Feature: What direct democracy could look like in Estonia

While EKRE chairman Mart Helme thinks that throwing out the Registered Partnership Act will be easy once the right to a popular referendum is in place, things aren’t quite as easy as that. In fact, at this point, there has been no talk at all about the formidable legal project that direct democracy really is. Here is an idea what it could look like in practice in Estonia.

There are two sides to the demand for more voter participation. One side, currently concerning the Registered Partnership Act, is about getting rid of existing legislation. The other is about a way for the Estonian people to bring in new legislation.

For the sake of this piece, I will assume that a popular initiative—ie. a way for the Estonian people to suggest new legislation—will be made part of the direct-democratic extension of the system.

I’m an optimist, and for some reason I think that it would be wrong to make direct democracy solely about a negative action. A positive instrument is needed for this whole idea to really work.

Quick overview: What it takes and why

Any move of voters towards a change in the law of the land needs to be legally waterproof. This means that a system needs to be in place which regulates how referendums are arranged. These are the steps:

  1. The initiators file their amendment text with the Chancellor of Justice.
  2. The chancellor reviews the amendment and either accepts or rejects it.
  3. The initiators collect signatures within a set period of time.
  4. The chancellor (or another authority) checks that they are genuine.
  5. The Riigikogu debates the amendment, backs it or provides an alternative.
  6. Citizens vote.
  7. The president signs the amendment into law.

All of this is a lot more complicated than you might think. So let’s have a look at direct-democratic Estonia in more detail.

Step 1: Initiators submit desired law text or proposal

A number of initiators (to be determined by law) come together with an idea: They want to get rid of the Registered Partnership Act. To get there, they need to submit a proposal to repeal the act.

Defining what exactly this proposal needs to be is important. An example: Let’s assume I can get enough people together to demand that we get rid of speed cameras. How do we do that? We can’t just throw out the Traffic Act. There needs to be a more sophisticated approach.

In practice, this means that the initiators need to have a legally workable text ready. With speed cameras, that could be the Traffic Act without the cameras in it, or an otherwise changed version.

Step 2: Chancellor of Justice reviews it

Because all new legislation needs to be constitutional, and in the case of an amendment demanded by the people, also needs to meet other conditions (like its practicality, its compatibility with international treaties and agreements etc.), the submitted proposal now is subject to review.

The obvious authority in Estonia to carry out such a review is the Office of the Chancellor of Justice.

Step 3: Initiators collect signatures

Once the actual text of the amendment is accepted, the initiators then have a set time period to collect signatures.

Working with more or less the same percentages as in Switzerland, where the system has been in place for more than a century, in Estonia this would mean some 8,000 to 10,000 signatures to submit a proposal for a new law, and some 50,000 to repeal an existing one.

Why does the barrier need to be higher to throw out a law? Simple: if we set it too low, the authorities will be swamped with populist demands. Remember the speed cameras? Or what about income tax, VAT, exhaust gas norms for old cars? Compulsory education? Rail Baltica? You set this bar too low, and you really have yourself a party.

At the same time, the bar for the introduction of new ideas needs to be low, as an incentive for positive civic action. If you set this one too high, you leave access to this political instrument only to the rich and the powerful, and plenty of good ideas may never make it anywhere.

So now our initiators are out in the streets and the social media channels of Estonia, scraping together their 50,000 signatures.

Step 4: Signatures are verified

This is where Estonia is predestined for direct democracy. Different from good old Switzerland, where a small army of officials will now start sampling petition sheets for the authenticity of citizens’ signatures on paper, Estonia will have the better part of it ready at the click of a button.

Of course some signatures on paper will still have to be verified, and this will cost money. Democratic participation comes with a price tag that citizens, for the benefit of their own power, will have to learn to ignore.

Step 5: Riigikogu debates amendment, backs it or introduces counterproposal

Next, the Riigikogu debates the proposal to repeal the Registered Partnership Act. Will repealing it affect other legislation, an international treaty, anything that needs to be regulated at the parliamentary level?

Is there a softer approach, a middle way that the initiators didn’t take? Can it be combined with something else?

Whether or not the Riigikogu should be allowed to come up with a counterproposal is an important question. I’ve seen the chaos a referendum can cause that doesn’t take, for instance, international treaties into account, with the example of the Swiss system.

Only the national parliament has the overview and the necessary expertise to come up with a compromise. Remember, we’re not doing this exercise only for the Registered Partnership Act. There will be other issues, potentially much more consequential ones. EU or NATO membership comes to mind.

If the national parliament backs the initiators, a counterproposal may not be necessary. But if it is, regular parliamentary procedure will produce one.

At this point, we are ready for the vote.

Step 6: Estonian citizens vote on amendment and counterproposal

Next, either the State Electoral Service or the Chancellery of the Riigikogu, depending on the approach to be taken, sets a date for the referendum.

Estonians now vote on one or two (in the case of an added counterproposal) specific amendments to the law. This is of decisive importance: look at the United Kingdom and its Brexit mess, caused by the wishy-washy, unspecific, vague question its voters were asked.

So it is absolutely essential that the question be specific. You, as an Estonian citizen, can answer ”Yes” or ”No” if asked whether or not you want to see a text you are shown enacted into law. Only with this level of detail is it possible to justify asking you directly.

(If you don’t want this kind of responsibility, or if you think this is too complicated or too fussy, then you should leave the job of repealing and making laws to your parliament.)

Step 7: President signs amendment into law

So here we are. The wet dream of the Conservative People’s Party (EKRE) and the Foundation for the Protection of Family and Tradition (SAPTK) has come true, and Estonian society achieves a towering victory over an otherwise entirely inconspicuous minority.

All that is left now is for President Kersti Kaljulaid to sign it into law—a last step that acts as the last check of the new legislation, as the president can still refuse to promulgate the law and send it back to Ms Madise for further checking.

And that is it. The people have spoken.

Populism, public opinion and never ending debate

The formidable challenge to legislators to come up with this process streamlined for Estonia is only the beginning.

With direct democracy, you have to consider very carefully what exactly the journey is you are about to embark on. Because as soon as Messrs Helme, Helme and Vooglaid will have emptied their champagne flutes, there will be the next group of initiators coming together—this time to propose the introduction of gay marriage outright.

Newton’s third law states that for every action, there is an equal and opposite reaction. This applies in politics as much as everywhere else. The introduction of a system of initiative and referendum will be a groundbreaking, game-changing event in the history of this country.

And, by the way, also the beginning of a time when political debate will be everywhere, all the time, forever. If after reading this article, you have more questions about direct democracy than when you started, just imagine what will happen once you are free to choose the topic you want to see debated. The same thing will happen every time someone submits an amendment for review.

The upside of this system is that in the future, important decisions will be based on actual social consensus, not party politics. And that is something present-day Estonia seems to need very much.

But consider that while a referendum may soon see the Registered Partnership Act repealed, it will also trigger a broader debate in society—a debate with the potential to bring about more liberal legislation a great deal sooner than the ultra-conservative family values bunch might think.

By Dario Cavegn, ERR News | ERR