Arjen Nijeboer*
Although The Netherlands is one of the three countries worldwide where never a national referendum has been held, the debate on direct democracy is more than a century old. In 1994 this finally led to a process to change the constitution. In May 1999 this failed at the last minute in the Senate. Currently the same proposal is re-issued in a very problematic manner. While 80 per cent of the Dutch population favours the referendum, the build-up of a citizens movement that will make the difference remains largely to be done.
Historical state structure
The Netherlands has a peculiar relationship with democracy. The Dutch Republic (1579-1795) is often cited as a birthplace of modern democracy. The Dutch uprising through which it seceded from Spain, led by William of Orange, was as an example for liberation struggles in several parts of the world. Substantial evidence exists that the Dutch declaration of independence, the 'Plakkaat van Verlatinge' (1581), served as a model for the American Declaration of Independence, written by Thomas Jefferson in 1776. (Lucas, 1994) The Republic was organized in a federalist manner, cities and provinces having a higher authority than the national level ("city law goes before country law"). The 'head of state', the stadholder, was a hired figure with little power. If the national Estates-General wanted to decide something, the representatives had to travel back to their provinces for consultation. The first Dutch constitution of 1798, introduced by the invading French, acknowledged the principle of people's sovereignity.
Together with people's sovereignity, though, the French also brought the centralist unity state and installed a King in 1806. After the defeat of Napoleon a descendant of the brother of William of Orange was able to return to Holland, establish himself as King William I in 1815, and found the modern Kingdom of the Netherlands in which things were more or less turned around. William brushed the principle of people's sovereignity under the rug but adopted the, until then, 'un-Dutch' centralist unity state. Ever since Holland is organized in a subsidiary manner in which the national level decides how much space lower levels can have and national laws go de jure before provincial or municipal regulations. The law obliges people's representatives on all three levels to decide in a sovereign manner without interference. The judiciary is not allowed to judge laws according to their constitutionality, so parliaments can at any time violate their own lofty constitutional principles. The King still has formal powers, especially during the formation of new governments but also as co-signer of laws and appointments of public officials. The introduction of the parliament in 1848 on initiative of liberal leader Johan Thorbecke, did not alter the position of the King as head of state nor the subsidiary organization of the country. Thorbecke nowadays is given the aureole of the 'second founder of Holland'.
The referendum debate
Nevertheless, the debate on introduction of direct democracy is a century old. Like elsewhere in Europe, "direct citizen lawmaking" - first conceptualized by Karl Marx associate Moritz Rittinghausen - was at the end of the 19th century a mayor demand of socialist parties, specifically the SDB (program of 1882) and the SDAP (program of 1895). In 1903, the first parliamentary debate on the introduction of a corrective referendum with a signature threshold of 50.000 was initiated by SDAP leader Troelstra, but eventually the SDAP was the only one backing it. All in all, the parliament debated seven times during this century about introduction of a form of referendum. Five commissions were installed by the government to investigate into one or another form of referendum - although some proposals were not worthy of that name. The one having the most impact, the Biesheuvel Commission, was installed by the government after a citizen committee, the 'National Committee Referendum: Yes', gathered signatures in 1982 asking for introduction of the referendum. The high profile Biesheuvel Commission, named after its chairman former CDA prime minister B.W. Biesheuvel and designed as to include all political colours, unanimously advised in 1985 the introduction of the referendum and the initiative, both with a threshold of 300.000 signatures. (Biesheuvel, 1985) But the fact that installing commissions is also a typical Dutch government method of avoiding action is illustrated by the fact that when the referendum after 1989 again entered the political agenda, two more commissions were installed (the Deetman Commission and the De Koning Commission) who did hardly otherwise than repeating arguments and conclusions. (Van Holsteyn, 1996)
Standpoints of political parties
All these attempts were consistently blocked by especially the christian democratic parties, whose main argument, just like the liberals, is that direct democracy goes against the Dutch historical tradition! The christian democrats - in 1980 most of them merged into the CDA - were from 1917 to 1994 continuesly in the government coalition and at the center of power. They were often supported by the rightwing liberals - since 1948 named the VVD - and sometimes by the social-democrats - the SDAP went into the PvdA in 1945 - both of whom, contrary to the christian democrats, have not been hundred percent consistent. Typically, the SDAP turned against the referendum after the workers in 1917 gained voting rights and appeared to be less 'socialist' than the SDAP would like them. In the 1970s the radical PvdA prime minister Den Uyl was likewise opposed to the referendum because, as he said, "the people are less progressive than the elite" and. In a puzzling manner, the 1960s PvdA movement New Left studiously ignored direct democracy although their first demand was "radical democratization". Among the liberals, the great leader P.J. Oud favoured the introduction of a (restricted) referendum. In 1918 the liberals were the only one who voted in favour of it. The VVD internally is still not homogeneous as during the general meeting of 1998 a substantial minority in voted for inclusion of the corrective referendum in the party program.
The last decade, the party views neatly coincide with the left-right division. The christian-democratic CDA, the liberal VVD and the three (sic!) small protestant theocratic parties (SGP, GPV and RPF) are fundamentally against all referenda. The leftist-green GroenLinks (a 1990 merger of the radical PPR, the pacifist PSP the communist CPN and the radical-christian EVP), the socialist (maoist-turned-populist) SP and the liberal-democratic D66 are in principle in favour of both the referendum and the initiative. The social-democratic PvdA, in fact a party of the middle, has no official standpoint on referenda (it is not mentioned in their party programmes) and will not initiate proposals, but votes in favour of the referendum if the leftist parties initiate it. (Lucardie, 1997) But as Holland is always ruled by coalitions and most often the PvdA rules with the CDA or VVD, the referendum normally is neatly kept out of coalition agreements.
Special mention deserves D66, which in Holland has the image of being the "referendum party". The 'Democrats '66' were founded in 1966 by a charismatic group of young politicians who wanted to get rid of "ideological party programmes" and introduce "major" constitutional changes, in effect a chosen head of state (currently the queen), a chosen major (who currently is appointed by the home secretary and the queen) and a 'district system' such as in Great Britain, in which a member of parliament is the representative of a district (Holland has always had a proportional system like Germany). Of the referendum, the first party programme of 1967 only said (in the last paragraph) that the desirability of a referendum should be investigated. During the 1970s there was numb silence, although the PPR in 1974 brought a referendum law proposal into parliament. In the 1981 programme D66 was in favour of a "further investigation of the not-binding referendum" and in 1985 they were "in principle positive" about the referendum. Only in 1989 the corrective referendum entered the actual D66 agenda and only in 1994 the word "initiative" fell for the first time. In fact, when in 1995 there was for a short moment talk in parliament of introducing a citizen initiative, D66 voted against.
To put it bluntly, D66 has in retrospect cultivated the image of being the referendum party in order to have a unique selling point. This is of importance as a often-heard argument of opponents of the referendum is: "If the people want it, then why don't they vote for D66?" (A majority for the referendum exists since about 1970. The last poll (conducted end 1998 by the Social and Cultural Planning Agency) showed that 80 per cent of the Dutch favours the introduction of the referendum. Moreover, a majority of the voters of the four large parties are in favour, also of the parties who are against: CDA 70 per cent, VVD 81 per cent, PvdA 83 per cent and D66 86 per cent.)
Local experiences since 1990
On the local level, however, a small wave of direct democratic ation occured since 1990. Contrary to the national and provincial level, where never a referendum was held, occasionally a referendum was held on the local level, typically in the case of readjustments of municipal borders (which are decided over by the national parliament!) - and which also typically showed very high voter turnouts.
In 1989, D66 leader Hans van Mierlo again placed the referendum on the agenda in relation to the involvement of citizens with politics, which was perceived to be descending. When the voter turnout at the 1990 municipal elections dropped to 62 per cent (from 73 per cent in 1986) - and the media incidentally were full of tales about 'The End of Big Stories' in relation to the collapse of the Soviet Union - the municipalities took Van Mierlo's speech to heart and introduced municipal regulations that gave citizens the right to obtain a corrective referendum after collecting signatures. From 1991 until now, 56 of 537 municipalities introduced such a regulation. The Referendum Platform has data on 54 referenda, starting 1912. (Referendum Platform, 2000)
As noted, the Dutch constitution obliges chosen representatives to decide sovereignly. Moreover: "Examining the Dutch referendum debate, it can be concluded that one fundamental pinciple has always determined the outcome. The referendum is viewed as a threat to the primacy of the representative system. It is on this point that the debate has consistently been concentrated" (Van Holsteyn 1996: 128). Thus the Department of the Interior kept an eagle's eye at these anarchist ongoings at the municipal level. The municipal regulations were designed as to ensure that the municipal council could always voice a veto. The referendums were formally not binding. But because in practice councils could hardly afford to ignore outcomes, quorums were also installed in most (52) municipalities. Moreover, a number of decisions, typically about taxes, the budget, salaries of politicians (sic) and 'vulnerable groups' (prostitutes, asylum seekers) were excluded from referenda and the Department of the Interior obliged municipal councils to always include a general, unspecified exclusion ground in the regulations so that the councils could at any time turn down a citizen request for a referendum. When the city of Amsterdam adopted a new referendum regulation in 1995, the Department of the Interior ruled it illegitimate because the Amsterdam council had not enough possibility to turn down citizen requests. In effect, this comes down to a fundamental and consistent elite resistance towards the principle of people's sovereignity. Holland is an enlightened country and all kinds of procedures have been developed to ensure "inspraak", the possibility for citizens to regularly voice their opinions in all kinds of policy making processes. But the final decisions will always be made by a moral elite of Princes-Philosophers.
Constitutional change failed
As noted, the christian democrats, in 1980 merged into the CDA, have been the fundamental opposition against direct democracy. When in 1994 the CDA lost the elections, for the first time since 1921 a government without the christian democrats was possible - a so-called 'Purple' coalition. Both the two other logical coalition parties, the VVD and the PvdA, were looking for this as the CDA had throughout the years become unapproachable. But because D66 was needed to make a majority and it demanded the inclusion in the coalition agreement of the corrective referendum modelled after the (first half of the) recommendation of the Biesheuvel Committee, the VVD had to give in (a cititzen initiative is still out of the question). During the following debates, however, the VVD was able to effectively dismantle the already quite restricted referendum proposal, especially on the signature threshold and the number of topics excluded. After D66 proposed 300.000 signatures for a national referendum (against 12.5 million voters), the VVD first went for 1.25 million signatures - which would mean a 10 times higher threshold as Switzerland or American states! - and finally settled for 600.000 signatures plus inclusion of this number into the constitution so it can't easily be lowered later. The range of excluded topics was settled at every decision that technically isn't a law (such as big infrastructural projects, which are important topics in Holland because of the scarcity of space) and laws about the royal house, the budget and international treaties. The special quorum from the Biesheuvel recommendations was adopted, which meant that a law can only be stopped if a majority votes against and this majority at the same time enclosed at least 30 per cent of all persons allowed to vote.
At the same time, the spirit of principled resistance to actual democracy can also here be detected. The theocrats are themselves aware of it. GPV leader Schutte once wrote that although he finds the thought of a corrective referendum horrendous, at least it does not constitute people's sovereignity because the state remains the sole agenda-setting agency. He need not worry because some VVD members didn't want to go along at all. During the final vote in May 1999 in the Senate (undemocratically chosen by the provincial parliament members) one VVD senator voted against and made sure the necessary 2/3 majority failed one vote short. D66 angrily left the coalition and there was a real cabinet crisis. Also because D66 quickly realized that it didn't want elections (the polls spelled disaster), they were talked back into the coalition with, among others, the promise that the turned-down proposal would simply be re-entered into parliament and that in the meantime a not-binding version of this referendum would be introduced by ordinary law, for which a normal majority applies.
This law, the Temporary Referendum Law (TRW) - which has been entered in parliament now and will be debated in November - contains as extra rules that free signature gathering is not allowed but citizens can only set signatures at the municipal house, during only 9 weeks after publication of the law. Last but not least the TRW will become the only valid regulation at all three levels. All existing and future municipal regulations will become unvalid upon introduction of the TRW.
Prospects for democracy
Although of course many reasons exist why a hundred years of debate has not led to direct democracy, one of them undoubtedly is that Holland has never had a permament, activist movement that doesn't stop until the mission is accomplished. In May 2000, the Referendum Platform was founded to try and create a basis for such a movement. The analyses of the Platform is that the fears of politicians must be overcome by simple organizing referendums here and now, starting at the lowest level of the municipalities. This also enables us to rally local politicians against the TRW, as this law threatens the existing local regulations. All local parties received a letter from us asking them to protest against the TRW by flooding the parliament with emails and by installing local regulations in the coming months. Currently we also lobby members of parliament. For this aim we are asking direct democracy experts world-wide to send us comments on the bad sides of the TRW, which we can use in publicity. As structural activity, the Platform facilitates local citizen councils who initiate referendums and currently lobbies members of parliament to convince them of better referendum legislation. This way we also hope to obtain a national list of activists as a basis for future action. After all, just like it wasn't the King who introduced the parliament that broke the power of the King, but a citizen group, the power of the parliament also has to be broken by a citizen group. The parliament themselves will not do it..
References:
Biesheuvel Commission (1985). Relatie kiezers-beleidsvorming. Den Haag, Staatsuitgeverij.
van Holsteyn, J. (1996). 'The Netherlands: national debates and local experiences', p. 126-138 in: M. Gallagher & P.V. Uleri, The Referendum Experience in Europe. Houndsmill, Macmillan.
Lucas, S.J. (1994). 'The Plakkaat van Verlatinge: a neglected model for the American Declaration of Independence', p.187-207 in: R. Hofte & H. Kardux (eds.) Connecting Cultures. The Netherlands in five centuries of transatlantic exchange. Amsterdam, VU Press.
Lucardie, A.P.M. (1997). 'Vox populi, vox diaboli? Het debat over het referendum in de Nederlandse politieke partijen', p. 109-128 in: Jaarboek 1997 Documentatiecentrum Nederlandse Politieke Partijen. Groningen, DNPP.
Nijeboer, A. (1999). 'Referendumsrecht spektakulaer gescheitert'. Zeitschrift fuer Direkte Demokratie, 44.
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