Overview of the Referendum Clause
Literally translated, democracy means ‘rule of the people. ’ Prima facie it therefore seems desirable that constitutions provide a wide spectrum of instruments of direct democracy in the form of referendums.
Decisions made by referendums imply a very high political legitimacy, as decision-making derives directly from the will of the citizens. On the other hand, holding a referendum poses serious theoretical as well as practical challenges and risks to the constitutional state, as the referendum ultimately represents a disruption of the principle of separation of powers. A risk prevails that various political actors will exploit the instrument of the referendum in order to bypass Parliament and enforce their own political interests with the pretext of an allegedly endowed legitimacy.1 This is especially the case if a referendum is initiated by the executive power. In that situation, the executive can draw on the legitimacy ofAn introductory video can be found on www.writingconstitutions.com and on https://doi.org/10. 1007/978-3-030-94602-9_1.
1 Examples are Russia, Kazakhstan and Belarus in the early twenty-first century where constitutional drafts “were at least heavily controlled by the presidential administration and then exclusively adopted by popular referenda”, Burkhardt (2016), p. 469; some also count the 2014 Crimean status referendum among them, which some regarded as an abusive use of the concept of referendum, Heringa (2016), p. 111 or Peters (2014), p. 1ss. The autonomous republic of Crimea is annexed by Russia since 2014 and is not recognized by the international community: see UN Res 68/262; Res of HRC 2016.
W. Babeck (*)
Sydney, Australia
e-mail: wbabeck@writingconstitutions.com
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W. Babeck, A. Weber, Writing Constitutions, https://doi.org/10.1007/978-3-030-94602-9_17
the people and thus circumvent Parliament, which would normally be responsible for enacting laws.
In that context, the referendum’s utmost strength, namely its legitimacy, represents at the same time its most serious weakness: The high legitimacy of a referendum may be used as justification for any political and legislative action.[1131] Additionally, the high legitimacy generates an obligation to all state authorities to give effect to the expressed sovereign will of the people. Therefore, even a non-binding, simply consultative, referendum can have a de facto binding effect on state actors.[1132] Furthermore, significant changes of facts of relevance after the referendum or changes regarding the public opinion due to false or incomplete information prior to the referendum may remain unconsidered and lead to a non-correctable decision (e.g. Brexit). For those reasons, many democratic states endeavour to limit instruments of direct democracy and only allow referendums for narrowly defined areas.[1133] Finally, the alleged high legitimacy of a referendum is often flawed; even important referendums sometimes suffer from a low participation rate.[1134]In addition, representative democracy, in which the members of Parliament convey the voice of the people, has prevailed in most countries. The concept of representative democracy is a well-established and sufficient model. Here, the members of Parliament ought to consider the best interests of the people when making decisions and not only those of the electorate. In a referendum in turn, there is a risk that the eligible elector decides only according to his or her personal interest, but not in the interest of the people. However, the interests of the electorate and the people may significantly diverge as those groups are usually composed of different groups of the population with regard to age, social background and origin and nationality. Children, who are unable to vote, for example may have very different views on issues like climate change and Brexit.
Referendums are nowadays common features of many democracies all over the world.
In the early twenty-first century, remarkable constitutional referendums have taken place in Egypt,[1135] Iraq[1136] and Turkey.[1137] In contrast, however, the US constitution does not provide for a referendum at all.More recently, over the past few years, it has become popular to obtain public approval by a nationwide vote without calling it a referendum and thereby circumventing the more formal and often stringent requirements of a referendum and hereby also circumventing Parliament to exercise its core function, which is to legislate. Recent example can be found e.g. in the Australian Marriage Law Postal “Survey” in 2017 which approved same-sex marriage in Australia by 61.6% and cost
80.5 million AUD. Also, in the “All-Russian vote” of 1 July 2020 approving constitutional changes in Russia en bloc instead of amendment by amendment separately as prescribed for a referendum by the Russian constitution. However, the All-Russian vote is foreseen in art. 135 of the 1993 Russian constitution and its results are mandatory. The author argues that constitutions should prohibit such constitutional manoeuvres as those allow leaders to bypass Parliament without at least meeting the standards that the referendum clause in the constitution has set.
17.1.1 Definition
The word ‘referendum’ covers a spectrum of different meanings in the context of direct democracy. The two most important distinctions must be made both with regard to the body that initiates the referendum and with regard to the subject matter of the referendum. A referendum initiated by a state organ (e.g. legislature, executive) on law already adopted by Parliament or on draft law submitted by the executive for example is referred to as Legislative Referendum in the case it is initiated by Parliament and as Executive Referendum in the case it is initiated by the government. Referendums initiated by the people can be on law already elaborated on or adopted by state organs (usually by parliament),[1138] in the following referred to as Popular Referendum.
This type of referendum aims to prevent law introduced by state organs to come into force or abolish laws already in place. In contrast to that, Popular Initiatives also concern the question of whether the people are entitled to an independent right to initiate a legislative process and therefore touches upon the more general question on how extensively the people should be involved in the legislative process. This is because a referendum initiated by the people can be on draft law submitted by the people themselves, by involving the people at an early stage of the legislative process. This type of referendum will be referred to as Popular Initiative, representing the most intense form of direct democracy. Finally, many constitutions require a referendum for certain (constitutional) amendments (Mandatory Referendum)}[1139] This type of referendum is characterized by the fact that it is not initiated by anyone, but is a mandatory legal requirement for the validity of the law.| Types of Referendums | Vote on: | |
| Body invoking referendum: | Already elaborated or adopted law | Draft law submission |
| Nobody; required by law | “Mandatory Referendum” | |
| Legislature (Parliament) | “Legislative Referendum“ | |
| Executive (Government) | “Executive Referendum” | |
| The People | “Popular Referendum” | “Popular Initiative” |
Fig. 17.1 Types of referendums
The terminology is further illustrated in Fig. 17.1; however, the illustration does not give an exhaustive description of the various types of referendums, but merely serves to provide a comprehensible overview, taking into account the major and most common differences.
All types of referendums could possibly be binding or non-binding and on constitutional law or statutory law, depending on the respective referendum clause.
Legislative Referendums, Executive Referendums and Popular Referendums unite that in all cases the people are called upon to vote directly on a question of law or a policy.[1140] The main difference is the body initiating the referendum. Popular Initiatives are different as the people intervene at a much earlier stage of the legislative process. Nevertheless, there are also many common features.
Referendums can also be categorized according to the level at which they take place, since referendums do not only occur on national level. In federal countries such as the United States and Germany, referendums take frequently place on a regional level. For the purpose of this book however, the focus will be on referendums at federal level. Nevertheless, many of the relevant factors are true for referendums on a regional level as well.
17.1.2 Historical Context
Even though the word ‘plebiscite' has a longer traditional history—plebis scitum literally means ‘law enacted by the common people’ and derives from ancient Rome—the term ‘referendum’ is nowadays common.[1141] The word goes back to the sixteenth-century Switzerland and describes the process where delegates to so-called cantonal assemblies submitted particular questions to the regional electorate for ratification.[1142] The basic principle of a referendum is that the people should have the ultimate vote on legislation—as opposed to parliament. This concept of referendum in its modern form was first established in Switzerland. On a regional level (Switzerland is organised into several cantons), the people were entitled to vote in referendums to repeal a cantonal law (Popular Referendum) since the 1830s. At the federal level, a provision to change the Swiss constitution by referendum was enacted in 1848.[1143] This can be regarded as the starting point for a constitutional development in Switzerland that ultimately made Switzerland the ‘referendum capital of the world’ and is often described as the prime example of a grass-roots democracy.
17.1.3 Purpose and Function of Referendums
The Universal Declaration of Human Rights states that “Everyone has the right to take part in the Government of his country, directly or through freely chosen representatives” (article 21). Referendums are the most direct means of giving the people the power to decide about the rules that govern their daily life.[1144] The legitimacy of the referendum ensures that its result is accepted by both the minority and the majority as well as the governing party.[1145] The practical benefits of referendums are further that, in some cases, they create a final decision on a very particular issue.[1146] This is mainly because elected politicians are not involved in the process as negotiating intermediaries. In the case of legally binding referendums, they are not directly involved in the decision-making process but are simply required to implement the decision made. Also, new information- and communicationtechnologies have made costs for organizing, conducting and participating in a referendum much lower.[1147] [1148] However, referendums generally require quite a substantial organisational effort and are more expensive than common legislative 19 processes. The concept of a people’s vote reflects a state’s considerable confidence in its citizens. The parliamentarians, who usually make referendums possible in the first place through constitutional amendments, renounce their original role in the Fig. 17.2 Procedure of Legislative Referendums legislative process in favour of the citizens. This provides trust, however, simultaneously embodies a great responsibility for the people. Nevertheless, a referendum also encourages the people to participate in the public discourse and the formation of a public opinion facilitating an independent and well-grounded decision by each citizen.[1149] 17.1.4 Procedural Questions A referendum clause is usually quite complex. Such a clause usually contains specifications about the competence to call for a referendum, the procedure of the referendum and the legal effect of the referendum. In order to minimize risks, the embedding of direct-democratic mechanisms in the overall system of a representative democracy requires ensuring proper participation. Furthermore, it is important to create procedural rules, which guarantee that the political order is not impaired by the existence of non-congruent tools, thereby also reducing the abovementioned risk of abuse of referendums.[1150] In general, particularly sensitive areas can be well protected by a precisely regulated procedure. Each stage has to be regulated carefully in the referendum clause in order to guarantee a fair and proper conduct of the referendum. See Fig. 17.2. In Legislative and Executive Referendums, the initiation process is usually less complicated. Depending on the respective referendum clause, a state organ or several state organs together can initiate a referendum. Once the process is initiated, the initiating organ will usually determine the exact question to be referred and then the referendum will be conducted and the outcome might be subject to judicial review before it is implemented. The procedure of Popular Referendums and Popular Initiatives differs with respect to the initiation process. The initiation process of Popular Referendums and Popular Initiatives can consist of either two or three steps. In Switzerland, a two-step system is in place for both. The three-step initiation process on the other Fig. 17.3 Structural approach for a referendum clause hand is the common procedure for Popular Initiatives in the German states (the Lander).[1151] To conclude, Popular Referendums and Popular Initiatives usually have the process of initiating a referendum in common. Whereas Popular Referendums and referendums initiated by state organs (Executive and Legislative Referendums) share the subject of referendum (law introduced by state organs, as opposed to law introduced by the people). Mandatory Referendums take a special position, since there is no initiation process at all. 17.1.5 Structural Approach and Guiding Questions The structural questions in Fig. 17.3 have to be answered and considered when drafting a referendum clause. 17.2
1. Initiation of referendum 4 2. Determination of exact wording of question to be referred 4 3. Holding of referendum 4 4. Announcement of referendum outcome 4 5. Judicial review of referendum outcome 4 6. Implementation of referendum outcome 4
1. Is a referendum clause required? Necessity of mechanism f 2. What body is competent to initiate a referendum? Competence f 3. Which body has the power to determine the scope and subject of the referendum? Scope of empowerment f 4. Which topics can be the subject of a referendum? Material qualification f 5. What are the procedural specifications for a referendum? Procedural qualification f 6. What is the regional scope of a referendum? Territorial qualification f 7. What are the temporal requirements of a referendum? Temporal qualification f 8. What quorum is required for a successful referendum? Third power involvement f 9. Is a referendum's outcome binding? Outcome f 10. Is a referendum's outcome subject to judicial review? Judicial Review f