Protecting minorities in the emerging democracies
Vernon Bogdanor
Adapted extracts from a paper prepared for a symposium in Malta for Eastern European politicians and constitution designers.
Personal federalism
In the modern world, ethnic relationships tend to transcend geography. For countries where minorities are not territorially concentrated, it might be worth adapting the principle of what has been called 'personal federalism'.
'Non-territorial associations were entrusted with the administration of cultural affairs, while political and economic questions were dealt with on a multi-ethnic basis'
The idea of personal federalism is an invention of the Social Democrat, Karl Renner, in the Austro-Hungarian Empire at the beginning of the 20th century when the principle of nationalism within the Empire was coming to be recognised. Since it was not possible, in the Empire, to attach nationality to a given territory, an alternative solution had to be found. This was achieved by dividing the state into 'associations' each of which comprised only individuals of the same nationality. These non-territorial associations were entrusted with the administration of cultural affairs, while political and economic questions were dealt with on a multi-ethnic basis, through national and regional institutions. A similar model was adopted in Lithuania in the inter-war years in an effort to conciliate that country's German and Jewish minorities; also in the Lebanon in 1943 and Cyprus in 1960, although these two latter examples can hardly be cited as successful illustrations of the operation of personal federalism.
Minorities within government
As a further precaution, the principle of power-sharing can be introduced into the executive level of government. This is achieved, for example, in Switzerland, where, by convention, the government, which is not responsible to the legislature, keeps a minimum of two seats for the French-speaking cantons, and ensures that there is a balanced representation of religious and linguistic groups. In Belgium, the Constitution (Article 86b) requires that 'with the possible exception of the Prime Minister, the Cabinet comprises an equal number of French-speaking and Dutch-speaking ministers,' thus over-representing the Francophone minority; while in Canada, convention rather than constitutional rule ensures that cabinets balance Anglophones and Francophones. In the Austrian Lander with the exception of Voralberg - power-sharing at executive level is secured in a novel way. Each Land parliament, itself elected by proportional representation, elects a Land executive by proportional representation also.
'Each Land parliament, itself elected by proportional representation, elects a Land executive by proportional representation also'
Minority vetoes v. strong government
The emphasis on power-sharing can be strengthened by requiring weighted majorities for certain measures of constitutional change or measures affecting the interests of particular groups. In Belgium, for example, each chamber is divided into two linguistic groups, one Flemish and one Francophone. Article 107d of the Constitution requires that certain laws 'be passed with a majority vote within each linguistic group of both Houses, providing the majority of the members of each group are present and on condition that the total votes in favour of the two linguistic groups attain two thirds of the votes cast.'
'To take away from governments their power to do evil may also be to take away their power to do good'
In addition, the Constitution provides for an 'alarm bell' procedure (Article 38b) for laws not requiring a special majority, excluding the budget. In the case of such laws, three quarters of the members of one of the linguistic groups 'may declare that the provisions of a draft or proposed bill which it specifies are of such a nature as to have a serious effect on relations between the communities.' In such cases, the cabinet, in which, as we have seen, each linguistic group enjoys parity of representation, reconsiders the bill, and parliamentary consideration of it is suspended for thirty days. A suspensive veto of this kind has the virtue of protecting the interests of particular groups while avoiding the dangers of inflexibility to which an absolute veto can give rise. For too frequent recourse to the veto can make government immobilist so that no decisions at all are taken. Overuse of the veto by the Turkish legislators on tax bills was indeed a major reason for the failure of the 1960 Cyprus constitution in 1963, and, in general, the scope of any constitutional vetoes should be as narrow as is consistent with a feeling of security for the various groups. 'The veto power,' it has been said, 'must be regarded as a kind of emergency brake,' not as part of the normal machinery of government. (Arend Lijphart: 'Consociation: The Model and its Application in Divided Societies', in Desmond Rea, ed., political Cooperation in Divided Societies, Dublin 1982, p. 177.)
This is then the danger in such consensus-creating devices. The constitution should not give so much weight to the need to secure consensus that the outcome is deadlock and immobilism. It must recognise the importance of creating a government strong enough to resolve complex socio-economic problems and to act effectively. In the inter-war period, the collapse of democratic governments in Central Europe was due at least as much to the fact that they were unable to take strong action in the face of unemployment as to the failure to achieve a consensus amongst different groups. Power-sharing democracies may prevent measures that are offensive to minorities; but they may also prevent the necessary measures being taken to resolve fundamental problems. To take away from governments their power to do evil may also be to take away their power to do good. It is one of the oldest of political dilemmas, and shows just how difficult it will be for the emergent democracies of Central and Eastern Europe and the old Soviet Union to find the precise point of balance between strong government and the protection of minorities. They might perhaps be comforted by the knowledge that none of the long-established democracies has found the perfect answer to this question either.
Vernon Bogdanor, Brasenose College, Oxford OX1 4AJ (tel 0865 277830).
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