Direct Democracy and Judicial Activism

The recent referendum on the Lisbon Treaty in Ireland has produced a bizarre marriage of convenience in the rhetoric used by those campaigning against Lisbon. Cries of the success of direct democracy are fused with a firm commitment to the very antithesis of direct democracy, a Supreme Court ruling. The particular ruling, which has become the darling of the ‘no’ campaign, is the Crotty judgment that saw the Supreme Court rule that in the event of any major change within the European Union (EU) that would impact upon the Irish constitution, the government would be obliged to seek the approval of the Irish people for that change.

Ireland was the only country in the EU whose citizens were given the opportunity to vote on the adoption of the Lisbon Treaty. Subsequently, many of those on the ‘no’ campaign have used the fact that the rest of Europe denied their citizens the right to express their opinion through referendum to discredit their ratification of Lisbon as nothing other than ‘undemocratic’. They argue that three million freedom-loving Irish were thus voting on behalf of 500 million European Union citizens who were denied their rights!?

Of course, what this ill-informed position does is argue that there is only one way for democracy to operate: Direct Democracy.

The reality is that there are many forms of democratic political system. One major difference is that which exists between Presidential and Parliamentary systems, with executive and legislature separated in one and fused in the other. There are also many forms of electoral system and these can be discussed in terms of (i) Electoral Formula, (ii) District Magnitude and (iii) Threshold. Please allow me a short explanation of the differing types of electoral system, which I believe is necessary as many believe that their system is the one universal standard. For instance, Ireland, which employs the Proportional Representation – Single Transferable Vote system is joined in doing so only by Malta. If you would rather skip Politics 101 then please feel free to skip on a little bit but if you do not know that other systems do exist or how they do then I would advise just persevering on for a few paragraphs.

Electoral Formula:
There are three types of electoral formula used: (i) Plurality, (ii) Majority, (iii) Proportional Representation (PR). In a plurality (first-past-the-post) system a candidate needs only to have more votes than any other candidate to be deemed elected. This system is perhaps the simplest but it is found to be lacking in certain respects. While plurality can be used in multi-member districts, the norm is for plurality to be associated with single-member districts. The plurality system tends to punish small parties and generally leads to a two party system as the only seat in the district will go to the candidate with the largest vote, who generally is the candidate of a large party. As I will discuss later this can often lead to unfavourable results in a highly divided society. The majority system, as is implied in the name, requires that any candidate gains at least fifty percent of the vote. If this does not happen on the first count then a runoff election can be held, usually between the top two candidates or those who have gained a certain percent of the vote in the first election. There are certain systems that negate the need for a runoff election such as the alternative vote system, in which candidates are rank ordered. If no candidate reaches the critical 50% share then the second preference votes are tallied. Majority systems seek consensus and thus they tend to elect those politicians of the centre, often as a compromise when voters are forced to choose the ‘lesser of two evils’. PR seeks to address the imbalances in transferring votes to seats that are created by both the plurality and majority systems. By definition, PR can be used only in multimember districts, for it is obviously impossible to distribute a single seat among many parties. The two major types of PR are the List system and the Single Transferable Vote (STV). The List system is the predominant type of PR system while the STV is used only in Ireland for legislative elections and Malta. The List system provides the voter with a ballot on which they indicate their preference for a certain party but usually not for particular candidates. There are certain countries in which the voter may indicate a preference for a certain candidate but this rarely affects the parties proposed list ranking. This system has been criticised because it takes power from the voter and leaves it with the parties as they decide the order that candidates are placed on the list. The STV on the other hand gives the voter the power to rank candidates irrespective of party. The system has been criticised for creating intra-party competition, thus the argument that it leads to clientelism.

District Magnitude:
Most studies of electoral systems find that the district magnitude (M), the number of seats to be filled in a constituency, is an important aspect to any election. Single member districts (SMD) are usually associated with plurality and majority systems. The basic concept behind the SMD is that it provides a representative who is easily recognisable to constituents and a high degree of accountability exists. If the electorate is unhappy with the performance of the government, or their politician, the choice of who to punish is simple as there was only one candidate representing the constituency. The problem when M=1 is that an election outcome can result in the possibility of a large percentage of the population being unrepresented. An extreme example in a SMD in a plurality system with five candidates yields the following results: A=25%, B=20%, C=18%, D=20%, E=17%. Candidate A wins the only seat in the constituency with 25% of the vote. The remaining 75% of voters remain unrepresented. The highly disproportional results of such a system can be devastating for the legitimacy of democracy in an ethnically divided society such as that of Kenya, for instance.

Threshold:
Some electoral systems introduce the notion of thresholds which must be attained in order to be considered for a seat so as to prevent the advent of small and perhaps extremist parties. Thresholds really only apply to PR systems and in particular to those with high magnitude districts, which produce highly proportional results. In order not to make it too easy for small parties to win election all countries that use large or nationwide districts have instituted minimum thresholds for representation, defined in terms of a minimum number of seats won in the lower-tier districts and/or a minimum percentage of the total national vote. It is not in the interest of proportionality for a very high tier to be established. If such thresholds exist, a higher tier can serve to give a bonus to larger parties.


Returning to the question that this post sets out to address, we must question the contradiction that exists between fighting for direct democracy on the one hand and for judicial activism on the other. The Supreme Court exists to monitor and ensure that legislation is consistent with the constitution but it should keep out of the political realm and defer to the political branches or public opinion. If the Court begins to delve into highly controversial areas such as abortion it is in danger of deepening divisions in society. Ultimately it may lose its legitimacy. We must remember that the Supreme Court is comprised of unelected officials, which is in stark contrast to those elected officials who occupy positions in parliament. The very essence of representative democracy is the idea that we are electing individuals to make decisions on our behalf and to govern in our interests. We may not be in favour of those politicians that we have elected but the option is there to punish them by removing them in the next election.

The argument will of course be given that our politicians are not in tune with the electorate but I am not arguing against direct democracy. Instead, what I am pointing out here is the bizarre contradiction of direct democracy and judicial activism working hand-in-hand.

Ultimately, the arrogance displayed by certain persons by labeling as ‘undemocratic’ the decisions by other states in the EU to ratify the Lisbon Treaty through their democratic processes is truly laughable given their ironic appreciation for their own unelected officials' power.

Of course, those caught in this situation will argue that they are not in favour of unelected officials interfering with their right to direct democracy. Only in situations where it suits them. The double standards on display are reprehensible. But then could anyone expect any better?