Details of the Referendum Clause

17.2.1 Is a Referendum Clause Required?

Most of the constitutions in the world provide for the possibility of at least one type of referendum, see Table 17.1. The occurrence of referendums stands in no connec­tion to the physical location of the respective country.

Table 17.1 | Countries with and without referendums

familiar with the concept of referendum. Among Arabian countries referendums are not as common, however, Morocco represents an exception, as several referendums were held there over the past years. On the other hand, the scope of referendums is very limited in some countries.^[1152]

Other countries have not incorporated any regulation for a nation-wide referen­dum in their constitutions. Due to the prevailing principle in Belgium that the powers of the country are exercised by the representatives of the people and not by the people themselves, binding referendums are not possible in Belgium.^[1153] Likewise, India and the United States of America do not provide for national referendums.

A referendum clause can only be incorporated if it is in accordance with the country’s constitutive principles. In particular, it has to be considered whether the people shall exercise sovereignty only through their representatives (members of parliament) or whether the citizens shall exercise the sovereignty also by means of referendums.

Direct democracy seems to stand in direct contrast to representative democracy, where the citizens hand over their power to representatives, which have the power to render politically binding decisions.^[1154] Due to the increased complexity of demo­cratic constitutional systems, however, almost all states have introduced a represen­tative foundation of political power. Assuming that the overall system is a representative democracy, where is the capacity for instruments of direct democracy within this complex but coherent representative structure?

In fact, holding a referendum constitutes a violation of the principle of separation of powers. As outlined above, there is always a risk of misuse of the instrument of referendum. Especially referendums initiated by the governing party or the Head of State pose the danger of circumventing parliament. State actors might also seek to oversimplify complex political issues.^[1155]

Moreover, while referendums by removing the intermediaries from the decision­making process considerably accelerate the process, they exclude the interaction of decision-makers at the same time. The decision reached by referendum may not be the product of an intensive discussion, or of a productive law-making process, or else of a dialogue between majority and minority. However, a functioning state of law is significantly characterised by controversial arguments, debates and a political dis­course.

17.2.2 What Body Is Competent to Initiate a Referendum?

The constitutional reality is that many different models prevail regarding the ques­tion of competence to initiate a referendum. This question is closely connected to the nature of the referendum, see Table 17.2. A mandatory referendum is not initiated by anybody, but rather required by law. Mandatory referendums usually concern either

Table 17.2 | Bodies competent to call a referendum

Table 17.2 (continued)

^a The Russian Constitution provides for a referendum at the request of 2,000,000 voters, Venice Commission, 2005, p.

particular constitutional revisions,^[1156] the revision of the constitution in its entirety or amendments to statutory law. In France for example, constitutional amendments in principle require the approval of the people by referendum, see art. 89 of the French constitution.^[1157]

Apart from that, referendums can be requested either by the people (Popular Referendum or Popular Initiative) or by a state body (Legislative Referendum or Executive Referendum). Within the framework of state bodies, the Government or Parliament are the primary options. While referendums initiated by the executive branch of Government pose the most significant risk of abuse of the instrument of referendum, in most countries, however, Parliament is the only authority entitled to initiate a referendum. In some countries, a particular number of constituent entities (such as states, regional entities or cantons) are also able to initiate a referendum.

Furthermore, the competent body to initiate a referendum might also be the electorate or the citizens. Referendums at the request of a certain quorum of the citizens or the electorate can be categorized in two different types with regard to the subject of the respective referendum: Popular Referendum and Popular Initia­tive. While subject to a Popular Referendum is either draft law or law already adopted by parliament, a Popular Initiative goes even further and entitles part of the electorate to suggest a text which has not yet been approved by any authority.^[1158] In the case of Popular Initiatives, state actors are hence even less involved.

Switzerland provides a suitable example of a highly developed mechanism of direct democracy.^[1159] A referendum in the form of a Popular Referendum is conducted upon request of 50,000 Swiss voters. Subject of this Popular Referendum is either specific law, a certain international treaty or specific federal decisions adopted by the Swiss Parliament. In addition, the Federal Constitution offers the possibility of a Popular Initiative. Popular Initiatives with the aim of revising the constitution are initiated upon request of 100,000 voters. In practice, 100,000 valid signatures must be collected within 18 months.

Several other countries also offer the possibility of a Popular Initiative, subject to different majorities requirements. For instance, Popular Initiatives are also deeply rooted in the Asian constitutional culture,^[1160] and also seen in Latin America.^[1161] Other countries such as Estonia have rejected the notion of Popular Initiatives repeatedly.^[1162]

Many constitutions have Mandatory Referendums in place. The high authority derived from the people’s vote is usually used to legitimate constitutional amendments. Most of the states which provide the possibility of referendums at the request of an authority also provide for mandatory referendums or referendums at the request of part of the electorate.

Only few constitutions have given the Head of State as much power as the constitution of Turkey. According to art. 104 of the Turkish constitution, a referen­dum takes place if the President “deems it necessary.”^[1163] Unsurprisingly, this clause was introduced by referendum, again demonstrating the danger of referendums.

In contrast to the use of Mandatory Referendums, holding a referendum at the request of part of the electorate (especially in the case of a Popular Initiative) entails a risk. Although the Swiss system of direct democracy works well, its success cannot simply be replicated to other countries. The reason for that is on the one hand, that Switzerland is a relatively small country with a small population.^[1164] Instruments of direct democracy work more efficiently if the number of voter is smaller.^[1165] On the other hand, Switzerland is a wealthy nation with a good educational system^[1166] Swiss voters therefore arguably tend to be well informed and educated and therefore less susceptible to corruption and disinformation campaigns. These unique characteristics eventuate in the fact, that the Swiss concept cannot be imitated easily. Before countries introduce forms of direct democracy, they should therefore care­fully consider whether any undesirable results are achieved in the light of the above­mentioned aspects.

If a state decides to introduce a form of referendum initiated by part of the citizens or the electorate nevertheless, it is recommended to determine a rather high percent­age threshold. In this way, account can be taken of the fact that the population often fluctuates and, more importantly, it can be prevented that a relatively small number of people initiate a referendum on important issues.

17.2.3 Which Body Has the Power to Determine the Scope and Subject of the Referendum?

The power to determine the scope and subject of the referendum depends on the perspective taken by the initiating body. For example, in Popular Referendums, which always concern law that has already been adopted or has at least been introduced in the legislative process by the relevant state actors (especially parlia­ment), the initiating citizens cannot propose an amendment to the law or introduce new law, but the referendum will only give the choice between keeping and repealing the law. In principle, this will always be the case if the initiating body wants to repeal a law made or introduced by another body. In these cases, the initiating body is therefore in a passive position simply defending the status quo and cannot be proactive by implementing very own positions by e.g. suggested amendments. In contrast, the initiating body becomes proactive when it proposes its own amendment to the law and does not simply object to amendments introduced by others.

In Legislative and Executive Referendums, the initiating body may occupy either position. Law enacted by Parliament could possibly be subject to a referendum initiated by the opposing executive (and vice versa). In such cases, the initiating body cannot determine the exact scope of the referendum, but simply call for a “yes or no” vote. A Referendum clause for a Legislative or Executive Referendum may, however, also be designed in such a way that the initiating body can trigger a vote on a draft law submission, thereby putting the initiating body in a proactive position. A referendum clause that allows the executive branch to bypass Parliament and allow the people to vote on a particular amendment is especially dangerous and carries a high risk of abuse as it ignores the main legislative body.^[1167]

The power to determine the scope and subject of the referendum is precisely what distinguishes Popular Referendums and Popular Initiatives. While in both cases, the people initiate the respective referendum, only Popular Initiatives allow the people to become proactive and suggest amendments by submitting draft law.

17.2.4 What Topics Can Be the Subject of a Referendum?

Several states limit the topics that can be subject of a referendum, doing so either by drawing up an exhaustive list of topics^[1168] or else by excluding particular areas from referendums. Such provisions often take into account constitutional amendments. Sometimes constitutional amendments are completely excluded from the scope of referendums. In other countries, constitutional referendums are held either to approve any provision of the constitution or to approve certain provisions of the constitution that are considered particularly important. Finally, some referendums clauses only provide the opportunity to conduct a referendum on particularly important issues and fundamental principles.

Legislative and Executive Referendums are usually not restricted to specific topics. These types of referendums are also more common, while Popular Initiatives are less common. The issues on which referendums have recently been held in the first quarter of the twenty-first century vary widely: Referendums regarding territo­rial issues and secession have been held in the Ukraine^[1169] as well as in Catalonia.^[1170] Referendums concerning ordinary laws took place, for instance, in Ireland about the abortion ban in 2018, in Austria about the question of compulsory military service in 2013 and in Australia in 2017 as non-binding consultative referendum also called “postal vote” about the adoption of the law to allow same-sex marriage. Besides, it can be observed that many countries in Europe^[1171] have held referendums about the power and scope of the European Union, e.g. Brexit and the Greek bailout referen­dum in 2015.^[1172] For an overview of matters to which referendums may relate see Table 17.3.

The concrete subject-matters which can be subject of a referendum should be defined very clearly. In general, the more political the topic, the less suitable it is for a referendum. On the other hand, very controversial issues might best be resolved by referendum as the outcome is more likely to be accepted by the opposing side. To prevent referendums from being abused and misused to circumvent the legitimate parliament, referendums should only be conducted in areas where the legitimacy of the Members of Parliament is insufficient.^[1173]

It is hard to identify topics and issues which may be adequate for referendums. However, referendums have also been held on very controversial issues such as the approval of same-sex marriage in the past.^[1174] Referendums also took place on issues regarding territorial questions (such as whether several states should form a single cohesive state^[1175]) and questions relating to symbols of a nation (such as the adoption

Table 17.3 | | Matters to which referendums may relate

Table 17.3 (continued)

^a The implementation of international treaties cannot be submitted to the decision of the people, so that a breach of international law can be avoided

of a new national flag or a new national anthem). Generally, countries have to decide whether to establish a positive enumerated list of subjects such as France or a negative list such as Albania. If a positive list is established such list will most likely contain at least some broader definitions to allow for new unforeseen subjects to be encapsulated.

17.2.5 What Are the Procedural Specifications for a Referendum?

Stipulating formal requirements can ensure a fair referendum, also considering the protection of the rights of minorities. The wording and the form of the question referred play a major role in this regard and provide for example opportunity for manipulation and influencing the outcome unless properly regulated, likely on subconstitutional level. The question should by all means be neutral. According to the suggestion of the Venice Commission, the fundamental right of the freedom of vote presupposes that ‘the question submitted to the electorate must be clear; it must not be misleading; it must not suggest an answer; electorates must be informed of the consequences of the referendum and voters must answer the questions asked by yes, no or a blank vote.’^[1176]

Within the limits provided by the fundamental right of vote, there are different possibilities with regard to the wording and the format for a question submitted to the people in a referendum. In cases where a certain amendment is suggested by the initiating body, the draft law submission will usually be part of the text submitted to the people, together with the question if the desired amendment shall be adopted or not. If the initiating body desires to repeal an existing law, the law itself and the question whether it should be repealed or kept will be part of the text submitted to the people.

It is also a possibility to ask general questions about fundamental principles, such as issues of particular importance and public interest and leave the rest to the regulator to complete.^[1177] Equally, there could be a question about suggested amendments, however, thereby not including the text of the suggested future law in the form of a specific provision, but rather in general terms.^[1178]

The process of initiating a referendum does in most cases not require a separate analysis, as the process is often integrated and resolved within the initiation process itself and because the process just consists of the initiation and the following referendum. However, this is usually different with respect to Popular Initiatives and Popular Referendums. The process for Popular Initiatives can be designed as a two or three steps system.^[1179] A Popular Referendum usually consists of two steps. The first step is always to collect sufficient votes and signatures. If enough signatures are collected, the next step is made. This is either the immediate referendum itself, or, in a three-step system, another intermediate step. In a three-step system, the intermediate step again consists of the collection of signatures, whereby a larger threshold must now be overcome (see Fig. 17.4). Sometimes the Parliament, to prevent the next step, will have the opportunity to adopt the proposed amendment of the initiative before a referendum can take place, thereby giving up on the pressure exerted by the people. Most German States have adopted a three-step system, whereas in Switzerland a two-step system is in place. Please see the initiation process of Popular Initiatives and Popular Referendums in Fig. 17.4.^[1180]

Prior to the referendum, the referendum text, additional objective information about the subject-matter, formulated in a neutral and impartial manner, should be

Fig. 17.4 Initiation process of Popular Initiatives and Popular Referendums (Ibid. p. 20.)

Table 17.4 | | Feature of the text submitted for a referendum

made available to the public. This should include information about the immediate consequences of the referendum and the possible long-term implications. The refer­endum clause itself might additionally emphasize the importance of the procedure. The Egyptian constitution for example provides that: ‘The state guarantees the safety, neutrality and fairness of referendum and election procedures. The use of public funds, Government agencies, public facilities, places of worship, business sector establishments and non-governmental organizations and institutions for polit­ical purposes and electioneering is forbidden.’^[1181] (Table 17.4).

First of all, questions within one single referendum should all be in the same form. Secondly, there should be an intrinsic connection between the various parts of each question put to the vote, otherwise voters may accept or reject certain options which make no sense in a broader perspective (principle of unity of content).^{[1182] [1183]} Thirdly, it is desirable that the question submitted to referendum does not simulta­neously relate to the constitution and subordinate legislation at the same time (principle of unity of hierarchical level). These principles help to guarantee freedom of suffrage. The Egyptian constitution for example stipulates that ‘If the call for a referendum relates to more than one issue, the people must vote on each individual 54

issue.'

Only a very limited number of states foresee referendums that prescribe compul­sory voting. Obliging citizens to vote usually violates the fundamental right of freedom of vote.^[1184]

Another important consideration is the time-limit for collecting signatures. The approaches as to the time-limit vary considerably and span between 15 days^[1185] and 18 months.^[1186] The second question concerns the verification of signatures. Most countries have implemented a specific procedure and designate an authority to verify signatures. In most cases, this procedure is centralized and carried out by a central electoral commission^[1187] or an equivalent body.

17.2.6 What Is the Regional Scope of a Referendum?

Although the focus of this chapter is limited to referendums at national level, it shall nevertheless be emphasized that there is also the possibility to provide for local or regional referendums in a constitution. Presenting a question of law only to the residents of a certain state or region (e.g. a city^[1188]) can sometimes be useful and effective, as certain legal or political issues only affect a limited amount of people. Subject-matters which are suitable to put to a regional referendum could concern amendments to the state constitution, geographical questions, local traditions, dialects as well as local religious rituals. In fact, most referendums on a regional level are non-binding consultative votes about non-constitutional issues.^[1189]

Instruments of direct democracy work more efficient on a smaller scale, because people tend to take up more thought through positions within a small community and more intense discussions can take place in smaller groups.^[1190] From a practical perspective, it is also easier to organize and regulate referendums properly in small communities. This can also include ensuring a maximum rate of participation by the citizens.^[1191]

17.2.7 What Are the Temporal Requirements of a Referendum?

The prevailing existing temporal limits on referendums are provisions which pro­hibit the conduct of a referendum in times of martial law or during a state of emergency. Many states provide corresponding articles. For instance, art. 4 of the Georgina Organic Law on Referendums offers an extensive catalogue of when a referendum shall not be held. It states that a referendum may not be held in the case of an armed attack, in times of martial law, mass disorders, military takeovers, armed rebellions, ecological disasters and epidemics or in other cases in which the public authorities are unable to normally exercise their constitutional powers. (Table 17.5).

The necessity of such limitations in time is reflected by the ‘Filipino Ratification Case’; at the time of the case there was no exception in the Philippines for periods of martial law.^[1192] The Filipino Supreme Court was called upon to rule on the validity of the 1973 Philippine constitution, which was the result of a highly disputed referen­dum. Under pretence of a considerable intense chaos and anarchy throughout the country, President Marcos imposed martial law in 1972, which is considered one of the most serious constitutional situations in the Filipino history.^[1193] As a consequence, the full legislative power was vested in the President, who could also implement measures by decree. At the same time, the 1971 Constitutional Convention sought a new constitution, even though eleven members were arrested by Marcos. Due to the imprisonment of the dissident members, the Constitutional Convention proposed a new draft constitution corresponding to the preferences of the President. In order to

Table 17.5 | | Time restrictions on referendums

impose his will under martial law, Marcos ‘boldly and confidently sought popular support by subjecting the proposed constitutional amendment to a referendum for ratification or rejection.’^[1194] After the constitution was approved by 95.3% of votes through a referendum, Marcos signed Proclamation 1102, which stated that the new constitution was ‘ratified by an overwhelming majority of all’ Filipino and thus came into effect.^[1195] Contemporary scholars reported, however, that the constitution ‘was drafted in the presidential palace, adopted by the Constitutional Convention under duress, and ratified by the voice vote in village assemblies where armed soldiers and policemen were in prominent attendance.’^[1196]

The ‘Filipino Ratification Case’^[1197] illustrates that referendums should only be used in times where democracy is in a stable state and well established. Otherwise, there is a risk of referendums being exploited by dictators for political purposes. ‘Rather than being the exemplary tool of the people, referendums can be powerful political weapons in the hands of government.’^[1198] In times of armed attacks, martial law or military takeovers, democracies are typically most vulnerable. Therefore, the implementation of a corresponding time limit clause into a constitution is highly recommended.

17.2.8 What Quorum Is Required for a Successful Referendum?

Most constitutions do not require a specific quorum for the validity of the referendums’ outcome. Where a quorum exists, it is usually either a quorum of participation or a quorum of approval. The quorum of participation (also called minimum turnout quorum) stipulates that the referendum is valid at all only if a certain percentage of registered voters have cast a vote. In contrast, the quorum of approval makes the validity of the referendum subject to the approval of a certain percentage of voters.^[1199] See Table 17.6.

A quorum of participation leads to the significant problem that the opponents of the draft proposal can appeal to the people to abstain from voting to prevent a valid outcome of the referendum.^[1200] Without a quorum of participation however, the legitimacy of the referendum is in question when low participation rates occur. A quorum of participation should therefore be included. Denmark for example has a quorum of participation in place which combines relative and absolute requirements.^[1201] A quorum separate qualified of approval may be recommended in cases of very important and long-term decisions. Such a quorum ensures that a slender majority of voters cannot make landmark decisions. In Lithuania, for instance, certain particularly important rules (‘The State of Lithuania shall be an independent democratic republic’) can only be changed by a majority of three- quarters of the electorate,^[1202] other countries exclude some fundamentals from change altogether.^[1203]

A quorum of participation may be also combined with a quorum of approval. This is particularly advisable if very important decision shall be made by referendum. As Brexit^[1204] has demonstrated, a decision made by referendum may need certain

Table 17.6 | | Quorum required for a successful referendum

safeguards to prevent that a rather small majority can make ground-breaking decisions which will determine a countries future for decades.^[1205] For such major decisions, a combination of a quorum of participation and approval makes a lot of sense. It is thereby ensured that that referendum is only valid if a certain number of people vote at all and furthermore that the decision cannot be made by just a slender majority of the people who voted.

17.2.9 Is a Referendum's Outcome Binding?

In general, referendums are either non-binding and therefore simply consultative or formally binding in nature. Whereas consultative referendums may only have

Table 17.7 ? Legal effect of a referendum

advisory character, the result of a formally binding referendum has to be accepted and measures possibly implemented by the relevant state organs, see Table 17.7.

A formally binding referendum may be designed as a suspensive referendum or as an abrogative referendum. A suspensive referendum concerns cases in which the draft text does not enter into force until it has been approved by referendum.^[1206] In contrast, law which initially enters into force irrespective of a referendum may be abandoned again by an abrogative referendum upon request of a competent body. Therefore, law subject to an abrogative referendum is more likely to enter into force and remain in force permanently.

Most referendums are of a formally binding nature. Although consultative referendums are not legally binding, they may be factually binding. Some states distinguish between binding referendums and non-binding consultative referendums depending on the nature of the text submitted to referendum.

The author of this book argues that a referendum clause should be binding until overtaken by a further referendum in case of non-mandatory referendums. This is because non-binding referendums may as well have a binding effect. Furthermore, it is, of course, imaginable that the outcome of a non-binding referendum is not implemented, although it was accepted by the people. This could lead to a very unstable political situation. Finally, the purpose of a referendum is questionable if it is not legally binding anyway,^[1207] not to mention the high costs involved. The counterargument is of course that many referendums are knocked-back by the population simply as it provides an opportunity to express the dissatisfaction with the current government.

In addition, it should be examined whether a referendum on the same subject can be reiterated quickly. This should not be allowed for a significant amount of time (e.g. two or three years) after the first referendum. Otherwise, the government, for example, which might be unhappy with the outcome of the referendum, could repeat the referendum multiple times until the voters get tired and the position favourable to the Government is adopted. Another reason for not repeating a referendum is its high legitimacy and obligation to implement the decision in any case.^[1208] The incorporation of a provision preventing both a direct repetition of the referendum as well as a possibility for Parliament to correct the outcome is therefore recommended. More­over, a law rejected by a referendum should not be able to be adopted for a certain period of time by a procedure without a referendum. In addition, for a certain period of time, a provision that has been adopted by referendum, may not be revised by another method. Croatian law, for example, states that the Croatian Parliament may not take a decision contrary to the outcome of a referendum until one year has passed. Further­more, another referendum on the same issue may not take place for six months.

17.2.10 Is a Referendum's Outcome Subject to Judicial Review?

Judicial review may occur in two ways (Table 17.8): Firstly, a court can take actions prior to the intended referendum by examining the decision to submit a matter to referendum in the first place. Secondly, judicial review can also take place after the referendum by scrutinizing the validity of the referendum’s outcome.^[1209] In many cases, the Constitutional Court will be the court that has jurisdiction about such issues.^[1210] In several countries, all people eligible to vote are able to file a motion to the Constitutional Court. Sometimes only certain authorities will have the ability to do so (e.g. the President, part of the parliament, political parties).

Many countries provide the option for judicial review. Mostly, the jurisdiction concerns the question whether or not to submit a matter to referendum. Often this relates to the question of the subject-matters put to referendum being in conformity with the constitution. The Constitutional Court or Supreme Court will usually have jurisdiction to review the referendum with respect to the respective issue. It is of

Table 17.8 | | Judicial review of a referendum

significant importance to establish an independent review mechanism in order to secure a fair procedure in accordance with fundamental rights. Furthermore, to ensure that the instrument of the referendum is not abused, to the extent possible. Therefore, it is recommended to give the Constitutional Court jurisdiction to review the decision on whether or not to submit a matter to referendum in the first place and jurisdiction to scrutinize the referendum’s result. Suitable examples are the constitutions of France and Portugal.

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