I am asked by the Faculty of Law, of L.M Gumilyev to provide a brief summary of my forthcoming monograph on direct democracy. In this study, I compared legal and political issues of contemporary direct democracy in the following polities:Switzerland,Italy,American States,France,Denmark,Ireland, theUKandTurkey.
Devices of direct democracy are the constitutional instruments where public votes on a certain issue. They may be largely divided into referendums and popular initiatives.
A referendum may be obligatory (mandatory) or facultative(optional). When it is obligatory, it is a constitutional rule that certain laws be put to referendum before they come into effect. This instrument is observed in most cases, for the constitutional changes which are very important for the future of the nation. For example, according to Article 3 of Azerbaijan Constitution, amendments to the constitution and change of state borders of theAzerbaijanRepublicmay be only changed by the referendum. Also in some other countries, referendum is obligatory for constitutional amendments such asAustria,Australia,SwitzerlandandIreland. In some other countries, referendum is obligatory only if the parliament cannot reach to a certain majority. For example inTurkey, constitutional amendments are subject to referendum if the proposed amendment receives a support between 3/5 and 2/3 of the total numbers of the parliament. If parliament secures a majority above 2/3 numbers of the total members, that is, more than 367 members, then the referendum is facultative. Facultative referendums are those which are initiated by certain organs or persons. In certain constitutions of the world the power to initiate a referendum may be conferred to, the president, certain number of parliamentary members, certain number of the electors. InFrance, according to the article 11, the president has the right to decide to hold a referendum. InTurkey; the president may hold a referendum, for the constitutional amendment proposals, which receive the votes of more than 2/3 of the total members of the parliament. On the other hand inDenmark, it is the parliamentary minority that can decide to hold a referendum. According to Danish constitution, 1/3 of the total members of the parliament may decide to hold a referendum. In countries such asSwitzerland,Estoniaand Latvia Referendum may be started on the demand of certain number of voters (numbers vary from 50.000 to 300.000 voters) In these countries, referendums are hold during the adoption of laws. On the other hand, inItaly, 500.000 electors may demand a referendum to abrogate an existing law. This is called abrogative referendum.
While the referendums are the votes on the text adopted by the parliament, the electors themselves may also propose a constitutional or legal amendment and put it to referendum. This device is called popular initiative. In Switzerland, a number of 7 between 27 people may propose a constitutional amendment. This proposal should receive 100.000 signatures in 18 months starting from the publication of the proposal in the Federal Official Gazette (Feuille Fédérale).. If it receives the required signatures, the proposal is put to referendum.
One common theme is the judicial review of the voting procedures of the referendums and the legislative products of them. The legal rationale here rests on the constitutional principle that elections, referendums and any other sort of public votes should be implemented under the control of judicial review. In this context, there are two distinct but interacting issues at stake: The voting right of each individual and constitutional due process of direct legislation. In almost all cases, Constitutional Courts or an equivalent supreme court is competent to fulfill the judicial review.
The holder of the constitutional competence to initiate a referendum is one of the most important issues. At this point the right to initiate referendum should belong to the opposition who wish to prevent the adoption of a legislative measure in question. In other words, the owner of the proposal of a legal measure should not have the right to start a referendum on it. More importantly, the executive, particularly, president should not have the exclusive right to start a referendum. Its effects may vary according to the governmental system and party configuration in the parliament. Firstly in this context, it should be remembered that comparative studies on referendum show that, the executive is always more successful in the strategic use of the referendum. In most cases it produces hegemonic results, that is, referendum may turn to a manipulative device in the hand of the executive. The examples ofFranceandTurkeyillustrate clear examples. InTurkey, the president has the sole and exclusive competence to start a referendum. (Art.175) In France, the president may initiate a referendum on the proposal of the government.(Art. 11) Yet even in this latter case, the condition, ‘proposal of the government’ becomes futile, when the president and the parliamentary majority are from the same political party. In short, in all cases when the president has the power to start a referendum it may produce counter-parliamentary and anti-consensual results. The main problem lies in the fact that initiating a referendum is a legislative power, and conferring such a power to the president may risk functioning of the checks and balances system by giving the president a strengthened veto or law making power.
It is observed and considered that if the right to start a referendum is given to the electoral or parliamentary minorities, it may serve better to the functioning of democracy. This gives the opposition a very important power in the parliamentary debates. It therefore, induces the parliamentary majorities to reach a certain consensus with the minority to avoid referendums and prevent a high-handed way of decision making. In short, referendums should generate an effect of minority protection and veto power, as a filter to the decision of the majority.
Referendum campaigns are also important in the proper functioning of the direct democracy. Campaigns include two elements: voter education and propaganda. The former involves the education of the voters of the legal nature and content of the question to be voted in the referendum. It is very important that the voter education is fulfilled by an impartial body, as it should be done neutrally. On the contrary, propaganda aims at persuading the citizenry to vote ‘yes’ or ‘no’ and at this point fairness and democratic standards should be considered. In this case, a perfect legal framework for, campaign finance, free and equal right to media, freedom of speech and assembly is very important.
Another conclusion derived from our study is the role of the political parties. The political parties may play a very important role in the functioning of the referendum, most notably during the campaigns. The heuristic cues, information and recommendations given by the political parties to their voters may considerably reduce the risk of voter incompetence, a setback commonly stated by the skeptics of direct democracy.
The question posed in the referendum, should be clear, short and free of ambiguity. The voters should easily understand the legal effect of their yes or no votes. In this case, the questions should clear legal regulations, and not some ambiguous statement of political goals.
Single subject rule is universal in the securing of a genuine democratic referendum. According to this rule, voters should not be compelled to log-roll a package of diverse legal provisions which are not reasonably germane in content and meaning.
To conclude, our study illustrates that referendums may contribute to the well-functioning of the democracies if: there is an effective and impartial judicial review, the misuse of it by the executive is prevented by constitutional measures, it serves as a constitutional weapon in the hands of the minority, the basic democratic principles of freedom of thought, speech and information are secured.
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