PRINCIPLES OF DEMOCRACY:
1. Bottom up, not top down
Complements to the bottom-up nature of direct democracy are mandatory referendums that are automatically triggered over the introduction of specified legislation such as constitutional amendments or specific international treaties. Like with bottom-up referenda and initiatives, it is beyond the decision of the executive or the legislative branch of government to call a vote.
2. Popular decisions should be reversible with an equally legitimate decision and (possibly) held regularly
If the voting population is sovereign, then it should also be able to reverse a decision or just make an updated decision at any point of time. As Habermas observes, “A political vote is not final, but rather an interim result of an on-going process of deliberation.” If voters may not reconsider or update their decision, then the legitimacy of popular votes are undermined by an element of randomness. The gain in popular participation in political decisions remains delusive. Repeated referenda are not a weakness of direct democracy, but an indication of a lively political process. In that sense, the popular vote should never be a “one-shot game.”
3. Implement first at the local government level, rather than at the national government level (in federal states)
Direct democracy is a political tool that citizens have to grow into. Civil society organizations and political parties need to incorporate this additional political check of the populace into their strategies. To reduce the risk of misuse and to allow citizens to acquaint with this political instrument, direct democratic instruments are best first implemented at the subnational government level. That could be town, municipality, local government, state, or provincial-level government.Introducing direct democratic instruments at the subnational level has another crucial advantage: it allows for a comparison and even competition of different instruments across jurisdictions. Instruments may be adjusted according to the most successful and acceptable practice.
4. Fundamentals of the Referendum Law or Initiative Law should not be open to amendment prior to a popular vote in order to secure the stability of direct democracy
Legislation on direct democratic instruments should be written in the constitution or at a level superior to the ordinary law. By writing the fundamental aspects of referendums and initiatives in a constitutional document, the risk of short-term manipulation through amendments that would favour a certain interest group is reduced.
5. An initiative requires the single-subject rule (unity of the matter)
The single-subject rule in popular votes stipulates that the proposed legislation should deal with one subject only to allow the voter to form and express their opinion freely and genuinely. This principle is also known as the unity of subject matter.In other words, if a proposed legislation includes several substantive questions, the voter may not have a free choice.A popular vote is also violating the single subject rule if it is simultaneously a vote of no confidence on the executive government—either de jure or de facto. A so-called plebiscitary referendum does not allow the voter to express their opinion unbiasedly
6. Conflicts with existing basic rights have to be explicitly declared prior to the vote
One of the fundamental concerns of direct democracy—as indeed of any political system—is the tyranny of the majority over the minority. If the voting population is sovereign, then it is sovereign to change any rule, including the most fundamental ones. Importantly though, newly proposed legislation may be in contradiction to existing basic laws and human rights protected by the constitution or by international law. The voters should be made aware of such conflicts between existing and newly proposed legislation.
The easiest way to obtain this is that direct democracies may include a rebuttable presumption that assumes that newly formulated initiatives intend to respect existing fundamental rights. If an initiative committee aims to erode the protection of any fundamental right to any given group of people, this goal needs to be explicitly stated in an initiative. If a committee does not put down any conflicts, it is assumed that such conflicts were intended to be resolved in favour of the pre-existing fundamental rights. The presumption assumes that the voting population does not want to erode basic rights, unless explicitly stated otherwise. A proposition that is nonetheless conflicting with basic law would remain dead letter to the extent that it cannot be applied in a manner that is compatible with fundamental rights.
7. The validity of a proposition is a legal matter and should be decided by a legal body, not a political body
A legal body should conduct the validation of a proposition before it is put to the people. An initiative may be declared as valid if it does not violate the unity of the matter discussed.If the examination of a proposition regarding the unity of the matter—which is a legal question—is put to a political body, then it is likely that the decision is taken with a political rationale rather than coherent to a judicial practice.
8. The validity of the proposed popular vote should be confirmed prior to a vote
In general, proposed legislation is valid if it abides by the unity of the matter. Confirming or disapproving the validity of a proposed legislation in hindsight of a popular vote puts tremendous pressure on the respective legal body. Ruling against the majority of the voting population is considerably more serious than before a popular vote has taken place.
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