34th Session – Strasbourg, France, 27-28 March 2018

Speech by Simona Granata-Menghini, Deputy Secretary, Council of Europe’s Venice Commission

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Regional referendum, a tool for democracy: challenges and risks
Strasbourg, France, 28 March 2018

Strengthening democracy is certainly increasingly felt like a priority. Representative democracy is often subject to criticism by those who consider that this model of democracy lacks civic legitimacy and political accountability. In principle, in a democracy, politicians are accountable primarily to the citizens who elect them. In practice however, in contemporary societies, the links are often tenuous and the politicians are increasingly disconnected from their voters, as they tend to be accountable first to their party leadership and to political decision-makers, and only secondarily to citizens. Interest in instruments of direct democracy – referendum but also, for example, recall – has risen in an attempt to restore the links and ultimately to enable voters to regain the power of choice and decision.

The CoE’s Venice Commission has extensively addressed referendums, both in country-specific contexts and in general terms. It has provided opinions on legislation pertaining to referendums in several countries and also on the procedure, context and substance of specific referendums. It has also identified and elaborated, including on the basis of its experience, general standards on referendums, applying to national and indeed constitutional referendums, but also applicable mutatis mutandis to regional and local referendums.

The general standards on referendums are set out in the Code of Good practice on Referendums which was adopted by the Venice Commission, by the Parliamentary Assembly and also by the Congress in 2007 – and supported by the Committee of Ministers. This document is at your disposal in this room.

The principles of the European electoral heritage which are applicable to elections are also applicable to referendums: these are the principles of universal, equal, free, secret and direct suffrage. Equally applicable to referendums are the conditions for implementing those principles, including respect for fundamental rights, stability of the law, organisation of the ballot by an impartial body, existence of an effective appeal system. 

There are also some specific rules applicable to the referendum which mainly focus on free suffrage, more precisely on the freedom of voters to form an opinion.  The most important are the following:

-           Unity of content = there must exist an intrinsic connection between the various parts of each question put to the vote (except in the case of a total revision of a constitution) (CGP, III.2)

-           The public authorities must be neutral – while this requirement is not as stringent as in the case of elections, public authorities must not influence the outcome of the vote by excessive, one-sided campaigning; the use of public funds by the authorities for campaigning purposes must be prohibited (CGP, II.3.1 a-b)

-           The authorities must provide objective information (CGP, II.3.1 d).

-           The question put to the vote must be clear; it must not be misleading; it must not suggest an answer; electors must be informed of the effects of the referendum; voters must be able to answer the questions asked solely by yes, no or a blank vote (CGP, II.3.1 c)

The Venice Commission’s guidelines specify that the effect of the referendum (legally binding or consultative) must be clearly specified in the Constitution or by law (CGP, III.8).

But perhaps the most important principle that I wish to stress here is that the Rule of Law implies that “the use of the referendums must comply with the legal system as a whole, and especially the procedural rules” (CGP = Code of Good Practice, III.1).

The substantive aspect of this principle is rather straightforward: texts submitted to referendum, like all others, have to comply with all superior law (CGP, III.3) – this is the well-known principle of hierarchy of norms.

The procedural aspect is more complex.

First, the call for referendum must not go against superior law.

A referendum cannot be held if the Constitution or a statute in conformity with the latter do not provide for it. Indeed, it is a principle of the Rule of law that the sovereignty of the people allows the latter to take decisions only in accordance with the law.

Second, the applicable procedural rules have to be followed. This aspect may look technical and secondary. But it is not. What ensures that the vote is the expression of the free will of the people is respect for these procedural rules – if of course they are themselves in conformity with the principle of free suffrage.

As concerns in particular texts submitted to a constitutional referendum, they must abide by the substantive limits of constitutional reform if they exist and by the rules governing the revision of the Constitution.

As I said, the Venice Commission has examined legislation and practice relating to referendum in several countries. It has noted that despite its democratic vocation, in its operation, referendum may in fact be far more problematic than it seems. Indeed, the Commission has raised serious concerns with respect to several specific constitutional referendums.

The concerns expressed by the Venice Commission related both to the procedure for launching the referendum and to the substance of the proposed changes.

Regarding the procedure, the Commission emphasised the need for referendums to respect the Rule of Law, and in particular to comply with the legal system as a whole, especially with the procedural rules on constitutional revision; this requirement applies of course to all kinds of referendums, be they at constitutional, legislative, national or subnational level.

The Commission also warned against the use of referendums to bypass democratic safeguards such as the requirement for a qualified majority in parliament.

It is true that some countries provide for the need for a constitutional amendment to be approved by popular referendum. The aim of the referendum is to strengthen the legitimacy of the constitutional amendment. The Commission has taken the view that for constitutional reform, it is equally legitimate either to include or not include a popular referendum as part of the procedure. However, the Commission has underscored that recourse to a referendum should not be used by the executive in order to circumvent parliamentary amendment procedures. The danger and potential temptation is that, while constitutional amendment in parliament in most countries requires a qualified majority, simple majority is generally sufficient in a referendum. Thus, for a government lacking the necessary qualified majority in parliament, it might be tempting instead to put the issue directly to the electorate. On several occasions the Venice Commission has emphasized that this may have the dangerous effect of circumventing the correct constitutional amendment procedures. It has insisted on the fact that in a democratic system upholding the separation of powers it is expedient that the legislature should always retain power to review the executive’s legislative output and to decide on the extent of its powers in that respect. This means that a constitutional referendum, if it is provided by the Constitution, should only be held after the constitutional amendments have been duly approved by parliament under the special procedure for constitutional amendment.

The Venice Commission was also concerned with the substance of the changes submitted to referendum. A number of referendums submitted to its opinions aimed at concentrating powers in the hands of the president and weakening the system of checks and balances, in particular by reducing democratic control by parliament

One of such changes is the lifting of presidential term-limits. The Venice Commission has expressed the clear view that popular referendums aimed at abolishing limits on presidential terms are particularly dangerous, to the extent that it is usually the incumbent who – directly or indirectly – calls on the referendum and the referendum itself is a manifestation of the plebiscitarian power which limitations on presidential mandates seek to prevent.

If compliance with an appropriate constitutional and legal framework is imperative, it is not yet sufficient: the Venice Commission has further stressed the need for a referendum, especially a constitutional one, to be accompanied by the unhindered exercise of the freedoms of expression, assembly and association as well as by a fair, adequate and extensive broadcasting of the arguments by the media. The political freedom context has been found to be problematic in the cases for example of a prolonged state of emergency and in the massive public presence of paramilitary and military forces.

Even when all the principles I have mentioned are respected, referendums do pose the risk of simplification – because they mostly offer only binary choices to complex questions. They also pose the risk of weakening accountability – because when everyone is responsible, no one really is.

In addition, referendums may cause intended or unintended political instability, when they are abused or simply decided for interests unrelated to the referendum questions.

In conclusion, referendums should not be regarded as spontaneous acts of exercise of sovereign power by the people, but rather as an expression of the will of the people by a means regulated within the framework of the Constitution. Respect for the constitutional and legal, including procedural framework is essential, as well as respect for international standards. Unhindered political freedoms must accompany the exercise of a referendum. All these conditions must be met, lest a referendum become a means to undermine the functioning of democracy.