic of voting. In the first subsection there are provisions referring to the plebiscite about changes of the federal constitution, laws completing the federal constitution and ordinary laws. The first two matters are more significant than the third one and voting about them must be more strict. There are two ways that can be chosen – either higher number of signatures to initiate a plebiscite about these questions will be required or there will be a requirement on greater majority to approve. The Swiss example goes by first way, at voting on changes of the federal constitution it requires double subscriptions of the citizens than for voting on other matters but only a simple majority (over 50%) of involved voters is sufficient to approve an issue in both cases. The contrary seems to me more logical, namely the same number of requests for initiating a plebiscite whatever its issue should be but greater majority for approving changes and completion of the federal constitution. A concrete number of such higher majority is a question. I have written about a simple majority everywhere till now, only in the case of outvoting a veto of the Council of Chancellors in the Assembly of the Union I suggested a majority of 4/7 which is 57%. It is however little for deciding about a change of the federal constitution in my view, such important thing should require a majority of 2/3 of voters which is around 66%. I add in essence mechanically that also here (and in particular here) is necessary to lay down a dual majority for voting according to the Swiss example which is a majority of all voters and at the same time a majority of states which means a result of voting within individual states. At voting about ordinary bills, a simple majority of 50% (but again double) suffices for their approval in the plebiscite.

Some things more that I add are provisions referring to the relation of the federal plebiscite to the parliament or to making laws generally. Somebody can regard as an expression of basic decency that if the people approves a bill in the plebiscite, the federal parliament will not try to repeal or at least change it. But to rely only on decency in politics is not reasonable because there is also a question of power in politics so I consider to be appropriate to explicitly determine a limitation in the constitution saying that the Assembly of Union must not repeal or change a bill passed in the federal plebiscite and at the same time, I add one provision more: that in the Assembly of Union a bill including a matter rejected in the federal plebiscite must not be introduced for three years – the reason is obvious, again to prevent circumventing the will of the people and the period of three years is identical with the period for which it is not possible to vote about the same issue in the federal plebiscite. Another thing that I consider to be important to add determines some requisites of a law that is supposed to arise from the federal plebiscite. I described such requisites in the section about the Assembly of Union, in the paragraph prescribing a procedure of adopting laws. Those are requisites that have either considerable importance or their violation would cause serious malfunctions in legal order of the European federation and they must be valid every time, also if a law passed through a plebiscite is dealt with – a way of adopting a law cannot be of any importance. Namely, those are the provisions that forbid to adopt a law contradicting the federal constitution, to adopt a law with retrospective force, to include more unrelated matters in one law (or prohibition of so called riders though there is less danger that they will be approved in the plebiscite than in the parliament); then a law about proclamation of the war must contain a ground of proclamation, unambiguous identification of an enemy and an objective of military actions.

The second subsection of my proposal comprises provisions dealing with voting about international treaties. It is practical that politicians negotiate conditions of a treaty but it suffices not in my view that the treaty is then submitted to the people's voting only as is. The present time shows that politicians in secret calmly sell the people to the “markets” and in addition they publicly celebrate themselves for it. So I integrated a provision into my proposal that the people has a possibility to suggest changes in a treaty submitted to it to decide in a period of 200 days before the day of voting itself. It is a safety measure to avoid that some provision detrimental to the people is hidden in an otherwise beneficial treaty (an analogy to riders in bills passed by the parliament) and to avoid that politicians can blackmail the people with a statement that a beneficial or even needful treaty must not be rejected only due to one “problematic” provision. The appropriate number of citizens authorized to propose a change in the text of the submitted treaty is in my view 50000, however without a requirement of their distribution among more member states because I do not consider it to be necessary here. That is a matter of voting itself which is another provision of my proposal. The simple majority (again however double) should suffice to approve an international treaty because the international treaty equals an ordinary law by its importance, not a law changing the constitution.

I came to the conclusion that one more safety measure has to be added though it can be in a certain way taken as an expression of mistrust to abilities of the people to recognize what is harmful for itself. What I have in mind I explain straight in an example. In Europe, legal and social protection of people working in state of employment (through regulations of individual states) is still in force, such as limitation of working time, paid holiday, regulations of occupational safety, a minimal wage (though this no everywhere), health and old age security and so on. But if the European community concludes a free trade treaty with, let us assume, an Asian state where there is no similar protection of employees, actually a double collision occurs with the human rights as I articulated them earlier and which after all largely are in force today. If on the basis of this treaty, goods (or in certain cases services) produced by people in situation almost slavish (which is the reality of today) are imported in Europe such goods will necessary be cheaper than the same goods produced in Europe by people enjoying many social rights – it will result either to elimination of European jobs or to pressure to restriction of social right of European workers under the demand of so called competitiveness (and it is not uselessly pessimistic spooking, it is the reality of today again). In addition, such treaty in no way compels the other contracting party to improve social rights of its working people and Europe as a matter of fact makes out a blank cheque to continuation of insensate conditions at goods production in the country that the treaty concluded with – and it is in contradiction with the provision that the European federation should actively endeavour that human rights (including social right naturally) which acknowledges itself to diffuse in other parts of the world as I wrote in my proposal of the European federal constitution. If the future federal Europe should have conscience it cannot solemnly proclaim rights that will respect only home but at the same time, it will not only tolerate but on the contrary support their violation elsewhere and also indirectly allow that they are endangered at home. It is therefore obvious that an international treaty that seemingly has nothing to do with human rights and do not endanger them can in fact both endanger them and give sanction to their violation (abroad or home) and is therefore inconsistent with the constitution as I suggest it. By the way I add – which does directly not concern the suggestion of the European constitution – that the only moral and fair solution is to trade only with them who will respect human rights being in force in Europe but I am conscious that it is utopia in the present neo-liberal capitalism because trade agreements are formally concluded among states but in favour of supranational firms and more or less according to their requirements (because private profit is more important than human rights for them). In any case, it is necessary to think over again what federal Europe we actually want.

The last provision from the subsection dealing with plebiscites about international treaties speaks about accession of the European federation to international organizations including military (or “defense”) associations. These organizations have founding or other agreements regulating their action, they are however not enough detailed so as the joining state can say what in completeness it could expect from the organization and above all, where limits of its obligations towards it will be. Just the limits are concerned here. I added this provision again on the basis of a deterrent example of the present reality. When the Czech Republic in 1999 joined the NATO it was realized in the form of a law passed by the parliament. In the law, apart from poetic formulations, there was only the sentence that the Czech Republic joins the North Atlantic Treaty which text comprising 14 articles was cited; the law mentions no concrete obligations or rights. The Czech Republic (as well as some other east-European states) joined the NATO for (irrational but understandable) fear of Russia. But the army of the Czech Republic works in fact now as auxiliary colonial corps fighting outside Europe for interests of more mighty members of the NATO which has absolutely nothing to do with preparation of defense against Russia (or whomever else). In order that similar development is avoided at the European federation in the future and that it is not forced, by joining some organization (either trade or military or any other), to conform to principles that were not known in advance I deem necessary that accession of the European federation to any international organization, military or not military, has the form of an international treaty with concrete specification what are obligations of the federation to the organization and what rights following membership in the organization emerge from it.