Direct Democracy in Comparative Law [1 ed.] 9789462748491, 9789462368446

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C O M P A R A T I V E

Direct Democracy in Comparative Law

P U B L I C

Eloy García Elisabetta Palici di Suni Martin Rogoff

L A W T R E A T I S E

Founded by Giuseppe Franco Ferrari

Faced with the variety and complexity of the forms that direct democracy takes today, this book pays attention first to the main stages in which direct democracy has historically evolved, and then considers at greater length the systems currently in place in different countries. The first chapter provides historical background. The two following chapters are devoted to Europe and to the Americas, where direct democracy is most developed. The analysis of the different forms that direct democracy has historically taken and those that characterize contemporary systems should allow a more balanced judgment for or against direct democracy, both in general and in specific contexts. Eloy García is Professor of Constitutional Law at the University Complutese of Madrid. He is editor of the collection Clásicos del Pensamiento, Tecnos, and author, among the last publications, of: ‘¿Es Constitucional prohibir la reelección del presidente del gobierno para un tercer mandato?’, in Teoría y realidad Constitucional 2018; editor of El Ciudadano contra loe Poderes de Alain, Madrid 2016; Derecho a decidir y democracia. Acerca de la procedencia de admitir supuestos de la “democracia de la identidad” en la Constitución Española de 1978, in El Cronista del Estado Social y Democrático de Derecho, 2015. Elisabetta Palici di Suni is Professor of Public Comparative Law, University of Torino, Department of Law. President of the first cycle degree course Legal Sciences for Firms and Institutions, University of Turin, Department of Law. Docent of Public Comparative Law, Constitutional Law, Comparative Constitutional Justice and Linguistic Rights in Europe. She wrote on Government Legislation, Administrative Procedure, Minorities, Equal Protection, and Constitutional Justice. Martin Rogoff is Professor of Law, Emeritus at the University of Maine, School of Law in the United States. He teaches and writes in the areas of comparative constitutional law and international law. He has taught and lectured in law schools in Italy and France. His law degree is from Yale Law School and he was awarded a Doctorate Honoris Causa by the Université du Maine in Le Mans, France. The Comparative Public Law Treatise is a comprehensive body of publications, addressing the most relevant topics within comparative public law. The Treatise aims to identify and present in an original fashion comparative knowledge in the area of public law, whilst also developing new interpretative guidelines. Each volume, which is written by reputable scholars, offers a specialised analysis, which will be of use to legal scholars, students and also general readers.

ISBN 978-94-6236-844-6

9 789462 368446

Direct Democracy in Comparative Law

Comparative Public Law Treatise Founded by Giuseppe Franco Ferrari

Direct Demo cracy in Comparative Law

E l o y G a r c i a L o p e s , E l i s a b e t t a Pa l i c i d i S u n i a n d M a r t i n A. Rogoff

Published, sold and distributed by Eleven International Publishing P.O. Box 85576 2508 CG The Hague The Netherlands Tel.: +31 70 33 070 33 Fax: +31 70 33 070 30 email: [email protected] www.elevenpub.com Sold and distributed in USA and Canada International Specialized Book Services 920 NE 58th Avenue, Suite 300 Portland, OR 97213-3786, USA Tel.: +1 800 944 6190 (toll-free) Fax: +1 503 280 8832 email: [email protected] www.isbs.com Eleven International Publishing is an imprint of Boom uitgevers Den Haag. This volume has been published with the contribution of Fondazione Cariplo. This volume was reviewed through a double-blind peer review procedure.

ISBN 978-94-6236-844-6 ISBN 978-94-6274-849-1 (e-book) © 2018 Eloy Garcia Lopes, Elisabetta Palici di Suni and Martin A. Rogoff | Eleven International Publishing This publication is protected by international copyright law. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior permission of the publisher. Printed in The Netherlands

Preface The Comparative Public Law Treatise results from a desire to publish one single study providing a full panorama of comparative public law. Its aim is in fact to offer the reader – including scholars and students as well as the general reader – an overview, a summary and an original presentation of comparative knowledge in the area of public law, including both an account and summary of the various schools of thought as well as also, where possible, the development of original lines of thinking. Considering the objective of the Treatise it has been decided that it will extend to more than 50 volumes, in order to ensure a detailed analysis of the issues of greatest interest from a comparative perspective. Whilst the project as a whole will be characterised by a cross-systemic approach, it will include particular monographic studies of the most significant legal systems around the world. In doing so, the aim is to give a voice to the two focuses of comparative study, first the science of comparison stricto sensu, and secondly the study of foreign legal systems. In any case, the unifying characteristic of the study is its broad approach. This is not so much, or in any case not only, due to the number of volumes but rather to the choice that, within a globalised world, comparative law must open itself up to the greatest possible number of legal systems. Starting from this premise the monographic studies will seek to analyse many of the legal systems that have traditionally remained on the margins of comparative law studies. Finally, the choice to use three languages (Italian, English and Spanish) offers a further demonstration of the broad approach of the Treatise. This is the first time that a study of comparative public law has been conveyed at the same time in three languages. The objective is not only to ensure the wide circulation of the study within the international academic community, but above all to promote and favour a more ample dialogue between different legal cultures. Milan 2018 Giuseppe Franco Ferrari

Table of Contents List of contributors

xi

Acknowledgements

xiii

1 The Historical Evolution of Direct Democracy 1.1 Introduction 1.1.1 The Explosion of Direct Democracy in Contemporary Systems 1.1.2 Arguments against and for Direct Democracy 1.1.3 The Instruments of Direct Democracy 1.1.4 The Origins of Direct Democracy: From Antiquity to the Swiss Cantons 1.2 The Period of Democratic Revolutions and the Nineteenth Century in France and the United States 1.2.1 The United States 1.2.1.1 The American Colonies 1.2.1.2 The Revolutionary Period: Declaration of Independence, State Constitutions, Articles of Confederation, the Federalist Papers, and the United States Constitution 1.2.1.3 The ‘Revolution of 1800’ and ‘Jacksonian Democracy’ (1829-1841) 1.2.1.4 The Progressive Movement 1.2.1.5 Direct Democracy in Oregon 1.2.2 France 1.2.2.1 L’ancien Régime 1.2.2.2 Les Lumières: Montesquieu and Rousseau 1.2.2.3 The Revolutionary Period: Sieyès, Revolutionary Constitutions and Les San-culottes 1.2.2.4 The Heritage of Bonapartism: Plebiscitary Democracy 1.2.2.5 The Nineteenth Century: The Republic Submerged, Under Siege, and Triumphant 1.2.2.6 Departmental and Local Levels 1.3 Direct Democracy in the Italian Risorgimento and European post-World War I Constitutions

vii

1 1 1 2 5 11 13 15 17

21 26 30 36 38 38 40 43 47 48 51 52

Table of Contents

1.3.1 The Spanish Constitution of 1931 1.4 Plebiscites and Direct Democracy in authoritarian regimes 1.4.1 Direct Democracy during Nazism and Fascism 1.4.2 Direct Democracy during the Franco Period 2 Referendum and Direct Democracy in Europe 2.1 France 2.1.1 The Power of Initiative 2.1.2 The National Referendum in the Constitution of 1958 2.1.2.1 The Legislative Referendum 2.1.2.2 The Constituent Referendum 2.1.2.3 The Referendum in the International Domain 2.1.3 The National Referendum in Action 2.1.4 The Local Referendum 2.1.5 Participative Democracy and Neighbourhood Democracy 2.2 Italy 2.2.1 The Referendum in the Constituent Assembly 2.2.2 The Troubled Implementation of Referendums in Italy 2.2.3 Constitutional Referendums and Regional Referendums 2.3 Germany 2.3.1 The Choice for Representative Democracy 2.3.2 The Referendum for Territorial Changes of the Länder 2.3.3 Direct Democracy in the Länder 2.3.4 Current Trends 2.4 Spain 2.4.1 Setting the Stage: the Political Significance of Direct Democracy and the Equivocal Treatment of the Referendum by the Spanish Legislature 2.4.2 The Institutions of Direct Democracy in the Process of Drafting the Constitution: The Referendum and the Popular Legislative Initiative. The Legislative Process A The constitutional procedure of Article 92 CE in the work of the Constituent Assembly and the different types of referendum. B The popular legislative popular initiative 2.4.3 The Practice of the Referendum in Spanish Political Life. Current Problems of the Referendum in Spain: “Right to decide” and Democracy; its Political Implications for the Mass Society 2.4.3.1 Referendum and Political Debate

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59 61 61 63 67 67 68 70 70 72 72 72 74 76 79 79 88 97 102 102 103 109 112 114

114

118

118 126

128 128

Table of Contents

2.4.3.2

The Current Problems of the Referendum in Spain: ‘The Right to Decide and Democracy’ 2.4.4 The Catalan Question 2.5 Other European Countries 2.5.1 The Referendum in Other European Countries 2.5.2 The Popular Initiative in Europe 2.5.2.1 The Popular Initiative in European Countries 2.5.2.2 The Popular Initiative in the European Union 3 Referendum and Direct Democracy in America 3.1 The United States 3.1.1 Revival of Direct Democracy 3.1.2 The Initiative and Referendum 3.1.3 Recall 3.1.4 Direct Democracy at the Local Level 3.1.5 Direct Democracy in the Courts 3.1.6 Direct Democracy in California 3.1.7 Direct Democracy in the Electronic Age 3.2 Canada 3.2.1 Democracy and Government in Canada: English and French Backgrounds, the Parliamentary Tradition, ‘Representative’ and ‘Responsible’ Government 3.2.2 Direct Democracy at the National Level 3.2.3 Quebec: la société distincte 3.2.4 Direct Democracy at the Provincial Level 3.2.5 Direct Democracy at the Municipal Level 3.3 Latin America 3.3.1 Introduction 3.3.2 The Right to Participate in the Constitution, Exercise and Control of Political Power 3.3.3 Popular Exercise of Political Power 3.3.4 The Popular Control of Political Power 3.3.5 The Experience of the Republic of Colombia 3.3.6 Conclusions

ix

130 143 145 145 160 160 160 165 165 165 167 169 173 176 184 189 191

191 199 202 205 207 209 209 211 214 222 223 234

List of contributors Chapter I 1.1 1.2 1.3 1.3.1 1.4.1 1.4.2

Elisabetta Palici di Suni Martin Rogoff Elisabetta Palici di Suni Eloy Garcia Elisabetta Palici di Suni Eloy Garcia

Chapter II 2.1 2.2 2.3 2.4 2.5

Martin Rogoff Elisabetta Palici di Suni Elisabetta Palici di Suni Eloy Garcia Elisabetta Palici di Suni

Chapter III 3.1 3.2 3.3

Martin Rogoff Martin Rogoff Juan Jacobo Calderón Villegas and Luis Javier Moreno Ortiz

xi

Acknowledgements The Authors would like to thank Arnulfo Mateos, Claudia Nasi, and Riccardo de Caria for their valuable contributions and help with the translations.

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1.1

Introduction

1.1.1

The Explosion of Direct Democracy in Contemporary Systems

In many jurisdictions today we are witnessing a significant growth of direct democracy. In our increasingly complex and globalized world, where distances and particularisms are tending to disappear, the need for the direct participation of citizens, like in the small Greek polis, is increasing dramatically. This is the concept of active citizenship,1 that ius activae civitatis, which Georg Jellinek placed highest on the scale of rights in relations between citizens and the state.2 Active citizenship now implies an assumption of direct responsibility to exercise decision-making, consultative, and veto powers by citizens outside of ordinary political channels. This is occurring thanks to technological evolution and the subsequent spread of new and ever more rapid and effective means of communication, able to reach and involve an unlimited number of people, both within and beyond national boundaries. These technological developments promote, perhaps paradoxically, the oldest form of democracy: direct democracy. The web is replacing the town square and small communities. People can now meet virtually in large numbers and with great ease to make, recommend, or influence public decisions or to create what has been called the “global protest”.3 Corresponding to this explosion of direct democracy and active participation of citizens – in the sense that it is partly its cause and partly its consequence – is a crisis of party politics and of the traditional institutions of representative democracy. Do people now appeal to the modern channels of direct democracy because they have less confidence in representative bodies or do they resort less to representative bodies because it is simpler and more direct to communicate by means of the web?4 Perhaps both are valid responses.

1

2 3 4

See, e.g., S. Dell’Avanzato, Verso una comune cultura politica. Compentenza e processi per la cittadinanza attiva, Milan, Franco Angeli, 2010; S.P. Ruth, Y. Welp, L. Whitehead (eds.), Let the People Rule? Direct Democracy in the Twenty-First Century, Colchester, ECPR Press, 2017. G. Jellinek, System der subjektiven öffentlichen Rechte, Freiburg, 1892 (Italian translation: Sistema dei diritti pubblici subbiettivi, Milan, 1912, 151 ff.). I. Krastev, La protesta globale, in Aspenia 65/2014, available at www.aspeninstitute.it/document/aspenia65-la-protesta-globale-di-ivan-krastev, 106 ff., in particular 108. See F. Cassella, La rete e la rappresentanza politica, in Diritto Pubblico Comparato ed Europeo 2014.

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Direct Democracy in Comparative Law

Another important element to consider is the fact that supranational institutions are assuming an ever more decisive role, over and above national representative bodies, especially in Europe.5 It is therefore no coincidence that many of the referendums held in European countries in recent years have involved the treaties of the European Union, even in countries which before had rarely or never resorted to direct democracy.6 The independence referendums already held and those that are now proposed would seem to be a reaction to a unification that diminishes diversity:7 but perhaps these referendums could also be seen as a sign of the weakening of traditional national borders, towards a Europe of peoples, nations, languages, and cultures, which transcends current boundaries. The European Union has decided to provide an instrument of direct democracy to allow European citizens to participate and to be more involved in European politics, thereby trying to overcome the democratic deficit, which is one of the EU’s major weaknesses. Article 11(4) of the Treaty on European Union, after its revision by the Treaty of Lisbon, provides that Not less than one million citizens who are nationals of a significant number of Member States may take the initiative of inviting the European Commission, within the framework of its powers, to submit any appropriate proposal on matters where citizens consider that a legal act of the Union is required for the purpose of implementing the Treaties.8

1.1.2

Arguments against and for Direct Democracy

There are arguments against direct democracy, and against the referendum in particular.9 These arguments have been advanced in different legal orders and at different historical moments, but they are remarkably similar. Today, as in the past, it is said that people can be asked to vote only ‘yes’ or ‘no’, for or against a certain proposal, formulated by a leader or group. And a majority decision, which 5 6 7 8 9

See V. Boehme-Neßler, Von der Euro-Krise zur globalen Demokratie, in Zeitschrift für Rechtspolitik, 2012, 237 ff. See D. Tosi, Il ricorso al referendum nel processo di integrazione europea, in Diritto Pubblico Comparato ed Europeo 4/2014. See R. de Caria, I referendum indipendentisti, in Diritto Pubblico Comparato ed Europeo 4/2014. See ch. 2, paragraph 2.5.2.2, infra. See J.M. Denquin, Référendum et plébiscite. Essai de théorie générale, Paris, Librairie générale de Droit et de Jurisprudence, 1976, 329; P.V. Uleri, Le forme di consultazione popolare nelle democrazie: una tipologia, 15(2) Rivista italiana di scienza politica, 208 (1985); D. Butler & A. Ranney, Practice, in D. Butler & A. Ranney (eds.), Referendums around the world. The Growing Use of Direct Democracy, Washington, AEI, 1994, 17 ff.; M. Caciagli & P.V. Uleri, Una prospettiva comparata per valutare le consultazioni referendarie, in M. Caciagli & P.V. Uleri (eds.), Democrazie e referendum, Bari, Laterza, 1994, 20; A. Ranney, Nuove pratiche e vecchia teoria, ibidem, 38 ff.

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The Historical Evolution of Direct Democracy

prevents compromise, circumvents the deliberative process and thus undermines pluralism.10 A second kind of objection stresses the impossibility of people understanding the issues that are submitted to them. In most cases the questions are too complex, with implications that only politicians, political leaders, government officials, and representative bodies are able to assess, and consequently to make the most appropriate decisions.11 In other words, the growing number and complexity of the decisions to take would lead to a professionalization of political participation.12 The popular will is necessarily widespread, it is necessary that someone consults it, and shapes it: at its basis, there is always an elite structure with leading bodies.13 In addition, the voters will tend to vote not on the question presented, on the point under discussion, but in favour or against the political leader or group that formulated the question. The voters will be swayed by the oratorical abilities or by the charisma of this or that leader, and not by the reasons, which support or oppose the concrete decision.14 Finally, it is noted by many commentators that direct democracy usually leads to conservative choices. The votes eschew innovative choices; they fear change and radical reform.15 There are counterarguments, which can be made to these objections. Some choices necessarily imply a ‘yes’ or a ‘no’ answer. Not all issues can be resolved through deliberation 10

11

12 13 14

15

C. Schmitt, Volksentscheid und Volksbegehren. Ein Beitrag zur Auslegung der Weimarer Verfassung und zur Lehre von der unmittelbaren Demokratie, Leipzig & Berlin, Walter de Gruyter & Co., 1927, 31 ff. (Italian translation: Democrazia e liberalismo. Referendum e iniziativa popolare. Hugo Preuss e la dottrina tedesca dello Stato, Milan, Giuffrè, 2001, M. Alessio ed., 21 ff.); E.W. Böckenförde, Demokratie und Repräsentation: zur Kritik der heutigen Demokratiediskussion, Berlin, Niedersächsische Landeszentrale für Politische Bildung, 1983 (Italian translation: Democrazia e rappresentanza, Quaderni costituzionali 5 (1985), 236 ff. and in M. Nicoletti & O. Bruno (eds.), Stato, costituzione, democrazia. Studi di teoria della costituzione e di diritto costituzionale, Giuffrè, Milano, 2006, 499 ff.); M. Volpi, Referendum nel diritto costituzionale, in Digesto – Discipline Pubblicistiche, XII, Turin, UTET, 1997, 499, 505; F. Cassella, La rete e la rappresentanza politica, supra n. 4 (with particular reference to the internet). C. Schmitt, Volksentscheid und Volksbegehren, supra n. 10; H. Kelsen, Demokratie (1927), reprinted in H. Klecatsky, R. Marcic, & H. Schambeck (eds.), Die Wiener Rechtstheoretische Schule. Vol. II, Salzburg & Munich, Europa Verlag, 1968, 1743 (Italian translation in H. Kelsen, Il Primato del Parlamento (C. Geraci ed.), Milano, Giuffrè, 1982, 12); A. Di Giovine, Democrazia diretta e sistema politico, Padua, CEDAM, 2001, 76-77, 177; F. Cassella, La rete e la rappresentanza politica, supra n. 4 (with particular reference to the internet). E.W. Böckenförde, Democrazia e rappresentanza cit., 507 ff. E.W. Böckenförde, Democrazia e rappresentanza cit., 504 ff. C. Schmitt, Volksentscheid und Volksbegehren, supra n. 10; A. Di Giovine, Democrazia diretta: da chi?, 12(2) Teoria politica (1996), also in A. Di Giovine, Democrazia diretta e sistema politico, supra n. 11, 73 ff., especially at 83 ff. But see also A.V. Dicey, Ought the Referendum to be Introduced into England?, 57 Contemporary Review 507 (1890). G. Jellinek, Verfassungsänderung und Verfassungswandlung, Berlin, Häring, 1906. According to A.V. Dicey, Ought the Referendum, supra n. 14, the referendum is democratic and conservative at the same time: it is democratic because it guarantees the sovereignty of the people and it is conservative because it weighs the common interest of the nation against the tumult of party politics and the fanaticism of reformers.

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Direct Democracy in Comparative Law

or compromise. Sometimes recourse to direct democracy helps making a decision one way or the other that political forces are unable to make through traditional institutional channels. Deciding for or against divorce, for against abortion, for or against joining an international organization such as the European Union necessarily means deciding one way or the other, and political forces may find difficulty in doing so. To leave it to the voters to decide by majority vote is in many cases the best solution possible. Ignorance or lack of knowledge of the electoral body about public issues is not a problem of direct democracy, but of democracy itself. If you think that the people will not be able to make an intelligent decision on a specific matter, how do you think that the same people will be able to act intelligently in the election of a candidate or a party that espouses a certain general political program or has a position on certain issues? The problem of direct democracy, but more generally, of democracy itself, is the education of the electoral body. The people must be able to understand and to assess the general policy choices, which are presented to them – that is to say, which involve – all citizens. Recourse to direct democracy can certainly promote such education. If citizens are accustomed to being called upon to decide on individual issues, they will have to educate themselves and to become knowledgeable.16 Direct democracy would also have an important educational effect on the political class itself. If a leader or a party knows that a certain decision is or may be subject to a referendum, political leaders and parties will have every interest to explain to as many people as possible and as clearly as possible the reasons that arise in favour of or against that decision. This would encourage political choices to be made that are truly in the public interest and not based on partisan interests.17 Direct democracy can therefore have a positive effect on the education of citizens in politics and, simultaneously, on the transparency of public choices. The argument that the voters are really voting for or against the political leader or group that proposed a certain question and not on the question itself again raises, from a different perspective, the contentions just discussed. If the people are sovereign in a democracy, that implies the belief that the people should be able to decide through elections, with full knowledge of the facts, which party and leaders should occupy public office, as well as to resolve the individual issues which are presented to them in a referendum. The objection that through instruments of direct democracy the voters tend to make more conservative decisions is finally an objection that is not legal, but one of mere political expediency and not always accurate. In many cases, the people welcome innovative choices. It is not really possible to quantify the prevalence of progressive or conservative choices in the various referendums that have taken place in different historical periods

16 17

See A.V. Dicey, Ought the Referendum, supra n. 14, at 501, 508. Dicey observes that the Swiss people are among the best educated in politics. See A.V. Dicey, Ought the Referendum, supra n. 14, at 504.

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The Historical Evolution of Direct Democracy

and in different places. In any case, the mere suspicion that the voters may be opposed to a progressive choice deemed appropriate by some should be a stimulus for political forces in favour of the reform to explain clearly and convincingly the reasons and benefits of that reform. In general, except for specific cases that can be evaluated on an individual basis, it seems fair to say that if representative democracy is truly democracy, it must accept putting itself into play, to submitting individual issues to the sovereign people, with the task of making comprehensible to the voters reasons for a certain choice, thereby ensuring transparency and accountability for political action. In any event, direct democracy should be seen as a complement to, and not a denial, of representative democracy.18

1.1.3

The Instruments of Direct Democracy

Direct democracy has taken many forms throughout history and in different legal orders. The origin of direct democracy is usually traced back to ancient Greece and the decisions made by the Assembly (the ecclesia) with the participation of all citizens. The local assemblies (Landesgemeinde) that mark the start of direct democracy in the country most characterized by direct democracy, that is to say Switzerland, resemble the ecclesia. They can be compared to contemporary experiences with so-called participatory democracy, in which public decisions are adopted by institutional decision-makers, after having heard and taken into account comments from citizens and organizations. The “shared management” laws adopted in Italy between 2007 and 2013 in the regions of Tuscany, Umbria, and Emilia-Romagna represent this phenomenon.19 France put in place la démocratie de proximité20 by law No. 2002-276 of 27 February 2002, to promote citizen participation at the local level through neighbourhood councils, which provide a link between the population and the institutions of the municipalities. According to Article 10 of that law,

18

19

20

See N. Bobbio, Democrazia rappresentativa e democrazia diretta, in Il futuro della democrazia, Turin, Einaudi, 1991, 47 (first edn. 1984, English translation: The Future of Democracy, Minneapolis, University of Minnesota Press, 1987), according to whom “representative democracy and direct democracy are not two alternative systems, in the sense that where one exists the other cannot be, but they are two systems which can be integrated with each other … in a single democratic system the two forms of democracy are both necessary, but are not, considered separately, sufficient”. See U. Allegretti (ed.), Democrazia partecipativa. Esperienze e prospettive in Italia e in Europa, Florence, University of Florence Press, 2010; Id., Democrazia partecipativa, in Enc. Dir., Annali IV, 2011, 295 ff.; Id., La democrazia partecipativa in Italia e in Europa, Rivista AIC 1/2011; C. Fraenkel-Haeberle, Bürgerpartizipation und Betroffenbeteiligung mit Blick auf Italien, 47 Die Verwaltung 271 (2014), especially at 278 ff. On this point, see ch. 2, paragraph 2.1.5, infra.

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Direct Democracy in Comparative Law

the right of the inhabitants of the municipality to be informed and to be consulted on decisions that affect them, in a manner consistent with the free administration of the territorial units, is a key principle of local democracy. In Germany a heated debate, which developed principally in reaction to a grandiose project designed to renovate Stuttgart’s train station (“Stuttgart 21”), led the legislature to codify a right to participation (Partizipationsrecht) and the duty of the authorities to refer to the people, in advance, projects which affect the public interest.21 The classic tool of direct democracy is the referendum, which is organized in different ways in different places.22 There are jurisdictions which do not allow any form of referendum; there are compulsory referendums that must be held for certain decisions, such as those relating to constitutional revision; and there are optional referendums that can be held on the initiative of public or private entities. In contrast to the majority of jurisdictions which allow only certain institutions, such as the government or the president of the republic, to hold referendums, there are jurisdictions where the voters, with a certain number of signatures, can initiate a referendum. For the referendum to be valid, the participation of a quorum may be required. Sometimes that quorum is a simple majority of the voters, sometimes it is a majority that is at least a certain percentage of those entitled to vote. The referendum may be advisory only or it may have a binding effect. Although formally advisory, a consultative referendum may still have a decisive effect, at least from a political point of view, as has been the case for example, in the United Kingdom.23 The referendum may also be distinguished according to its object: constitutional amendment, legislative enactment, organization of the state, etc. It seems that more or less favourable attitudes to direct democracy are associated with these distinctions. It would appear, for example, that the jurisdictions in which the voters have the right to initiate a referendum would guarantee greater popular participation. Taking into account procedural limitations and the ‘obstacles’ that the institutions are able to erect,24 it seems, however, that the maximum guarantee exists in those jurisdictions 21 22

23 24

See ch. 2, paragraph 2.3.4, infra. On the diverse typologies of the instruments of direct democracy and the referendum in particular, see P.V. Uleri, Le forme di consultazione popolare, supra n. 9, 205 ff.; M. Suksi, Bringing in the People. A Comparison of Constitutional Forms and Practices of the Referendum, Dordrecht/Boston/London, Martinus, Nijhohh, 1993, 28 ff., and 126 ff.; M. Caciagli & P.V. Uleri, Una prospettiva comparata, supra n. 9, 6 ff.; S. Möckli, Nove democrazie a confronto, in M. Caciagli & P.V. Uleri (eds.), Democrazie e referendum, supra n. 9, 49 ff.; D. Butler & A. Ranney, Practice, supra n. 9, 1 ff.; M. Volpi, Referendum nel diritto costituzionale, supra n. 10, 500 ff.; G. Rolla, La tutela costituzionale dei diritti, 5th ed., Milano, Giuffrè, 2014, 140 ff. See A. Torre, Referendum e sovranità parlamentare nel Regno Unito, 16(4) Diritto Pubblico Comparato ed Europeo 2014. Italy is paradigmatic: as shall be seen (ch. 2, paragraph 2.2.2, infra), until the judgment no. 68 of 1978 of the Constitutional Court, the Parliament relied on the provision mandating the suspension of the referendum

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The Historical Evolution of Direct Democracy

which provide for an obligation to hold a referendum in certain cases. In these cases it is in fact recognized that the electorate has its own competence, constitutionally guaranteed, alongside that of the institutional bodies. The referendum must be distinguished from the plebiscite, but according to what criteria is uncertain. The plebiscite, which is normally viewed negatively, is a one-time event, without prior review according to constitutional standards. It could therefore be characterized as a decision from the top that the voters are only called upon to ratify. In fact, throughout history the plebiscite has taken very different forms, so as to make it impossible to define it precisely.25 Another instrument of direct democracy is the right of popular initiative, by which the electoral body may propose to the legislature an ordinary law or constitutional amendment.26 It is with the introduction of a right of initiative for the European Union, as mentioned, that the European Union is trying to counter, at least in part, the democratic deficit that seems to characterize it. In the years after its introduction, there have been numerous requests for the use of the initiative for this purpose, and European institutions have had to recognize its important role.27 An instrument of direct democracy which includes both the popular initiative and the referendum is the referendum proposal, adopted in various jurisdictions, like the United States, Canada, Latvia, Croatia, Switzerland, and France.28 In Italy it has been introduced in recent years in some.29 Although it takes different forms from one country to another, the referendum proposal is normally a proposed law initiated by the people, which is then voted on by referendum (in some cases only if the legislature has not approved it within a certain time limit). Today when people can link up by technological means, as mentioned earlier, digital democracy or ‘technopolitics’ occupies a crucial position in this process.30

25

26 27 28

29 30

in case of a new law on the same subject matter, in order to paralyze the most delicate referendum initiatives, by passing laws only formally new, but that in substance reproduced the previous provisions. A.V. Dicey, Ought the Referendum, supra n. 14, at 492 ff.; J.M. Denquin, Référendum et plébiscite. Essai de théorie générale, supra n. 9; G. Gemma, Plebiscito, in N. Bobbio, N. Matteucci & G. Pasquino (eds.), Dizionario di politica, Turin, UTET, 1983; A. Chiappetti, Plebiscito, in Enc. Dir., XXXIII, Milano, Giuffrè, 1988, 945 ff.; G.M. Salerno, Referendum, in Enc. Dir., XXXIX, Milano, Giuffrè, 1988; S. Möckli, Nove democrazie a confronto, supra n. 22, 51; M. Volpi, Referendum nel diritto costituzionale, supra n. 10, 498. See ch. 2, paragraph 2.5.2.1, infra. See ch. 2, paragraph 2.5.2.2, infra. For the United States, see ch. 2, paragraph 2.1.4., and ch. 3, paragraphs 3.1.1 and 3.1.2, infra; for Canada, see ch.. 3, paragraphs. 3.2.1 and 3.2.4, infra; for Latvia, see paragraph 1.3 and ch. 2, paragraph 2.5.1, infra; for Croatia and Switzerland, see ch. 2, paragraph 2.5.1, infra; for France, see ch. 2, paragraph 2.1.1, infra. On the regions of Italy, see ch. 2, paragraph 2.2.3, infra. S. Rodotà, Tecnopolitica. La democrazia e le nuove tecnologie della comunicazione, Bari, Laterza, 2004; Id., Tecnopolitica, in Enc. Italiana, VII Appendice, 2007; A. Di Giovine, Democrazia elettronica: alcune riflessioni, 23(3) Diritto e società (1995), reprinted in A. Di Giovine, Democrazia diretta e sistema politico, supra n. 11, 55 ff., especially 60 ff.; G. Falcon, L’“uomo situato”: due idealtipi di democrazia partecipativa?, in U. Allegretti (ed.), Democrazia partecipativa. Esperienze e prospettive, supra n. 19, 79 ff., especially 83 ff.; M. Kneuer

7

Direct Democracy in Comparative Law

Earlier technologies, such as radio and television, established a vertical, one-way communication, i.e., from top to bottom, magnifying the power of the communicator and the passivity of the audience receiving the message. New technologies are changing this picture. The communication becomes horizontal and egalitarian; communication can now flow from the bottom up, it can do without traditional social mediators, expanding individual and collective power, and revealing egalitarian potential. The very nature of the political system is affected.31 But is the web able to improve democracy, ensuring greater popular participation, and destroying and reversing the traditional, established instruments of democracy and partyparliamentary deliberation? Many commentators point out the dangers that lurk behind these new forms of democracy. It is noted that the people who use the web are not all the people. Those who benefit from the Internet are only a part of the population and even a smaller part consists of those who use the Internet as a means of communication.32 The Internet prevents deliberation,33 and lends itself to various forms of manipulation and control by a small number of people.34 The Internet is in fact governed and controlled by an elite chosen by the market.35 Similar criticisms are directed to the online polls that are becoming more common.36 Through so-called Liquid Democracy, movements have successfully established themselves like the Piraten in Germany or the 5 Star Movement in Italy, which, through the use of the Internet, present themselves as champions of real democracy outside the established institutions of power, and involve all interested persons. It has been observed that in reality this is only an apparent widening of participation, since fundamental decisions

31 32 33 34 35 36

(ed.), Das Internet: Bereicherung oder Stressfaktor für die Demokratie?, Nomos, 2013; M. Nisticò & P. Passaglia, Internet e Costituzione (Proceedings of the Symposium in Pisa, Nov. 21-22, 2013), Turin, Giappichelli, 2014; F. Cassella, La rete e la rappresentanza politica, supra n. 4; S. Rodriguez, Esperienze di partecipazione politica nel diritto comparato, 16(4) Diritto Pubblico Comparato ed Europeo 2014. See also N. Bobbio, Democrazia rappresentativa e democrazia diretta, supra n. 18, 49: “No one can imagine a state that can be governed by continuous appeal to the people … Only in theory or in contemporary science-fiction could every citizen send his vote to an electronic brain while remaining comfortably at home and pushing a button.” For an even more dubitative view, see N. Bobbio, La democrazia dei moderni paragonata a quella degli antichi (e a quella dei posteri), in Teoria generale della politica (M. Bovero, ed.), Turin, Einaudi, 1999, 335: “The question remains: assuming that direct democracy becomes possible even in large states thanks to the perfectioning of the technical means to transmit views, is it desirable?” S. Rodotà, Tecnopolitica, in Enc. Italiana, supra n. 30, 2. S. Eisel, Internet und ‘Direkte Demokratie,’ in R.Th. Baus & T. Montag (eds.), Perspektiven und Grenzen „Direkter Demokratie“, Berlin, Konrad Adenauer Stiftung, 2012, 35 ff. See F. Cassella, La rete e la rappresentanza politica, supra n. 4. S. Rodotà, Tecnopolitica, supra n. 30; A. Di Giovine, Democrazia elettronica, supra n. 30, 60. G.L. Conti, La governance dell’internet: dalla costituzione della rete alla costituzione nella rete, in M. Nisticò & P. Passaglia, Internet e Costituzione, supra n. 30, 77 ff. See A. Di Giovine, Democrazia elettronica, supra n. 30, 62 ff. (very critical of the so-called “pollocracy”).

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The Historical Evolution of Direct Democracy

are made by a number of people even smaller than those involved in the decisions of traditional parties.37 There may, however, very well be other outcomes using technology. For example, of great interest was the case of the constitutional reform in Iceland through the Internet that involved huge numbers of people and allowed experimentation with a new approach, which might be followed elsewhere.38 In Finland the site “Open Ministry-Crowdsourcing Legislation” was established, which encourages the initiatives of citizens and organizations and promotes online collaboration services and dialogue.39 The site was created in 2012 by Joonas Pekkanen to facilitate relations between citizens and institutions (http:/avoinministerio.fi). A similar site was created in Russia in 2013.40 In Italy the Tuscan region has created the so-called “electronic Town Meeting”,41 while the Veneto and Friuli have promoted independence referendums through the web.42 In 2013, at the national level the Italian government promoted online consultations on questions of constitutional reforms that were then under consideration.43 These developments are for the most part experiments and innovations that still need improvement, but it seems that there is no reason to reject the notion that technology and new forms of popular participation could be profitably used to ensure more real democracy and direct involvement of citizens in decisions of general concern. Supporting evidence regarding the democratic potential of new technologies comes from the fact that, as has been correctly noted, authoritarian systems fear the Internet and prohibit it. This is what happens in China and Cuba.44 And this is what happened in Egypt at the end of the revolution of 18 days (25 January-11 February 2011), organized and

37

38 39 40 41 42 43

44

B. Bullwinkel & L. Probst, Innerparteiliche Willensbildung und Entscheidungsprozesse durch digitale Partizipation. Ein Praxistest des Konzepts der Liquid Democracy, in Zeitschrift für Parlamentsfragen (ZParl) 45 (2014), 382 ff. On the 5-Star Movement in Italy, see S. Rodriguez, Esperienze di partecipazione politica, supra n. 30. See ch. 2, paragraph 2.5.1, infra. See S. Rodriguez, Esperienze di partecipazione politica, supra n. 30. See C. Filippini, Il Referendum in Russia: disciplina e prassi di attuazione, 16(4) Diritto Pubblico Comparato ed Europeo 2014. See V. Garramone & M. Aicardi, Democrazia partecipata ed Electronic Town Meeting. Incontri ravvicinati del terzo tipo, Rome, Franco Angeli, 2011. See R. de Caria, I referendum indipendentisti, supra n. 7. For a citical view of the effectiveness of this type of consultation, see A. Valastro, Internet e strumenti partecipativi nel rapporto fra privati e amministrazioni, in M. Nisticò & P. Passaglia, Internet e Costituzione, supra n. 30, 245 ff., especially at 254 ff. G. Azzariti, Lex digitalis e democrazia, in M. Nisticò & P. Passaglia, Internet e Costituzione, supra n. 30, 351 ff. On the right to information, the foundation of the constitutional state as well as liberal and democratic regimes, in contrast to autocratic, socialist, and fundamentalist Islamic regimes, see G. Cordini, Società dell’informazione e diritti costituzionali, in G. Guidi (ed.), La società dell’informazione: libertà, pluralismo, risorse (Proceedings of the Symposium of the Associazione di Diritto Pubblico Comparato ed Europeo, San Marino, Sept. 30, 2005), Turin, Giappichelli, 2006, 73 and 75.

9

Direct Democracy in Comparative Law coordinated, as in other “Arab Springs” through the Internet.45 And this is what happened in Hungary, where large street demonstrations and public protests against him in October 2014 forced premier Viktor Orban to withdraw a bill which proposed to tax Internet data traffic. Although the Weimar Constitution placed freedom of expression and freedom of the press among the fundamental rights of the individual, in 1927 Rudolf Smend, as is well known, stressed the social character and the community function of these rights. In fact, according to Smend, it is essential for the individual to be able to speak the truth, but the meaning of freedom of expression is not exhausted in this, because the press is one of the most important presuppositions and instruments of the political life of the society, in close correlation with the rights of assembly and association.46 Since then, the link between democracy and the right to information and the right of expression has been unanimously recognized.47 Taking into account all the problems related to the use of the Internet and all the criticism levelled at electronic democracy, it might seem too simplistic and naive to claim that today the Internet has become helpful to democracy. We must realize, however, that the Internet exists. Account should be taken of its potential. It is clear that the web is not enough to ensure greater democratization, but it is equally clear that a growth in democracy can no longer omit from consideration technology and more direct involvement of the people. The traditional instruments of representative democracy are no longer enough; we must renew democracy also through information technology.

45 46

47

G. Parolin, Il Referendum in Egitto tra Rivoluzione e Riconfigurazione, 16(4) Diritto Pubblico Comparato ed Europeo 2014. R. Smend, Das Recht der freien Meinungsausserung, Munich, Verhandlungen der Tagung der Deutschen Staatsrechtslehrer, 1927, Berlin-Leipzig, De Gruyter, 1928, 50. Some years before, however, G. Jellinek, Verfassungsänderung und Verfassungswandlung, supra n. 15, 71 ff., had argued that the press, political parties, organizations, and direct democracy are the instruments which allow a progressive democratization of society outside of the halls of Parliament. See S. Fois, Principi costituzionali e libera manifestazione del pensiero, Milan, Giuffrè, 1957, 60 ff., according to whom a “privileged” position was recognized for the freedom of the expression on political matters, as it was necessary for the democratic development and life of the political community; C. Esposito, La libertà di manifestazione del pensiero nell’ordinamento italiano, Milano, Giuffrè, 1958, reprinted in Diritto costituzionale vivente: capo dello Stato ed altri saggi (D. Nocilla, ed.), Milano, 1992, 124, insisting on the individual character of freedom of expression, and arguing that it “is undeniably useful to the development of democratic life”; P. Barile, Libertà di manifestazione del pensiero, Milano, Giuffrè, 1975, 10 ff.; C. Mortati, Istituzioni di diritto pubblico, Vol. II, 9th ed., Padua, Cedam, 1976, 1066 ff.; A. Di Giovine, I confini della libertà di manifestazione del pensiero, Milano, Giuffrè, 1988, examining the limits of the liberty of expression from the point of view of “crimes of opinion”; G. Cordini, Società dell’informazione e diritti costituzionali, supra n. 44; A. Valastro, Art. 21, in R. Bifulco, A. Celotto & M. Olivetti, La Costituzione Italiana, Principi fondamentali. Diritti e doveri dei cittadini Commento agli artt. 1-54, Turin, UTET, 2007, 454; G. Rolla, La tutela costituzionale dei diritti, supra n. 22, 73.

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The Historical Evolution of Direct Democracy

The need to ensure greater participation in the decision-making process, not only through the Internet, is very strong today.48 The explosion of direct democracy has occurred and continues to develop in the most varied ways. For example, the uprising in Ecuador in 2005 against the government broke out in the wake of the protests that had spread among the population not through the Internet, but through the radio.49 In some countries, a legal instrument like Public Interest Litigation has been assimilated to a form of direct democracy, created by citizens with the help of the judiciary.50 As freedom of expression was considered essential to democracy, we can therefore say that today the Internet is becoming necessary to accommodate the need for greater participation, which it makes easier, but not always and only by itself. Faced with the variety and complexity of the forms that direct democracy takes today, we must pay attention first to the main stages in which it has historically evolved, and then consider at greater length the systems currently in place in different countries. The first chapter provides historical background. Two chapters devoted to Europe and to the Americas, where direct democracy is most developed, follow it. The analysis of the different forms that direct democracy has historically taken and those that characterize contemporary systems should allow a more balanced judgment for or against direct democracy, both in general and in specific contexts.

1.1.4

The Origins of Direct Democracy: From Antiquity to the Swiss Cantons

Among the numerous examples of direct democracy throughout history, we should take account above all of Athenian democracy, where, following the reforms of Cleisthenes, the supreme deliberative body was the Assembly (the ecclesia). The Assembly met at the Pnyx, a hill forming a natural amphitheatre in downtown Athens that could hold about 6,000 people. All adult male citizens had the right to speak when the Assembly deliberated.51 This system of government developed in the city-state, which was of small territorial extent, thus facilitating “the ties of life in common and the intimacy of relations between the members of the community […] [so that] individuals identified closely with their 48 49 50 51

For a discussion of the complex process of transition to the establishment of a participatory politics in South Africa, see V. Federico, Citoyenneté et participation politique en Afrique du Sud, Paris, L’Harmattan, 2012. See S. Bagni, La partecipazione popolare in Ecuador, 16(4) Diritto Pubblico Comparato ed Europeo 2014. See M. Caielli, Public Interest Litigation: A Form of Popular Legislative Initiative?, 16(4) Diritto Pubblico Comparato ed Europeo 2014. See G. Daverio Rocchi, Città-Stato e Stati federali della Grecia classica. Lineamenti di storia delle istituzioni politiche, Milano, Edizioni Universitarie di Lettere Economia Diritto, 1993, 255 ff.; G. Glotz, La città greca, Turin, Einaudi, 1948, 185; V. Ehrenberg, Der Staat der Griechen, 1967 (Italian translation: Lo stato dei Greci, Florence, La Nuova Italia, 1980, 82 ff.); D. Stockton, The classical Athenian Democracy, 1990 (Italian tanslation: La democrazia ateniese, Milano, Rizzoli, 1993, 77 ff.); W. Schuller, Die Polis als Staat, in M.H. Hansen (ed.), The Ancient Greek City-State, Copenhagen, The Royal Danish Academy of Sciences and Letters, 1993, 106 ff., especially at 119 ff.

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Direct Democracy in Comparative Law city”.52 As has been noted,53 to paraphrase the famous saying of Louis XIV of France (“L’ État c’est moi”), Greek citizens might have said, “the polis is us”. According to Aristotle, however, the worst form of democracy […] is that of the cities with large number of inhabitants, who are the easy prey of demagogues who manipulate the law by reducing it to the mere whim of the crowd [which, crowded into the popular Assembly, they just bend in whatever way that pleases them].54 In ancient Rome plebi scitum referred to the decisions (scitum, from sciscere) made by the Plebian assembly, which were then binding on its members.55 In the ancient Germanic communities, decisions were made unanimously by acclamation.56 It is precisely in this way that in Switzerland, the home of direct democracy, that the Landesgemeinde developed as sovereign annual assemblies of all free men of the community, who would gather to decide most important matters. Among the first of these that we know about is that of the canton of Schwyz in 1294, and then, from the beginning of the fourteenth century, the rural German-speaking cantons. In the city cantons like Berne and Zurich, however, power was exercised by a nobleman, a bishop, or a small council, but the popular assembly was consulted to give its assent in accordance with a practice which ended absolutist patrician rule in the seventeenth century. The term referendum began to be used in the fifteenth century, when the decisions of the diets were normally subject to ratification by the local communities: they were adopted ad referendum. In the eighteenth century, in a period of moderate absolutism, revolutionary attempts to return to democratic traditions were thwarted. During the French occupation of 1802, the first national referendum was held: a vote to approve the constitution imposed by Napoleon. There were 72,500 in favour of the

52

53 54 55

56

J.J. Chevallier, Histoire de la pensée politique. Tome I – De la Cité-Etat à l’apogée de l’Etat-Nation monarchique, Paris, Payot, 1979 (Italian translation: Storia del pensiero politico. Vol. I. Dalla città-stato all’apogeo dello Stato monarchico, Bologna, Il Mulino, 1981, 23). See also. W. Schuller, Die Polis als Staat, supra n. 51, 108 ff.. M.H. Hansen, Introduction. The Polis as a Citizen-State, in M.H. Hansen (ed.), The Ancient Greek CityState, supra n. 51, 10 ff. J.J. Chevallier, Storia del pensiero politico, supra n. 52, 163. T. Mommsen, Le droit public romain, VI, I part, E. Paris, Thorin, 1889, 168; R. Orestano, I fatti di normazione nell’esperienza romana arcaica, Turin, Giappichelli, 1967, 268 ff.; V. Arangio-Ruiz & T. Marchi, Plebiscito, in Enciclopedia Italiana, 1935, available at www.treccani.it/enciclopedia/plebiscito_(Enciclopedia-Italiana)/; P.P. Zamorani, II plebiscito ne quis eundem magistratum intra decem annos caperet e il divieto di reficere consulem, in Ann. Univ. Ferrara, Sc. giur., Nuova Serie, Vol. IV (1990); J.M. Denquin, Référendum et plébiscite, supra n. 9, 1 ff. G. Jellinek, Das Recht der Minoritäten, Vienna, Hölder, 1898, 2.

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constitution and 92,500 votes against, but the 167,000 abstentions were counted as favourable votes, so the constitution was deemed approved. In 1830, a liberal rebirth began. Many cantonal constitutions introduced the constitutional referendum. In four cantons, a very complex procedure, which allowed the voters to exercise a veto power on the laws was established. During a period of few weeks after the approval of a law by the Grand Council, a certain percentage of citizens could request the convening of a General Assembly; the law did not enter into force if the votes against it attained an absolute majority of those entitled to vote. In 1848, the referendum was introduced into Federal and cantonal constitutions. The scope of the referendum was greatly expanded with the Federal constitutional revision of 1874 and further modified in subsequent constitutional revisions.57

1.2

The Period of Democratic Revolutions and the Nineteenth Century in France and the United States

During and in the wake of the French Revolution and of the American War of Independence (which the Americans call the American Revolution), both societies, the French and the American, had to establish a new system of government based on new political ideas. The system of government, which existed previously in both countries, as well as the ideas on which that system was based, had been completely discredited. A common principle emerged in both countries as the basis for the reconceptualization and reconstruction of the government: national sovereignty resides in the people (instead of in the king in the case of France or in the king and the English parliament in the case of America). The problem that thus arose was how to express and put into practice sovereignty so conceived by means of governmental institutions. For both the French and the Americans this was not a theoretical problem, a problem of political science, but rather a problem, which had to be resolved in the crucible of a society which had lost its traditional political roots and was experiencing a period of disorder and uncertainty. So the stakes were high to develop 57

On the evolution of the instruments of direct democracy in Switzerland, see A. V. Dicey, Ought the Referendum, supra n. 14, 490 ff.; K.W. Kobach, Switzerland, in D. Butler & A. Ranney (eds.), Referendums around the world, supra n. 9, 99 ff.; A. Auer, L’esperienza del referendum in Svizzera e negli Stati Uniti, in M. Luciani & M. Volpi (eds.), Referendum. Problemi teorici ed esperienze costituzionali, Bari, Laterza, 1992, 68 ff.; M. Suksi, Bringing in the People, supra n. 22, 47 ff.; H. Kriesi, La lunga e complessa vicenda della Confederazione elvetica, in M. Caciagli & P.V. Uleri (eds.), Democrazie e referendum, supra n. 9, 63 ff.; G.M. Salerno, Referendum, supra n. 25, 205 ff.; E. Grisel, Initiative et referendum populaires. Traité de la démocratie semi-directe en droit suisse, 3rd ed., Berne, Stæmpfli, 2004, 45 ff.; M.P. Viviani Schlein, Uno strumento insostituibile per la democrazia semidiretta elvetica: il referendum, 7 Diritto Pubblico Comparato ed Europeo (2005), 1368. On the conception of democracy in Switzerland, see A. Auer, Problèmes fondamentaux de la démocratie suisse (1984), II, 1 ff.; P. Macchia, La democrazia semi-diretta: il caso della Svizzera, 4 Diritto Pubblico Comparato ed Europeo (2014), 16. See also A. Christmann, Die Grenzen direkter Demokratie. Volksentscheide im Spannungsverhältnis von Demokratie und Rechtsstaat, Baden-Baden, Nomos, 2012.

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a theory of government and the means for putting it into practice. It was in this context that French and American theorists and political leaders confronted the problem of the sovereignty of the people. It was critical that these two societies resolved these questions in ways that were acceptable to most of the people, in order to establish a foundation for the legitimacy of the political and governmental regime. Without legitimacy, any regime would have been unstable and transitory and the political chaos, unleashed by the revolution, would have continued to reign. The problem of putting into practice of the sovereignty of the people after overturning the previous regime was much more difficult in France, where the role of the people in public affairs had never been accepted. On the contrary, in the fledgling United States the people at the level of the individual colonies and towns were already playing an important role in many decisions that concerned them. In addition, the economic and social structure of American society, as well as its cultural and religious orientation, was more favourable to an important role for the people. According to Patrice Higgonet: Both revolutions stood for popular sovereignty, nationalism, the rights of man, no taxation without representation, Republicanism, and suspicion of established religion. […] [But] prerevolutionary France was a social and ideological inversion of the thirteen colonies.58 It will be these social and ideological conditions that will have a decisive effect on the development of the concept of democracy and its practical implementation in France and the United States. We will consider them in detail in our discussion below of Alexis de Tocqueville’s Democracy in America. In this section, we will see how these two societies conceived of the idea of direct democracy and the institutions to put it into practice. These ideas and institutions still exercise today an important influence on the political thought and the governmental institutions in both countries. We will begin with the United States, because the American experience in question (the American Revolution, the drafting and adoption of the constitutions of the individual states, of the Articles of Confederation, and of the Constitution of the United States) preceded the analogous events, which occurred in France and exercised an important influence on them.

58

P. Higgonet, Sister Republics: The Origins of French and American Republicanism, Cambridge, Massachusetts, 1988, 1, 5. Cfr. P. Raynaud, ‘Révolution américaine’, F. Furet & M. Ozouf, Dictionnaire critique de la Révolutiomn française: Idées, Paris, 1992, 437-455; J. Livesey, Making Democracy in the French Revolution, Cambridge, Massachusetts, 2001, 1-47 (for France); G. Wood, The Radicalism of the American Revolution, New York, 1991, 95-109 (for the United States).

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1.2.1

The Historical Evolution of Direct Democracy

The United States

In his famous Gettysburg Address of 1863, President Abraham Lincoln uttered the most well-known description of democracy: “a government of the people, by the people, and for the people.”59 As one American political scientist commented: “Government by the people represents the maximum, as government for the people represents the minimum of the democratic process.”60 Was the government of the United States in Lincoln’s time, or ever, a true democracy in any sense of that word? And what was the role that direct democracy (“government by the people”) played in the United States in the past and what role does it play today? That great observer of American democracy, the Frenchmen Alexis de Tocqueville, tells us that we must return to the “point of departure” to understand the present: Every people bears the mark of its origins. The circumstances that surround its birth and aid its development also influence the subsequent course of its existence. […] America is the only country in which it has been possible to witness the natural and tranquil course of a society’s development and to pinpoint the influence of a state’s point of departure on its future.61 Tocqueville was “firmly convinced of the following truth: that there is not a single opinion, habit, or law, […] which the point of departure cannot readily explain”.62 The point of departure for the United States is not simple; on the contrary, it is quite complex. During the seventeenth century, twelve English colonies were established on the east coast of the North American continent. A thirteenth, Georgia, was established in 1732. During the eighteenth and nineteenth centuries, the thirteen former English colonies, which had become the United States of America, expanded west to the Pacific Ocean and south to the Gulf of Mexico. The thirteen original colonies eventually became fifty states (including the two non-contiguous states of Alaska and Hawaii). At the beginning, the

59

60 61 62

Abraham Lincoln, Getttysburg Address. It is interesting to note that the Constitution of the United States does not contain the word ‘democracy’, in contrast to modern constitutions, like the Constitution of France (Art. 1), the Constitution of Germany (Art. 20), the Constitution of Italy (Art. 1), and the Constitution of Spain (Art. 1). See also French Constitution, Art. 2 (“The principle of the Republic shall be: government of the people, by the people and for the people.”) This language in Art. 2 derives directly from Lincoln’s Gettysburg Address. René Chiroux, Article 2, in François Luchaire, Gérard Conac & Xavier Prétot (eds.), La Constitution de la République française: Analyses et commentaires, 3rd ed., Paris, Economica, 2009, 176177. T. V. Smith, The Voice of the People, in Annals of the American Academy of Political Science, Vol. 169 (Sept. 1933), 109. Alexis de Tocqueville, Democracy in America (1835), Vol. I (Arthur Goldhammer, trans.), New York, The Library of America, 2004, 31-32. Id., 33.

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New England colonies (Massachusetts, Connecticut, Rhode Island, and New Hampshire) were vastly different from the southern colonies (Virginia, North Carolina, South Carolina, and Georgia). And the Mid-Atlantic colonies (New York, Pennsylvania, New Jersey, Maryland, and Delaware) were different from both the New England and the southern colonies. Later, the United States expanded to embrace the entire North American continent north of the Rio Grande River and south of what is today Canada. While some of this newly acquired area (which later was divided and entered the union as separate states) was settled by people coming from the New England and the Mid-Atlantic colonies and some by settlers from the southern colonies, vast portions of the western part of the United States, because of their past history as Spanish and later Mexican dominated areas, their remoteness from the original states, and the conditions of life there, developed their own traditions and practices of government. Furthermore, as these western areas were colonized by American settlers much later than the colonial period, many only in the second half of the nineteenth century, social and political institutions there were less developed and entrenched. The New England colonies were established principally by religious dissidents from England for elevated moral and religious purposes. For the most part the early settlers in New England came from middle class economic backgrounds and were well educated. Women and children made up a substantial portion of the population. The colonists sought to create permanent communities, where individuals and families could live morally fulfilling lives. The southern colonies were established principally to exploit the natural resources of the region, as the soil and climate there were propitious for agriculture. They attracted colonists whose primary motivations were economic, including many speculators. The mid-Atlantic colonies were established for a variety of reasons and had more religious, ethnic, and economic diversity than the colonies to the north or the south. The major commercial and financial centres of Philadelphia, New York, and Baltimore were located in this region. During the eighteenth and early nineteenth centuries the southern colonies, where large-scale agriculture predominated, came to rely heavily on slave labour and southern society assumed a stratified, aristocratic character. New England and the midAtlantic colonies were more commercially oriented and agriculture was on a smaller scale. Slavery never took root in these regions (except in the small border states of Maryland and Delaware). Alexis de Tocqueville devoted special attention in Democracy in America to describing the different “points of departure” of the northern and the southern colonies.63 As a result of these differences, we would expect to see very different attitudes towards the broad participation of the people in government. Later, when the areas of the west and the

63

Id.

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The Historical Evolution of Direct Democracy

centre of the country were colonized, different conditions and needs there64 would also lead to different ways of thinking about the participation of the people in government in these regions. Just like its people, the political ideas and cultures of the United States vary greatly from region to region and from state to state, although there are also certain common values and reference points. As for direct democracy, one can find examples of its acceptance and practice scattered throughout the country, principally at the local level, to a lesser degree at the state level, but not at all at the national level. 1.2.1.1 The American Colonies In the seventeenth century when the American colonies were first established by settlers from Europe, democracy as a form of government did not exist in Europe or in the colonies and in fact was regarded in a negative light. It was seen as the rule of the mob. Monarchy was almost universal, and society and the economy were organized along feudal and aristocratic lines. Given the material and social conditions of settlement in the New World, however, as well as the remoteness of the colonies from England and continental Europe, self-governance and the relatively broad participation of people in government took firm root there. The American Revolution, which began in 1775 and whose successful conclusion in 1783 marked the end of the colonial period, was not only a war of independence from Great Britain, but also a political and social revolution in the colonies. Demands for increased participation of the people in government were prominent, and they were realized to a great degree.65 When one thinks of democracy during the colonial period in America, one thinks primarily of the Mayflower Compact and the New England town meeting, both of which still furnish idealized models of direct democracy. The jury trial, another vehicle for the direct participation of Americans in public decisions and an institution which still has great symbolic importance today, also took root in American during the colonial period. In 1620 a group of religious dissidents from England, the Pilgrims, arrived in the New World. They had obtained a grant from the Virginia Company which was valid only for settlement on lands in the area of what is now New York State. Their vessel, however, went off course and made landfall far to the north, in what is now the state of Massachusetts. To deal with this change in the place where they would now have to establish their settlement, which also deprived them of legal authorization and a legal structure for governing

64

65

See generally Colin Woodard, American Nations: A History of the Eleven Rival Regional Cultures of North America, New York, Penguin Books, 2011. See also Daniel Berkowitz & Karen B. Clay, The Evolution of a Nation: How Geography and Law Shaped the American States, Princeton, N.J., Princeton University Press, 2012 (addressing the question: “What drives differences in political and legal institutions across countries?,” 1; and concluding that “initial conditions played early and enduring roles in shaping political and legal institutions in the American states,” 12). See generally Gordon S. Wood, The Radicalism of the American Revolution, New York, Vintage Books, 1993.

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themselves, the Pilgrims drafted and signed a document which today is known as the Mayflower Compact. That document reads: IN THE NAME OF GOD, AMEN. We, whose names are underwritten, the Loyal Subjects of our dread Sovereign Lord King James, by the Grace of God, of Great Britain, France, and Ireland, King, Defender of the Faith, &c. Having undertaken for the Glory of God, and Advancement of the Christian Faith, and the Honour of our King and Country, a Voyage to plant the first Colony in the northern Parts of Virginia; Do by these Presents, solemnly and mutually, in the Presence of God and one another, covenant and combine ourselves together into a civil Body Politick, for our better Ordering and Preservation, and Furtherance of the Ends aforesaid: And by Virtue hereof do enact, constitute, and frame, such just and equal Laws, Ordinances, Acts, Constitutions, and Officers, from time to time, as shall be thought most meet and convenient for the general Good of the Colony; unto which we promise all due Submission and Obedience. IN WITNESS whereof we have hereunto subscribed our names at Cape-Cod the eleventh of November, in the Reign of our Sovereign Lord King James, of England, France, and Ireland, the eighteenth, and of Scotland the fifty-fourth, Anno Domini; 1620. The Mayflower Compact has long occupied an important place in American thinking about government and the participation of the people. Although all the passengers on the Mayflower were not permitted to sign the document (women and almost all indentured servants were not included), it represents a close approximation of a social contract – the voluntary engagement of the members of a social group to establish a political community and to submit themselves to the laws enacted by it. Similar constitutive acts were undertaken elsewhere in the American colonies during the early colonial period.66 After signing the document, the Pilgrims selected their governor. The governor, aided later by five Assistants, was charged with managing the affairs of the colony. The governor did not have the power to make laws. Only the General Court, which included all free men, had the power to adopt general laws. The first complete body of laws was promulgated in 1636. When the colony became larger to include more towns, a representative government was established. All free men now met in their town and elected representatives to participate and to vote in the General Court in their place. Thus direct democracy soon became

66

See, e.g., Agreement of the Settlers at Exeter in New Hampshire (1639); Fundamental Agreement, or Original Constitution of the Colony of New Haven, (1639); The Combination of the Inhabitants Upon the Piscataqua River for Government (1641). Available at http://avalon.law.yale.edu/subject_menus/17th.asp.

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representative democracy in colonial Massachusetts at the colony-wide level, but it still persisted at the town level. A second colony was established in the future state of Massachusetts in 1630 by the Puritans, another group of religious refugees from England. Their principal city became the modern city of Boston. The leader of this colony was John Winthrop, who governed with the assistance of a council. Although the government of the colony was representative, and in principle had the power to make laws and to impose taxes without the consent of the people, in practice the consent of the people, or at least their acquiescence, was necessary to actually effectuate the government’s will. Moreover, at the local level, the mayor and other town officials did not have the power to approve laws or to impose taxes without the consent of the people. These powers were exercised by the institution of the New England town meeting. One historian of the American colonial period has characterized the Puritan colony as ‘proto-democratic’.67 Indicative of the importance of the town meeting in colonial New England was the widespread resistance when the governor of the short-lived Dominion of New England (a confederation of the New England colonies created by the British that existed from 1686 to 1689) sought to severely limit the role of the town meeting in local governance. The colonial government of the Puritans closely overlapped the established church. As religious dissidents, the Puritans rejected the hierarchical organization that characterized both the Catholic and Anglican churches. According to the historian Joshua Miller, The Puritans developed an alternative theory of church organization that gave power to the members of small, largely autonomous, congregations. […] [T]he Puritans planted the seeds for the more egalitarian movements of the eighteenth century.68 Local control over religions matters, which occupied a large place in early Puritan settlements, inculcated attitudes which carried over to secular governance. The story in the first English colony in the south, Virginia, was quite different. Soon after its settlement in 1607, slavery was introduced. As Tocqueville remarks: This capital fact was to exert an immense influence on the character, laws, and entire future of the South. Slavery […] dishonors labor. It introduces idleness

67

68

Joshua Miller, The Rise and Fall of Democracy in Early America, 1630-1789: The Legacy for Contemporary Politics, University Park, Pennsylvania, Pennsylvania State University Press, 1991, 30. According to one historian, “And New England people value their inheritance [of the town meeting] with an independent satisfaction. They, of all Americans, are closest to Democracy.” John Gould, New England Town Meeting: Safeguard of Democracy, Brattleboro, Vermont, Stephen Daye Press, 1940, 59. Id., 8.

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into society, and with it, ignorance and pride, poverty and luxury. It saps the powers of the mind and lulls human activity to sleep.69 The consequences of slavery were to lead to social and political inequality that was inimical to the broad participation of citizens in government, even at the local level. Colonial Americans also sought to inject broad citizen participation into the judicial process through the institution of the jury trial. A heritage from England, the jury trial assumed enormous symbolic and practical importance during the colonial period, its prominence increasing as the Revolution approached. Alexis de Tocqueville recognized that “the jury is first and foremost a political institution and must always be judged as such”.70 “By enabling the colonists to resist British imperial policy, the jury came to be associated with representative government.”71 Highly publicized jury trials during the colonial period in which juries protected Americans from the perceived injustice of British law and its application in the courts became symbols of personal liberty.72 One of the specific grievances of the colonists against the King of Great Britain mentioned in the Declaration of Independence was “depriving us, in many cases, of the benefits of trial by jury”. The Constitution recognizes the right to a trial by jury (Article III, Section 2)73 as does the Bill of Rights (Sixth Amendment—right to trial by jury in criminal cases; Seventh Amendment—right to trial by jury in civil cases). The jury, as it developed during the colonial period, did not just determine the facts of the case: it also had the power to decide and to apply the law in both civil and criminal cases. The jury could thus decide not to apply a law with which it disagreed (a practice which is called “jury nullification”).74

69 70 71 72

73

74

Alexis de Tocqueville, Democracy in America, supra, n. 3, 35. Id., 313.See also id., 311-318, for Tocqueville’s discussion of the jury. John H. Langbein, Renée Lettow Lerner & Bruce P. Smith, History of the Common Law: The Development of Anglo-American Legal Institutions, New York, Wolters Kluwer, 2009, 474. See, e.g., James Alexander, A Brief Narrative of the Case and Trial of John Peter Zenger Printer of the New York Weekly Journal (1735), S. Katz, ed., Cambridge, Mass., Harvard University Press, 1963; Erving v. Craddock, in Quincy’s Reports (1761), 553. Alexander Hamilton recognizes the importance of the jury trial in Federalist No. 83, in Alexander Hamilton, James Madison & John Jay, The Federalist Papers (1787-1788) (Clinton Rossiter, ed.), New York, New American Library, 1999, 494-509. See William B. Nelson, The Lawfinding Power of Colonial American Juries, 71 Ohio State L. J. (2010), 1003; Renée B. Lettow, New Trial for Verdict Against Law: Judge/Jury Relations in Early Nineteenth-Century America, 71 Notre Dame L. Rev. (1996), 505; Deirdre A. Harris, Jury Nullification in Historical Perspective: Massachusetts as a Case Study, 12 Suffolk L. Rev. (1978), 968.

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1.2.1.2

The Revolutionary Period: Declaration of Independence, State Constitutions, Articles of Confederation, the Federalist Papers, and the United States Constitution The revolutionary period and its aftermath ran from about 176375 until the ratification of the Constitution in 1788. During this time, opposition to English rule grew in the colonies, the colonies developed institutions to enable them to cooperate in promoting their common interests, they waged a successful war of independence against Great Britain, and they established a framework for a common government based on a written Constitution. During this formative period, ideas about governance were hotly debated and new governmental institutions and practices were put into place, often with great contention and political conflict. Out of the crucible of the founding and early development of the American Republic, ideas, institutions, and practices that would provide the context for future American thinking about democracy took shape. The Declaration of Independence of 1776 proclaimed that “all men are created equal”. While not then thought to be applicable to slaves or Native Americans, as if the Declaration really read “all [white] men are created equal”, it did recognize the equality of all those to whom it applied.76 The immediate purpose of the Declaration of Independence was to declare the independence of the colonies from Great Britain so as to allow them to act as sovereign legal entities under international law.77 The “all men are created equal” language must be interpreted in this light: it was most likely intended to assert the equality of the colonists and their English rulers and to allow the colonists to assert their rights as Englishmen. But ideas once launched often take on other meanings, and the ‘equality’ regarded as ‘self-evident’ by the drafters of the Declaration would, over time become a leitmotif of American political development. According to Gordon Wood, the foremost historian of the American Revolution: [Americans] became the first society in the modern world to bring ordinary people into the affairs of government—not just as voters but as actual rulers. The participation of the common people in government became the essence of American democracy, and the Revolution made it so.78

75

76 77 78

The Treaty of Paris of 1763 marked the end of the French and Indian War (which is the name given to the North American theatre of the Seven Years War). As a result of that war, Great Britain became the dominant power on the North American continent, defeating the French. Starting in 1763, Great Britain introduced new trade and taxation policies in its North American colonies, which the colonists regarded as oppressive and which ultimately led to a war of independence (the American Revolution) 12 years later. See Pauline Mayer, American Scripture: Making the Declaration of Independence, New York, Alfred A. Knopf, 1997. See David Armitrage, The Declaration of Independence and International Law, 59 William & Mary Q. (2002), 39. Gordon S. Wood, The Radicalism of the American Revolution, New York, Vintage Books, 1993, 243.

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The state constitutions adopted soon after the Declaration moved decidedly in a democratic direction to give legal expression to the egalitarian views regarding political participation that the severing of ties with Great Britain had aroused.79 For example, in the Pennsylvania constitution of 28 September, 1776, the office of governor was eliminated and replaced with an Executive Council of twelve members elected directly by a greatly enlarged body of voters. In most other states, the chief executive was to be elected by the legislature. In most states the power to appoint judges and other officials was vested in the legislature (sometimes in cooperation with the governor). As for the legislative power, it was seen as the repository of the sovereignty of the people. And most states greatly expanded the eligibility to vote and to serve in political office. The size of state legislative bodies was also greatly expanded and the redrawing of legislative district lines sought better balance in the number of voters in each district. At the national level the relations among the now independent states were governed by the Articles of Confederation, which were adopted in 1777, but did not enter into force until 1781. As their title makes clear, the Articles more resemble a confederation of independent states united for certain common purposes than a true national government. Article 2 provided: “Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.” And according to Article 3: The said States hereby severally enter into a firm league of friendship with each other, for their common defense, the security of their liberties, and their mutual and general welfare, binding themselves to assist each other, against all force offered to, or attacks made upon them, or any of them, on account of religion, sovereignty, trade, or any other pretense whatever. The Confederation lacked a central executive authority, the power to regulate commerce, and the power to tax. Each state, regardless of size, had one vote in the national Congress and decisions of the national Congress required a supermajority vote. Representatives of the states were not elected directly by the people, but were appointed by state legislatures. At the national level, then, democracy for the people was at best remote and indirect. At the state level, however, the situation was quite different. Rather than too little democracy, many people thought that there was too much. With most governmental functions (executive and judicial as well as legislative) concentrated in state legislative bodies and with broad voter participation in the election of state legislators, the voice of the people exercised dominant influence in governmental affairs in all areas. Legislation

79

See Gordon S. Wood, The Creation of the American Republic 1776-1787, Chapel Hill, N.C., University of North Carolina Press, 1969, 127-255.

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for the confiscation of property and for allowing repayment of debts with paper money, the appointment of judges by state legislatures and the continuing control exercised by legislatures over the judicial process (e.g., reversing or staying execution of judgments, prohibiting courts from exercising jurisdiction over cases involving the collection of debts, etc.), and a spate of legislation enacted at the behest of private individuals to redress their minor grievances, among other legislative actions, gave rise to the feeling among many people that, as Gordon Wood writes: “An excess of power in the people was leading not simply to licentiousness but to a new kind of tyranny, not by the traditional rulers, but by the people themselves […].”80 At first reform efforts had focused on the constitutions of the individual states, but by 1786 it had become apparent that those efforts were futile; the egalitarian and democratic tide at the state level was too strong.81 As a reaction to the disorders in the states, a convention was convened by the national Congress to meet in Philadelphia in May 1787 for the “sole purpose and express purpose of revising the amending the Articles of Confederation”. Despite their charge, the delegates undertook to draft a new constitution, which was eventually ratified by the states and entered into force as the Constitution of the United States. The national government created by the Constitution was far from democratic. In fact, as The Federalist Papers explain in detail and justify with reasoned argument, a principal purpose of the drafters of the Constitution was to put in place a governmental structure that would filter and contain the democratic forces of the body politic. The chief executive officer (the President) and the members of the upper house of the legislature (the Senate) are to be chosen indirectly, the president by an Electoral College and senators by state legislatures. Also, each state, no matter how large its population, would have two senators, and the Senate’s concurrence (along with that of the popularly elected lower house, the House of Representatives) would be necessary for the enactment of legislation. So states with small populations were in effect overrepresented in the national legislature and states with large populations were correspondingly underrepresented. The Constitution contained no provision at all for direct citizen participation in the legislative process. The Preamble to the Constitution says that “[w]e the People of the United States. […] do ordain and establish this Constitution for the United States of America”. The “People of the United States”, however, did not participate directly in the ratification of the Constitution, as Article VII of the draft constitution provided that “[t]he Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same”. The people of each state elected representatives to a special convention in each state that would debate and vote on the draft constitution. So, unlike the French Constitution of 1958, for example, there was no broadly participatory,

80 81

Id., 404. Id., 463-467.

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nationwide referendum on the adoption of the United States Constitution. Furthermore, according to Article V, amendments to the Constitution must be proposed by the national Congress (by a two-thirds vote in each house) and then approved by the three-fourths of the state legislatures or conventions in three-fourths of the states. Again, there is no direct role for the people in amendment process.82 The Federalist Papers, a series of 85 essays which appeared between October 1787 and August 1788 written by Alexander Hamilton and James Madison (with a few contributed by John Jay) for the purpose of urging the ratification of the Constitution in the key state of New York, seek to explain and to justify key features of the Constitution. The Federalist Papers are regarded today as perceptive and influential analyses of the American Constitution and the principles underlying its various dispositions. The Federalist Papers are frequently cited and quoted today as authority by the United States Supreme Court, constitutional scholars, and political scientists, as well as by journalists and commentators on contemporary constitutional questions and developments. The Federalist Papers make clear that the Constitution of the United States establishes a “republic” and not a “democracy”. In Federalist Paper No. 10, James Madison says that one of [t]he two great points of difference between a democracy and a republic [is]: […] delegation of the government, in the latter, to a small number of citizens elected by the rest; secondly, the greater number of citizens and the greater sphere of country over which the latter may be extended.83 Madison elaborates in Federalist Paper No.14: [I]n a democracy, the people meet and exercise the government in person; in a republic, they assemble and administer it by their representatives and agents. A democracy, consequently, must be confined to a small spot. A republic may be extended over a large region.84 In Federalist Papers Nos. 49 and 50, Madison forcefully argues against “appeals to the people themselves” in the case of encroachments by one branch of government on the prerogatives of another.

82

83 84

The Constitution provides for another way to amend the Constitution, but that method has never been utilized. The legislatures of two-thirds of the states may call upon Congress to call a convention for proposing amendments which would be valid if approved by the legislatures of three-fourths of the states. James Madison, Federalist Paper No. 10, in The Federalist Papers, op. cit., n. 15, 76. James Madison, Federalist Paper No. 14, in id., 95.

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As the people are the only legitimate foundation of power, […] it seems strictly consonant with republican theory to recur to the same original authority […] whenever one of the departments may commit encroachments on the chartered authorities of the others.85 But, Madison argues, frequent appeals to the people would deprive the constitutionally established government of “veneration” and would “disturb[] public tranquility by interesting too strongly the public passions”.86 Later, in Federalist No. 63, while discussing representative government, Madison expresses his strong approval of the principle of “the total exclusion of the people in their collective capacity” of any sharing in governmental power (emphasis in original).87 Reviewing the historical record and taking account of the political context in which the Constitution was drafted and ratified, present-day Supreme Court Justice Stephen Breyer sees the Constitution in another light. According to Justice Breyer “the original Constitution’s primary objective” was “to further[] active liberty [by] creating a form of government in which all citizens share the government’s authority, participating in the creation of public policy”.88 From this perspective, the intent of the Framers of the Constitution was to create a government that was as democratic as possible at that time, rather than to limit democracy itself. It is from this perspective that Breyer maintains that true spirit of the Constitution is democratic and that democratic principles and practices are to be extended to the greatest extent possible given the political realities of the time.89 Breyer’s views, however, find scant support in the historical record. There was strong opposition to the ratification of the Constitution. In fact, the Constitution was ratified by extremely close votes in the conventions of several key states (New York, 30-27; Virginia, 89-79; Massachusetts, 187-168). Objections to the draft Constitution were presented in newspaper articles and in speeches at state ratifying conventions by powerful political figures (like Patrick Henry of Virginia and George Clinton of New York) and numerous other writers and orators during the ratification period. The principal concerns of these opponents of the Constitution (Anti-Federalists, as they were called) 85 86 87 88

89

James Madison, Federalist Paper No. 49, in id., 310-311. Id., 311-312. James Madison, Federalist Paper No. 63, in id., 385. Stephen Breyer, Active Liberty: Interpreting Our Democratic Constitution, New York, Vintage Books, 2005, 33. See also Stephen Breyer, Making Our Democracy Work: A Judge’s View, New York, Alfred A. Knopf, 2010; Martin Rogoff, Le juge constitutionnel aux États-Unis (Review Essay based on Stephen Breyer, Making Our Democracy Work: A Judge’s View), in Jus Politicum, Vol. 6 (Oct. 2011) (available at http://juspoliticum.com/article/Stephen-Breyer-Making-Our-Democracy-Work-A-Judge-s-View-Alfred-A-KnopfNew-York-2010-270p-406.html). For a similar view, but based on the spirit of the Declaration of Independence, see Paul Krugman, E Pluribus Unum, in New York Times, July 4, 2013 (writing of ‘the enduring hold on our nation of the democratic ideal’).

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were that the government provided for by the draft Constitution was based on aristocratic and undemocratic principles, featured a strong executive power, and lacked provisions protecting fundamental rights. According to Gordon Wood: The Anti-Federalists lost the battle over the Constitution. But they did not lose the war over the kind of national government the United States would have for a good part, at least of the next century. Their popular understanding of American society and politics in the early Republic was too accurate and too powerful to be put down […] [T]he practical realities of American democratic life […] contradicted the Federalists’ classical republican dreams of establishing a government led by disinterested educated gentlemen.90 Shortly after the ratification of the Constitution, in 1791, it was amended to add a Bill of Rights, one of the principal demands of the Anti-Federalists. Furthermore, in the political struggles accompanying the establishment of the new republic, which lasted well into the nineteenth century, democratic forces, led by Thomas Jefferson (president from 18011809) and two of his close associates, James Madison (president from 1809-1817) and James Monroe (president from 1817-1825), assumed control of the federal government. It is significant that the Constitution did not concern itself with the organization or the operation of state or local government, except to guarantee (in Article IV, Section 4) “to every State in this Union a Republican Form of Government […]”.91 There are also certain prohibitions on what states may do (contained principally in Article I, Section 10), like entering into treaties, imposing import duties, entering into compacts with other states without the consent of Congress, etc. But for most part, states are free to organize their governmental institutions as they desire. To the extent that direct democracy exists in the United States, it is to be found at the state and local levels. 1.2.1.3 The ‘Revolution of 1800’ and ‘Jacksonian Democracy’ (1829-1841) For the 12 years following the adoption of the Constitution and the establishment of the new government (until 1801), the national government was controlled by the Federalist Party. In 1800, however, Thomas Jefferson, leader of the Republican Party, was elected president. Control of the legislative branch had already been moving in the Republican direction, and in the election of 1800 the Republican Party took control of both houses of Congress. As historian Joseph Ellis has argued: “One way of understanding the meaning

90 91

Gordon S. Wood, The Radicalism of the American Revolution, New York, Vintage Books, 1993, 259. The United States Supreme Court, however, has taken a narrow view of federal authority under this provision and has rejected the opportunity to interfere with political developments in the states to enforce it. See, e.g., Luther v. Borden, 48 U.S. (7 How.) 1 (1849).

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of Jeffersonian Democracy is to view it as the final phase of the American Revolution.”92 Professor Ellis explains that “colonial America was ruled by a small group of men […] from a few prominent families”.93 “The adoption of the Constitution, with its numerous restraints upon the politics and economic activities of the states, was an important victory for the American commercial community”94 over the interests of the great majority of the population, which was engaged in small scale agricultural pursuits.95 The Republican Party represented those elements of the population that favoured broader popular participation in the political process. According to Gordon Wood: Popular voting took on a significance that it had never quite had before, and the increased numbers of contested elections for both federal and state officials sent turnout of voters skyrocketing. […] At the same time, states that had not already done so began to expand the franchise by eliminating property qualifications or transforming the requirement into the mere paying of taxes.96 This was a period of “relentless democratization”.97 Although these developments did not advance direct democracy at either the federal or the state level, movement to expand democratic participation in government during the presidency of Thomas Jefferson (18011809) did move the country in a more democratic direction. That movement would be significantly accelerated during the presidencies of Andrew Jackson (1829-1837) and his successor Martin Van Buren (1837-1841). American politics settled down considerably after the election of Thomas Jefferson as president in 1800 until the mid-1820s. Jefferson, the former democratic firebrand, proved to be a pragmatic, centrist political figure as president.98 A broad consensus developed on many previously divisive views regarding the structure of public authority, especially after the War of 1812. The so-called ‘Era of Good Feelings’ lasted through most of the presidency of James Monroe (1817-1825). Triggered by a serious economic depression in 1819 (the 92 93 94 95 96 97 98

Richard E. Ellis, The Jeffersonian Crisis: Courts and Politics in the Young Republic, New York, Oxford University Press, 1971, 267. Id., 269. Id., 271. Id., 280. Gordon S. Wood, Empire of Liberty: A History of the Early Republic, 1789-1815, New York, Oxford University Press, 2009, 302. Id., 312. In his First Inaugural Address, Jefferson said: “Let us, then, fellow-citizens, unite with one heart and one mind. Let us restore to social intercourse that harmony and affection without which liberty and even life itself are but dreary things. And let us reflect that, having banished from our land that religious intolerance under which mankind so long bled and suffered, we have yet gained little if we countenance a political intolerance as despotic, as wicked, and capable of as bitter and bloody persecutions… . But every difference of opinion is not a difference of principle. We have called by different names brethren of the same principle. We are all Republicans, we are all Federalists.”

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Panic of 1819), the seemingly intractable problem of governmental structure in a nation half free and half slave (as exemplified by the crisis over Missouri statehood, which was resolved by the Missouri Compromise of 1820), and the highly suspect presidential election of 1824 (which losing candidate Andrew Jackson characterized as a “virtual coup d’état against the will of the electorate”99), a popular coalition developed under the leadership of Andrew Jackson which was to come to power in 1829. Central to Jackson’s leadership was his desire to give effect to the will of the majority, and in so doing to combat the influence of the moneyed and commercial elite. Jackson asserted the power and prerogatives of the presidential office, viewing the president as the embodiment of the popular will.100 Jacksonian democracy was […] a second American phase of that enduring struggle between the business community and the rest of society which is the guarantee of freedom in a liberal capitalist state.101 “The Jacksonians expanded the Jeffersonian focus on agriculture and small, independent proprietors to include the working classes and the control of industrialism.”102 They sought to extend political equality and economic opportunity to all, rather than limit it to a small elite. Emblematic of the Jacksonian approach to the economy were Jackson’s veto of an act of Congress to recharter the Bank of the United States in 1832 and the Supreme Court’s decision in the Charles River Bridge103 case in 1837. In a powerful veto message, drafted by Attorney Roger Taney, Jackson said: Many of our rich men have not been content with equal protection and equal benefits, but have besought us to make them richer by act of Congress. […] It is time to pause in our career to review our principles, and if possible revive that devoted patriotism and spirit of compromise which distinguished the sages of the Revolution and the fathers of our Union. If we can not at once, in justice to interests vested under improvident legislation, make our Government what it ought to be, we can at least take a stand against all new grants of monopolies and exclusive privileges, against any prostitution of our Government to the

99 100 101 102 103

Sean Wilentz, The Rise of American Democracy: Jefferson to Lincoln, New York, W.W. Norton & Co., 2005, 508. Jon Meacham, American Lion: Andrew Jackson in the White House, New York, Random House, 2009, 119120. Arthur M. Schlesinger, Jr., The Age of Jackson, Boston, Little, Brown & Co., 1945, 307. Id., 312. Proprietors of Charles River Bridge v. Proprietors of Warren Bridge Co., 36 U.S. (11 Pet.) 420 (1837) (reversing the decision of the Federalist dominated Supreme Court in Dartmouth College v. Woodward, 17 U.S. (4 Wheat.) 518 (1819)).

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advancement of the few at the expense of the many, and in favor of compromise and gradual reform in our code of laws and system of political economy.104 In the Charles River Bridge case, its opinion authored by Jackson’s appointee as Chief Justice, former Attorney General Roger Taney, the Court refused to protect a vested economic interest against a competing enterprise. The decision symbolized the opening of economic activity to all and, more broadly, the principle of equality of opportunity. The democratic, populist, egalitarian tradition of Jefferson and Jackson became a permanent fixture in American political culture. While often submerged, it would re-emerge as a powerful force in American politics from time to time to demand political and economic equality and a broader participation of the people in government. On the national level it would eventually lead to a number of constitutional amendments to extend the suffrage to former slaves (15th Amendment, 1870), to women (19th Amendment, 1920), and to everyone over 18 years of age (26th Amendment, 1971), to abolish the poll tax as a requirement for voting (24th Amendment, 1964), to require the direct election of United States Senators (17th Amendment, 1913), and to allow the citizens of the District of Columbia to vote in presidential elections (23rd Amendment, 1961), and to federal legislation to protect the right to vote (e.g., the Voting Rights Act of 1965 and the Help America Vote Act of 2002), and to regulate campaign financing in elections for federal office (e.g., the Federal Election Campaign Act of 1971 and 1974 amendments and the Bipartisan Campaign Reform Act of 2002). The United States Supreme Court has also made many important decisions to protect the right to vote based on the Constitution and federal laws. Direct democracy, however, never took root at the national level, although the JeffersonJackson attitude towards the participation of the people in government may be viewed as sympathetic to and supportive of that development should the demand for the direct participation in government arise. Given the historic and present realities of American politics, it is highly unlikely that direct democracy will ever be adopted at the national level. At the state level, however, calls for citizen participation in the adoption of state constitutions, amendments to state constitutions, and certain types of legislative enactments (like the location of state and county seats of government, the contraction of debts, and the formation of banking corporations) led to the submission of these and other constitutive and legislative decisions to the approval of voters in many states. Of the thirteen original states only two submitted their first constitutions to popular vote.105 Beginning in 1817 104 President Jackson’s Veto Message Regarding the Bank of the United States; July 10, 1832, available at http://avalon.law.yale.edu/19th_century/ajveto01.asp. 105 Ellis Paxson Oberholtzer, Law-Making by Popular Vote: Or, the American Referendum, 2 Annals of the American Academy of Political and Social Science 39 (1891). The two states that submitted their first constitution to popular ratification were Massachusetts and New Hampshire where the participation of the people in town meetings in the making of local laws was an old and important practice. Id. See also Ellis Paxson

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with Mississippi and followed soon after by Missouri in1820 and New York in1821, however, it became the common practice for a new state to adopt its first constitution or for an existing state to adopt a new constitution by direct popular vote. The practice of submission of constitutional amendments to direct popular vote soon followed. Considering that certain provisions of state constitutions or amendments to state constitutions were often legislative in character,106 requiring their approval by popular vote allowed the people to participate directly in the legislative process. For the most part, however, the people possessed only the power to react to legislative initiatives by approving or disapproving legislative enactments and constitutional amendments. They still lacked the power to initiate legislative action or constitutional amendment themselves. 1.2.1.4 The Progressive Movement While the Jeffersonian and Jacksonian periods and the democratic political culture they spawned are known for advances in democracy, those advances at the national level were entirely in representative democracy and to a limited form of voter participation in approving or disapproving constitutive or legislative acts at the state level. It was not until the Progressive Era (1890-1920) that direct democracy emerged as a truly significant factor in the United States. The period following end of the Civil War in the United States in 1865 until about 1900 is often called the Gilded Age. It was a period of enormous economic growth and rapid industrialization. Economic opportunity in the United States attracted millions of immigrants, mostly from Europe, but a substantial number from Asia, too, who sought work on the railroads and in factories and mines. Business and transportation enterprises (like the railroads) grew large, giving those enterprises enormous economic and political power, which those enterprises used to increase prices and to drive down wages much to the disadvantage of farmers and factory workers. Working conditions in factories and mines were often unsafe and unhealthy, and periodic economic downturns (like the Panic of 1873 and the Panic of 1893) proved catastrophic for large segments of the population. Workers sought to form labour organizations to represent their interests and to engage in collective action (like strikes), but these efforts were almost always successfully thwarted by the business community, very often relying on existing law and state and federal law enforcement authorities. Farmers, too, had grievances. They felt exploited

Oberholtzer, The Referendum in America: Together with Some Chapters on the Initiative and the Recall, New York, Charles Scribner’s Sons, (1900, revised ed., 1912). 106 According to Oberholtzer: “Matters which were once left to the legislature are now dealt with in the constitution. To illustrate, the following are now deemed suitable subject to the treated in State constitutions:—the prohibition or chartering of lotteries, the prohibition or regulation of the liquor traffic, the establishment of tax-rates, the founding and location of schools and asylums, regulations relating to the rights and duties of railroads and other corporations, and defining the relations of husbands and wives, and debtors and creditors, the establishment of a legal rate of interest, the salaries of public officials, etc., etc.” Id., 45. See also James Bryce, The American Commonwealth, Vol. 1, New York, McMillan & Co., 1893, 467-471.

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by the high prices charged by the railroads for transporting their crops to market and by the large scale, even monopolistic, enterprises that purchased their produce at what they considered to be unduly low prices. A political movement, called the Populist Movement, developed to represent the interests of these downtrodden and exploited groups, but it met with little success in its opposition to entrenched economic interests, which were strongly supported by urban political machines under the control of political bosses. The Progressive Movement, a reform movement which sought to advance political democracy, social democracy, and economic equality, followed. Unlike the Populist Movement, whose political base was organizations of farmers and wage earners, the Progressive Movement represented elements of the middle class, commercial and business communities, and intellectuals who were interested in ‘good government’, administrative efficiency, and enlightened social and economic policy. Leading Progressives at the national level were President Theodore Roosevelt (1900-1909) and President Woodrow Wilson (1913-1920) and a number of influential United States Senators. Although somewhat sceptical of direct democracy at first, the Progressive Movement eventually embraced it as a means of circumventing the political process at the state level which it viewed as corrupt, dysfunctional, and hostile to sound economic and social policy. In the latter part of the nineteenth century, the promotion of enterprise was largely in the hands of state legislatures, which granted corporate charters and other kinds of privileges to business enterprises. Farmers and wage workers had little hope for help from state legislative bodies, which were widely perceived to be corrupt and under the influence, if not the outright control, of moneyed interests. In reaction to the perceived unresponsiveness of state legislatures to the interests of wage earners and farmers, proposals were made to give the people the competence to initiate and/or approve or reject legislation.107 Although drawing inspiration from the practice of direct democracy in Switzerland, writers advocating the direct participation of voters in the legislative process through the initiative and referendum argued that direct legislation is not foreign to the United States. In the words of James W. Sullivan, writing in 1893: Since the settlement of New England [direct legislation’s] practice has been customary in the town meeting, an institution now gradually spreading through the western states—of recent years with increased rapidity. […] The institution does not have to be engrafted on this republic; it has but to develop naturally.108

107 See, e.g., J. W. Sullivan, Direct Legislation by the Citizenship through the Initiative and Referendum (1893), available at www.gutenberg.org/files/17751/17751-h/17751-h.htm. 108 Id., 30-31.

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Sullivan then goes on to cite an 1891 article that describes the practice of referendums at the state, city, county, and municipal levels109 and to point out that many labour organizations in the United States employ the initiative and referendum as part of their “governing machinery”.110 The publication of Sullivan’s book marked the beginning of serious efforts by reformers to adopt the initiative and referendum at the state level.111 The Englishman, James Bryce, a latter day Tocqueville, devoted a chapter in his two volume work The American Commonwealth to “Direct Legislation by the People”.112 While pointing out certain disadvantages of popular participation in the legislative process through the submission of constitutive or legislative measures to the vote of the people, Lord Bryce ultimately concludes that given the quality and corruptibility of state legislators at the time when he was writing, such participation is justified. In his words: It would nonetheless be better if good legislatures were attainable, to leave the enactment of what are really mere statutes to the legislature, instead of putting them in a Constitution. But if good legislatures are unattainable, if it is impossible to raise the Senate and the House of each State above the low level at which they now stand […] then the system of direct popular action may be justified as a salutary effort of the forces which make for good government, opening for themselves a new channel.113 With the support of the Progressive Movement and with groups representing farmers and wage workers leading advocacy and legislative efforts at the state level to promote direct democracy, 23 states adopted the initiative and referendum between 1898 and 1918.114 Between 1908 and 1933, 12 states adopted recall for state officials.115 In each of those states, says the author of a state-by-state study of the adoption of the initiative and referendum,

109 Id., 34. 110 Id., 36. 111 Thomas Goebel, A Government by the People: Direct Democracy in America, 1890-1940, Chapel Hill, N.C., University of North Carolina Press, 2002, 38. 112 James Bryce, The American Commonwealth, Vol. 1, New York, McMillan & Co., 1893, 463-476. 113 Id., 476. Lord Bryce devotes a subsequent chapter in The American Commonwealth, Vol. 1 to describing “the working of state governments” (528-548), in which he characterizes state legislatures as “not hightoned bodies” (539), where “the spirit of localism … completely rules” (544) He paints a depressing picture of the competence and venality of state legislators. See also Thomas E. Cronin, Direct Democracy: The Politics of Initiative, Referendum, and Recall, Cambridge, Mass., Harvard University Press, 1989, 54-59. 114 See Thomas E. Cronin, id., 51, for a list of these 23 states. 115 Oregon (1908), California (1911), Arizona (1912), Colorado (1912), Nevada (1912), Washington (1912), Michigan (1913), Kansas (1914), Louisiana (1914), North Dakota (1920), Wisconsin (1926), Idaho (1933). Id., 126.

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frustrated voters were eventually driven to conclude that they had become economically dependent and politically powerless. Convinced that their elected representatives had failed to respond to changes that affected their lives as taxpayers, citizens, workers, or farmers, and that they had allowed a disproportionate share of political power to be held by special interests, voters concluded that the nature of political participation would have to be redefined. If the political economy was to be fundamentally changed and the spirit of the Declaration of Independence enacted, voters would have to be empowered.116 On the theoretical level, the intellectual spokesman of the Progressive Movement was Herbert Croly. In his book Progressive Democracy that appeared in 1914, he makes a strong and nuanced argument in favour of what he calls “direct government”.117 Croly regards advances in communication through newspapers and magazines as providing citizens with the information needed to make informed decisions.118 Thus, he writes, the democracy has at its disposal a mechanism of developing and exchanging opinions and of reaching decisions which is independent of representative assemblies, […] The adoption of the machinery of direct government is a legitimate expression of this change.119 But, according to Croly, direct democracy must be a complement to, and not a replacement for, representative government. “It must become one of a group of political institutions, whose object is fundamentally to invigorate and socialize the action of American public opinion.”120 Croly then quotes President Woodrow Wilson: If we felt we had genuine representative government in our state legislatures, no one would propose the initiative and referendum in the United States. Our most ardent and successful advocates regard them as a sobering means of obtaining genuine representative action on the part of legislative bodies.121

116 Steven L. Piott, Giving Voters a Voice: The Origins of the Initiative and Referendum in America, Columbia, Missouri, University of Missouri Press, 2003, 251-252. 117 Herbert Croly, Progressive Democracy, New York, The McMillan Co., 1914. See also Herbert Croly, The Promise of American Life, New York, The McMillan Co., 1910; Benjamin Parke DeWitt, The Progressive Movement, New York, General Books, 1915. 118 Herbert Croly, Progressive Democracy, id., 264. 119 Id., 265. 120 Id., 270. 121 Id., 273.

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Croly says that he is primarily concerned with “the permanent moral welfare of democracy”, rather than with “the accomplishment and maintenance of specific results”.122 Finally, Croly sees the relationship of direct government and representative government as “supplementary and mutually interdependent”.123 But he has concerns for the operation of direct government in practice. In states like Oregon, he says, which have taken the new instruments of popular legislation most seriously and used them most frequently, the effect has not been the reinvigoration of representative government but its increased debilitation.124 The initiative is a process by which citizens can propose a legislative measure (statutory initiative) or a constitutional amendment (constitutional initiative) by filing a petition bearing a required number of signatures of registered voters in the jurisdiction.125 The initiative may be direct or indirect. In the case of a direct initiative, the proposal submitted by petition is sent to the voters for their approval or disapproval; in the case of the indirect initiative, when enough signatures are obtained, the proposal first goes to the legislature which may approve, modify, or reject it.126 The referendum refers a proposed constitutional amendment or a proposed or existing law submitted to voters for their approval or rejection. A referendum may be initiated by the initiative process or may result from a constitutional provision that requires that certain matters (like constitutional amendments or certain types of legislative acts) be submitted to popular vote before they become effective. The first state to adopt the initiative and referendum was South Dakota, which did so by constitutional amendment in 1898. It was soon followed by Utah in 1900 and Oregon in 1902. Twenty other (mostly western states) adopted the initiative and referendum in the decade and a half that followed, including the populous state of California in 1911.127 Up to the year 1918, these mechanisms for direct voter participation were used most extensively and importantly in Oregon and California.128 The recall allows voters to remove a public official from office by filing a petition bearing a specified number of valid signatures demanding a vote on the official’s continued tenure in office. First adopted by the city of Los Angeles in 1903, the recall soon was adopted at the state level in a few other states (notably, Oregon in 1908 and in California in 1911). 122 123 124 125 126

Id., 281. Id., 284. Id., 284-285. Thomas E. Cronin, op. cit., n. 55, 2. David B. Magleby, Direct Legislation: Voting on Ballot Propositions in the United States, Baltimore, Johns Hopkins University Press, 1984, 35-36. 127 Three of these states (New Mexico, Kentucky, and Maryland) adopted the referendum only. 128 See state by state listing of recourse to the initiative and referendum in Steven Piott, op. cit., n. 58, 259-299.

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Of the six states which adopted direct democracy in the first decade of the twentieth century (Oregon, California, Arizona, Colorado, Nevada, and Washington), all but one (Washington) extended the recall to judges, who were often perceived as corrupt and as obstacles to social and economic progress. Of the six states which adopted the recall after 1912 (Michigan, Kansas, Louisiana, North Dakota, Wisconsin, and Idaho), however, only two (North Dakota and Wisconsin) included the judiciary.129 Although in principle American government is based on the sovereignty of the people, the Constitution, as we have already seen, establishes a republican form of government, not a democracy. The Constitution contains a provision (Article IV, Section 4) according to which “[t]he United States shall guarantee to every State in this Union a Republican Form of Government […]”. Challenges to the Oregon initiative and referendum on the grounds that direct legislation violated the Guarantee Clause were rejected by the Oregon counts and by the United States Supreme Court.130 The 23 states which adopted direct democracy reforms (initiative, referendum, recall) during the Progressive Era were overwhelmingly concentrated in the West.131 There were only a few states in the South (Arkansas, Mississippi, Oklahoma), Middle West (Michigan, Ohio), or East (Massachusetts, Maine) that did so.132 Professor Goebel offers a good explanation of these regional differences: Political parties in the western United States were relatively weak, lacked strong organizations characteristic of the parties in the East and South, could not control the political agenda, and were forced to ratify a set of reforms aimed at further crippling their power. In the East, direct democracy advocates faced much more resilient party organizations and were only victorious in special circumstances, […] In the South, finally, the conundrum of race relations and white efforts to disenfranchise the black population doomed the reformers from the start.133 How did direct democracy work in practice during its heyday during the Progressive Era? Direct democracy worked more to the advance of well-financed corporate interests and well-organized special interest groups who had the resources to gather petitions for measures favourable to them and to conduct campaigns and mobilize voters to obtain 129 Thomas Goebel, op. cit., n. 53, 65. 130 Pacific States Telephone and Telegraph Company v. Oregon, 223 U.S. 118 (1912). See generally Philippa Strum, The Supreme Court and “Political Questions”: A Study in Judicial Evasion, Tuscaloosa, Alabama, University of Alabama Press, 1974, 27-35. 131 Thomas Goebel, op. cit., n. 53, 70 132 Id. 133 Id. For a more detailed discussion of regional difference in the adoption of direct democracy, see id., pp. 91-109.

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their approval by referendum. As Professor Goebel writes: “Instead of enabling the people to overcome the resistance of corrupt and recalcitrant legislatures, direct democracy quickly emerged as a useful tool in the arsenal of interest group politics.”134 Speaking of the period before 1940, he says “[i]t became increasing clear that direct legislation favoured those who were already powerful and affluent”.135 With respect to enthusiasm for direct democracy, we can perhaps date the end of the Progressive period to 1922, with the publication of an enormously influential book entitled Public Opinion, by Walter Lippmann. In light of the complexity of modern society, especially the economy, Lippmann advocated reliance on experts for the management of public affairs. In his view, popular sovereignty and direct democracy were antithetical to that form of governmental operation. Later, during the 1930s, after the election of President Franklin Roosevelt and the adoption by Congress of his New Deal Program, interest in direct democracy declined significantly. Legislation at the national level addressed many of the concerns of farmers and wage earners, provided for the regulation of banks and securities markets, and established a social security system. It was not until the late 1960s and early 1970s that enthusiasm for direct democracy revived. 1.2.1.5 Direct Democracy in Oregon Oregon was the first state where direct democracy was seriously debated and implemented.136 In fact, during the Progressive Era direct democracy (the initiative, referendum, and recall) was called “the Oregon System”.137 The arguments and political tactics employed by Oregon proponents of direct democracy, the mechanisms for the implementation of direct democracy adopted in Oregon, and the measures enacted by Oregon voters after they could legislate directly had a significant influence on the development of direct democracy in other states during the Progressive Era. Inspired by J.W. Sullivan’s 1893 book Direct Legislation by Citizenship through the Initiative and Referendum, an Oregon lawyer, William U’Ren, organized a successful political effort, bringing together farmers’ and workers’ organizations and “good government” Progressives, to amend the Oregon constitution to authorize the initiative and referendum. During the 1880s and 1890s, Oregon politics had a national reputation for corruption and ineffectiveness. Emblematic of the legislature’s pettiness, venality and inability to govern was the 1897 legislative session, called the “Hold-up Legislature of 1897”. The legislature was not even able to convene that year because of intractable disagreements between 134 Thomas Goebel, id., 153. 135 Id., 154. 136 David Schuman, The Origin of State Constitutional Direct Democracy: William U’Ren and “The Oregon System,” 67 Temple Law Review 947 (1994), 948. See also David D. Schmidt, Citizen Lawmakers: The Ballot Initiative Revolution, Temple University Press, Philadelphia, 1989, 261-266. 137 See Allen H. Eaton, The Oregon System: The Story of Direct Legislation in Oregon, Chicago, A.C. McClurg & Co., 1912.

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contending factions, principally about the choice of a United States senator. Complaints about fraud, bribery, abuse of power, and misuse of public monies were common. It was widely perceived that Oregon legislators were beholden to big money special interests, like the railroads, utility companies, and other large corporate entities. At the same time, however, Oregon had a strong progressive and populist tradition. Farmers and industrial workers were well organized and acted as articulate spokesmen for the interests of their constituents. William U’Ren drew heavily on these organizations, which he brought together in the Direct Legislation League, which he founded, to conduct his campaign for direct democracy. In its 1899 session, the Oregon legislature voted to approve a constitutional amendment that authorized the initiative and referendum. In 1902 that amendment was submitted to the voters for their approval, which they did by a wide margin. The amendment added the following language to the sentence vesting the state’s legislative power in the legislative assembly: But the people reserve to themselves power to propose laws and amendments to the constitution, and to enact or reject the same at the polls, independent of the legislative assembly, and also reserve power at their own option to approve or reject at the polls any act of the legislative assembly.138 In the 12 years that followed, Oregon voters enacted a number of progressive statutes, including: giving women the right to vote; the popular election of United States senators; the establishment of a presidential primary; requiring the reapportionment of state legislative districts and federal congressional districts after the decennial census; imposition of taxes on railroads, utilities, communication, and oil companies; regulation of railroad freight rates; the authorization of a public university; an 8-hour day for workers on public works projects; a workers’ compensation system; self-government for municipalities with the initiative and referendum as part of that self-government; and the abolition of the death penalty. During this period there was a broad consensus on progressive measures: on the first twenty-six measures that might be called ‘progressive,’ the wealthy voted with the ‘laboring class’ 80% of the time; urban workers agreed with farmers 86% of the time; and city voters agreed with rural voters 94% of the time.139 138 Oregon Constitution, Art. IV, Sect. 1 (1902). The present Oregon Constitution contains detailed provisions defining, authorizing, and providing operational rules regarding both the initiative and referendum. Oregon Constitution, Art. IV, Sects. 2-6. 139 Dorothy O. Johansen & Charles M. Gates, Empire of the Columbia: A History of the Pacific Northwest, New York, Harper & Row, 1957, 435.

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This consensus soon broke down. Rather than employ the tools of direct democracy to reform the political process to make it more responsive to the popular will or to advance the cause of the economically disadvantaged and less powerful, direct democracy in Oregon, like in other state that adopted the initiative and referendum, came more and more to serve the interests of the wealthy and powerful. As we shall see later in our discussion of direct democracy today, Oregon has once more taken the lead in reforming the direct democracy system to minimize this effect.

1.2.2

France

The question of the direct participation of the people in political decision-making has a very controversial history in France and raises strong emotions. Even the methods of selecting their own representatives, including the highest executive officer, their powers, and the division of powers between them have been strongly contested over time. French attitudes towards the participation of the people have changed many times, as well as the way in which they have been expressed in law in a series of constitutions between 1789 and 1958,140 oscillating from broad participation in the legislative process (the Constitution of 1793) to broad participation in important political decisions that in realty consisted only in the pro forma approval of political leaders and their actions through plebiscites (Bonapartism). Moreover, during the revolutionary period and the nineteenth century there arose the fear of the direct insurrectional action of the people, the most extreme form of direct democracy. This history is important for the way in which the French view direct democracy today. 1.2.2.1 L’ancien Régime The period before the French Revolution of 1789 is called the ancien régime (the Old Regime). During this period the dominant theory of sovereignty was that it resided in the person of the king. It is necessary to understand that the conceptions of democracy developed before and after the Revolution are reactions to the theory of the ancien régime. The locus classicus of this conception is Jean Bodin’s Six Books of the Republic (1576). According to Bodin, sovereignty (supreme political authority, including the constituent power which the state may legitimately exercise) is indivisible and resides exclusively in the person of the king. Bodin was writing during the French wars of religion which were devastating the country at the time. The leaders and the theorists of the different factions claimed the right to resist a king whom they regarded as unjust or oppressive. Bodin believed that to recognize such a right was a recipe for civil war and anarchy. So his ideas 140 For all the constitutions of France from 1789 to today, see J. Godechot & H. Faupin, Les Constitutions de la France depuis 1789, Paris, 2006.

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that sovereignty was absolute, indivisible, and resided exclusively in the person of the king had as their purpose the unification and the pacification of the country. Politically, Bodin was a centrist, who rejected extremism. Given the situation of France at the time, the consolidation of power in the person of the legitimate king was the surest path to peace and order. The conception of sovereignty became still more absolute during the following century with the attribution to the king of not only temporal powers, but also spiritual powers, as expressed in the book La Politiqu tirée l’Écriture sainte of bishop Jean-Benigne Bossuet, written at the end of the seventeenth century (1679, published in 1709) during the reign of Louis XIV. The development of this conception of sovereignty coincided with the struggle between the monarchy and the Catholic Church for supremacy over the Church’s powerful organization in France and also with the problem posed by the existence of a substantial protestant minority. By including the spiritual power within the sovereign power of the king, the monarchy would be able to eliminate the legal basis for claims of these organizations for autonomy in certain situations, like the appointment of important ecclesiastical officials, the right to impose certain taxes, and the right to administer justice in certain cases. The claims of King Louis XIV therefore represent the continuation of the policy of consolidation of the internal powers of the country. In 1766, not long before the beginning of the Revolution, King Louis XV famously expressed the prevailing conception of sovereignty in the following terms: It is in my person alone that sovereign power resides […] and it is from me alone that my courts possess their existence; […] the entirety of that authority, which they exercise only in my name, resides only in me, and the use of which can never be turned against me; […] it is to me alone to whom legislative power belongs, without dependence or sharing; […] the entire public order issues from me; […] the rights and interests of the nation […] are necessarily united with mine and rest alone in my hands.141 According to Louis XVI in 1789: “The king is responsible only to God for the exercise of supreme power.”142 With sovereignty totally in the hands of the king, there was no role for the people in public affairs, except to the extent that it was accorded to them by the king. The system was therefore exactly the opposite of direct democracy.

141 Louis XV, Procès-verbal de la séance du Parlement de Paris du 3 mars 1766 dite «Séance de la Flagellation» (‘Flagellation’ Session), available at www.scribd.com/document/2529849/Flagellation-1766. 142 Id.

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1.2.2.2 Les Lumières: Montesquieu and Rousseau The eighteenth century in France was the age of the Enlightenment. During this century, no idea, institution, or traditional conception was exempt from study, criticism, and reconsideration. In the world of political ideas, the most important thinkers of the Enlightenment were Charles-Louis de Secondat, baron de La Brède et de Montesquieu and Jean-Jacques Rousseau. The ideas of these theorists established the foundations and the context of the political thought of the revolutionary period. Although the ideas of Rousseau were dominant during the revolutionary era, the ideas of Montesquieu were also important. In his book The Spirit of the Laws (1748), Montesquieu argued that the political constitution of a society depended on its social structure, above all on its moeurs (customs, usages, habits). From this perspective, political legitimacy might assume different forms, depending on the moeurs of the society. Although Montesquieu did not propose a democratic form of government, his ideas made possible the acceptance of that form of government if underlying social conditions required it. For example: as the social and economic conditions of the people in the society became more equal, political power could become more widely spread; but, there was also the possibility that it would become more concentrated in the hands of a single person. Montesquieu’s principal concern was the abuse of power, which would lead ultimately to tyranny. He was thinking of the reign of Louis XIV. It was of less importance how sovereignty was expressed. The essential thing was that no individual or government institution possessed complete power; power had to be divided into its components, and each of them had to belong to a different institution. Montesquieu described the English system of government, stressing the separation of powers between the legislative, executive, and the judicial branches of government.143 This division of powers would not only provide the basis for the organization of modern governments, but also would prepare the way for a more nuanced analysis of sovereignty and political power. Now each public power could be analyzed separately and perhaps derived from a different source or organized differently. Montesquieu also dealt with the question of representation, which he thought was clearly better than direct democracy. According to him: The great advantage of representatives is their capacity of discussing public affairs. For this the people collectively are extremely unfit, which is one of the chief inconveniences of democracy. It is not at all necessary that the representatives who have received a general instruction from their constituents should wait to be directed on each particular affair […]. One great fault there was in most of the ancient republics that the people had a right to active resolutions, 143 The Spirit of the Laws, Book XI, Chapter 6.

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such as require some execution, a thing of which they are absolutely incapable. They ought to have no share in the government but for the choosing of representatives, which is within their reach.144 It is perhaps ironic that the ideas of Montesquieu had more influence in the United States than in France during the revolutionary era. The ideas of Montesquieu were moderate, adapted to gradual change, ideas which could provide the technical basis for the structure of government. His ideas were not adapted for political mobilization for radical change in the social, political, and legal structure of society. That will be the role of Rousseau, who will give to the Revolution its vocabulary and it ways of thinking about law, the institutional structure of power, and the role of the people in governmental decision-making. The ideas of Rousseau were more important for their role in the destruction of the existing regime (l’ancien régime) than for their contribution to the construction of the regime that would replace it. In fact, the ideas of Rousseau made the construction of a stable political and regime more difficult during the revolutionary era because his ideas were a recipe continuous revolution. Rousseau was the most influential political thinker on the French conception of democracy, law, and the role of political institutions. Several of his principal ideas find direct expression in the Declaration of the Rights of Man and the Citizen of 1789, which is now an integral part of the Constitution of 1958, the present French constitution (e.g., Art. 1. “Men are born and remain free and equal in rights.” Art. 3. “The principal of all sovereignty lies primarily in the Nation. No corporate body, no individual may exercise any authority that does not expressly emanate from it.” Art. 6. “The law is the expression of the general will. All citizens have the right to take part, personally or through their representatives, in its making. It must be the same for all, whether it protects or punishes.”). In his book The Social Contract (1762), Rousseau completely inverts the ancien régime’s theory of sovereignty: according to him, sovereignty resides in the entire people, and the government (the king, e.g.) is simply the agent of the people, exercising only powers delegated by the people, to administer public affairs according to the law enacted by them. Rousseau rejects the idea of representation, writing that “sovereignty cannot be represented”.145 The people exercise sovereignty by means of its “expression of the general will”, which is “indivisible, inalienable, infallible, and illimitable”.146 All members of the political community participate equally in the determination of the content of the general will, which is then expressed in the law. To be the true expression

144 Ibidem. 145 The Social Contract, Book III, Chapter 15. 146 The Social Contract, Book II, Chapters 1-4.

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of the general will, the law must express the common interest of the community, not the interest of any particular group or individual. Rousseau is the patron saint of direct democracy. It is worth quoting a few extracts from his Social Contract: As soon as public service ceases to be the main concern of the citizens and they come to prefer to serve the state with their purse rather than their person, the state is already close to ruin. […] In a genuinely free state, the citizens do everything with their own hands and nothing by means of money; […] The better the state is constituted, the more does public business take precedence over private in the minds of the citizens.[…]. Sovereignty cannot be represented, for the same reason that it cannot be alienated; its essence is the general will, and will cannot be represented – either it is the general will or it is something else. Thus the people’s deputies are not and could not be its representatives; they are merely its agents, and they cannot decide anything finally. Any law which the people has not ratified in person is void, it is not law at all […]. Since the law is nothing other than a declaration of the general will, it is clear that there cannot be representation of the people in the legislative power; but there may and should be such representation in the executive power, which is only the instrument for applying the law. […]. The moment a people adopts representatives it is no longer free; it no longer exists.147 At its base, the mobilizing power of the theory of the general will and it popular success constitute the ardent expression of the majority of the French people for social and legal equality. Changes in economic conditions, in both urban and rural areas, made hierarchical organization of society, on both social and economic levels, less and less feasible. According to Bernard Manin: […] Rousseau’s work is, overall, a plea in favor of equality and hostility to the nobility and privilege as a specific phenomenon (a legally sanctioned social status of superiority). […]The anti-noble passion in its specific aspect (the hatred of a legally sanctioned social status of superiority) owes more to the present state of French society than to the theories of Rousseau.148

147 The Social Contract, Book III, Chapter 15. 148 B. Manin, Rousseau, in F. Furet & M. Ozouf, Dictionnaire critique de la Révolution française: Idées, Paris, 1992, 464.

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As is easy to see, the ideas of Rousseau on the expression of the general will and the formation of the law are theoretical justifications for direct democracy. But were such ideas realizable in practice in a country with a population of more than 20 million people which extended over a vast territory? In his book The Government of Poland (1782) Rousseau accepted the necessity of representation, but only on the condition that the representatives acted as agents of the people they were representing.149 1.2.2.3

The Revolutionary Period: Sieyès, Revolutionary Constitutions and Les San-culottes In 1788, King Louis XVI decided to convoke the États généraux (Estates General), principally to take certain fiscal measures that were necessary to deal with a budgetary crisis. The Estates General were a consultative assembly which represented the three orders of French society of the ancien régime: the First Estate (the clergy), the Second Estate (the aristocracy), and the Third Estate (the rest of the urban and rural population). 1139 members were elected: 291 from the First Estate, 270 from the Second Estate, and 578 from the Third Estate. Before the first meeting of the Estates General, a controversy arose about the method of voting in the assembly: would voting be by order or by member? If it was by order (as in the past), the two privileged orders (the clergy and the aristocracy) would dominate the proceedings and, by so doing, would be able to protect their privileges and defeat the desire of the Third Estate to enact progressive reforms. It was in this context in January 1789 there appeared a polemical pamphlet written by Abbé Emmanuel Sieyès entitled Qu’est-ce que le Tiers État? (What Is the Third Estate?), which was going to have a monumental impact on the way the French think about the sovereignty of the people, democracy, and political representation. According the Sieyès, the Third Estate, which was comprised of 26 million citizens (the entire French population except for the 200,000 members of the two privileged orders), constituted la Nation (the Nation). Only la Nation, acting by means of its own elected representatives, could express the general will of the society. According to Sieyès: Interests whereby citizens are alike, therefore, are the only ones which they can administer in common, the only ones by which and in the name of which they can claim political rights, i.e., an active part in the making of the social law; and the only ones, consequently, which qualify a citizen to be represented.150 Contrary to Rousseau, Sieyès thought that the sovereignty of the people could be and must be represented. According to Sieyès, democracy requires representative democracy instead

149 The Government of Poland, Chapter VII. 150 E.-J. Sieyès, Qu’est-ce que le Tiers État? (1789), in Écrits politiques (R. Zapperi, éd.), Paris, 1985, 182.

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of direct democracy. The citizens of the nation must speak with one voice, and that voice must be the National Assembly that they had elected. In June 1789, the Third Estate proclaimed itself the National Assembly and declared: “[…] it is for this Assembly, and only for it, to interpret and represent the general will of the nation.”151 Sieyès rejected the notion that the political structure had to be based on tradition, that is to say, on its exiting organization and institutions. According to him new institutions would have to be established by citizens exercising the general will of la Nation. In a complex society, like the France of that time, a division of labour was necessary and the division of labour “belongs to political work as to all other types of productive work”.152 As Keith Baker has observed: Assimilating in this way political representation and the division of labor, Sieyès took a decisive step: he completely liberated the idea of representation from the restrictions that had encumbered it in previous revolutionary political theory. Representation, both a principle and a consequence of liberty […] became a general expression of the principle that gives to civil society its own autonomous existence.153 As the Revolution progressed, it became necessary to pass from theory to action and to find a principle and a practice to give legitimacy to the revolutionary government and to its decisions. The Constitution of 1791 established a constitutional monarchy. It recognized that all power derived from the people and was exercised by the National Assembly and the king, but only in their capacity as delegates. Direct democracy was not a possibility because all public power had to be exercised by the representatives of the people. The following provisions of the Constitution apply to representation. The influence of the Rousseau and Sieyès is apparent. National sovereignty is unitary, indivisible, inalienable, and imprescriptible. It belongs to the Nation; no section of the people or any individual may claim to exercise it. (Title III, Art. 1). The Nation, from which alone all Powers emanates, can exercise them only by delegation. The French Constitution is representative; the representatives are the legislative body and the king (Title III. Art. 2). The

151 Déclaration de l’Assemblée national du 17 juin 1789, available at mjp.univ-perp.fr/france/1789-17juin.htm. 152 E.-J. Sieyès, Observations par un député à l’Assemblée nationale du 2 octobre 1789, in Écrits politiques (R. Zapperi, éd.), op. cit., 262. Cfr. ibidem 262-266 for a discussion and a justification for representation. 153 K. Baker, Sieyès, in F. Furet & M. Ozouf, Dictionnaire critique de la Révolution française: Acteurs, Paris, 1992, 304.

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legislative Power is delegated to a National Assembly composed of temporary representatives, freely elected by the people […] (Title III. Art. 3). The Constitution of 1793 represents a fundamental break with the theory of the Constitution of 1791, above all in its arrangements for the expression of the general will in practice. The Constitution of 1793 was adopted by the people (instead of by a representative assembly like the Constitution of 1791). It rejected the separation of powers and concentrated power in a single assembly, which was elected by universal male suffrage. This assembly then elected an executive council of 24 members. More important for direct democracy is the fact that it incorporated a referendum mechanism into the process for the enactment of legislation. The Constitution of 1793 was strongly influenced by the draft constitution prepared by Nicolas de Caritat, marquis de Condorcet. Condorcet’s principal object was to give to a territory of twenty-seven thousand square leagues, inhabited by twenty-five million people, a Constitution that, based solely on the principles of reason and justice, would assure the citizens the fullest enjoyment of their rights.154 Cordorcet thought that the separation of powers proposed by Montesquieu was not sufficient to protect the liberty of the people. It was also necessary to limit and to control the power of governmental institutions. Condorcet assigned that role to direct democracy, in the form of the referendum and the popular initiative. Although the popular initiative was not included in the final text, a central role was attributed to the referendum in the legislative process. Here are the key relevant provisions of the Constitution of 1793: – Sovereignty resides in the people; it is unitary and indivisible, inalienable and imprescriptible. (Declaration of Rights, Art. 25) – A people always has the right to review, reform, and change its Constitution. One generation cannot subject future generations to its laws (Declaration of Rights, Art. 28) – Every citizen has an equal right to concur in the formation of the law and to the appointment of his own representatives or his own agents. (Declaration of Rights, Art. 29) – The French people is divided, for the exercise of its sovereignty, into primary cantonal Assemblies (Constitutional Act, Art. 2) – Every man born and resident in France who is twenty-one years of age; every [male] foreigner who is twenty-one years of age, who has resided in France for one year, lives from his own work or acquires real property or marries a French woman or adopts a child or cares for an old person; any foreigner in short who is adjudged by the legislative

154 Condorcet, Exposition des principes et des motifs du plan de Constitution, in Œuvres, XII, Paris, 1968, 335.

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– – – –

–

body to merit it, may exercise the rights of French citizenship. (Constitutional Act, Art. 4) Primary Assemblies are composed of [200 to 600] citizens domiciled for six months in each canton. (Constitutional Act, Art. 11) The Legislature proposes laws and issues decrees. (Constitutional Act, Art. 53) Bills are printed and sent to all the communes of the Republic, with the title: proposed law (Constitutional Act, Art. 58) Forty days after the transmission of the proposed law, if, in half of the departments (départements) plus one, one tenth of the primary Assemblies , regularly convened, have not protested, the proposed law is accepted and becomes a law. (Constitutional Act, Art. 59), If there is a protest, the Legislature convokes the primary Assemblies. (Constitutional Act, Art. 60)

The Constitution of 1793 was approved by the Assembly on June 24, 1793. It was approved the following month by 1.8 million voters, although there were 4.3 million abstentions (because the voting was public and oral and took place just before the start of the Reign of Terror). At the time, France was at war with Prussia and Austria and, after some initial successes, the war took a turn for the worse for France. Moreover, a civil war (a counterrevolution) was in progress in the western part of the country. Given these conditions, the application of the Constitution of 1793, which would have weakened the executive power and made decision-making more complicated, was suspended until the end of the war. It never entered into force. The Constitution of 1793, however, was very significant for France because it provided an example of the highest aspirations of the Revolution: democracy, equality, fraternity, and social rights. Even today it occupies an important symbolic place in France. The year 1793 has another symbolic importance for French democracy: the role played by the sans-culottes, the lower classes of the people of Paris and of other major French cities. Although the Revolution was directed primarily against the aristocracy, it also contained a significant anti-bourgeois element. Successive insurrections, principally in Paris, but also in other major cities (Lyons, Marseilles, Bordeaux), directed against the National Assembly on August 10, 1792, May 31, 1793, and June 2, 1793, led to important changes in the direction of the Revolution. These insurrections were the principal events which initiated and maintained the Reign of Terror. These actions, organized by the revolutionary sections of Paris, represented the exercise of direct democracy in its most direct and radical form: the use of force by the people to determine the course of events.155 The Constitution 155 “Direct democracy has been rediscovered or reinvented in modern history every time a political collectivity has entered a process of radical self-constitution and self-activity: town meetings during the American

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of 1793 might even be interpreted to support these actions. It explicitly recognized the right of the people “to review, reform, and change its Constitution. One generation cannot subject future generations to its laws”.156 The example of these actions, which will be repeated several times during the nineteenth century (in 1830, 1832, 1848, and 1870), frightened the propertied classes and made them hostile to a politically important role for the masses. Direct democracy came to be identified with the mob. The tradition of direct action by the people continues in France through mass popular demonstrations (manifestations), which are frequent and sometimes exercise an important influence on the actions of the government. The Constitution of 1795, adopted after the Thermidorian Reaction of July 27, 1794, which brought an end to the Reign of Terror, accentuated the separation of powers, established a bicameral legislature, limited the suffrage, left no role in the legislative process for the primary assemblies, and was hostile to social rights. Democracy, especially direct democracy, was in retreat. This retreat will turn into a rout with the Bonapartist constitutions of 1799, 1802, and 1804. These constitutions and practices that the Napoleonic regime introduced will have significant implications for direct democracy. 1.2.2.4 The Heritage of Bonapartism: Plebiscitary Democracy The regime established by the Constitution of 1795 was called le Directoire (the Directory) because the organ at the apex of the political institutions was composed of five members called directors who constituted a sort of collegial government. During the period of this regime (1795-1799), there were severe financial difficulties, foreign war had recommenced, and there was a monarchical insurrection in the western part of the country. Political conflict made it impossible to deal effectively with these problems or to adopt a new constitution that would have made the exercise of power more efficacious. Abbé Sieyès, who had remained active in the political life of the country since 1789, was the guiding spirit of a coup d’état that brought a young general named Napoleon Bonaparte to power in November 1799. Five weeks later the French had a new constitution. The spirit of the Constitution of 1799 is expressed best in the aphorism of Sieyès: “Confidence comes from below; power comes from above.”157 The Constitution of 1799 was drafted, adopted, and promulgated by a small committee and not by an elected assembly. It was submitted to the people for its approval; but it was applied before the vote. It is the first example of plebiscitary democracy which will assume great importance during the rule of Napoleon. Many other plebiscites will follow. Napoleon also relied on the plebiscite in 1802 and 1804 Revolution, sections during the French Revolution, the Paris Commune … In all these cases, the sovereign body is the totality of those concerned; whenever delegation is inevitable, the delegates are not just elected but subject to permanent recall.” C. Castoriadis, Philosophy, Politics, Autonomy, New York, 1991, 107. 156 Constitution of 1793, Declaration of Rights, Art. 28. 157 Cited by O. Duhamel, Droit constitutionnel et institutions politiques, Paris, 2009, 97.

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for approval of important changes in the government of France. In 1802 the people were called upon to vote on the question of whether Napoleon should be consul for life. In 1804 the question put to the people was whether the imperial title should be hereditary to the direct descendants of Napoleon Bonaparte. The plebiscite and direct democracy were now seen as the passive approval of the policies of a personal and authoritarian government to give legitimacy to its status or to its actions, and therefore an instrument of Caesarism (or Bonapartism, as it was henceforth called in France). According to Robert Michels: Bonapartism is the theory of individual domination originating in the collective will, but tending to emancipate itself of that will and to become sovereign in its turn. […] In Bonapartism, the rule of Caesar […] becomes a regular organ of the popular sovereignty. ‘Il sera la démocratie personnifiée, la nation faite home’. [citing E. Laboulaye, Paris en Amérique, 24 ed. 1869, p. 381] It is the synthesis of two antagonistic concepts, democracy and autocracy. […] In democratic crowds, Bonapartism finds an eminently favourable soil, for it gives the masses the illusion of being masters of their masters; moreover, by introducing the practice of delegation it gives this illusion a legal colour […].158 1.2.2.5

The Nineteenth Century: The Republic Submerged, Under Siege, and Triumphant According to François Furet, the most important modern historian of the French Revolution, the revolutionary era lasted until 1880, when the Third Republic was finally able to establish the principles of democracy and equality on a solid foundation, firmly grounded in law. Most of the nineteenth century, therefore, was still a battlefield of political forces and ideas. After the defeat of Napoleon in 1814/1815, the monarchy was reestablished in the person of Louis XVIII. In 1830, as a consequence of an insurrection in Paris against the conservative regime of his successor Charles X, the monarchy passed to a member of the royal family who represented a more liberal wing, Louis Philippe. The preamble to the Constitutional Charter of June 14, 1814 affirmed that “[w]e have voluntarily, and by the exercise of our royal authority, ACCORDED AND WE ACCORD, CONCEDE AND GRANT to our subjects […] the Constitutional Charter which follows”. According to the Charter of 1814, sovereignty no longer resided in the people, but had returned to the king, where it was before the Revolution. The Constitutional Charter of 1830, which modified 158 R. Michels, Zur Soziologie des Parteiwesens in der modernen Demokratie. Untersuchungen über die oligarchischen Tendenzen des Gruppenlebens, Leipzig, 1911, Parte III, capitolo 2, “Ideologia bonapartista”. Sociologia del partito politico nella democrazia moderna: studi sulle tendenze oligarchiche degli aggregati politici (A. Polledro, transl.), Torino, 1912. Political Parties (E. & C. Paul, transl.), New York, 1959, 216-217, at 220.

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the Charter of 1814 in several particulars, did not include the preamble, which signified indirectly that that Charter was not ‘conceded’ by the king, but emanated from the will of the nation. Neither of the two Charters was approved by the people. An influential essay by the political philosopher Benjamin Constant (based on a speech he gave in 1819) which was to have an important impact of the conception of direct democracy in France, was entitled The Liberty of the Ancients, compared to that of the Moderns.159 In this essay, Constant took issue with the ideas of Rousseau on the general will and direct democracy and advanced a powerful argument in favour of representative democracy. Constant drew a distinction between the “liberty of the ancients”, which consisted in the collective and direct participation of citizens in all the functions of government, with the “liberty of the moderns”, which consisted in the peaceful enjoyment of individual freedom. In this sense, the liberty of the ancients was pure direct democracy. According to Constant, in the ancient world, where cities were small, where only a small number of persons were citizens, slavery gave those citizens the free time to participate in public affairs, and citizens did not participate in commercial activities, direct democracy was possible. In the modern world (large countries, abolition of slavery, importance of commerce, the desire for individual freedom), on the other hand, real liberty is individual liberty, which requires a representative form of government. But Constant did not reject participation (in addition to voting for representatives) in the political life of the society; in fact, he saw it as necessary: The danger for modern liberty is that we, absorbed in the enjoyment of our private independence and in the pursuit of our own interests, might too easily cede our right to share in political power. […] Thus, far from giving up one or the other type of liberty that I have described, it is necessary (I repeat) for us to learn how to combine the two.160 After the popular revolution of 1848, a Second Republic was established. The Constitution of 1848 provided for a president directly elected by the people. Louis Napoleon Bonaparte, the nephew of Napoleon (he was the son of a brother of Napoleon) was elected president. A coup d’état of 2 December 1851 by Louis Napoleon Bonaparte put an end to the Second Republic. A short time later (21 and 22 December 1851) a referendum confirmed his seizure of power and authorized him to draft and adopt a new constitution. Louis Napoleon, or Napoleon III, as he came to be called, made frequent use of the plebiscite during his reign, which lasted until 1870. His regime, like that of his uncle, was characterized by 159 B. Constant, De la liberté des anciens comparée à celle des modernes, in B. Constant, Collection complète des ouvrages publiés sur le gouvernement représentatif et la constitution actuelle, ou Cours de politique constitutionnelle, Paris, 1820, 238-274. 160 Ibidem.

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personal power, legitimated and sustained by periodic plebiscites. The regime of Napoleon III (the Second Empire) therefore reinforced the association of broad participation of the people with Bonapartism and the authoritarian state. It is interesting to note that Napoleon III supported universal male suffrage; but because of the structure of the legislative process (in which the executive retained almost all the power of initiative), the Second Empire has been described as “democracy without liberty”.161 Thus, in France, direct democracy has a double connotation: liberty (according to the tradition of 1793) and authoritarianism (Bonapartism). The spirit of 1793 however was still alive in France during the nineteenth century. In 1851, in thinking about the constitutional organization of the country, a political leader of the left, Alexandre Ledru-Rolin, published a short work inspired by the ideas of Rousseau called On the Direct Government of the People.162 Ledru-Rolin’s principal references are to 1793 and Rousseau’s Social Contract. Ledru-Rolin describes the Constitution of 1793 as “marvelous” and “realizable”. Echoing Rousseau, he declares that “sovereignty, being only the exercise of the general will, can never be delegated, and the sovereign, which is a collective entity, can be represented only by itself”. Ledru-Rolin supported his argument with the assertion that “the history of representatives is only a long series of violations of the rights of the represented”. The Constitution of the Third Republic of 1875,163 in contrast with the Constitution of the Second Republic, did not include a provision for the direct election of the president. According to the new Constitution, “The president of the Republic shall be elected by an absolute majority of the votes of the Senate and the Chamber of Deputies united in a National Assembly” (Art. 2). It was thought at the time that the Constitution still gave too much power to the president, but after a series of victories in legislative elections during the following decade which allowed the Republic to consolidate itself, modifications of the Constitution greatly reduced the powers of the president in order to reflect republican hostility to the personal power of the president. A later indication of the fear of the reemergence of Bonapartism was two laws of 1873 and 1875 which prohibited the president from appearing in the parliamentary chambers. The fear that drove these actions was that the president would be able to use his appearance in parliament to intimidate and dominate the legislature and also that his appearance would symbolize the replacement of the prime minister by the president as the principal executive authority.164

161 M. Prélot, La signification constitutionnelle du Second Empire, in Revue française de science politique, 1953, no. 1, 31-56. 162 A. Ledru-Rolin, Du gouvernement direct du peuple, Paris, 1851. 163 The Constitutional Law of February 25, 1875 on the Organization of Public Powers was approved by a majority of only one vote (353-352). 164 This prohibition lasted until the constitutional amendments of 2008. See Constitution of 1958, Art. 18.

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1.2.2.6 Departmental and Local Levels Up to now we have considered democracy and direct democracy only at the national level. But what was happening at the lower levels of government, in the départements and the communes? In the United States, we have already seen that in certain states, cities, and towns direct democracy was (and still as) a vital force in the political life of the community. What about the situation in France? It is important to understand that France, from the Revolution to today, is a highly centralized country, both politically and administratively. Federalism has always been anathema to the French (although attitudes towards the devolution of power have changed somewhat since the 1980s). Rejecting a federal organization of the state in 1789, Abbé Sieyès denounced the false principles […] which would lead to nothing less than to cut up, parcel out, tear France into an infinity of little democracies, which would then only be united by the bonds of a general confederation. France must not be a joining together of small nations; it is not a collection of states. It is a unique whole composed of integral parts. All is lost if we permit ourselves to consider municipalities, districts, or provinces as being so many republics united only by relations of force or of common defense.165 According to Léon Duguit, a leading constitutionalist of the first part of the twentieth century: It results […] from indivisibility and the sovereignty of the Republic that no collectivity can be invested with any portion of that sovereignty, and that federalism […] is contrary to the essential principles of French public law.166 The reason for this strong hostility to federalism is the historical concern for national unity and equality. At the theoretical level, the sovereignty of the people belongs to la Nation, seen as a collective entity. All French people are members of this collectivity. National sovereignty cannot be exercised by a part of this collectivity; it is indivisible. A part of the nation (a department, a commune) acting alone does not possess the legal competence to establish rules, even for the conduct of its own citizens, because that would contravene the principle of equality of all citizens in the entire national territory. This attitude towards the exercise of decision-making power on the part of local entities (and its expression in

165 E.-J. Sieyès, Dire de l’Abbé Sieyès sur la question du veto royal, & C., à la séance du 7 septembre 1789, in E.J. Sieyès, Écrits politiques (R. Zapperi, éd.), Paris, 1985, 234. 166 L. Duguit, Traité de droit constitutionnel (3e éd.), Paris, 1928, 120.

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the Constitution of 1958) persists today, and poses legal problems for the process of administrative decentralization that the country has embarked upon in the 1980s. From the revolutionary period and during the nineteenth century, the most important public official at the provincial level was the prefect (le préfet). At the communal level, it was the mayor (le maire). (There were no other intermediate levels of government, until the regions were established in 1982. The historical provinces of the ancien régime were abolished in order to break the power of the local nobility.) The prefect was the representative of the state in the department. For most of the nineteenth century the prefect chose the mayor, who was the chief administrative official in the commune. Only since 1884 has the mayor been chosen by a municipal council elected by the people. Since legislative power was exercised only at the national level and the administration of the country was exclusively subject to the control of the national government, there was no real democracy at the level below that of the state. This system of local government might be described as “provincial Caesarism” or “communal Caesarism”. This system, which was completely different from the local democracy which developed in America during the colonial period and later in the western parts of the country, did not change significantly until the 1980s.

1.3

Direct Democracy in the Italian Risorgimento and European post-World War I Constitutions

After the Napoleonic plebiscites, and in imitation of them, there were plebiscites in Italy to declare the annexation to the Kingdom of Sardinia of territories in Emilia and of Lombardy-Veneto in 1848, and the annexation of a number of other territories to the Kingdom of Italy in 1860. In the first case, the plan to elect a Constituent Assembly, supported by democrats, was abandoned. A popular vote, the method preferred by moderates, was adopted. The vote took place “on the basis of universal suffrage, which in principle gave full recognition to popular sovereignty, but which in fact called upon people who had no experience with voting and without particular knowledge of the facts to express themselves directly”; the vote was straight forward and was conducted by affixing one’s signature in special registers.167 In the second case, in order to resort again to a popular vote, diplomatic resistance and the resistance of the moderate liberals had to be overcome,168 because initially 167 E. Mongiano, Il voto della Nazione. I plebisciti nella formazione del Regno d’Italia, 1848-60, Torino, Giappichelli, 2003, 75-76. On the annexations of 1848 more generally, ibidem, 35 ff. On the plebisictes in Italy during the Napoleonic period, see G.L. Fruci, Alle origini del movimento plebiscitario risorgimentale. I liberi voti di ratifica costituzionale e gli appelli del popolo nell’Italia rivoluzionaria e napoleonica (1797-1805), in E. Fimiani (ed.), Vox populi? Pratiche plebiscitarie in Francia Italia Germania (secoli XVIII-XX), CLUEB, Bologna, 2010, 87 ff. 168 G.S. Pene Vidari, Accordi diplomatici e consenso popolare. I plebisciti del marzo 1860, in G.S. Pene Vidari (ed.), Verso l’unità d’Italia. Contributi storico-giuridici, Giappichelli, Torino, 2010, 171 ff.; E. Mongiano, Le regole del voto popolare nei plebisciti italiani del 1860, ivi, 188 ff.

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it was believed that the votes of 1848 were sufficient.169 In this case the vote was, at least in principle, secret and on special ballots.170 The Statuto Albertino, which became the Constitution of the Kingdom of Italy,171 did not provide for direct democracy. After numerous experiences with referendums organized autonomously by some municipalities and initially opposed by the government,172 Law Number 102 of 29 March 1903, dealt with the matter. Article 13 provided for the vote of the population on decisions that the municipal council adopted with respect to the direct contracting by the municipality for public services.173 The law of 1903 was incorporated into the consolidated law on direct contracting for public services by the communes and provinces in 1925 (R.D., 15 October 1925, no. 2578). The municipalities could take over the establishment and direct operation of the public service facilities listed in the law by setting up a special agency. The decision of the municipal council with respect to the undertaking of direct public services was subject to a vote of the voters of the city at the request of one-twentieth of the voters or one-third of the municipal councillors. The voters could vote ‘yes’ or ‘no’ on the direct undertaking of services. In the case of a result contrary to the decision of the municipal council, the proposal could not be resubmitted for 3 years, unless at least one-fourth of the voters so requested, but in that case at least 1 year must have elapsed since the vote. The first post-World War I direct democracy instruments were included in some European constitutions: specifically, the Danish Constitution of 1915, the Luxembourg Constitution of 1919, the German Weimar Constitution of 1919, the Austrian Constitution of 1920, the Czechoslovak Constitution of 1920, Estonian Constitution of 1922, the Latvian Constitution of 1922, the Lithuanian Constitution of 1928, the Irish Constitution of 1922, the Greek Constitution of 1927, and the Spanish Constitution of 1931.174 169 E. Mongiano, Il voto della Nazione, supra n. 167, 183. 170 E. Mongiano, Il voto della Nazione, supra n. 167, 217 ff.; on the devices which at times made secrecy only apparent, ibidem, 228. On the plebiscites of 1860, see also E. Mongiano, Les plébiscites de 1860 en Italie, in M. Ortolani & B. Berthier (eds.), Consentement des populations, plébiscites et changements de souveraineté à l’occasion du 150° anniversaire de l’annexion de la Savoie et de Nice à la France, Serre, Nice, 2013, 187 ff.; S. Visciola, Les plébiscites de 1860 en Toscane. Dynamiques péninsulaires et implications internationales, ivi, 199 ff.; S. Sarlin, Conquête ou libération? Le plébiscite d’annexion d’octobre 1860 dans l’ancien royaume de Naples, ivi, 209 ff. 171 On the questionable value of plebiscites with respect to the extension of the Statuto Albertino to the Kingdom of Italy, see M. Dogliani, Un peccato originale del costituzionalismo italiano: incertezze e silenzi sulla novazione dello Statuto dopo i plebisciti, Diritto pubblico 3/2010, 509 ff.. 172 S. Basile, Il referendum nell’Italia liberale. Dibattiti ed esperienze, in M. Caciagli & P.V. Uleri (eds.), Democrazie e referendum, supra n. 9, 304 ff. 173 S. Basile, ibidem, 295 ff.; G.M. Salerno, Referendum, supra n. 25, 200; G. Busia, Il referendum costituzionale fino al suo debutto: storia di un “cammino carsico” di oltre cinquant’anni, 16(2) Nomos 2/2003, 27 ff., available at http://www.astrid-online.it/static/upload/protected/BUSI/BUSIA_Referendum-costituzionale02_0.pdf, 10 and n. 29. 174 G.M. Salerno, Referendum, supra n. 25, 204 and note 16; M. Duverger, Referendum e sistemi politici, in M. Luciani & M. Volpi (eds.), Referendum, supra n. 57, 184.

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The Danish Constitution of 1915 provided for a mandatory referendum for an amendment to the Constitution: the constitutional amendment must be approved by a majority of voters, who represent at least 45% of those entitled to vote. The proposal to include in the Constitution a consultative referendum was rejected, but, nevertheless, in 1916 a consultative referendum on the sale of Danish islands (the current Virgin Islands) to the United States was held. There were 283,670 votes in favour of the sale and 158,157 against.175 Luxembourg’s independence was approved by popular vote by means of a referendum in 1860. In 1919 Charlotte, daughter of Grand Duke William IV, succeeded her sister Marie-Adélaïde, who had abdicated because of her excessively pro-German attitude during World War I. Charlotte’s first initiative was a referendum on the monarchy or republican form of the state. About 80% of the population was in favour of the monarchy. The Constitution of 1919 introduced universal suffrage and the referendum in Article 52.176 Among the constitutions of the post-World War I period, the most complete and most famous instruments of direct democracy were those contained in the Weimar Constitution of 1919. The provisions on the referendum were the result of a compromise between the parties within the Constituent Assembly: (1) 165 members of the Social Democratic Party, supporters of the parliamentary system, who were, with some exceptions, in favour of direct democracy, as were the 22 members of the Independent Social Democratic Party; (2) 75 members of the German Democratic Party in favour direct democracy, which they saw as a counterweight to parliamentary power; (3) 42 members of the German National Peoples Party, who, like the 22 members of the German Peoples Party favoured a strong president as a limit to parliamentary omnipotence and who were opposed to direct democracy, seeing it as a radical social democratic tool, with the exception of a few who were in favour of it for its conservative effects; (4) 90 members of the Centre Party, who took no position on direct democracy.177 The referendum had been included in the program of the social democratic party for many years. Georg Jellinek, however, saw a contradiction in this position, given the generally conservative nature of the referendum and the delays that it produced in the legislative process.178 Articles 18, 43, and 73-76 of the Weimar Constitution deal with the referendum:

175 P. Svensson, Denmark: The Referendum as Minority Protection, in M. Gallagher & P.V. Uleri (eds.), The Referendum Experience in Europe, St. Martins Press, New York, 1996, 33 ff. 176 See A. Rigo, The ratification process of the European Constitution in Luxemburg: A large consensus amongst the political class for holding a referendum (Feb. 2005), available at www.proyectos.cchs.csic.es/euroconstitution/library/working%20papers/Rigo,%20A._2005%20Luxemburg.pdf, 3; M. Pacifico, Il referendum nel Benelux, 7 Diritto Pubblico Comparato ed Europeo(2005), 1297. 177 See C. Mortati, La Costituzione di Weimar, Sansoni, Firenze, 1946, 14 ff., and H.A. Winkler, La Repubblica di Weimar: 1918-1933: storia della prima democrazia tedesca (Italian translation by M. Sampaolo, Roma, Donzelli, 1998, 108 ff.) 178 G. Jellinek, Verfassungsänderung und Verfassungswandlung, supra n. 15, 76 f.

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a. referendum for changes in the boundaries of territorial states, at the request of onethird of the voters in the territory to be separated (Art. 18);179 b. popular vote for the removal of the President on the initiative of the of the Reichstag (Art. 43.2);180 c. the referendum proposed by the President prior to the publication of a law, within one month of its adoption (Art. 73.1); d. the suspension of a law at the request of 1/3 of the Reichstag and its submission to a referendum upon the request of 1/20 of the electorate (Art. 73.2); e. the referendum on a draft law by initiative of 1/10 of the electorate (Art. 73.3); f. the referendum on budget and tax laws on the proposal of the President (Art. 73.5);181

179 Art. 18 – The division of the Reich into states shall serve the highest economic and cultural progress of the people, with due regard to the wishes of the population affected. The alteration of state boundaries and the creation of states within the Reich shall take place by virtue of national law modifying the constitution. Where the states directly affected consent, an ordinary national law shall suffice. An ordinary national law shall also suffice where one of the states affected does not consent, but where the alteration of a boundary or the creation of a new state is demanded by the wishes of the population and an overwhelming national interest requires it. The wishes of the population shall be ascertained by a referendum. The National Ministry shall order such a referendum to take place upon demand of one-third of the residents of the territory to be separated who are qualified to vote for members of the Reichstag. Three-fifths of the votes recorded, and at least a majority of the total number of electors, are necessary to effect any alteration of boundaries or the creation of a new state. Even for the separation of only a part of a Prussian governmental district or of a corresponding administrative district in any other state, the wishes of the population of the whole district affected must be ascertained. If there is no geographical connection between the portion to be separated and the whole district, a special national law may declare that the wishes of the population of the part to be separated shall be sufficient. When the wishes of the population have been ascertained, the National Ministry shall submit an appropriate law to the Reichstag for its acceptance. If a dispute arises on the occasion of a union or a separation of territory in respect to property rights, it shall be decided by the Supreme Judicial Court of the Reich at the request of either party. 180 Art. 43 – […] Before the expiration of his term the President of the Reich may be removed from office by popular vote on resolution of the Reichstag. The resolution of the Reichstag requires a two-thirds majority vote. By such resolution the President is suspended from further exercise of his functions. If the popular vote fails to remove the President such vote shall be regarded as a new election of the President and a dissolution of the Reichstag shall follow […]. 181 Art. 73 – A law passed by the Reichstag shall, before its publication, be subject to a referendum if the President of the Reich, within a month, so decides. A law, the publication of which has been deferred on the request of one-third of the members of the Reichstag shall be subject to a referendum upon the request of one-twentieth of the qualified voters. A referendum shall also take place, if one-tenth of the qualified voters petition for the submission of a proposed law. Such petition must be based on a fully elaborated bill. The bill shall be submitted to the Reichstag by the Ministry accompanied by an expression of its views. The referendum shall not take place if the bill petitioned for is accepted by the Reichstag without amendment. Only the President of the Reich may order a referendum concerning the budget, tax laws, and salary regulations. Detailed regulations in respect to the referendum and initiative shall be prescribed by a national law.

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g. the referendum proposed by the President in the absence of agreement on a law between the Reichstag and the Reichsrat (Art. 74.3);182 h. the referendum to make ineffective a Reichstag decision (Art. 75);183 i. the referendum on a constitutional amendment (Art. 76).184 A very rich assortment of referendums and other forms of direct democracy would seem to be one of the most distinguishing characteristics of the Weimar Constitution, following a tradition already long established in Germany at the local level and then reaffirmed and considered during the revolution of 1848/49.185 In 1919 Interior Minister Eduard David stated that with its new Constitution Germany was “the most democratic democracy in the world”.186 It was thought that the choice in favour of direct democracy had been dictated by needs more theoretical than practical, as a corrective mechanism for the parliamentary system.187 Control over legislation, to prevent unpopular legislative measures, had been mentioned by Jellinek, who placed the institutions of direct democracy among the instruments that would allow for a gradual democratization of society outside of the halls of Parliament, together with the press, political parties, and associations.188 However, as Carl Schmitt critically observed, modifications often result in “collisions”.189 Delay in implementing 182 Art. 74 – Laws enacted by the Reichstag shall be subject to veto by the Reichsrat. The veto must be communicated to the National Ministry within two weeks after the final vote in the Reichstag, and within two additional weeks must be supported by reasons. In case of veto the law must be presented to the Reichstag for reconsideration. If no agreement upon the matter is reached between the Reichstag and the Reichsrat, the President of the Reich may within three months submit the matter in dispute to a referendum. If the President fails to exercise this right, the law shall be considered as of no effect. If the Reichstag overrules the veto of the Reichsrat by a two-thirds majority vote, the President shall within three months publish the law in the form adopted by the Reichstag or shall order a referendum. 183 Art. 75 – A resolution of the Reichstag shall not be annulled unless a majority of the qualified voters participate in the election. 184 Art. 76 – The constitution may be amended by legislative action. However, resolutions of the Reichstag for amendment of the constitution are valid only if two-thirds of the legal members are present and if twothirds of those present give their assent. Moreover, resolutions of the Reichsrat for amendment of the constitution require a two-thirds majority of all the votes cast. If by popular petition a constitutional amendment is to be submitted to a referendum, it must be approved by a majority of the qualified voters. If the Reichstag adopts a constitutional amendment over the veto of the Reichsrat, the President of the Reich shall not publish this law if the Reichsrat within 2 weeks demands a referendum. 185 See A. De Petris, Gli istituti di democrazia diretta nell’esperienza costituzionale tedesca, Padua, CEDAM, 2012, 1 ff. See also J. Sohnle, La tradition allemande des modifications territoriales: Voter avec les pieds, in M. Ortolani & B. Berthier (eds.), Consentement des populations, supra n. 170, 105 ff.; A. Weber, République Fédérale d’Allemagne, in F. Delpérée (ed.), Référendums, CRISP, Bruxelles, 1985, 329. 186 H.A. Winkler, La Repubblica di Weimar, supra n. 177, 112. 187 R. Schiffers, Schlechte Weimarer Erfahrungen?, in H.K. Heußner & O. Jung, Mehr direkte Demokratie wagen. 2. völlig überarbeitete Auflage, München, 2009, 52 f. 188 G. Jellinek, Verfassungsänderung und Verfassungswandlung, supra n. 15, 71 ss. 189 C. Schmitt, Volksentscheid und Volksbegehren, supra n. 10, 51.

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those rules – the referendum law of 1921 – 190 and the poor use made of it in subsequent years must be seen as related to the difficult compromise on direct democracy among the six political parties in the Weimar Assembly of 1919.191 A few initiatives were presented, without success, by parties which sought to take advantage of popular discontent to oppose the majority party. In 1926, the parties of the left submitted to the voters a draft law for the expropriation of the property and residences of princes (“Fürstenenteignung”) pursuant to Article 73(3). 14.5 million voters voted in favour of the law and just 590,000 against. The referendum failed, however, because only 39.3% of eligible voters participated, but 50% participation was required. The quorum was not even attained in 1929 for a law against the enslavement of the German people (“Gesetz gegen die Versklavungdes Deutschen Volkes”, the so-called liberty law – the “Freiheitsgesetz”), proposed by right-wing parties, in particular by Hitler and Hindenberg,192 to abolish the Young Plan of 1929 on war reparations, adopted by allied forces in implementation of the Treaty of Versailles. Once again an overwhelming majority were in favour, but only 14.9% of eligible voters participated. And proponents of a measure in opposition to a bill proposed the year before for the construction of a new gunboat were not able to collect the signatures of 1/10 of the electorate as required by Article 73(3). The Austrian Constitution of 1920 included provisions for compulsory and optional referendums. Pursuant to Article 44, the total revision of the Constitution must be submitted to the approval of the entire nation; partial revisions could be submitted to a referendum at the request of one-third of the members of the National Council or the Federal Council. According to Article 43, moreover, the majority of the National Council could refer a law to the electorate before its promulgation. Two hundred thousand voters could also exercise the power of legislative initiative. Czechoslovakia became independent from the Austro-Hungarian Empire after the war. Its Constitution of 1920 stated that, if the National Assembly does not approve a law

190 The law of June 27, 1921 on the referendum is available at http://www.documentarchiv.de/wr/1921/volksentscheid_ges.html. 191 See C. Mortati, La Costituzione di Weimar, supra n. 177, 35 f.; C. Pestalozza, Der Popularvorbehalt. Direkte Demokratie in Deutschland (Lecture delivered at the Berliner Juristischen Gesellschaft on 21 January 1981), Walter de Gruyter, Berlin-New York, 1981, 29 f.; O. Jung, Direkte Demokratie: Forschungsstand und –aufgaben, in Zeitschrift für Parlamentsfragen 1990, no. 3, 495 f.; E.G. Mahrenholz, Referendum e democrazia, in M. Luciani & M. Volpi (eds.), Referendum, supra n. 57, 22 ff.; H.A. Winkler, La Repubblica di Weimar, supra n. 177, 112; R. Sturm, La Germania ha bisogno del referendum?, in M. Caciagli & P.V. Uleri (eds.), Democrazie e referendum, supra n. 9, 207 ss.; M. Suksi, Bringing in the People, supra n. 22, 95 ss.; C. Gusy, Die Weimarer Reichsverfassung, Tübingen, Mohr Siebeck, 1997, 94 ff., (who observes that in reality the plebiscite is a blunt weapon, “einstumpfe Waffe”); R. Schiffers, Schlechte Weimarer Erfahrungen?, supra n. 182, 53 ff.; F. Palermo, Il referendum nelle esperienze costituzionali di Germania e Austria: tra scarsa vocazione e ampia prassi sub-statale, 7 Diritto Pubblico Comparato ed Europeo, 1304, in note; G. Corni, Il nazionalsocialismo: una dittatura plebiscitaria?, in E. Fimiani (ed.), Vox populi, supra n. 167, 181 ff. 192 G. Corni, Il nazionalsocialismo, supra n. 186, 194.

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proposed by the government, the government could submit the law to the electorate in a referendum. A large degree of direct democracy was accorded to the population of Estonia by its Constitution of 1920, both through the referendum and the initiative. The Constitution of Latvia of 1922 included the power of the president to propose the dissolution of Parliament. Such a proposal, however, had to be voted on in a referendum. If the majority of voters voted for dissolution, Parliament had to be dissolved, but if the majority of voters voted against dissolution, the president was obliged to resign (Articles 48 and 50). In addition, one-tenth of the electorate had the right to submit an ordinary bill or a proposal for a constitutional amendment. If Parliament did not approve of the measure submitted or approved it with substantial modifications, the bill or proposed amendment was then submitted to a referendum. A proposal for a constitutional revision that was submitted to a referendum was adopted if approved by a majority of the voters entitled to vote (Articles 78-80). The Constitution of Lithuania provided for various forms of popular consultation: for territorial changes (Article 4), for constitutional amendment at the request of the president of the republic or fifty thousand electors (Article 104), for the laws adopted or rejected by Parliament at the request of the government or of fifty thousand voters (Article 105), and for the ratification of the Constitution within a period of 10 years (Article 107). Direct democracy was one of the fundamental ideas underlying the 1922 Constitution of the new state of Ireland. It was an expression of popular sovereignty, and highlighted Ireland’s difference with the British parliamentary system.193 Article 14 proclaimed the right of all citizens without distinction of sex to vote for Parliament and to participate in the referendum and popular initiative. More specifically, according to Article 47, any law could be suspended for 90 days upon the request of two-fifths of the members of the lower house or of the majority of the members of the Senate; at the request of three-fifths of the members of the Senate or one-twentieth of the citizens entitled to vote a proposed law would be submitted to a referendum, and could be approved by a majority of the voters. This procedure was not allowed for finance laws and laws deemed necessary and urgent for the protection of peace, security, or public health. Pursuant to Article 50, constitutional amendment proposals were subject to a referendum, which had to be approved by the majority of citizens entitled to vote or by two-thirds of the votes cast. Article 48 governed

193 Cfr. M. Gallagher, Referendum e democrazia nella Repubblica d’Irlanda, in M. Caciagli & P.V. Uleri (eds.), Democrazie e referendum, supra n. 9, 180; V. Bogdanor, Western Europe, in D. Butler & A. Ranney (eds.), Referendums around the world, supra n. 9, 78, L. Volpe, L’“Esmeralda virtuosa”: la democrazia diretta in terra gaelica, 7 Diritto Pubblico Comparato ed Europeo (2005), 1386.

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the procedures for the initiative of ordinary and constitutional laws by fifty thousand voters. These constitutional provisions, however, so rich in content, remained unutilized.194 In Greece, after the referendum-plebiscites of 1862 for the election of the king at the end of the Ottoman period and in 1920 for the return of King Constantine, the Constituent Assembly established after the general election of 1923 decided to submit to popular referendum the transition from monarchy to republic. About 70% of the voters voted in favour of the republic and 30% in favour of the monarchy. After two coups and General Pangalos’ dictatorship, the Constitution of 1927 for the first time allowed a referendum by providing for the possibility of a referendum on amending the Constitution, with the exception of its fundamental principles. After a period of severe political instability, however, in 1935, there was an institutional referendum in which 97.88% of voters approved the restoration of the monarchy under George II.195

1.3.1

The Spanish Constitution of 1931

In Spain the tradition of direct democracy in the constitutional order is weak. Throughout the nineteenth and most of the twentieth centuries, Spanish Constitutions made no mention, almost without exception, of the modalities of direct democracy, such as the referendum and the plebiscite. In the context of the political and social conflicts leading to the advent and triumph of modernity, representative democracy was itself revolutionary and for a long time was the only alternative to the hereditary and conservative institutions of the Antiguo Regimen. It is only at the end of the nineteenth century, in a context marked by the growing crisis of representative institutions linked to the rise of corruption and the decline of real democracy that doctrinal studies appeared, starting from critical evaluations of existing political institutions that sought to make people aware of the existence of the referendum. On 9 November 1895, Segismundo Moret, a future Prime Minister, delivered an address at the Ateneo di Madrid, a temple of liberalism in that city, in which, for the first time, he explained the significance of the referendum and, in essence, spoke expansively about it. Maybe it was a coincidence, but just 2 years later Spanish positive law took into account the referendum for the first time, when, on 25 November 1897, a Royal Decree of regent Maria Cristina considered it necessary – in order to assume certain financial obligations with Cuba and Puerto Rico, the two colonies lost the following year – to hold a referendum. 194 Cfr. M. Gallagher, Referendum e democrazia, supra n. 188, 181; L. Volpe, L’‘Esmeralda virtuosa’, supra n. 188, 1383 and 1387. 195 Cfr. V. Perifanaki Rotolo, Fra autoritarismo e democrazia: la difficile istituzionalizzazione del referendum in Grecia, in M. Caciagli & P.V. Uleri (eds.), Democrazie e referendum, supra n. 9, 231 ff.; C. Kyrkos & G. Makropoulou, Referendum: A challenge for democratic self-determination, available at www.jus.uio.no/…/w16-kyrkos-makropoulou.pdf, 1 ff.

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In that same year Ángel Ganivet, the great “regenerator”, referred to the referendum as “in vogue”. Thereafter the referendum was always associated with the renewal of public life in writings on the subject, for example, Julián di Reparez’s 1917 book entitled El Referendum, and in administrative practices, which were taken into account in the Municipal Law drafted in 1924 by Calvo Sotelo during the dictatorship of Primo de Rivera, but whose real inspiration was the idea of rebirth that Antonio Maura had enunciated 20 years earlier, whose ultimate goal was to “eradicate caciquismo” (the rule of local party bosses). The term “referendum” was admitted into the dictionary of the Real Academia de la Lengua Española in 1927, which defines it as “a consultation of the people on issues of common interest”, and, based on this simple conceptualization, was included – along with other mechanisms of direct democracy – in the Constitution of 1931 of the Second Republic. The Spanish republican Constitution – influenced on this and other issues by the Weimar Constitution – included three different institutions of direct democracy: the popular legislative initiative to hold a referendum to enact a law (Article 66), the popular initiative to hold a referendum on the abrogation of a law (Article 66), and the plebiscite to approve autonomy statutes (Article 12(b)). The first two mechanisms existed only on paper; they were supposed to be implemented by a special law that was never enacted. Therefore, only the plebiscite found practical application. Plebiscites were held during a 5-year period for the approval of the statutes of three autonomous regions: Catalonia, the Basque country, and Galicia. Only the first two entered into force, which occurred shortly before or simultaneously with the beginning of the civil war (1936-1939). In terms of the Spanish republican Constitution of 1931, although fully democratic, it was a political fiasco, as even its principal supporter and promoter, Manuel Azaña, admitted in 1940 to the great intellectual Guglielmo Ferrero. Its principal defect was probably its lack of popular support, which resulted in a fragile basis of legitimacy. To use a term dear to Karl Loewenstein, the Spanish Constitution of 1931 was a ‘nominal’ constitution in the sense that it embodied a democratic will in a politically immature society in which participation in the legal order presupposes conflict. In the Spain of 1931-1939 there was not really a break with legality, but simply that legality never became the legitimate basis for politics. The Spanish republican experience, however, in addition to being a reference point for European constitutional law in the years of the dictatorship, became a moral reference point for the democratic opposition. Throughout the entire Franco regime, Spanish democrats continued to consider the text of 1931 as the model of the democracy that they wanted to achieve, if the plebiscites during those years were recognized as valid by the democratic Constitution of 1978. But this is part of another story.196 196 The principal Spanish treatises of the subject are relatively recent, all of them within the last forty years. The first study of this theme was made by J. Santamaría Osorio, Participación política y democracia directa, in Estudios Homenaje al profesor Carlos Ollero, Guadalajara, 1972, which in large part recapitulates his doctoral thesis written in the United States. Another thesis subsequently appeared, written in Spain, by L.

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1.4

1.4.1

The Historical Evolution of Direct Democracy

Plebiscites and Direct Democracy in authoritarian regimes

Direct Democracy during Nazism and Fascism

A few years after the entry into force of the Weimer Constitution and after its earliest applications, Carl Schmitt severely criticized the referendum and the constitutional provisions relating to it. According to Schmitt, the principal problem with direct democracy is that the people are called upon to say only ‘yes’ or ‘no’. With his secret ballot the individual has to make a technical judgment about a certain matter, but this would mean that every citizen is a statesman and knowledgeable about all things. In fact, he is really saying yes or no to the party or leader who proposed and formulated the question. The people are not invited to a deliberation, but to an ‘acclamation’. This is even more evident in the case of the draft law proposed by 1/10 of the voters pursuant to Article 73(3) of the Weimar Constitution, which was the provision relied upon for all the popular initiatives during the Weimar period. That is the provision that Schmitt focuses on primarily. According to Schmitt there are certainly not 1/10 of the voters who in fact propose the law, but one or more persons, who induce others to say yes or no to it.197 Schmitt observes that even an absolute monarch needs to be backed by the crowds who cheer him: there was no state without people and no people without cheers (Kein Staat ohne Volk, kein Volk ohne Akklamationen).198 This would seem to explain the plebiscitary tendencies of all dictatorial regimes. Indeed, a few years later the Nazis seemed to confirm Schmitt’s observations. Hitler used the plebiscite to highlight the population’s support in his confrontations, as well as “to throw in the face of the world the solidarity of the German people behind the international policies of the Führer”.199 While in prior years the instruments of direct democracy, so enlarged by the Constitution, had remained on paper but had only sporadic and unsuccessful applications, Hitler understood and made others understand that the popular ‘acclamations’ were a confirmation and further consolidation of his power. This was certainly far in excess of the intentions that had inspired the Weimar constituents, for whom direct democracy was as a corollary, Aguiar de Luque, Democracia Directa y Estado Constitucional, Madrid, 1977. For the period following the entry into force of the Constitution, the following works deserve being mentioned: P. Cruz Villalon, El referendum consultivo como modelo de razionalización constitucional, in REP, 13, 1980; and J. Oliver Araujo, El referendum en el sistema constitucional español, 29, 1989. For a more recent treatise, see the excellent work on the referendum of A. Cuenca Miranda in his Comentario a la Ley Orgánica del Régimen Electoral General y a la Ley Orgánica del Referéndum, Madrid, 2014. 197 C. Schmitt, Volksentscheid und Volksbegehren, supra n. 10, 31 ss. 198 Ibidem, at 34. 199 L. Rapone, Un plebiscitarismo riluttante. I plebisciti nella cultura politica e nella prassi del fascismo italiano, in E. Fimiani (ed.), Vox populi?, supra n. 1675, 175.

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control, verification, and possibly a counterweight, but not a negation, of representative institutions.200 It has been stressed, quite rightly, how Hitler’s uses of the plebiscite were significantly reduced over time.201 In July 1933, soon after assuming power, Hitler had a new law on referendums approved. The government could submit a decision to the voters who would decide by a majority vote. There was no minimum threshold for participation.202 In October of that same year Germans were called to decide two questions: one ballot asking them to approve a single list of candidates led by Hitler for the election of a new Parliament; and a second ballot asking the voters assent to leave the conference on disarmament and to withdraw from the League of Nations. The ballots were worded so that one could only give a positive vote; the only way to express dissent was by not going to the polls or by submitting a blank ballot. ‘Negative’ votes were very few and concentrated in big cities. A second plebiscite was held in 1934 on the law that unified the offices of president and chancellor, but the vote was lower than those of previous plebiscite. This prompted Hitler to avoid the risk of further plebiscites. There were only two more plebiscites, one for the annexation of the Saar203 and the other for the annexation of Austria. There was no problem with the plebiscite for the Saar, which had already been provided for by a law of the Saar enacted in 1919. The Saar’s annexation to Germany took place in 1935. France had no particular interest in obstructing it, but the percentage of votes in favour of reunification with the Nazi Germany was much higher than expected, exceeding 90%. The 1938 plebiscite on the question of Austria’s annexation was submitted together with a single election list led by Hitler, but on only one ballot. In the case of Austria, like that of the Saar, the percentage of favourable votes was extremely high. During the fascist period, Italy held two plebiscites: in 1929 and in 1934, both for election to the Chamber of Deputies. Voters were presented with a single list of 400 names, which had been established by law. A subsequent law, enacted in January 1939, abolished elections. The Chamber of Deputies was transformed into the Chamber of Fasci and Corporations, with members appointed by the Duce. There were no more elections or plebiscites held on other issues. All forms of suffrage typical of the old parliamentary system were eliminated.204 The reasons why Mussolini no longer considered resorting to plebiscites,

200 Cfr. P. Ridola, La costituzione della Repubblica di Weimar come ‘esperienza’ e come ‘paradigma’, in Rivista AIC no. 2/2014, 13; M. Suksi, Bringing in the People, supra n. 22, 98 and 102. 201 G. Corni, Il nazionalsocialismo, supra n. 186, 179 ff., who analyzes the successive plebiscites duirng the Nazi period, the initial enthusiam of Hitler for them, and his later misgivings. 202 Cfr. M. Suksi, Bringing in the People, supra n. 22, 99. 203 On which see D. Rauch & O. Vernier, Un consentement orienté et un plébiscite sous surveillance: le cas de La Sarre en 1935, in M. Ortolani & B. Berthier (eds.), Consentement des populations, supra n. 170, 451 ss. 204 L. Rapone, Un plebiscitarismo riluttante, supra n. 194, 145 ff.; E. Fimiani, La legittimazione plebiscitaria nel fascismo e nel nazionalsocialismo. Un’interpretazione comparata, 32 Quaderni storici 94 (1997), 184 and 190 ff.

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contenting itself with the two electional plebiscites which produced excellent results for him205 and contributed greatly to strengthening the regime, are linked to the fascist ideology, as has been convincingly demonstrated.206 The guilds were an expression of civil society, and the corporate state achieved the perfect union between the state and the people, thereby transcending the doctrine of separation of powers and making unnecessary any form of election or plebiscite. Considered from another angle, the ideology of Nazism was based on the superiority of the Aryan race and the German people, and Hitler was its interpreter and spokesman. The expression of the uniform and firm will of the people through plebiscites was a precise demonstration of this.207 But, as we have seen, when confronted with less positive results than expected, Hitler began to resort to the plebiscite only in situations of necessity, putting in place all the appropriate precautions to reduce the risk.

1.4.2

Direct Democracy during the Franco Period

With regard to the Franco regime (1936-1975), it is necessary to take as our starting point the particular circumstance that, from a comparative European perspective, was foundational for the regime: the civil war. In fact, in Spain – unlike in nearby European countries – bourgeois modernity is not a child of the French Revolution, but of the much later break that occurred in the period between 1936 and 1939. In Spain the cycle that began in Europe with the French Revolution and culminates with political modernity and democratic constitutions, occurred violently by an internal revolution, which was first political (1931) and, later, social (1936). These developments in turn unleashed a counter-revolution, led by a military man, Francisco Franco, Commander-in-Chief of an army forged in a colonial war in Africa. Franco took advantage of the civil war to construct a political system based on a Hobbesian model: total destruction and conquest by the sword. The new state, without precedent, was built on the smoking ruins of the past and forged only by the power of the sword. Franco represented for Spain what the Leviathan was for the Hobbesian state: total power, without conditions, with only life in exchange. This was the political model that ruled the life of the Franco regime, whose powers were enumerated in the Leyes de Preroggativa of 1942, which recognized his authority to impose laws on the basis of his will alone. It was not, therefore, a military dictatorship in

205 Favourable votes were 98.3% in 1929 and 99.8% in 1934. See L. Rapone, Un plebiscitarismo riluttante, supra n. 194, 145 ff., and E. Fimiani, La legittimazione plebiscitaria, supra n. 199, 185 ff., according to whom “the votes of 24 March 1929 were politically decisive, and without doubt emblematic of the efficacity of the popular legitimization, so much as to make that year a watershed period in this history of the regime.” 206 L. Rapone, Un plebiscitarismo riluttante, supra n. 194, 151 ff. 207 L. Rapone, Un plebiscitarismo riluttante, supra n. 194, 173 ff.; E. Fimiani, La legittimazione plebiscitaria, supra n. 199, 202 ff.

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the traditional sense of the term. It was not a totalitarian regime like those in Italy or Germany, but a particular system based on the exclusive will of a man who had conquered the country inch by inch, spilling all the blood that was necessary to pay homage to Clausewitz’s maxim: “The goal of the war is to destroy, to annihilate your adversary until you tear from him the last shred of will to resort to arms.” Franco ruled Spain with an iron fist for a lifetime, and those who lived subject to his power did not dare ever to place it seriously in question. Even the Communist opposition, weakened and lacking strength, accepted the turn of the historical wheel which brought the Caudillo to power, which served to remind it that any deviation from unconditional loyalty to him could lead again to war. Nevertheless, Franco could not do everything. He ruled with absolute power, but it was largely thanks to his extraordinary astuteness in always choosing the right card to play. It took a long time for Pétain, Mussolini, and Hitler to understand him. The same was true for Eisenhower, De Gaulle, and Nixon, when they dealt with his regime for strategic reasons, but they never realized his true nature. Francoism could be understood as an expression of the general will, even though that was really completely illogical. It was, therefore, a fact to be explained by the particular circumstances prevailing in Spain at the time. Institutions did not exist and, to the extent that they did, they were the product of conditions existing at the time, unable to survive the death of their author, as the events subsequent to 1975 will demonstrate. The regime was, ultimately, a unique architectural ensemble. Spain was described as a kingdom without a king from 1947 on and as a corporate state, an absurd mixture of ideologies ranging from Christian democracy to populism, fascism, conservatism, and traditionalism. In this strange mixture the plebiscite played an integral role. In two key moments of its existence, in 1947 and 1969, the regime resorted to the plebiscite to ensure its political continuity. First, to endorse the continuation of Franco in opposition to suggestions, tentatively advanced by the victors of World War II, to restore a democratic monarchy in the person of the son of the last king. Second, to recognize and confirm the survival the Caudillo’s regime post-mortem in the person designated by him, the future Juan Carlos I. The two referendums were clearly held in non-democratic conditions, as happens in a dictatorship, but it is equally certain that – unlike what happened in 1957 in Portugal with the candidacy of Humberto Delgado for the presidency of the republic – the regime really won, because of the support of an immense majority of the population, which saw in General Franco the guarantor of a peace that would allow them to prosper. Legitimacy came through the performance of technocrats. This fact is important from the constitutional point of view for two reasons: 1) genealogically, the constitutional system is the legal heir – even though not legitimate – of Francoism, as the political transition, unlike modern revolutions, did not constitute a process of breaking with the past, as in the Portuguese

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case, and that, as a result, many of the political assumptions of Francoism, starting from those concerning the head of state, have strangely continued to live on in the democratic regime; 2) the institutions of direct democracy in the Spanish Constitution of 1978 are the subject of particular mistrust and suspicion, because they are seen as possibly reminiscent of Francoism. It is no coincidence that the technical transition from dictatorship to democracy occurred in December 1976, by means of a referendum which was actively opposed by democratic forces and that – according to the old Francoist style (it was actually the third plebiscite of a regime whose founder had died the previous year) – won a democratic majority without being fully democratic (there were no free political parties, civil liberties, or independent judges).

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2.1

France

As we have already seen, direct democracy in France, although strongly supported by some theorists and political leaders, like Rousseau, Condorcet, and Ledru-Rolin, and tried periodically (the Constitution of 1793, the direct action of the people in 1830, 1848, and 1871, the plebiscites of Napoleon Bonaparte and Napoleon III, and the presidential election of 1848), was viewed by the mainstream of the republican tradition with hostility. Either it gave too much power to the masses, seen as unreasonable and uncontrollable, or it was an instrument of autocracy (Bonapartism). The Third Republic (1870-1940) opted for a representative government.1 At the local level, departmental and communal decision-making power (where direct democracy would have been easier to put into practice) ran up against the important republican value of centralization which was thought essential to national unity and equality. After the World War II, France had to reestablish a government. During the war France was occupied by the Germans, who had installed an authoritarian government in the country, the Vichy regime. After the Liberation in 1944, the question arose: whether or not to reestablish the Third Republic. General Charles de Gaulle, chief of state of the provisional government, decided to submit two questions to the people. The first question was whether to maintain or to abrogate the Constitution of 1875, that is to say, the Constitution of the Third Republic. The second proposed the adoption of a provisional constitution of a parliamentary type, in anticipation of the later adoption, also by popular referendum, of a Constitution of a Fourth Republic. Voters responded ‘yes’ to both questions. On April 21, 1944 the franchise was extended to women by the French Committee of National Liberation, confirmed by the ordinance of 5 October of the Provisional Government of the French Republic, but was only effectuated on 29 April 1945 for communal elections and in October for elections to the Constituent Assembly. There were two referendums in 1946. In the first, the voters rejected a constitution whose drafting had been strongly influenced by the Community Party. In a second referendum the voters approved a more moderate constitution which reestablished a parliamentary regime. 1

See R. Priouet, La République des députés, Paris, 1959. The most important theorist of the Third Republic was Raymond Carré de Malberg. Cfr. R. Carré de Malberg, Considérations théoriques sur la question de la combinaison du référendum avec le parlementarisme, in Revue du droit publique, 1931, 225-244.

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General de Gaulle opposed both constitutions. He presented his ideas in two important speeches,2 which were going to provide the basis for the Constitution of 1958, the present French constitution. The Fourth Republic proved incapable to dealing effectively with the problems that were afflicting France, particularly decolonization (and the resulting wars in Indochina and Algeria). That inability owed in large part to a dysfunctional political process and the lack of a strong executive power. The crisis reached its culmination in 1958. As a last resort, Parliament asked General de Gaulle to assume the leadership of the government and authorized that government to draft a new constitution. The government of General de Gaulle, under the direction of Michel Debré, who was to become the first prime minister of the Fifth Republic, drafted a constitution which was approved by an overwhelming majority of the voters in a referendum in September 1958 (a participation of 85%; 79% of the voters voted ‘yes’).

2.1.1

The Power of Initiative

The power of initiative is without doubt the most important power for direct democracy in the legislative and constituent domains. Without this proactive power, that is to say the power to initiate a law or an amendment to the constitution and to propose its text, the people would find themselves, in most cases, the instruments in the political game of those who have these powers, called upon only to respond to a proposal drafted by others when those others thought that it would be politically expedient to seek the approval (or perhaps the disapproval) of the people. In France, with only the most minor exceptions, the power of initiative at both the national and local levels belongs exclusively to elected officials (executive officials, deliberative officials). The original Constitution of 1958 did not include any provision on the popular initiative. Only the president had the authority to submit a question to a referendum of the people (although when the question was one of an amendment to the Constitution, the consent of Parliament was required). In 2008, the Constitution was amended to allow a parliamentary minority (20%) supported by 10% of registered voters to initiate a referendum. The Balladur Report, which provided the basis for the 2008 amendments to the Constitution, recommended that the Constitution be modified to increase the participation of the people in the legislative process by allowing a referendum on the initiative of a parliamentary minority and the voters. The Report suggested that the Parliament be involved in the initiative process to avoid “an excessive enlargement of the domain of direct democracy”.3

2 3

Speech at Bayeux, June 16, 1946, in Philippe de Gaulle (ed.), Charles de Gaulle: L’esprit de la Ve République: Mémoires d’espoir, Paris, 1970, 309-314; Speech at Épinal, September 29, 1946, ibidem., 317-323. Comité de réflexion et de proposition sur la modernisation et le rééquilibrage des institutions de la Ve République présidé par Édouard Balladur, Une Ve République plus démocratique, Paris, 2008, 147.

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The constitutional amendment bill introduced by the government, however, did not include this proposal for the amendment of Article 11. That provision was added by Parliament after its introduction by the Socialist group during the parliamentary debate. At the local level, constitutional amendments of 2003 and 2008 gave to the people three possibilities of participating in the political decisions of the territorial units: the rights of petition, consultation, and referendum. (We will consider the first two here and the local referendum in section 2.1.4 below.) The right of petition, recognized by Article 72-1(1), says that […] voters in each territorial community may use their right of petition to ask for a matter within the powers of the community to be entered on the agenda of its Deliberative Assembly […] As originally proposed, this article would have “required” the inclusion of an item on the agenda, but “a majority of senators, who were more concerned about the prerogative of elected officials rather than the rights of citizens replaced the word ‘require’ with the word ‘ask’”.4 Moreover, the right of petition applies only to the “territorial units” and not to their public authorities or to intercommunal units, both of which exercise very important powers. This right, then, is “more illusory than real”.5 To sum up the situation of the availability of the initiative to citizens at the present time, neither the Constitution nor the laws provide for any right of a purely popular initiative (i.e., a referendum initiated by the people without the participation of elected officials). The closest approximations to the power of popular initiative are the national referendum on the initiative of 20% of the members of Parliament and 10% of registered voters [Art. 11(3)] and the local referendum authorized by the Deliberative Assembly of a territorial unit after the voters in that unit had presented a petition to have matter included on the agenda of the assembly [Art. 72-1(1)]. Article 72-1 provides for the “consultation” of voters in the territorial units “in the conditions determined by statute”. According to the applicable law: In a commune, one-fifth of the registered voters and, in other territorial units, one-tenth of the voters, may request that the organization of a consultation on any question within the decision making competence of its deliberative assembly be entered on the agenda of that assembly.6

4 5 6

Ibidem. Ibidem. Code général des collectivités territoriales, Art. L1112-16.

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The consultation is not an initiative; it is only consultative; it is not legally binding “After […] the consultation, the competent authority of the territorial community shall make its own decision on the matter which was its object”.7 Moreover, the scope of the consultation is extremely limited: it may not concern a matter of interest to the community if that matter does not fall within its decision-making competence (such as the proposed route of a highway or of a railroad line, which falls within the competence of the central government).8

2.1.2

The National Referendum in the Constitution of 1958

2.1.2.1 The Legislative Referendum Notwithstanding the traditional republican hostility to direct democracy, the Constitution of 1958 authorizes the president of the Republic to hold a referendum if certain enumerated conditions are satisfied. The procedure for the amendment of the Constitution itself included the possibility of a referendum. Amendments to the Constitution in 1995 and 2006 extended the field of application of the referendum procedure and other amendments have authorized referendums at the sub-national level. In providing directions for the first draft of the Constitution of 1958, General de Gaulle was particularly concerned with establishing a counterweight to the power of Parliament, so that the national interest would not be sacrificed in the competition of the special interests represented by the political parties. In his opinion, this required a strong executive authority which would be placed above the machinations of the parties. Given the French republican tradition, more specifically the authorization that his government had received from Parliament that “the Government must be responsible to Parliament”,9 General de Gaulle wanted to create a strong president and to give him the powers necessary to adopt the policies and to take the actions necessary to protect the essential interests of the nation. For him, an important component of this structure was the referendum. At the national level, Article 11 of the Constitution is the most important. The first paragraph authorizes the president to submit to referendum certain categories of questions on the proposal of the government or of the parliamentary assemblies. Until the constitutional amendments of 2008, the competence to submit a question to referendum belonged exclusively to the president. Although he could act only on the basis of a proposal of the government or of the parliamentary assemblies, it was his decision alone to submit a question to referendum. Furthermore, in the usual situation where the party of the president

7 8 9

Ibidem., Art. L1112-20. Y. Luchaire, op. cit., 1716. Loi constitutionnelle du 3 juin 1958 portant dérogation transitoire aux dispositions de l’article 90 de la Constitution, J.O.R.F., 4 juin 1958, 5326.

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controlled the lower house, the National Assembly, and therefore the government, the president was the real decision-maker. “The referendum appeared, therefore, as one means among others, given to the president to allow him to guaranty the proper functioning of the government.”10 The constitutional reforms of 2008, whose purpose was to reinforce the powers of Parliament and to enlarge the rights of citizens,11 allow a parliamentary minority (onefifth of its members) supported by a minority of voters (one-tenth of registered voters) to initiate a referendum. Although the 2008 amendment to Article 11 represented a movement towards direct democracy, it was a very small step. The people still cannot initiate a referendum, their sole function is to agree (or not) with a referendum proposed by a parliamentary minority. A referendum pursuant to Article 11 can be held only on proposed legislation, initiated by the government or by a member of Parliament. Questions of policy, with details to be elaborated later by Parliament are, therefore, not admissible. Moreover, Article 11 limits the domain of the referendum to certain enumerated categories. The categories enumerated in the original Constitution were enlarged by the constitutional amendments of 1995 and 2008. In the original Constitution, referendums were limited to questions on the organization of the public authorities, or the ratification of a treaty which, although not contrary to the Constitution, would affect the functioning of institutions. Later additions added “reforms relating to the economic or social policy of the Nation, and to the public services contributing thereto”. According to two constitutional experts: Legislative sectors excluded seem to be criminal law, the administration of justice, the civil law, questions of sovereign policy like the police, defense, and foreign affairs, “social questions,” republican freedoms and principles included in the constitutional bloc. On the positive side, it seems that taxation, health, education, urbanism, and the public services are included […] Civil liberties seem to be excluded from the […] field of referendum […]12

10

11 12

G. Conac & J. Le Gall, Article 11, in F. Luchaire, G. Conac & X. Prétot, La Constitution de la République francaise: Analyses et commentaires, 3 ed., Paris, 2009, 415. Jean-Claude Colliard, former member of the Constitutional Council, has described the system of the Fifth Republic as “a parliamentary regime with a presidential corrective.” quoted in Jean-Luc Warsmann, Rapport fait au nom de la Commission des lois constitutionnelles, de la législation et de l’administration générale de la République sur le projet de loi constitutionnelle de modernisation des institutions de la Ve République, Assemblée nationale, no. 892, 15 mai 2008, 41 (page citation to pdf version, available at http://www.assemblee-nationale.fr/13/pdf/rapports/r0892.pdf. Rapport Balladur, op cit. G. Conac & J. Le Gall, Article 11, in F. Luchaire, G. Conac & X. Prétot, La Constitution de la République francaise: Analyses et commentaires, 3 ed., Paris, 2009, 425-426.

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2.1.2.2 The Constituent Referendum The Constitution also provides for a referendum for amendments to the Constitution. According to Article 89: The President of the Republic, on the recommendation of the Prime Minister, and Members of Parliament alike shall have the right to initiate amendments to the Constitution. A Government or a Private Member’s Bill to amend the Constitution must be […] passed by the two Houses in identical terms. The amendment shall take effect after approval by referendum. A referendum is not necessary, however, where the President of the Republic decides to submit it to Parliament convened in Congress; the Government Bill to amend the Constitution shall then be approved only if it is passed by a three-fifths majority of the votes cast. 2.1.2.3 The Referendum in the International Domain In 2005, Article 88-5 was added to the Constitution to require a referendum on any law which authorizes the ratification of a treaty which involves the adhesion of a state to the European Union. This addition was clearly political, intended to assure the French people that they would have a voice in the decision to admit Turkey into the European Union and thus to separate that question from that of the ratification by France by referendum of the Treaty Establishing a Constitution for Europe, which was going to take place that same year. In spite of this manoeuver, the Treaty was defeated (55% no). In 2007, Article 88-5 was amended to permit the ratification of a treaty of adhesion to the European Union by parliamentary action on the initiative of the president of the Republic as an alternative to submitting it to referendum.

2.1.3

The National Referendum in Action

In January 1961 and April 1962, General de Gaulle utilized two referendums to obtain the approval of the people for a policy that he wanted to pursue to deal with the situation in Algeria. Both of these votes had the character of plebiscites: the voters were not given two alternatives to choose the one that they preferred or only one proposal with the possibility of rejecting it and voting on an alternative in the future (as happened in 1946 with the Constitution of the Fourth Republic), but to approve a policy already decided on without the realistic possibility of replacing it with another that would be presented in a future referendum.13 13

See H. Ehrman, Direct Democracy in France, in The American Political Science Review, Vol. 57, No. 4, 891893.

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A third referendum took place in October 1962 on an amendment to the Constitution for the direct popular election of the president of the Republic. The original Constitution provided that the president of the Republic would be elected by an electoral college composed of about 80,000 members (national and local elected officials). The amendment proposed by General de Gaulle provided for the direct election of the president by universal suffrage. The effect of this change in the method for the election of the president would significantly increase his legitimacy and thus his power. He would now be the depository of national sovereignty, delegated to him by the general will of the nation. De Gaulle invoked the Constitution’s Article 11 procedure in his quest for popular approval, rather than the Article 89 procedure, which is specifically applicable to constitutional amendments. In so doing, he sought to avoid the involvement of Parliament, as Article 89 required. The use of the Article 11 procedure was highly suspect legally and almost certainly unconstitutional.14 In an important decision, the Constitutional Council decided that it did not have the competence to review a law adopted by referendum. That is an act of the constituent power and “a direct expression of national sovereignty”.15 The collective effect of these three referendums was to move the French political system in the Bonapartist direction of the political spectrum. France had become a “republican monarchy”16 and the Constitution “a presidentialist constitution”.17 All that changed however with the subsequent referendum, which took place in 1969, because of the actions of President de Gaulle himself. The proposal of the president, once again using Article 11 to amend the Constitution (this time to modify certain provisions regarding the Senate and the creation of a new unit of local government, the region) was defeated. President de Gaulle considered the rejection of his proposal as a vote of no confidence in his leadership, and resigned immediately from the presidency. This was the last time that the president made use of Article 11 to amend the Constitution and in this way avoiding the involvement of Parliament. It produced also, thanks to President de Gaulle’s resignation, a recalibration of the relations between the president and the people: the president was, in reality, responsible to the people, and without their approval, he no longer possessed the legitimacy to exercise power.

14

15

16 17

The deliberations of the Constitutional Council when it was reviewing the proposed referendum law before its submission to the vote of the people indicate that the members had substantial reservations about the use of the Art. 11 procedure, but gave way before the political realities of the situation. Séance du 2 octobre 1962, Avis sur le référendum relatif à l’élection du président de la République au suffrage universel direct, in B. Mathieu et al., Les grandes délibérations du Conseil constitutionnelle, Paris, 2009, 99-112, Decision of 6 Novembre 1962, 62-20 DC, Rec. 27. See also Séance du 6 novembre 1962, Décision No 62-20 DC, Loi référendaire relative à l’élection du président de la République au suffrage universel direct, in B. Mathieu et al., Les grandes délibérations du Conseil constitutionnelle, Paris, 2009, 113-124, See, e.g., C. De Gaulle, Press Conference January 31, 1964, in Les grands textes de la pratique constitutionnel de la Ve République (D. Maus, ed.), Paris, 1998, 42-44. J. Gicquel & J-E. Gicquel, Droit constitutionnel et institutions politiques (23 ed), Paris, 2009, 494.

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Three years later, the successor to President de Gaulle, Georges Pompidou, submitted to popular referendum the question of the enlargement of the Common Market (the admission of Great Britain, Ireland, and Demark). President Pompidou wanted to reinforce his political position, both internally and externally, to deal with questions concerning France’s membership in the Common Market and also to reestablish the presidential referendum, which was so important to the Gaullist conception of government. Although the voters voted ‘yes’ to the question presented, participation was very low and the prestige of President Pompidou emerged diminished from the process. There have been only four other referendums since 1972: in 1988 on the status and evolution of New Caledonia (the Matignan Accords), in 1992 on the Treaty on the European Union (Treaty of Maastricht), in 2000 on the reduction of the term of the president from 7 to 5 years (le quinquenat), and in 2005 on the European Constitution. The voters approved the Matignan Accords and the Treaty of Maastricht, but the high rate of abstention in the first referendum and the very small majority (51%) in the second had the effect of politically weakening President Mitterrand. The two referendums during the term of President Chirac produced the same result: 70% of the voters abstained in the referendum on the presidential term; and the European Constitution was defeated (55% no, participation only 31%). One can say that after President de Gaulle the referendum has not served as an instrument of authoritarianism but rather as a means of involving the people in certain important decisions for political reasons.

2.1.4

The Local Referendum

In 1982 France embarked on a major effort to decentralize its decision-making and administrative processes. After decisions of the Constitutional Council which impeded the devolution of power to the political subdivisions (regions, departments, and communes) because that violated the constitutional principle of the indivisibility of the Republic sanctified in Article 1, the Constitution was amended in 2003 to eliminate legal barriers to decentralization. Language was added to Article 1, which now says, in relevant part: “France shall be an indivisible […] Republic. […] It shall be organized on a decentralized basis.” (The 2003 addition is in italics.) The title of the Constitution that deals with the territorial units (les collectivités territoriales) was substantially modified. Article 72 states the subsidiarity principle (“Territorial communities may take decisions in all matters arising under powers that can best be exercised at their level.”) and accords regulatory power (le pouvoir réglementaire) to the territorial units within the domain of their competence. Perhaps the most significant part of the decentralization amendments is the abolition of the control (tutelle) that the prefect (préfet) formerly exercised over the decisions of the local authorities. Renamed the representative of the state (le représentant de l’État), he no

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longer has the power to annul local decisions on the basis of their legality or their desirability from a policy perspective. His function now is to “represent[] each of the Members of the Government, […] [and] be responsible for national interests, administrative supervision and compliance with the law” [Art. 72(6)]. If he thinks that an action of a local official or local deliberative body does not conform to the law or to the Constitution, his only choice is to refer it to an administrative tribunal. He no longer has the competence to annul it himself. The 2003 amendments initiated a new approach not only in decentralizing rule-making competence and in limiting the power of the representative of the government, but also by allowing some degree of direct democracy to the sub-national territorial units. The Constitution now allows the voters in the territorial units to exercise the right of petition: The conditions in which voters in each territorial community may use their right of petition to ask for a matter within the powers of the community to be entered on the agenda of its Deliberative Assembly shall be determined by statute. [Art. 72-1(1)] The local territorial units may also hold referendums on questions which are within the competence of their unit: In the conditions determined by an Institutional Act, draft decisions or acts within the powers of a territorial community may, on the initiative of the latter, be submitted for a decision by voters of said community by means of a referendum. [Art. 72-1(2)] There are also constitutional provisions which now permit, and in some cases require, a referendum on questions involving modifications to the borders of territorial units or the creation or the modification of territorial units with a special status [Art. 72-1 (3)] and changes in the organization of certain listed overseas departments and territories [Art. 724 (2)].

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2.1.5

Participative Democracy 18 and Neighbourhood Democracy 19

The symbolic and democratic virtues of the “local” have varied from time to time in French history: the local is sometimes denounced as the place of clientism, aristocracy, and parochialism and sometimes it is praised as the seat of citizenship, participation, innovation, experimentation, flexibility, and the foundation of political legitimacy.20 The events of May 1968 in France placed the “local” in a positive light as a place where the “new middle class” could vindicate its prerogatives against the elite of the political class.21 These factors gave rise to calls for democratic participation at the local level. This movement gained momentum during the 1980s and 1990s with the decentralization legislation enacted in 1982 and successive modifications to the Constitution permitting the devolution of decisional responsibility to lower levels of the state (l’État).22 Furthermore, the ever increasing legislative output of the European Union, which was impacting economic and social life more and more with rules and regulations prescribed by distant supranational authorities, increased the desire for more political participation by citizens at the local level, closer to them, where they could feel more in control of their daily lives.23 In 2002, to respond to calls for more political participation by citizens at the local level, Parliament enacted a law on neighbourhood democracy.24 An examination of this law and its progress through the legislative process is very revealing about current French attitudes towards direct democracy at the local level. The story begins with the report Refonder l’action publique (To Reconstruct Public Action) of 2000 by ex-Prime Minister Pierre Mauroy. In his letter of instructions to Mr. Mauroy, the prime minister at the time, Lionel Jospin, wrote:

18

19

20 21 22

23 24

For the first influential books on the idea of participative democracy, see C. Pateman, Participation and Democratic Theory, Cambridge, 1970; C.B. Macpherson, The Life and Times of Liberal Democracy, Oxford, 1977. On neighbourhood democracy, see M.-H. Bacqué, H. Rey & Yves Sintomer, Gestion de proximité et démocratie participative, Paris, 2005. See also the excellent collection of articles on local democracy, La démocratie locale. Représentation, participation et espace public, Paris, 1999. R. Lefebvre, Retour sur les années 1970. Le parti socialiste, l’autogestion et la démocratie locale, in M-H. Bacqué &Y. Sintomer, La démocratie participative: Histoire et généalogie, Paris, 2011, 65. Ibidem. See Comité pour la réforme des collectivités locales présidé par Edouard Balladur, Il est temps de décider: Rapport au Président de la République, Paris, 2009; Pierre Mauroy, Refonder l’action publique locale: rapport au Premier ministre, Paris, 2000. R. Lefebvre, Retour sur les années 1970. Le parti socialiste, l’autogestion et la démocratie locale, in M-H. Bacqué & Y. Sintomer, La démocratie participative: Histoire et généalogie, Paris, 2011, 65. Loi no 2002-276 du 27 février 2002 relative à la démocratie de proximité, J.O.R.F./LD 03808. A law of 1992 had already begun the process of “guarantying local democracy.” Loi d’orientation no. 92-125 du 6 février 1992 relative à l’administration territoriale de la République, J.O.R.F. 8 février 1992, no. 33. (Art. 10: “The rights of the inhabitants of the commune to be informed about and to be consulted on decisions which concern them, inseparable from the free administration of the territorial units, is an essential principle local democracy.”)

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Local authorities have become the principal actors in economic, social, and cultural life. With them, public action has been enriched and advanced. A greater opening of local elective offices to all social categories, more participation of citizens in local democracy, and more fiscal responsibility of local political units can consolidate democracy in the minds of our citizens.25 Recognizing that the “human geography” of France has changed “profoundly” since the promulgation of the first decentralization law in 1982 and that the decentralization measures already adopted and the “European construction” have called into question the present model of decentralization (“Local democracy is not always seen as sufficiently local or sufficiently democratic.”), the report formulated various recommendations relevant to direct democracy.26 Its principal recommendation was to create neighbourhood councils in cities of more than 20,000 inhabitants and to encourage this development in other cities. These councils would be appointed by the municipal council; they would provide a link between the people of the neighbourhood and the municipal authorities for the people to furnish their advice, for the exchange of ideas, and for opening channels of communication with public service providers to respond to the vagaries of everyday life; and the municipal authorities would provide the information and resources for them to operate effectively. The bill introduced in Parliament by the government was call “Bill on Neighborhood Democracy”27 and its first title, which established neighbourhood councils was “Neighborhood Democracy”. The first chapter of the first title was “Participation of Residents in Local Life”. During the first reading in the National Assembly, the first title was changed to “Participative Democracy” and the first chapter to “Participation of Residents in Local Democracy”.28 The reason for these amendments was to symbolize and to accentuate the participation of residents in the management of the community as well as in the political debate more generally. As one deputy said, it is a matter of a “declaration of principle”. However, the Senate (which represents the interests of the territorial communities of the country) did not agree; and the original titles were restored by the joint committee.29 The Mauroy Report recommended that neighbourhood councils be established obligatorily in communes with 20,000 inhabitants or more. The government bill required the obligatory establishment of neighbourhood councils in communes with 50,000 inhabitants or more. Deputies of the Left in the National Assembly had sought in vain to amend the 25 26 27 28 29

Lionel Jospin, Lettre de mission, Refonder l’action publique locale, Annexe 1, 141-142. The report also proposed many changes for improvements in representative democracy. Assemblée nationale, Projet de loi relatif à la démocratie de proximité, no. 3089 (29 mai 2001). Assemblée nationale, Projet de loi adopté par l’assemblé nationale en première lecture, texte adopté no. 691 (25 juin 2001). Rapport fait au nom de la Commission mixte paritaire chargé de proposer un texte sur les dispositions restant en discussion du projet de loi relatif à la démocratie de proximité, Assemblée nationale no. 3560, Sénat no. 192 (4 février 2002).

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bill to require the establishment of neighbourhood council in all communes, arguing that the “the threshold of 50,000 inhabitants for the creation of neighbourhood councils would apply to only 14 million people and only to 112 cities”. The final text, as it emerged from the joint committee, required the creation of neighbourhood councils in communes with more than 80,000 inhabitants. The law which emerged from the Parliament authorizes the municipal council to determine the boundaries of the neighbourhoods, the composition of the neighbourhood councils, and their procedures. The councils may be consulted by the mayor and he may present proposals to them on any question pertaining to the neighbourhood or the city. The mayor may involve them in the formulation, operation, and evaluation of actions which are of interest to the neighbourhood and those undertaken on the basis of citywide policies. [Art. L. 2143-1] Critics of the law argue that by giving the principal role to the major and the municipal council, as well as by limiting the subject areas in which the neighbourhood councils can participate to purely local matters (instead of, e.g., permitting the council to express itself on national policies which might have a significant impact on the city), the law enacted by Parliament unduly limits participative democracy at the local level. In summing up the overall effect of the law, Antoine Bevort says: “the government and the members of Parliament preferred to negate the real power of citizens and their right to participate in decisions regarding the community and to preserve the privileges of local elected officials”.30 Bevort call this model “top-down”,31 which he sees as replicating the structure of the central government (l’État or the State) at the local level: the communes resemble “small republican monarchies”.32 What is occurring in practice at the local level in France with respect to the participation of inhabitants in the formulation of policy and the supervision of its effectuation? Are the concerns expressed by Antoine Bevort justified or have requirements for the participation of citizens in local government been realized in practice? There are four principal questions that must be answered: (1) are the neighbourhood councils and other mechanisms for the participation of residents really representative of the local population? (2) are they really independent of the local political authorities (mayors and municipal councils)? (3) can they discuss and formulate recommendations on all questions which concern them, including questions which have community, regional, national, and international aspects? (4) do their discussions and recommendations have a real impact on the decision-making

30 31 32

A. Bevort, Pour une démocratie participative, Paris, 2002, 112. Ibidem., 115. Ibidem., 120.

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process of the community? The evidence to date is mixed; and studies indicate that there are substantial grounds for pessimism.33 In any event, it is possible that a new paradigm is emerging. According to the three principal French students of participative democracy: As of now, the idea that the voters have a monopoly on the general interest and that the political system is immunized against the pressures of citizens are becoming largely illegitimate, while grass roots action and the ‘participatory’ mode are little by little developing into a central theme in the dynamics of democracy: at the same time, public action is leaving its isolation and is opening up more and more to others than career officials.34

2.2

Italy

2.2.1

The Referendum in the Constituent Assembly

The Assembly that was to draft Italy’s new Constitution had been elected on 2 June 1946 by an electoral body called to the polls after 20 years of fascism and for the first time by universal suffrage, male and female. Along with the election of deputies to the Constituent Assembly, the electorate had to choose, by referendum, the institutional form of the state. The decision to put to the people the decision in favour of the monarchy or republic was not at all self-evident. Initially, Decree No. 151 of June 25, 1944, had entrusted to the Constituent Assembly the decision on institutional form, but 2 years later, with Decree No. 98 of 16 March 1946, a contrary approach prevailed and the decision was given to the people. This approach, advocated by De Gasperi and supported by Allied governments, was opposed by Togliatti and other politicians,35 and even during the work of the Constituent Assembly they sought to oppose the use of the referendum in every way possible. The dichotomy between direct democracy and representative democracy, therefore, lies at the very roots of the new Italian republic. The fact that the choice of a republican form of government was made by the same voters who elected the Constituent Assembly

33 34 35

Cfr. the articles in the book M.-H. Bacqué, Henri Rey & Yves Sintomer, Gestion de proximité et démocratie participative: Une perspective comparée, Paris, 2005. M.-H. Bacqué, Henri Rey & Yves Sintomer, Conclusion: La démocratie participative, modèle et enjeux, in ibidem., 305-306. A. Barbera & A. Morrone, La repubblica dei referendum, Il Mulino, Bologna, 2003, 11. See also G. Ambrosini, Referendum, Bollati Boringhieri, Torino, 1993, 22, who contrasts the parties of the left, who fought for the vote to take place in the Constituent Assembly, with the groups close to the Monarchy, who favored the referendum “to which the Christian Democrats posed no obstacle.” On the reasons for and the consequences of this choice, see T.E. Frosini, Sovranità popolare e costituzionalismo, Giuffrè, Milano, 1997, 111 et seq.

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made it essential for the Constitution to incorporate the instruments of direct democracy. The uncertainty of many members of the Constituent Assembly with respect to those instruments, however, led to an ambiguous, indirect choice.36 During the long period which runs from the committee stage through the plenary sessions, there was strong opposition, in part within the parties themselves,37 between those who looked with favour on the introduction of forms of direct democracy that would allow for oversight by the people, the ultimate repositories of sovereignty after all, of representative assemblies and those who viewed with suspicion and fear the tools of direct democracy that could call into question the decision-making power of representative institutions. In the Constituent Assembly, the question of the referendum was considered for the first time on 3 September 1946, in the second subcommittee by rapporteur Costantino Mortati on the functioning of the legislature.38 Dealing with the “role to be given to the people as an organ of legislative power”, Mortati at first approached the problem by comparing the proposed solutions to those adopted in a number of other countries. He observed at the outset that the political participation of the people through a referendum is a requirement that manifests itself more intensely in those jurisdictions with greater rigidity, such as Switzerland and the United States, where the term of constitutional organs have a fixed time period, compared to parliamentary systems where there are more flexible devices that allow a vote of the people at any time through the dissolution of the Parliament. But, in parliamentary systems, according to Mortati, the intervention of the people can still perform a useful balancing function, both by promoting the political education of the people and by compelling the political parties to have more contact with the people on concrete issues, thereby tempering the omnipotence of the parties. Opponents of the referendum criticized it as introducing an element of disharmony into the political process. So what was the most appropriate solution? Mortati recalls the French primary assemblies prior to the French Revolution, in which the people participated not to say ‘yes’ or ‘no’, but to take part in the debate. According to this model, one could imagine that the people called upon to say yes or no, whether grouped in appropriate bodies or not, would be enabled to debate and to propose amendments before the issue came to a vote. Remember 36

37

38

According to A. Chimenti Storia dei referendum: dal divorzio alla riforma elettorale, 1974-1999, 2nd edn, Laterza, Roma-Bari, 1999, 3 et seq., from the fact that the Constituent Assembly was born from a vote connected to a referendum, there was an initial enthusiasm for direct democracy, but soon fears for its consequences came to predominate. See also G.M. Salerno, Referendum in Enciclopedia del Diritto, Giuffrè, Milano, 1988, XXXIX, 208, and G. Ambrosini, Referendum, supra n. 35, 37. On the debate in the Constituent Assembly, see Id., 24 et seq. See S.P. Panunzio, Esperienze e prospettive del referendum abrogativo, in Attualità e attuazione della Costituzione, Laterza, Roma-Bari, 1979, 66 et seq.; A. Chimenti, Storia dei referendum, supra n. 36, 6; G. Busia, Il referendum costituzionale fino al suo debutto: storia di un “cammino carsico” di oltre cinquant’anni, in 8(2) Nomos 27 (2003), at 27 et seq. La Costituzione della Repubblica nei lavori preparatori dell’Assemblea Costituente, VII, Camera dei Deputati, Roma, 1971, 907 et seq.

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the North American practice that allows the people to condition their consent on the acceptance of certain amendments. No explicit reference is made by Mortati to the Weimar Constitution, even though he had just finished a study of that Constitution, in which he noted39 that the implements of direct democracy could not be charged, although valid for the case of purely representative regimes, with introducing an element of disharmony or disturbance into the institutions of constitutional action, because they are well suited to a legal order that gives to the people a dynamic function, in a substantive sense, in the action of the state. […] It is to be observed that when there is a division of people into a multiplicity of tendencies, when large masses of citizens remain outside the political parties, and fail to coalesce around a common opinion, when, in other words, they lack the appropriate means to organize and to express themselves clearly […] the institutions concerned are destined to remain unutilized in practice, as happened in Weimar. In his book, therefore, Mortati had expressed a positive judgment on the provisions of the Weimar Constitution on referendums, arguing that the failure to implement them was caused by the political uncertainty and the circumstances that existed in Germany after its entry into force. Proposing to the Constituent Assembly a similar system, Mortati evidently believed that these phenomena would not occur in republican Italy.40 It is likely, however, that the fear that reference to the Weimar experience might arouse reservations in the members of the Assembly with respect to direct democracy itself, pushed him to omit any explicit reference to the Weimar Constitution, and to take the more direct approach of proposing different types of referendum, as will be seen later. The lack of reference to the Weimar Constitution, moreover, seems to be also present in an article on the promulgation of laws proposed by Mortati 2 months later, on 21 December 1946. Unlike the provision drafted by the Coordination Committee, the amendment proposed by Mortati stated that Promulgation is suspended where, within the aforesaid time, a popular referendum on the law has been initiated by the Head of State or by the percentage of voters referred to in article […]

39 40

C. Mortati, La Costituzione di Weimar, supra n. 177, 35 et seq. A different position is taken by S. Basile, Il referendum nell’Italia liberale. Dibattiti ed esperienze, 17(1) Il pensiero politico (1993) 27, at 56 et seq, according to whom “The concrete experiences of Weimer, over and above the textual model, were of only minimal influence on Mortati, not to mention others like Fabbri, who, in apparent ignorance of the disasters already produced, proposed the quorum provision for participants.”

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Motivating the amendment, Costantino Mortati notes, was the recognition of the power of the President of the Republic to ensure greater independence from Parliament so as to allow him to exercise his power effectively.41 To grant the initiative, not only to the people, but also to the Head of State, would facilitate the determination of an accurate popular will, which, if left to itself, would take a less prompt and decisive form and thus not attain the goal at which the referendum aims.42 Tosato also favoured this solution. He stressed the need to avoid the address which the President of the Republic must deliver to Parliament on a particular bill, which remains at the complete mercy of that same body. Tosato is an isolated voice. The proposal that the referendum could be held on the initiative of the Head of State is put to a vote and is not approved. Following the request of Paolo Rossi, a vote on the possibility of a referendum on popular initiative is not held, but is postponed in order to allow the issue of the referendum to be examined as a whole. Nevertheless, soon after a similar issue was presented to the subcommittee. The Coordination Committee version provided that, in the case of disagreement between the Houses of Parliament, if one were to reject a draft law approved by the other, the Head of State could hold a referendum or, alternatively, dissolve Parliament. Among the statements that are worth noting is that of Mr. Bolloni, according to whom the referendum is an instrument of popular initiative, which would be distorted if it could be called for by the Head of State. The vote on the possibility of the Head of State’s calling for a referendum failed again, with seven votes for and thirteen against.43 Resuming the general discussion on the referendum, Mortati, charged with drawing up the relevant articles, wanted to clarify certain matters so as to be able to formulate a joint proposal. The idea of an advisory referendum was discarded, because of the consequences that would ensue. Because the people are the most qualified political body in the democratic state, their decisions should be binding. In the event of a negative outcome, the consultative referendum should require Parliament to be dissolved, since it would not reflect the will of the nation. Doubts were also raised on the referendum initiated by Parliament, because it would raise questions as to Parliament’s role as representative of the people.44 The draft on the referendum presented by Costantino Mortati to the second subcommittee on 17 January 1947, largely reproduced the provisions of the Weimar Constitution, although Mortati, as we have seen, did not make explicit reference to it. Instead, he cited, more generally, other experiences, like the Swiss, the North American, and the French.

41 42 43 44

La Costituzione della Repubblica nei lavori preparatori, supra n. 240, 1631. Id., 1632. Id., 1636. Id., 1637.

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He proposed two referendums initiated by the Government and two by the people.45 The Mortati draft provided that the Government could call a referendum to suspend a law passed by the Parliament or, on the contrary, to enact a bill rejected by Parliament. According to Mortati that would lead to a conflict between the Government and Parliament, but one that is not so serious as to lead to a Government crisis and could be resolved by a popular vote. The formal power to call the referendum is conferred on the Head of State by an act that is countersigned by the head of Government. There are also provisions for two referendums by popular initiative: one for the repeal of a law in force and the other to introduce amendments to a bill. The draft also provided that a law disapproved by popular vote cannot be resubmitted within 2 years and that a budget law or a vote by the upper House to authorize the ratification of an international treaty cannot be the subject of a referendum. The draft provided for regional referendums for both laws and administrative measures, which was obligatory in the case of direct assumption of public services, the contraction of loans, and the disbursement of payments for certain entities. A number of speakers advanced concerns, especially on two points: the fixing of a quorum for the validity of the referendum and the role of the Head of State. Among the few who spoke in favour of allowing a speech by the Head of State, it worth mentioning Mr. Tosato, according to whom it is important to guarantee the possibility of also having different opinions expressed by members of Parliament.46 Einaudi stressed that the referendum should be allowed as remedial in the representation system, but that it is important to explore further aspects related to the formulation of the question. From this perspective Mortati notes that for this purpose the draft provides for a reference to the law, but that it could also indicate two directives to the legislature: one concerning the need for the authenticity of the signatures and the other the procedures for the referendum so that the people will be able to vote knowing on what they are voting.47 Going more specifically to the vote on the articles proposed by Mortati, the second subcommittee rejected the possibility that the President of the Republic submit to referendum laws passed by referendum or Parliament bills on which there is disagreement between the two Houses.48 Faced with numerous reservations and doubts raised on various aspects of his proposal, Mortati considered it necessary to reiterate the reasons for the referendum.49 The possibility of a popular veto would be useful, both in the general interest and to strengthen the authority of Parliament. Parliament may also make mistakes and thus not exactly reflect the will of the people. If it is accepted that sovereignty resides in the will of the people, we must also accept the people’s veto by referendum. Moreover, the referendum also makes it possible 45 46 47 48 49

Id., 1641. Id., 1648. Id., 1650. Id., 1652. Id., 1662 et seq.

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to interest more people in issues of importance to the country, promoting greater political education and the development of a healthy democracy in Italy. After a long discussion and various proposals, the second subcommittee approved an article that reads as follows: “There will be a referendum on a law passed by Parliament, when requested by 500,000 voters or seven regional assemblies. The time for the promulgation shall be suspended if, within 15 days from the provisional publication of the law, 50,000 voters or three regional assemblies take the initiative to call for the referendum. The number of signatures or accessions of regional assemblies to call for the referendum, in accordance with the first subparagraph, must occur within two months from the date of publication. A bill that the two Houses, by an absolute majority, have declared to be of urgent character cannot be subject to a referendum.” The following sentence is then appended: “Laws for authorization to ratify an international treaty and budget laws cannot be the subject of a referendum.” It remains to examine the possibility of a referendum on popular initiative of a bill when the bill is not considered within a period of 6 months, or is dismissed or subjected to amendments, or the abrogation of a law already in force. Mortati adds that the proposed law of popular initiative might also be subjected to referendum directly, without consideration by Parliament (by invoking, although not explicitly, the only type of referendum which, as you recall, was actually held in the Weimar Republic). In its vote, however, the Second Subcommittee rejected this proposal and then also the referendum on popular initiative on a draft law rejected by Parliament. Instead, it adopted a provision that requires a referendum for the abrogation of laws and legislative decrees. It also approved a provision according to which the proposal subjected to referendum is approved when it receives the majority of valid votes cast, provided that two-fifths of eligible voters participated in the vote. The text providing for the preventative-suspensive and abrogating referendums was submitted to the plenary session on 29 January 1947. Here the staunchest opponent of the referendum was Togliatti, who considered it undemocratic, because it would allow for a highly organized party to suspend the Parliament and thereby constitutional life. Despite objections, the plenary session rejected by roll-call vote the proposal, advanced by Grassi, to delete the preventive referendum. Those in favour of deletion were, among others, Calamandrei, Nilde Iotti, Ruini, Terracini, and Togliatti. Those opposed to deletion were Einaudi, Fanfani, Maria Federici, Moro, Mortati, Perassi, and Tosato. An agreed text was adopted, which included an amendment, proposed by Perassi, to exclude from the preventive referendum laws passed by a majority of two-thirds of the members of each House. The debate on the referendum took place in the Chamber of Deputies on 16 October 1947. The first amendment was presented by Codacci Pisanelli, who proposed replacing the preventive referendum with the possibility of having the Constitutional Court suspend the law. Bozzi, Cifaldi, and Nitti proposed instead simply to abolish the preventive referendum.

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The deletion of the first paragraph, which provided for the preventive referendum, was put to a vote and approved. The deletion of the second paragraph, on the abrogating referendum, was not approved on a roll-call vote. There were 107 votes in favour of deletion, including Togliatti, Nenni, and Laconi, while among the 209 who voted for the retention of the abrogating referendum were Mortati, Codacci Pisanelli, De Gasperi, Einaudi, Gronchi, Moro, Perassi, and Ruini. It is interesting to observe that a majority of women voted against the referendum: ten voted for the abolition of the abrogating referendum (10 of the 107 who voted against), while only seven voted for its maintenance (7 of the 209 who voted in favour). One might guess that the first women chosen to be part of the most important representative assembly would tend to place greater confidence in representative institutions than in forms of direct democracy the outcomes of which were still uncertain. The deputies of the PCI, Ottavia Penna of Uomo Qualunque, and Lina Merlin of the PSI were opposed to the abrogating referendum; Bianca Bianchi of the PSI and the deputies of the DC were favourable.50 Among the male deputies, the PCI voted against the abrogating referendum, the Christian Democrats voted in favour, and the Socialists, Liberals, and members of Uomo Qualunque were partly opposed and partly favourable. With respect to the abrogating referendum, the majority of the Assembly expressed itself for the abolition of a period of validity, either of 5 years or 2 years, as a condition for being able to hold such a referendum on the initiative of 500,000 voters or seven regional councils. The quorum established initially, according to which it was necessary that two-fifths of eligible voters participate in the vote, was raised to a majority. The modalities for conducting the referendum were to be provided for by law. More animated and problematic was the discussion on the definition of the laws that must be subject to referendum. Maria Maddalena Rossi and other communist deputies proposed excluding electoral laws also. Ruini opposed this proposal, noting that “if there is anything on which the people can express their will, it is the electoral system”.51 The inclusion of electoral laws among those not subject to the referendum was put to the vote and adopted. The referendum, therefore is not allowed for tax laws, laws for approval of the budget, laws granting amnesty and pardon, electoral law, and laws for the authorization of the ratification of international treaties.52 As has been noted, the reference to electoral laws will be deleted in the final text of Article 75 of the Constitution promulgated by the Head of State on 27 December 1947. There is no doubt that this deletion is attributable to Ruini, who had opposed the amendment by Maddalena Rossi, and for which she was entrusted, as Chairman of the Editorial

50 51 52

Not present at the voting were Pollastrini of the PCI and Bianchini, Guidi, and Nicotra of the DC. La Costituzione della Repubblica nei lavori preparatori, supra n. 240, IV, 3324. Id., 3325.

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Direct Democracy in Comparative Law Committee, to prepare the final draft of the constitutional text.53 Paradoxically, as we shall see, referendums on electoral laws will be the most numerous and among the most important in Italian constitutional history. As has been widely noted,54 the Constituent Assembly debate on the referendum ended with a much more limited draft than had been initially proposed. It was felt that the outcome was “an implicit and a priori reservation with respect to the choice made about the ‘closed’ character and in this way possibly determinative” of the form of government “well defined and based on the fiduciary relationship that should exist between the Government and Parliament”, with the political supremacy of the latter.55 In our view, however, a solution that ‘minimal’ was due to the fears of many members of the Assembly about the consequences of the referendum in respect of parliamentary life, as has been pointed out,56 and political parties, but also to the many active forces in diverse places that along the way had caused the institution of the referendum as contained in the original proposal to lose its coherence and organic unity. The initial project of Mortati, with two referendums by Government initiative and two by popular initiative, had its own logic and could of course be changed and improved. Many deputies, however, expressed their various views at different times and in different places, making it ever more inconsistent and debatable as a whole. In this context, for example, it was quite understandable that the majority of the Assembly rejected the preventive-suspensive referendum by the electorate or by regional councils on enacted but not yet promulgated laws. Initially this referendum was proposed together with other referendums called by the Head of State on the initiative of the Government. Putting aside the idea of an address by the Head of State, the popular or regional initiative was becoming complicated from the organizational point of view: How much time to leave for proposing a referendum before the promulgation of the law? How many signatures to require? What laws should be excluded? Retaining only the abrogating referendum had therefore become the politically less difficult choice, but it was also the most

53

54

55 56

On this point, see C. Salamone, La parola smarrita: sul testo dell’art. 75 della Costituzione, in Bibliotheca, Bollettino di Notizie e Documentazione della Camera dei Deputati, 1990, no. 1, 19 et seq. and A. Chimenti, Storia dei referendum, supra n. 36, 13. C. Mezzanotte & R. Nania, Referendum e forma di governo in Italia, in 21(1-2) Democrazia e diritto 52 (1981); A. Chimenti, Storia dei referendum, supra n. 36, 4 and 18; A. Barbera & A. Morrone, La repubblica dei referendum, supra n. 35, 19; G.M. Salerno, Referendum, supra n. 36, 207 and 208; S.P. Panunzio, Riforme costituzionali e referendum, in M. Luciani & M. Volpi (eds.), Referendum. Problemi teorici ed esperienze costituzionali, Laterza, Roma-Bari, 1992, 77-120, at 83; M. Volpi, Referendum nel diritto costituzionale, supra n. 10, 509. C. Mezzanotte & R. Nania, Referendum e forma di governo, supra n. 54, 55. See also G.M. Salerno, Referendum, supra n. 36, 266 et seq. T.E. Frosini, Sovranità popolare e costituzionalismo, supra n. 35, 143 et seq.

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logical solution at the end of a long and torturous debate that had gradually eroded the original design.57 Next to the abrogating referendum for ordinary laws, there still remained the idea of a possible referendum for the revision of the Constitution and a mandatory referendum for the modification of the territorial boundaries of the regions, provinces, and municipalities. With respect to constitutional revision,58 the concern of the Constituent Assembly was to specify that a referendum could be required on a law already approved by Parliament, but prior to its promulgation. The draft proposed by the committee provided that a referendum would be required within 3 months of the law’s publication. Perassi remarked that in this way the people would have the right to veto a parliamentary decision. To avoid this result, Perassi proposed inserting a provision according to which the law subject to a referendum could not be promulgated if it had not been approved by a majority of the votes validly cast. What the Constituent Assembly wanted to emphasize was not only the contingent character of the constitutional revision, but also that the popular pronouncement was an “integral” part of the constitutional revision procedure, as an “element of the formation of constitutional law”,59 to confirm or not to confirm a decision which fell within the prerogatives of Parliament, as the supreme representative body. He wanted to avoid the appearance that the voters, through their veto power, could challenge Parliament. There was no discussion: the amendment was approved without objection. It deserves mention that the same Perassi, who warned against the possible veto power of the electoral body, was among those who, in January 1947, along with Einaudi, Tosato, and others, had voted in favour of the proposal by Mortati to include not only an abrogating referendum, but also a preventive referendum on a popular initiative for a proposal not considered by Parliament or subjected by it to amendments. Then, illustrating his proposals, Mortati had expressly described the referendum as a people’s veto, justified by the fact that Parliament can also make mistakes and may not exactly reflect the will of the people. Less than a year later, at the end of the work of the Constituent Assembly, in December 1947, Perassi, one of the few protagonists in the debate on the referendum during the liberal period of the Constituent Assembly,60 assumed the role of spokesman for an attitude of fear towards

57

58 59

60

It does not appear that this opinion was shared by G.M. Salerno, Referendum, supra n. 36, 206, according to whom the abrogating referendum “aroused among the Constituents the liveliest interest and led to what was probably the most enlightening debate.” On the hostility of the Constituents to direct democracy, see also G. Busia, Il referendum costituzionale, supra n. 37, 33 et seq, in particular 35. On the debate in the Constituent Assembly on the constitutional referendum, see G. Busia, Il referendum costituzionale, supra n. 37, 21 et seq. La Costituzione della Repubblica nei lavori preparatori, supra n. 240, V, 4322. On the efficacy of the constitutional referendum and on the diverse opinions expressed by scholars see, however, G.M. Salerno, Referendum, supra n. 36, 232 et seq.; M. Volpi, Referendum nel diritto costituzionale, supra n. 10, 513 et seq. S. Basile, Il referendum nell’Italia liberale, supra n. 40, 56.

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direct democracy that no one cared to refute. He also opposed that supposed ‘enthusiasm’ for the institution of the referendum, which according to some had characterized the work of the Constituent Assembly, at least in its initial phase.61 With reference to the referendum for the modification of the territorial boundaries of the regions, the provinces, and the municipalities, it is interesting to note that initially the direct involvement of affected populations had been provided for with respect to changes in municipal districts, but not regional ones. According to Mr. Gaspare Ambrosini, in fact, interest in having a role in these questions would be stronger in small constituencies like the municipalities.62 At the request of Mortati, however, the proposal was approved to submit to a referendum changes in the composition of the regions.63 In the Assembly, discussion focused primarily on the minimum number of inhabitants for the new regions and on other aspects of the procedure, but no objections were raised to the submission of a proposal for territorial modification to a referendum.64 The only mandatory referendums included in the Italian Constitution are then those that raised fewer problems and less fears within the Constituent Assembly. Paradoxically, they have also been the less-used ones.

2.2.2

The Troubled Implementation of Referendums in Italy

Disputes arose within the Constituent Assembly in the debate, which are then reflected in the final text of the Constitution, with respect to the process of implementation of the constitutional provisions concerning the referendum. These provisions, like all the most innovative parts of the Constitution, were far from being realized in practice. Despite the major differences within the groups, as has been seen, the Christian Democrats was the group which, as a whole, was more in favour of the referendum. According to Christian thinking, which was opposed to an excessive concentration of power in the state and therefore favourable to pluralism,65 intermediate formations, and 61 62 63 64

65

See n. 37. According to the subcommittee, session of 18 December 1946, in La Costituzione della Repubblica nei lavori preparatori, supra n. 240, VII, 1588. Id., 1589. La Costituzione della Repubblica nei lavori preparatori, supra n. 240, see 4382 et seq. But see M. Pedrazza Gorlero, Le variazioni territoriali delle regioni, Cedam, Padova, 1979, 49 et seq., according to whom the problem of the consultative or decision-making value to attribute to the referendum was taken up but not resolved. Much more controversial, as we shall see, however, was the provision on the ‘obligation to consult the affected population’ contained in Art. XI of the transitional provisions. See infra, subsection 3 and note 286. See P. Rescigno, Persona e comunità. Saggi di diritto privato, il Mulino, Bologna, 1966, 3; F. Traniello, Concezioni cristiane del pluralismo sociale, in Il pluralismo sociale nello Stato democratico, Vita e Pensiero, Milano, 1980, 17 et seq.; U. De Siervo, Il pluralismo sociale dalla Costituzione repubblicana ad oggi: presupposti

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freedom of religion and conscience, the Christian Democrats could only look with favour on the tools of direct democracy, which would allow individuals to oppose, on appropriate occasions, decisions made by organs of the state or by a parliamentary majority. Having become the majority party, however, the Christian Democrats no longer had an interest in making a tool of possible popular ‘opposition’ available to challenge the decisions of the governing majority. A similar situation was created with respect to regionalism. If for the same reasons the Christian Democrats were the most favourable to strengthening regional autonomy, whereas the parties of the left looked with suspicion on the recognition of autonomous powers to regions that could challenge and obstruct the process of reform, the Christian Democrats, now in power at the national level, no longer had an interest in creating regions that could, in some parts of the country, produce majorities different from national majorities. As a result, regionalization was implemented with much delay, and under pressure from the parties of the left (which had in turn reversed the positions they had taken in the Constituent Assembly).66 The implementation of referendums in Italy came very late and as a result of a very special situation. For years, Italy had debated the introduction of divorce. The only political force that opposed it was the Christian Democrats, with the support of the Catholic Church. Eventually an agreement was reached (the so-called Lodo Fanfani Pact): the law could be enacted, with the negative vote of the Christian Democrats, provided that the procedures necessary to implement the constitutional provisions concerning the referendum would be followed (finally).67 The Christian Democrats believed that the majority of Italians would be opposed to the divorce law. “Rules for the Referendum in the Constitution and for the Popular Legislative Initiative” were enacted by Law No. 352 of 25 May 1970.68 In the same year Law No. 898 of 1 December 1970, was enacted, entitled “Rules in Cases of Dissolution of Marriage”. An organizing committee for the referendum was formed immediately and was judged permissible by the Constitutional Court in its Decision No. 10 of 25 January 1972. There followed a very turbulent political period: the early closure of the legislature and the dissolution of Parliament. After a heated election campaign, the first referendum in Italy on the repeal of an ordinary law took place. On 12-13 May 1974, 87.7% of eligible voters went to the polls: 40.7% voted in favour of the repeal of the law

66

67 68

teorici e soluzioni nella Costituzione italiana, id., 60 et seq.; E. Rossi, Le formazioni sociali nella Costituzione italiana, Cedam, Padova, 1989, 13 et seq. and 60 et seq. On the reversal of political positons with respect to the referendum 20 years after the Constituent Assembly, see G. Ambrosini, Referendum, supra n. 35, 45, who analyzes the events surrounding the different legislative proposals presented to the first legislature, id., 41 et seq. A. Barbera & A. Morrone, La repubblica dei referendum, supra n. 35, 29 et seq.; G. Ambrosini, Referendum, supra n. 35, 45 et seq. The law provides in Title I for the referendum for amendment to the Constitution, in Title II for the abrogating referendum, in Title III for the referendum for territorial modification of the regions, in Title IV for the popular initiative for the enactment of laws. Title V contains the final provisions.

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which had introduced divorce, but 59.3% were against repeal. The relative majority party, which was the governing party, was defeated in the first Italian referendum after the Constitution. However, the barriers that had so far prevented the implementation of direct democracy were falling. The weapon of the referendum was no longer embraced by the majority party, but by opposition parties, especially by the Radical Party, which made it its defining characteristic.69 The Constitutional Court took a leading role in this new phase. In its first ruling on the admissibility of a referendum, the Constitutional Court adopted an attitude of strict self-restraint, recognizing that This Court, in its present posture, is entrusted only with the competence to determine whether the request for the referendum at issue relates to a matter which article 75, second paragraph, of the Constitution excludes from the popular vote. Article 2, first subparagraph, of Constitutional Law No. 1 of March 11, 1953, and article 33, fourth subparagraph, of Law No. 352 of May 25, 1970, accord this limited competence for this Court’s review of the order of the Central Office.70 The same concept was reiterated a few years later: The review [of the Court] is for the limited purpose (Decision No. 10 of this Court of 1972), in its involvement in a unitary proceeding that is divided into consecutive, sequential stages, of assuring that an ongoing abrogation proceeding, possesses the specific and independent features required by other decisions of this Court, in particular, with respect to decisions on the constitutional legitimacy of laws and acts having the force of law[…] Consequently, for the Court, in its present posture, its only task is to determine whether or not these provisions belong to the categories of laws excluded from the referendum by the second paragraph of article 75 of the Constitution (tax and budget laws, amnesty and pardon laws, or laws authorizing the ratification of international treaties).71

69

70 71

On the circumstances surrounding the various referendums which have taken place in Italy, see G. Ambrosini, Referendum, supra n. 35, 81 et seq.; A. Barbera & A. Morrone, La repubblica dei referendum, supra n. 35; A. Chimenti, Storia dei referendum, supra n. 36; G.M. Salerno & E. Capuzzo, Referendum, in Enc. it., Appendice V, 1994, available at www.treccani.it/enciclopedia/referendum_%28Enciclopedia-Italiana%29/. Decision No. 10 of 25 January 1972. Decision No. 251 of 18 December 1975.

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The Constitutional Court’s attitude changed radically when confronted with a first ‘wave’ of referendum questions in 1978.72 On that occasion the Court adopted a much wider scope of review for its assessment of the permissibility of a referendum accorded to it by Article 2 of Constitutional Law No. 1 of 1953. With its famous Decision No. 16 of 1978 (Rapporteur Livio Paladin), the Constitutional Court stated that “in addition to the principles that the Constitution sets out expressly and precisely”, there are “four separate sets of reasons for inadmissibility”: 1) questions that contain “a plurality of heterogeneous issues, with no reasonable or unitary connection and that do not fall within the parameters of article 75 of the Constitution”; 2) proposals that “tend to abrogate, in whole or in part, the Constitution, constitutional amendments, or ‘other constitutional laws’ under article 138 of the Constitution, as well as legislative acts endowed with special passive effect (forza passiva particolare) (and therefore not susceptible of being validly abrogated by subsequent ordinary laws)”; 3) “referendums having for their object ordinary legislation with constitutionally determined content, whose normative core cannot be altered or diminished in effectiveness without causing violations of specific provisions of the Constitution itself (or of other constitutional laws)”; 4) the grounds of inadmissibility described in Article 75(1). In the same year there was another fundamental Constitutional Court decision for the organization of a referendum in Italy. By that decision the Court put an end to a somewhat questionable practice. In order to avoid the submission of a political judgment of Parliament to the voters, Parliament, close to the time for holding a referendum, would approve a law substantially identical to that which was put forward for referendum. If the object of the referendum law was formally repealed, according to Article 39 of Law No. 352 of 1970, the Central Office for the referendum was to declare that the referendum process could not proceed. With its Decision No. 68 of 1978, the Constitutional Court declared, however, that the unconstitutionality of article 39 of Law No. 352 of May 25, 1970, up to the part where it states that if the repeal of the acts or individual provisions referred to referendum is accompanied by other provisions on the same subject, without changing either the principles of existing legislation or the essential normative content of individual legal rules, the referendum on the new legislative provisions must be held. As the Court explained in its reasoning, 72

On the role of the Constitutional Court with respect to the referendum, see A. Di Giovine, Democrazia diretta e sistema politico, Cedam, Padova, 2001, 133 et seq.; A. Tempestini, Le forche caudine dei referendum: la Corte costituzionale, in M. Caciagli & P.V. Uleri (eds.), Democrazie e referendum, Laterza, Roma-Bari, 316 et seq.

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the Central Office for the referendum is therefore called upon to evaluate—at the proponents’ request—whether the new legislation, put forward in the course of the proceedings, has or has not made such changes as to preclude the referendum, already in progress on the existing proposal: in effect adopting or enlarging upon the proposal in the subsequent legislation, even in case of a negative outcome of the vote. In 1978 there were referendums on law and order, on the public financing of political parties, and on abortion. They all failed: the majority of the population opposed the repeal of each of the laws subjected to a referendum. The first positive results were achieved by five proposed referendums in 1987 on the subject of the civil liability of judges, commissions of inquiry, and nuclear power plants. In these cases, about 80% of voters were in favour of repeal. There was similar success with the eight proposed referendum in 1993. They included the repeal of public financing of political parties, the abolition of some ministries, the abolition of rules on appointments of high officials of public banks, the repeal of penalties for the use of soft drugs, and the repeal of the proportional electoral system and its change to a majoritarian system. The common denominator of most of these questions was a reduction of the power of the political parties, which coincided with the so-called “mani pulite” investigations which had revealed serious and widespread incidents of corruption. The referendum for the abolition of proportional representation was not the first referendum put to the voters. Two years earlier, a majority of 95.6% had approved the reduction from three to one preference votes (voti di preferenza) for parliamentary elections. Matters that the Constituent Assembly had decided to exclude from the referendum will be the objects of these and other referendums. Cross-vetoes, which prevented the parties from reaching agreement on a reform of the electoral law, led the committee chaired by Mario Segni to formulate a referendum question that would be admissible and that would allow the voters to impose on an impotent and contentious legislature the radical modification of an electoral system that was considered to be among the main causes of political instability and party politics that had characterized Italian republican history. Particularly with regard to referendums on electoral law, with its Decision No. 47 of 1991, the Constitutional Court specified firstly that the Constitution carried weight as a written text: it was up to the Court to review the debate in the Constituent Assembly and the events related to the failure to include in the final text of the Constitution a proposed amendment that would have included electoral laws in the provision prohibiting an abrogating referendum. On that occasion, the Constitutional Court had, however, outlined the limits within which questions concerning the electoral system could be considered

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eligible for referendum,73 according to a rule clearly enunciated in its Decision No. 32 of 1993: Electoral laws relating to constitutional bodies or of constitutional significance are subject to popular referendum on the twofold condition that the questions are consistent and rationally related, and that a coherent normative scheme results from it that is immediately applicable, so as to ensure, even in the event of legislative inaction, the continuous operation of the organ. Law No. 29 of 6 February 1948, entitled “Rules for the Election of the Senate” provided for the establishment of single-member constituencies in every region, based on its population. According to Article 17 the candidate who received a number of valid votes not less than 65% of the votes cast was elected. In constituencies where no candidate received this percentage, seats were assigned to individual lists by the proportional method. Some additional seats were awarded by use of this method. The question, deemed admissible by the Constitutional Court in Decision No. 32 of 1993, was the proposed repeal of the parenthetical language “with 65% of the votes”, in order to produce a predominantly majoritarian system. The elimination of these words thus permitted, with a simple abrogating referendum, the transformation of the current law for the election of the Senate to an immediately applicable rule based on the majoritarian principle and no longer on proportionality. The outcome of the referendum, with 82.7% of votes in favour, forced Parliament to immediately implement it in two laws, No. 266 and No. 267 of 1993, that transformed the electoral system for both Houses to a three-quarter majoritarian system (475 seats in the House and 232 in the Senate) and a fourth proportional (155 in the House and 88 Senate). In 1999 and 2000 there were referendums proposing the abolition of the proportional part, but in both cases the quorum of 50% of voters required for its validity was not attained. In 2005 electoral legislation was once again amended by a law that from the outset received more criticism than agreement. The choice of Law No. 270 of 21 December 2005, was, incredibly, to return to a system of proportional representation, with, however, a series of strongly majoritarian correctives. The law introduced a threshold barrier, which differed for combined and non-combined lists: for the Chamber of Deputies the threshold for non-combined lists was 4%, 2% for combined lists, and 10% for coalitions; for the Senate, 8% for non-combined lists, 3% for combined lists, and 20% for coalitions. The most important correction, however, was the majority premium, the intent of which was

73

See A. Giorgis, I referendum elettorali. Il “compromesso” n. 47/91, Giappichelli, Torino, 1991. For a critical appraisal of the orientation of the Court with respect to the electoral referendums, see M. Volpi, Referendum nel diritto costituzionale, supra n. 10, 511.

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to assure to the party or coalition that received the most votes more than 55% of the seats at the national level in the Chamber of Deputies and for each region in the Senate. The lack of a provision for a minimum threshold for obtaining the majority premium led the Constitutional Court to declare the law unconstitutional in its Decision No. 1 of 2014. The provision that did not allow voters to express a preference for candidates was also declared unconstitutional. Before this decision, other referendums had been proposed, but had not produced any results. In 2009 it was proposed to abolish the majority premium for coalitions and retain it only for lists, but the referendum did not obtain the quorum necessary for its validity. The referendum in 2012, which sought to repeal Law No. 270/2005 to bring back into force previous laws (Law Nos. 276 and 277 of 1993), was declared inadmissible by the Constitutional Court it its Decision No. 13 of 2012. As the Court observed, a referendum may not have for its subject an electoral law as a whole, because this would lead to a lack of operative rules, since the revival of the previous laws would have unpredictable consequences and would be contrary to legal certainty. Another area in which there have been several referendums and as a result corresponding legislative changes is that concerning the public funding of political parties. Law No. 195 of 2 May 1974, introduced for the first time in Italy public funding for the parties represented in Parliament. The aim was to avoid the influences of powerful interests, after the scandals that had occurred in 1965 and in 1973. The law was approved in a few days with the consent of all parties except the Liberal Party. The Liberal Party then launched a signature campaign to call an abrogating referendum, but failed to gather a sufficient number. Together with the Radical Party, the referendum was proposed again in 1978, along with a number of other referendums. Decision No. 16 of 1978, previously mentioned, held admissible the referendum for the abrogation of the law on the public funding of political parties. All parties, with the exception of the Radical Party and the Liberal Party, opposed the referendum, which was not approved, but the 43.6% who voted for the repeal of the law was much higher than that of the voters of the two political parties that supported the referendum. Based on this result, Law No. 659 of 18 November 1981, doubled funding, and imposed a reporting obligation. The referendum was proposed again in 1993, along with many other referendums mentioned above. This time 90.3% of the voters favoured repeal. So the law was repealed as a result of the referendum. That same year the Parliament passed the Law No. 515 of 10 December 1993, containing “rules for election campaigns for election to the Chamber of Deputies and the Senate of the Republic”, which provided for reimbursements for electoral expenses for the entire term of the legislature as a contribution for election expenses. Law No. 2 of 2 January 1997, prescribing “rules for the regulation of voluntary contributions to political parties and movements” introduced the possibility for taxpayers

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to allocate 0.4% of their taxes to the financing of political parties and provided for a transitional fund of more than 82 million euros for political parties for 1997. New rules on electoral expenditures, eliminating the requirement of any direct relationship of the expenditure with expenditures actually incurred in election campaigns, were provided for by Law No. 157 of 3 June 1999. At this point, the organizing committee for the referendum on the public financing of political parties brought a jurisdictional dispute to the Constitutional Court. In its Decision No. 468 of 1990, concerning the rules on the civil liability of magistrates, which had been repealed by referendum in 1987, the Constitutional Court stated that “Unlike the legislature, which can correct or even change its mind regarding what it had previously decided, the referendum presents a definitive and unrepeatable expression of will”, and reiterated the same principle in Decisions No. 32 and No. 33 of the 1993. By Order No. 9 of 1997, however, the Court declared the dispute inadmissible, denying to the organizing committee standing in a separation of powers between state authorities. By its Order No. 17 of 1978, the Constitutional Court had recognized in a jurisdictional dispute the organizing committee of the referendum, granting it standing to bring an action against the Central Office in the Court of Cassation,74 but according to the Constitutional Court the organizing committee qualified as a state authority only during the referendum process, not after its conclusion. In 2000 there was another referendum to abrogate the law on election expenses, but only 32.2% of electoral body voted. Although 71.1% favoured repeal, the referendum was invalid. Law No. 156 of 26 July 2002, containing “provisions relating to electoral reimbursements” significantly increased the amount of reimbursements. Law No. 51 of 23 February 2006 provided that reimbursements were due for the entire 5 years of the term of the legislature, regardless of its actual duration. After numerous scandals followed by investigations concerning vast sums intended for the financing of political parties and used for personal expenses, the legislature finally began to put a stop to these payments which had assumed enormous proportions, being clearly contrary to the wishes expressed by a very high majority of voters in the 1993 referendum. Law No. 13 of 21 February 2014, and Decree-Law No. 149 of 28 December 2013, provided for a gradual reduction of reimbursements until their elimination in 2017, providing instead for voluntary contributions from private individuals and taxpayers. The referendums on the public financing of political parties, as well as other referendums,75 raise the question of the effect of the referendum. Does the abrogating referendum have the same effect as a law, which can be revised again at any time, or does it have greater 74

75

It was during this dispute that the Constitutional Court raised on its own motion the constitutionality of Art. 39 of the referendum law, Law No. 352 of 1970, which was subsequently resolved, as we have seen, by Decision No. 68 of 1978. Like the referendums on electoral matters and those on the administration of public services. See infra.

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effect, given that it “expresses a definitive and unrepeatable” volition, as the Constitutional Court has repeatedly stated? And is its effectiveness legal or (only) political? Is direct democracy on the same level as representative democracy, or does it occupy a higher level or a lower level? Scholarly opinion is divided on this point,76 but the Constitutional Court seems to have resolved the question with its Decision No. 199 of 2012. With respect to a provision entitled “Adaptation of the Regulations for Local Public Services to the Referendum and the Rules of the European Union” contained in Decree-Law No. 138 of 13 August 2011, converted, with amendments, into Law No. 148 of 14 September 2011, the Court held the law unconstitutional, saying that it violated “the prohibition on the reinstatement of legislation repealed by popular vote, inferable from article 75 of the Constitution, which has already been recognized by constitutional jurisprudence”. As specified by the Court, a similar constraint arising from an abrogating referendum is justified, in the light of a coherent interpretation of the constitutional fabric and from the perspective of the integration of the instruments of direct democracy into the system of representative democracy established by the text of the Constitution, with the sole purpose of preventing the outcome of the popular consultation […] from being brought to naught and deprived of effectiveness, without it having been determined, after the repeal, that any change, either in the political situation or factual circumstances, such as to justify such an effect, had taken place. According to the Court, however, this constraint has a purely negative character, since the ordinary legislature […] retains the power to take up the subject matter of the referendum without special limitations other than those related to the prohibition on reviving the repealed law. The Court’s decision concerned one of the referendums held in 2011, which had aroused great public interest. Voters were called upon to rule on the management of public services, on rates for water service, on nuclear power, and on the legality of the prohibition of the 76

See A. Mangia, Referendum, Cedam, Padua, 1999, who considers the problem from the perspective of the diverse opinions about it. See also G.M. Salerno, Referendum, supra n. 36, 217 et seq. and 263 et seq., who has no doubts about “the obligation of the Parliament to abstain, rebus sic stantibus, from reenacting the law struck down by the abrogating vote,” and C. Mortati, Art. 1, in G. Branca (ed.), Commentario della Costituzione. Principi fondamentali. Art. 1-12, Zanichelli, Bologna-Roma, 1975, 40, who likewise believes that “it is necessary for the Head of State to determine whether the situation brought about by the vote has become such as to require the early dissolution of Parliament in order to reestablish the political unity compromised by the popular vote.”

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President of the Council of Ministers and other Ministers from appearing in criminal court. The latter question involved Law No. 51 of 7 April 2010, that stipulates: The President of the Council of Ministers is prohibited, in accordance with article 420-ter of the Code of Criminal Procedure, from appearing in the court proceedings of criminal cases as defendant while exercising one or more of his powers provided for by the laws or regulations […], in its related preparatory and subsequent activities as well as in any activity however essential to the functioning of the Government. […] The judge, upon request of a party, when applying the principles referred to in the preceding subparagraphs, should defer the proceeding to another hearing. The purpose of the referendum was to eliminate a provision specifically aimed at protecting the person of Silvio Berlusconi. In relation to the nuclear power question, it is interesting to observe that Decree-Law No. 34 of 31 March 2011, followed by Law No. 75 of 26 May 2011, had been enacted while the referendum was in progress, but by order of 1 June 2011, the Central Office for the referendum had considered that the new rules would frustrate the purpose of the proposed abrogating referendum and recall referendum. The referendum question was therefore reworded to change it to a vote on the new provisions. About 55% of the electorate participated in these referendums and about 95% of voters voted for abrogation. The practices and experiences of contentious referendums on particularly delicate issues seem to show that in Italy the referendum has become a tool – perhaps the most effective, certainly the most feared by the parties – which civil society has to oppose a political class that is unable or unwilling to carry out any reform, whether it affects the political class or concerns matters on which the parties fail to reach an agreement. The success of the referendum referred to in Article 75 of the Constitution, however, depends in large part on the media and its ability to convey clear messages, which arouse public opinion on matters of general interest.

2.2.3

Constitutional Referendums and Regional Referendums

In Italy it is possible, as we have seen, to have a referendum on an amendment to the Constitution. According to Article 138, a constitutional amendment bill, adopted on a second reading by both Houses by an absolute majority, can be subjected to a referendum if it is requested, within 3 months, by one-fifth of the members of one of the Houses or by five hundred thousand electors or five regional councils. A referendum cannot be held,

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however, if on the second reading, the constitutional amendment law is approved in both Houses by a two-thirds majority. The first constitutional amendment laws were approved in Italy without referendums, partly because the referendum, as we have seen, only became available in 1970. The first referendum on a constitutional amendment took place in 2001 on the law to reform of Title V of the Constitution.77 The need to undertake a comprehensive reform of the Constitution was felt in Italy starting from the 1990s. In an attempt to reach an agreement among the main political forces, two parliamentary commissions for constitutional reform were established by Constitutional Law No. 1 of 6 August 1993 and Constitutional Law No. 1 of 24 January 1997,78 known respectively, as the De Mita-Iotti Commission and the D’Alema Commission. Neither one was able to complete its work. With Constitutional Law No. 3 of 18 October 2001, however, the centre-left majority approved “Amendments to Title V of Part II of the Constitution” on which, on 7 October 2001, the first referendum on constitutional revision was held, following two requests made by Parliament, one by members of the opposition and the other by the majority. The turnout was 34.1% and the vote in favour was 64.2%. Not having reached the quorum required for the validity of the referendum, the constitutional revision law entered into force accordingly. The centre-right Government attempted a more comprehensive constitutional reform in 2005, with a law on ‘Amendments to Part II of the Constitution’, but in the referendum of 25-26 June 2006 the reform was rejected: 53.6% of eligible voters went to the polls, but only 38.3% voted in favour. The text of a Constitutional Law concerning Provisions for the overcoming of equal bicameralism, the reduction of the number of Members of Parliament, the restraint of the operating costs of the institutions, the suppression of the CNEL and the revision of Title V of Part II of the Constitution was approved on 12 April 2016. The referendum on this Law was held on 4 December 2016: 65.47% of eligible voters went to the polls, 40.89% of which voted in favour and 59.11% against the reform. As we have seen, the only referendum made obligatory by the Italian Constitution is one for the merger and creation of regions, pursuant to Article132, according to which

77

78

See R. Romboli, Il possibile referendum costituzionale e le procedure per una revisione “organica” della Costituzione, in Forum di Quaderni Costituzionali 2007; S. Gambino & G. D’Ignazio (eds.), La revisione costituzionale e i suoi limiti: fra teoria costituzionale, diritto interno, esperienze straniere, Giuffrè, Milano, 2007 (Proceedings of the Symposium on “La revisione costituzionale e i suoi limiti : fra teoria costituzionale, diritto interno, esperienze straniere,” Università della Calabria, 22-23 May 2006). On this point see A. Di Giovine, Democrazia diretta e sistema politico, supra n. 72, 97 et seq.

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1. By constitutional law, after consultation with the Regional Councils, a merger between existing Regions or the creation of new regions having a minimum of one million inhabitants may be agreed, when such request has been made by a number of Municipal Councils representing not less than one-third of the populations involved, and the request has been approved by referendum by a majority of said populations. 2. The Provinces and Municipalities which request to be detached from a Region and incorporated in another may be allowed to do so, following a referendum and a law of the Republic, which obtains the majority of the population of the Province or Provinces or of the Municipality or Municipalities concerned, and after having heard the regional Councils. The territories of the regions were identified by the Constituent Assembly and listed in Article 131, by reference to the areas defined for statistical purposes in 1871.79 This delimitation was therefore based on ‘historical’ regions, but this criterion was really not optimal from the point of view of a precise demarcation of territories with common cultural, economic, and historical needs. It did allow, however, for a prompt and certain delimitation of the new local authorities.80 This demarcation was modifiable in accordance with the procedure of Article 132 and was in fact modified within the 5-year period to simplify it, “without compliance with the conditions required under the first paragraph of article 132”, on the basis of Article XI of the transitional provisions, which provided that Up to five years after the implementation of the Constitution, other Regions may be established by constitutional laws, thus amending the list in article 131, and without the conditions required under the first paragraph of article 132, without prejudice, however, to the obligation to consult the peoples concerned. The final formulation of the Article XI of the transitional provisions was a result of various amendments, which made the reference to the “obligation to consult the peoples concerned” susceptible to different interpretations: Deliberations of the Regional Council? Binding referendum? Mandatory referendum? Advisory opinion?81 Both procedures were disregarded.

79

80 81

See M. Pedrazza Gorlero, Le variazioni territoriali delle regioni, supra n. 266; E. Gizzi, Manuale di diritto regionale, 4th edn., Milano, Giuffrè, 1981, 55 et seq., in particular 58 et seq.; C. Desideri, Se le regioni italiane abbiano un fondamento territoriale e quale sia (September 2012), Istituto di Studi sui Sistemi Regionali Federali e sulle Autonomie (ISSiRFA) ‘Massimo Severo Giannini’, available at www.issirfa.cnr.it/ 6739,908.html. See E. Gizzi, Manuale, supra n. 266, 60; C. Desideri, Se le regioni italiane abbiano un fondamento territoriale, supra n. 79. See M. Pedrazza Gorlero, Le variazioni territoriali, supra n. 266, 104 et seq.

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What would become transitional Article XI was proposed by Mortati in order to be able to review and to make more practical the territorial division of the regions in a short period of time, given the preliminary nature of the division of the regions made by the Constituent Assembly.82 According to the intentions of some, this would have allowed the creation of the Molise region, separating it from the Abruzzi-Molise region, which was provided for in the statistical division, but although this intentions had been expressed by many deputies, it was not adopted by the Constituent Assembly.83 The timing and the procedures followed to create the Molise region reflect the ambiguity of these provisions. In 1958, long after the period of the transitional provisions had expired, Constitutional Law No. 1 of 18 March 1958 provided that “the period referred to in article XI of the transitional provisions of the Constitution will expire on December 31, 1963”. Before the expiration of this period, Constitutional Law No. 3 of 27 December 1963, established the Molise region, without the consultation of the populations concerned. Article 73 of Law No. 62 of 10 February 1953 established a “rule of implementation of article XI of the transitional provisions of the Constitution”, which provided that for the purposes of the application of article XI of the final and transitional provision of the Constitution, the obligation to consult the populations affected is fulfilled by consulting the Municipal Councils or the Prefectural Commissioners of the region or regions to which the municipalities seeking to become an autonomous region belong. So, rather than the electoral body through a referendum, it was 214 municipal councils of Abruzzi and Molise that expressed their opinion on the establishment of the Molise region.84 The whole affair was marked by a series of contradictions. If the purpose of transitional provision XI was to make the delimitation of the regions more practical in order to meet economic, cultural, and other exigencies, it ought to have happened at the time of the entry into operation of the legal regime of the regions, rather than after a long delay in the 1970s. Such delay might have justified the establishment of a new deadline, since the transitional provision XI presupposed the immediate entry into operation of all the regions. To prolong in 1963 a term already expired, without providing for the establishment of the regions, and therefore beyond any functional requirement, instead rendered Article XI of the transitional provisions meaningless.85 The extension was therefore intended solely 82 83 84 85

M. Pedrazza Gorlero, Le variazioni territoriali, supra n. 266, 99. Id., 99 et seq. C. Mortati, Istituzioni di diritto pubblico, II, supra Chapter 1 n. 47, 893, note 1. L. Paladin, Diritto regionale, 3rd ed., Cedam, Padova, 1979, 23, describes the establishment of the Molise region, the first of the many missteps made in the early 1960s: “if one were really aiming at an optimum size for the Regions, the list should have been reduced and not enlarged.” Similar concerns are expressed

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for the purpose of establishing the Molise region, openly contravening the choices of the Constituent Assembly. Today, 50 years after the separation of the two regions, paradoxically, their reunification, or even their union with the Marche region into a ‘Marca Adriatica’ macro-region, is being discussed. The new regions ‘Abruzzo-Molise’ or ‘Marca Adriatic’ would now be established after having consulted the affected people in a referendum. Several referendums have been held in recent years in individual regions according to the rules of their respective governing instruments86 to establish new municipalities or to change their configurations or names pursuant to Article 133 of the Constitution. In Abruzzo in May 2014 a referendum was held on the merger of the cities of Pescara, Montesilvano, and Syracuse, for the creation of ‘New Pescara’. About 70% of the electorate went to the polls; 64% of the votes were favourable. In recent years some regions have adopted, alongside abrogating and consultative referendums, the ‘proposing’ referendum. If a certain number of voters submit to the Regional Council a proposal for a regional law and, if the Council does not approve it within a certain period, it is submitted to a referendum.87 The Valle d’Aosta region experimented with this new type of referendum in 2007, but participation in the vote did not reach the 45% of voters required by law. In 2009, however, the quorum required by law was achieved in Bolzano. In 2012 another proposing referendum was held in Valle d’Aosta that was successful: participation was 48.92% of those entitled to vote and the proposal to prevent the construction of hot-water waste treatment plants obtained more than 94% of the vote! However, Regional law No. 33 of 23 November 2012, the law that resulted from the referendum, was declared unconstitutional by the Constitutional Court in its Decision No. 285 of 2013. According to the Court the law exceeded the authority of the region, because of the exclusive competence of the state in matters of “protection of the environment and the ecosystem” laid down in Article 117(s) of the Constitution. .

86 87

by C. Mortati, Istituzioni, supra Chapter 1 n. 47, 892, note 1, according to whom “The desired result was to satisfy petty local political interests by creating two senatorial positions for the region.” See M. Scudiero, Il referendum regionale, in M. Luciani & M. Volpi (eds.), Referendum. Problemi teorici ed esperienze costituzionali, supra n. 54, 137 ss. See Art. 15 of Law No. 11 of the Province of Bolzano of 18 November 2005; Regional Law No. 5 of Valle d’Aosta of 14 March 2006; Art. 4 of Regional Law No. 1 of Sardinia of 10 July 2008; Art. 15 of the Statutes of Campania (2009). See M. Luciani, Gli istituti di partecipazione popolare negli statuti regionali (September 2006), available at www.issirfa.cnr.it/3416,908.html; R. Louvin, Riforme elettorali in Valle d’Aosta: il referendum propositivo apre la via verso nuovi scenari, in federalismi.it, No. 14/2007; id., Sorprese nella nuova ‘giurisprudenza’ sul referendum propositivo (November 2011), available at www.issirfa.cnr.it//6070,908.html; V. De Santis, Il referendum approvativo nel nuovo Statuto della Regione Campania, in federalismi.it, No. 10/2009.

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2.3

Germany

2.3.1

The Choice for Representative Democracy

A widespread opinion is that the plebiscitary provisions of the Weimar Constitution were among the main causes of the rise of Nazism,88 and this led the Germans after World War II to strengthen representative democracy, renouncing, except in rare exceptions, the instruments of direct democracy.89 In recent times however, this view has come to be reconsidered. It has been observed that the plebiscites were not so much the cause, but rather the expression of the crisis.90 According to some it is an exaggeration to say that the referendum had a crucial role in the crisis in Weimar,91 while others emphasize the inconclusiveness and the ambivalence of the Weimar experience.92 In fact, what led to the advent of Nazism was not so much the (little) use of the referendum, as the weakness and confusion of the institutions linked to a form of government which oscillated between the Parliament and the President of the Republic,93 to a proportional electoral system that led to multiple parties competing among themselves, and, as is obvious, the difficult economic and social situation of post-war Germany. It is in this context that we must view the choice of the Basic Law to stabilize institutions by strengthening the executive power within the framework of a rationalized parliamentary form of government. Regardless of the provisions of the Weimar Constitution and their application, it is clear that the instruments of direct democracy could not be seen as

88

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This opinion was advanced for the first time by Theodor Heuss, spokesman for the Liberal Party in the Parliamentary Council. See O. Jung, Direkte Demokratie supra Chapter 1 n. 186, 496; R. Sturm, La Germania ha bisogno del referendum?, in M. Caciagli & P.V. Uleri, Democrazie e referendum, supra n. 72, 207; R. Schiffers, Schlechte Weimarer Erfahrungen?, in H.K. Heußner & O. Jung (eds.), Mehr direkte Demokratie wagen, Olzog, München, 2009, 51. See, e.g., W. Erbguth, Art. 29, in M. Sachs (ed.), GrundgesetzKommentar, C.H. Beck, München, 1999, 974; M. Suksi, Bringing in the People: A Comparison of Constitutional Forms and Practices of the Referendum, Martinus Nijhoff Publishers, Dordrecht, 1993, 107 et seq.; G. Corni, Il nazionalsocialismo: una dittatura plebiscitaria?, Clueb, Bologna, 2010, 185; Y. Vilain, La démocratie participative dans un cadre fédéral : l’expérience allemande, in U. Allegretti (ed.), Democrazia partecipativa. Esperienze e prospettive in Italia e in Europa, Firenze University Press, Firenze, 2010, 305. C. Gusy, Die Weimarer Reichsverfassung, Mohr Siebeck, Tübingen, 1997, 98. R. Sturm, La Germania ha bisogno del referendum?, supra n. 88, 207. R. Schiffers, Schlechte Weimarer Erfahrungen?, supra n. 88, 62 et seq. See C. Pestalozza, Der Popularvorbehalt: direkte Demokratie in Deutschland, supra n.186, 29, according to whom Weimar surely collapsed because of parliamentarianism rather than because of direct democracy. See also A. Weber, République Fédérale d’Allemagne, supra Chapter 1, n. 180, 332, and P. Ridola, La costituzione della Repubblica di Weimar come esperienza e come paradigma, in Rivista AIC No. 2/2014, 15, who identifies among the causes of the eclipse of constitutionalism “the crisis of consensus that the Weimar democracy encountered among large segments of public opinion. […] to which the spiritual climate in Germany during the first decades of the 20th century, marked by currents of thought critical of democracy and parliamentarianism, contributed significantly.”

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potential elements of instability and weakness, or as undermining the institutions of representative democracy. Unlike the Weimar Constitution, it was not the aim of the Basic Law to become the most democratic Constitution in the world (as Minister David stated in 1919),94 but the provisional Constitution95 of a protected democracy, which could stabilize a liberal democratic political order, avoiding a dictatorial outcome like the one built on the ashes of a form of government that was too weak and uncertain.

2.3.2

The Referendum for Territorial Changes of the Länder

The only explicit references in the text of the Basic Law to direct democracy are contained in Article 29 in relation to territorial changes of the Länder. That provision recalls Article 18 of the Weimar Constitution,96 from which it differs only in small part,97 demonstrating the fact that direct democracy in Germany has always been felt as natural at the local level, although viewed with suspicion and fear at the federal level for its possible implications for the stability of representative institutions.98 Article 29 provides that changes in the territorial organization of the Länder and the creation of Länder are determined by federal law confirmed by a referendum or a popular consultation to take place on a proposal made by at least one-tenth of those entitled to vote. In both cases, the proposal must be approved by a majority of the votes cast, which corresponds to at least one-quarter of those entitled to vote. These are complex procedures which must be implemented by special law. A law is also required to regulate the conduct of referendums on proposed popular initiatives that may be held from time to time. The law on the implementation of Article 29 (Gesetz über das Verfahren bei Volksentscheid und Volksbegehren, Volksbefragung nach Artikel 29 Abs. 6 des Grundgesetzes vom 30. Juli 1979) was finally enacted in 1979, endorsing a rather restrictive interpretation of the constitutional provision. Even the Federal Constitutional Court viewed the law restrictively, both before and after its implementation. In 1961 the Court stated that the modification of the territorial districts of the Länder according to Article 29 is a matter of federal jurisdiction, so that

94 95 96 97 98

See supra and n. 181. Provisional with the expectation and the hope of a future reunification. It was because of this provisional character that, as noted, the term ‘Basic Law’ was preferred rather than ‘Constitution’. W. Erbguth, Art. 29, supra n. 291, 971; I. Pernice, Art. 29, in H. Dreier (ed.), Grundgesetz Kommentar, II, Mohr-Siebeck, Tübingen, 1998, 567. T. Maunz, R. Herzog, & R. Scholz, Art. 29, in T. Maunz & G. Dürig (eds.), Grundgesetz Kommentar, C.H. Beck, München, 32nd edn., October 1996, 7 et seq. C. Schmitt, Volksentscheid und Volksbegehren, Duncker & Humblot, Berlin, 2014, 43 et seq observes that the case of cantonal, provincial, or municipal administrative decisions is very different, because they do not involve the political sphere and therefore do not raise questions concerning the organization of the state.

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the Länder do not have standing to make claims against the Federation. Unlike political parties, referendum committees are not necessary institutions for constitutional life and consequently cannot be parties to litigation in disputes between organs of government. Similarly, they cannot be considered individual citizens, which in this context would also preclude direct recourse to raise questions of constitutionality. The right to participate in a referendum is not comparable to the right to vote.99 These principles were reiterated by the Federal Constitutional Court in 1978.100 More recently, in 1997, the Federal Constitutional Court declared inadmissible complaints raised against the constitutionality of the Federal Minister of the Interior and the governments of three Länder (Bavaria, BadenWürttemberg, and Thuringia) in relation to their refusal to hold a referendum for the formation of a new Land (Franken), composed of a number of districts currently included in those Länder.101 The complex rules contained in Article 29 of the Basic Law have never been applied. Changes to territorial boundaries of the Länder have been made, but by way of derogation from Article 29. In fact, the Basic Law itself contains two exempting rules, providing for a more simplified procedure than that of article 29. Article 118 provides that the territorial reorganization of the area comprising the Länder Baden, Baden-Wüttemberg, and Wüttemberg-Hohenzollern may take place notwithstanding the provisions of Article 29 by an agreement between the Länder concerned. If they do not come to an agreement, a federal law must provide for a referendum. Article 118 was inserted at the last minute in the Basic Law on the initiative of Wüttemberg-Hohenzollern. The territories of the three Länder of Baden, Baden-Wüttemberg, and Wüttemberg-Hohenzollern, whose respective capitals were Freiburg, Stuttgart, and Tübingen, had been occupied by American and French allied forces after World War II. There was, therefore, the need to reconstitute the old Länder for historical, geographical, and cultural reasons. Another idea was to form a single larger Southwest German Land which would be more influential economically and politically. Similar proposals had already been advanced in the 1800s and during the Weimar period. The Constitution of BadenWüttemberg of 1946 had envisaged the possibility of deciding by simple majority vote the union the Länder of Hesse and Baden-Wüttemberg. A decision in that regard was necessary, so a provision was included in the final and transitional provisions of the Basic Law to insert Article 118 to allow the resolution of the question of the Southwest area according to a more simplified procedure than the generally applicable rules contained in Article 29.102 Since the governments of the three Länder could not reach an agreement, an informal, 99 100 101 102

BVerfGE 13, 54 (Neugliederung Hessen). BVerfGE 49, 15 (Volksentscheid Oldenburg). BVerfGE 96, 139 (Volksbegehren Franken). See T. Maunz & G. Dürig, Art. 118, in T. Maunz & G. Dürig, Grundgesetz Kommentar, supra n. 299, 6th edn., November 1962.

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non-binding, popular vote was held in 1950. Slightly more than half of the population of Baden voted against the merger of the three Länder, while an overwhelming majority of the voters in the other two Länder were in favour. So a federal law provided for the holding of a referendum according to the provisions of Article 118. The referendum took place in December of 1951 with results similar to those of the previous vote.103 So, in 1952, the new Land of Baden-Wüttemberg was established. After the reunification of Germany the issue of a merger between the Länder of Berlin and Brandenburg arose,104 and again, instead of applying the never used Article 29 of the Basic Law, a special derogation rule was enacted. Article 118a is limited to providing that the reorganization of the territory of the two Länder may take place, in derogation from Article 29, by the agreement of both the Länder and with the participation of the electorate. Pursuant to Article 118a, the governments of Berlin and Brandenburg signed an agreement for the merger, according to which Potsdam would became the capital of the unified Land, while Berlin was to remain the federal capital. On 5 May 1996, this agreement was submitted to the population in a referendum, which rejected it. The vote in Berlin was in favour of unification (53.4%), but in Brandenburg the favourable votes were just 36.6%. After this negative result, in place of the merger, the two Länder were limited to entering into agreements on specific issues and services (public transportation, airport, regional parks, economic cooperation, etc.).105 Article 29, therefore, has never been used. It should be pointed out, however, that referendum procedures had been activated with regard to territorial changes of the Länder. Even without utilizing the complex procedure of Article 29, direct consultation of the electoral body was deemed necessary in cases involving major decisions on territorial changes. If Article 29 – together with Articles 118 and 118a – is the only provision in the Basic Law to expressly prescribe an instrument of direct democracy, a general recognition of 103 The Law of April 25, 1952 had divided the area involved into four districts: Nordbaden, Südbaden, Nordwürttemberg, and Südwürttemberg. The new Southwest Land was established with a favourable majority vote in three districts. More than 60% of the population participated and 70% of the voters were favourable. In Württemberg favourable votes exceeded 92%, in Nordbaden the favourable vote was 57%, while in Sübaden 62% of the voters were opposed. See K. Schubert & J. Wagner, Federalismo e riordino territoriale. La fallita fusione di Berlino e Brandeburgo ovvero le particolarità del federalismo tedesco, in 18(1) Quaderni costituzionali 66 (1998), according to whom with respect to the decision on whether the territory should remain divided in four districts “the proponents of unification had already prevailed.” On the new Southwest Land, see also T. Maunz, R. Herzog, & R. Scholz, Art. 29, supra n. 97, 9. 104 See K. Schubert & J. Wagner, Federalismo e riordino territoriale. La fallita fusione di Berlino e Brandeburgo, supra n. 103, 51 et seq.; see V. Losco, Riordino territoriale dei Länder: una questione marginale del federalismo tedesco?, in 3(1) Diritto Pubblico Comparato ed Europeo, 6 et seq. (2001). 105 See R. Scholz, Art. 118a, in T. Maunz & G. Dürig, Grundgesetz Kommentar, 32nd edn., supra n. 299; see V. Losco, Riordino territoriale dei Länder, supra n. 104, 8; J. Drews, Berlin-Brandenburg - A Joint Metropolitan Authority, METREX Glasgow Spring Conference, 24-26 April 2013, available at www.eurometrex.org/Docs/Meetings/glasgow_2013/Presentations/Jan-Drews-METREX-Joint-Spatial-Department.pdf.

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the role that the population must play within the state is contained in Article 20. This provision stipulates, in its second paragraph, that “Alle Staatsgewalt geht vom Volke aus. Sie wird vom Volke in Wahlen und Abstimmungen und durch besondere Organe der Gesetzgebung der vollziehenden Gewalt und der Rechtsprechung ausgeübt.” This provision, whose first part reproduces Article 1(2) of the Weimar Constitution (“Die Staatsgewalt geht vom Volke aus.”), can be translated as: “All state authority is derived from the people. It shall be exercised by the people through elections and other votes and through specific legislative, executive and judicial bodies.” Abstimmungen does not exactly mean referendums. It literally means voting, or agreements. As opposed to elections (Wahlen), its meaning is decisions made directly by the electorate. Popular sovereignty, therefore, expresses itself through representative bodies elected by the people, and by means of decisions that the people make directly.106 Pestalozza believes that Article 20 recognizes that the people possess an unlimited personal, substantive competence, while state authorities are assigned specific and limited powers.107 But why, after this general provision of the Basic Law, is so little scope given to direct democracy? In the opinion of some it is a gap that remains “essentially a dead letter”.108 According to others the reference to direct democracy in article 20 is simply generic, controversial in meaning,109 or refers only to the institutions mentioned in Articles 29, 118, and 118a, except for the possibility of expanding plebiscitary instruments at the federal level through the constitutional amendment process provided for in Article 79(3) of the Basic Law.110 According to Schefold111 lack of direct democracy at federal level can still be compensated for by direct democracy within the individual Länder. Deferring to the next subsection analysis of direct democracy in the Länder and municipalities, we must still consider that the Basic Law itself was not subjected to a popular vote, although it ends with Article 146, which solemnly proclaims:

106 According to H. Dreier, Art. 20 (Demokratie), in H. Dreier (ed.), Grundgesetz Kommentar, supra n. 298, 61, ‘Abstimmungen’ is to be understood as a form of exercise of state power by the people and there is no relation of hierarchy with respect to elections. The representative system is a form of democracy in the literal (eigentlich) sense and the plebiscite is a pure (echt) form of democracy. 107 C. Pestalozza, Der Popularvorbehalt, supra n. 186, 12. 108 F. Palermo, Il referendum, supra Chapter 1 n. 186, 1305. 109 E.G. Mahrenholz, Referendum e democrazia, in M. Luciani & M. Volpi (eds.), Referendum. Problemi teorici ed esperienze costituzionali, supra n. 54, 23. 110 M. Sachs, Art. 20, in M. Sachs (ed.), Grundgesetz Kommentar, supra n. 291, 753 et seq. For a similar view, see H. Dreier, Art. 20 (Demokratie), supra n. 298, 64 et seq, according to whom it would also be possible to institute an advisory referendum, one without binding legal effect, by an ordinary law. For a contrary view, based on guidelines contained in the constitutional jurisprudence and on endeavors in this direction, see M. Suksi, Bringing in the People, supra n. 89, 108 et seq. 111 D. Schefold, Politische Mitwirkung der Bürger auf Landesebene, in Zeitschrift für Parlamentsfragen 3/1989, 425 et seq., in particular 427 et seq.

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This Basic Law, which since the achievement of the unity and freedom of Germany applies to the entire German people, shall cease to apply on the day on which a constitution freely adopted by the German people takes effect. This provision replaces the one that was in force before the reunification, according to which: This Basic Law will cease to be in force on the day on which a constitution that is adopted by a free decision of the German people comes into force. German scholars tend to diminish the scope of Article 146. They regard it as only hortatory in meaning, considering that the procedure for amendment of the Constitution is based on the principles of representative democracy and not on the plebiscite.112 Submission to the electorate might be expected, but not imposed, for total revisions only, which would require a broader political foundation.113 These views, while definitely in the majority, contrast with the minority view of those who contest an interpretation of Article 146 that would devalue it and they criticize its non-implementation.114 In its landmark Lisbon decision (Lissabon Urteil) of 30 June 2009, the Federal Constitutional Court referred to Article 146. On that occasion the Karlsruhe Court, as it is known, largely rejected the complaints raised against the laws for the implementation of the Lisbon Treaty. The Court declared them unconstitutional only in so far as they did not provide in the simplified procedures for revision of the treaties that the representative of the German government in the European Council was authorized by the Bundestag and the Bundesrat by means of a special law enacted pursuant to Article 23 of the Basic Law.115 Otherwise the 112 R. Scholz, Art. 146, in T. Maunz & G. Dürig, Grundgesetz Kommentar, supra n. 299, 29th edn., September 1991, 7 et seq. 113 M. Huber, Art. 146, in M. Sachs, Kommentar, supra n. 291, 2259 et seq. See also G. Krings, Die Grenzen der „Direkten Demokratie” aus parlamentarischer Sicht, in R. Th. Baus & T. Montag (eds.), Perspektiven und Grenzen „Direkter Demokratie,” Konrad-Adenauer-Stiftung e.V., Sankt Augustin-Berlin, 2012, 14. 114 H. Meyer, Artikel 146 GG. Ein unerfüllter Verfassungsauftrag?, in H.H. von Arnim (ed.), Direkte Demokratie, Duncker & Humblot, Berlin, 67 et seq. 115 See Judgment, at 319, available at www.bverfg.de/entscheidungen/es20090630_2bve000208.html; English translation available at www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/EN/2009/06/es20090630_2bve000208en. On the decision, see R. Caponi, Democrazia, integrazione europea, circuito delle corti costituzionali (dopo il Lissabon-Urteil), in 20 Rivista italiana di diritto pubblico comunitario (2010), available at http://www.astrid-online.it/static/upload/protected/Capo/Caponi_LissabonUrteil_Riv-Dir-Pubbl-Com.pdf; A. Abegg, Das Urteil des deutschen Bundesverfassungsgerichts zum Lissabon-Vertrag der Europäischen Union – Lehrstück zur Demokratie innerhalb eines supranationalen Verbundes, in Jusletter, 28 September 2009, available at www.researchgate.net/publication/39731477_Das_Urteil_des_deutschen_Bundesverfassungsgerichts_zum_Lissabon-Vertrag_der_Europaischen_Union_Lehrstuck_zur_Demokratie_innerhalb_eines_supranationalen_Verbundes; F. Liberati, La sentenza del Tribunale costituzionale tedesco sulla compatibilità del Trattato di Lisbona con il Grundgesetz: una guida alla lettura, in Federalismi.it, No. 14/2009; L. Cassetti, Il “Sì, ma” del Tribunale costituzionale

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German Constitutional Court considered, in its very long and complex reasoning, that the Staatenverband (union of states) nature of the European Union confirms the character, however derivative, of the sovereignty of the Member States, which retain the right to withdraw. The applicants argued, inter alia, that the transformation of the European Union into a federal state would exceed the powers of the constitutional organs of the Federal Republic of Germany and would require a constitutional law approved pursuant to Article 146.116 The Court states that Article 146 gives the citizen a right to participation, which presupposes a constituent power antecedent to constitutional law which could not therefore be annulled by established authorities.117 It follows from Article 23, together with Articles 20, 79, and 146 of the Basic Law, that the European Union cannot be based on an autonomous and independent legitimacy.118 These allusions of the Federal Constitutional Court to Article 146 seem to confirm the need for recourse to the procedure provided therein for revisions that are extensive or of a general nature. It seems that this was supposed to be the case for the adoption of the Constitution of the reunited Germany after more than 40 years of separation. Paradoxically, however, the Basic Law, which had entered into force as a provisional Constitution in anticipation of reunification, became the Basic Law of the united Germany after the fall of the Berlin wall.119 Even more paradoxical, however, is that on that occasion the free decision of the German people, although subsequently reaffirmed, was postponed to a later date. The adoption of the Basic Law as the Constitution of the united Germany is certainly the best evidence of the success of this constitutional text over the years. However, the procedure used remains an anomaly, since the constitutional revisions were approved by both Houses by a two-thirds majority in accordance with the procedure laid down in Article 79 of the Basic Law, without the constitutional text having been submitted to the

116 117 118 119

federale tedesco sulla ratifica del Trattato di Lisbona tra passato e futuro dell’integrazione europea, id.; R. Dickmann, Integrazione europea e democrazia parlamentare secondo il tribunale costituzionale federale tedesco, id.; A.M. Russo, Il BundesVerfassungsGericht in “difesa della normalità”: la “Lissabon Urteil” (30 giugno 2009) e le tendenze alla ‘rigermanizzazione’, in 13 Civitas Europa, No. 23 (2009), 123, available at scienzepolitiche.unical.it/bacheca/archivio/materiale/398/DIRITTO%20REGIONALE%20EUROPEO %20E%20COMPARATO/GERMANIA/Lissabon%20Urteil.pdf; P. Ch. Müller-Graff, Das Lissabon-Urteil: Implikationen für die Europapolitik, in Bundeszentrale für politische Bildung, 23 April 2010, available at www.bpb.de/apuz/32791/das-lissabon-urteil-implikationen-fuer-die-europapolitik?p=all; S. Aloisi, Il futuro dell’integrazione europea dopo il Lissabon Urteil. Alcune considerazioni, in Associazione Italiana di Studi Europei, February 2011. See Judgment, at 113. Id., at 179. Id., at 232. For a brief discussion, see E. Palici di Suni, Il costituzionalismo tedesco e quello italiano a confronto: alcuni paradossi, in G. Cerrina Feroni, G.P. Parodi, P. Ridola, & F. Palermo (eds.), I 60 anni della Legge fondamentale tra memoria e futuro. 60 Jahre Grundgesetz zwischen Herkunft und Zukunft, Giappichelli, Torino, 2012, 81 et seq.

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people, as was provided and as continues to be provided by the last article of the Constitution. This history seems to confirm the reluctance of Germany to use the instruments of direct democracy, but other occurrences point in the opposite direction. Taking a broader view, we should consider the numerous and complex referrals to direct democracy in both the Länder and municipalities, according to a trend manifested at the outset of the German constitutional experience and which continued later after the reunification. In recent years initiatives and referendums, even at the federal level, have become more frequent, both within the political parties as well as with respect to proposals for constitutional amendments.

2.3.3

Direct Democracy in the Länder

The constitutions of the Länder, most of which entered into force before the Basic Law, introduced a very rich range of instruments of direct democracy,120 which reproduce arrangements similar to those contained in the Weimar Constitution. While these instruments of direct democracy contained in the Weimar Constitution were not utilized, or only minimally and without success, the story is different in the Länder, where the instruments of direct democracy have been extensively used and expanded over the years, having been adopted in those Länder that had initially not adopted them.121 The Constitutions of the Länder that were adopted in 1946 and 1947 provided for the referendum, and, for the most part, the popular legislative initiative. Attitudes towards direct democracy changed in some Länder following the adoption of the Basic Law, which had a contrary orientation. There were only three Länder that changed their initial choices: Schleswig-Holstein, Lower Saxony, and Hamburg. The other Länder retained the instruments of direct democracy for which their constitutions had already provided or introduced them, as happened with the constitutions of North Rhine-Westphalia and Berlin in 1950.122 For example, the Constitution of Berlin provided that citizens could express their will directly through the election of their representatives and through the referendum, and indirectly through their representatives (Article 2(2)), restating, but also making more

120 See F. Palermo, Il referendum, supra Chapter 1 n. 186, 1307 et seq.; A. De Petris, Gli istituti di democrazia diretta nell’esperienza costituzionale tedesca, Cedam, Padova, 2012, 243 et seq.; O. Jung, Referendum e iniziative nei «Länder» tedeschi, in M. Caciagli & P.V. Uleri, Democrazie e referendum, supra n. 72, 218 et seq.; B.O Bryde, Die Reform der Landesverfassungen, in H.H. von Arnim (ed.), Direkte Demokratie, supra n. 316, 147 et seq.; A. Weber, République Fédérale d’Allemagne, supra n. 93, 336 et seq and 351 et seq.; Y. Vilain, La démocratie participative, supra n. 89, 307 et seq. 121 See F. Palermo, Il referendum, supra Chapter 1 n. 186, 1307. 122 See O. Jung, Referendum e iniziative nei «Länder» tedeschi, supra n. 120, 219 et seq.

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of a popular referendum for laws abrogating or modifying laws adopted by the people. For a period of 3 months after the enactment of the modified law, it would be possible to request a referendum. The Hamburg Constitutional Court, in its Decision of 13 January 2013 (HVerfG 02/11), declared unconstitutional the 3% threshold for district assemblies, as contrary to the principle of equality of the vote and equality of chances for the parties. The threshold was also not justified considering that the district assemblies perform purely administrative functions and therefore do not require stable majorities as do parliaments with legislative powers. As a result of this decision, the Hamburg Parliament (Bürgerschaft) enacted the Fifteenth Amendment to the Hamburg Constitution on 13 December 2013, which added to the constitutional text the 3% threshold for district assemblies (Article 4(2)) and the 5% threshold for the Hamburg Parliament (Article 6(2)). By its decision of 24 February 2014 (HVerfG04/13), the Hamburg Constitutional Court finally laid to rest the possibility of a referendum on this amendment to the Constitution, reasoning that Article 50(4) refers only to ordinary laws. The fierce battle in Hamburg that opposed the camps of representative democracy and direct democracy on the crucial issue of electoral representation, mediated by and under the control of the constitutional judges, seems particularly significant. In Hamburg there was a strong push from civil society to assume a more direct role in policy and in matters of general interest, and this in one of the Länder where this tradition was absent, given that the instruments of direct democracy had been introduced relatively recently. The major parties tried as much as possible to combat this trend, using all the legal instruments at their disposal, alternating, as we have seen, between understandings and agreements with representatives of civil society (which led to the lowering of the threshold from 5% to 3% in 2009) to real shows of force (such as enacting a constitutional law in 2013 that included criteria just declared unconstitutional by the Hamburg Court). That this occurred in one of the parts of Germany that has traditionally not embraced direct democracy seems to be proof that major transformations across the country are in the offing. In addition to the Länder, important experiences of direct democracy have occurred at the municipal level, with a wide variety of procedures and methods.125 As in the Länder, in the municipalities, too, the movement towards direct democracy, although already well established on the basis of a long and established tradition, has become even more pronounced since the 1990s.

125 On direct democracy at the municipal level, see Th. Schiller, Die Praxis der Direkten Demokratie auf kommunaler Ebene, in H.H. von Arnim (ed.), Direkte Demokratie, supra n. 316, 83 et seq.; A. De Petris, Gli istituti di democrazia diretta, supra n. 119, 308 et seq.; A. Weber, République Fédérale d’Allemagne, supra n. 93, 343 et seq. and 353 et seq. With particular reference to municipalities in Schleswig-Holstein, see also M. Sutela, Comparative Aspects of Local Direct Democracy: The Municipal Referendum in Finland, Sweden, Germany and Switzerland, in 7(4) European Public Law 651 (2001), in particular 656 et seq., 659 and 665.

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2.3.4

Current Trends

In 2011 the city of Stuttgart was in the process of implementing a grandiose infrastructure project to completely renovate its railway station. A referendum was initiated to oppose this project, known as “Stuttgart 21”, judged too expensive and not necessary by opposition forces. This was not enough, however, to end the controversy and the strong protests of the population.126 A heated debate ensued throughout the country in public opinion, in scholarly writing, and between political forces on the question of assuring popular participation in the making of public decisions.127 This led in 2013 to the codification of the right of participation (Partizipationsrecht): a new paragraph was added to Section 25 of the Law on Administrative Procedure (VVwVfG) requiring public authorities to submit in advance to the public any decision that might have repercussions on a large percentage of the people (einer Zahl von Dritten gröβeren), and recognizing the opportunity of making comments on the specific proposals.128 The Social Democratic Party was in favour of direct democracy even before the Weimar Republic and its contribution was instrumental in the introduction of the referendum into the Constitution of 1919. Fortified by this tradition,129 the SPD has continued to use the method of direct consultation of its members in its internal operations. The referendum held among voters of the SPD on the grand coalition agreement concluded with the CDU and Chancellor Merkel following the elections of September 2013 has had a significant impact even outside of Germany.130 The signing of the agreement by the SPD was made

126 See A. De Petris, Gli istituti di democrazia diretta, supra n. 119, 307 et seq. 127 See J. Ziekow, Neue Formen der Bürgerbeteiligung? Planung und Zulassung von Projekten in der parlamentarischen Demokratie, Verhandlungen des 69. Deutschen Juristentages, Beck, München, 2012; M. Möstl & M. Schuler-Harms, Elemente direkter Demokratie als Entwicklungsperspektive, in Repräsentative Demokratie in der Krise?, Veröffentlichungen der Vereinigung der Deutschen Staatsrechtslehrer, Band 72, W. de Gruyter, Berlin-Boston, 2013, 355 et seq. and 417 et seq. See M. Haug, “Partizipationsrecht” – Ein Plädoyer für eine eigene juristische Kategorie, in 47 Die Verwaltung 221 (2014); S. Drescher, Instrumente politischer Partizipation: über den Stellenwert von Bürgerbefragungen, id., 263 et seq.; C. Fraenkel-Haeberle, Bürgerpartizipation und Betroffenbeteiligung mit Blick auf Italien, id., 271 et seq. 128 § 25(3) provides: “Die Behörde wirkt darauf hin, dass der Träger bei der Planung von Vorhaben, die nicht nur unwesentliche Auswirkungen auf die Belange einer größeren Zahl von Dritten haben können, die betroffene Öffentlichkeit frühzeitig über die Ziele des Vorhabens, die Mittel, es zu verwirklichen, und die voraussichtlichen Auswirkungen des Vorhabens unterrichtet (frühe Öffentlichkeitsbeteiligung). Die frühe Öffentlichkeitsbeteiligung soll möglichst bereits vor Stellung eines Antrags stattfinden. Der betroffenen Öffentlichkeit soll Gelegenheit zur Äußerung und zur Erörterung gegeben werden. Das Ergebnis der vor Antragstellung durchgeführten frühen Öffentlichkeitsbeteiligung soll der betroffenen Öffentlichkeit und der Behörde spätestens mit der Antragstellung, im Übrigen unverzüglich mitgeteilt werden. Satz 1 gilt nicht, soweit die betroffene Öffentlichkeit bereits nach anderen Rechtsvorschriften vor der Antragstellung zu beteiligen ist. Beteiligungsrechte nach anderen Rechtsvorschriften bleiben unberührt.” 129 See E.G. Mahrenholz, Referendum e democrazia, supra n. 109, 24. 130 See A. De Petris, Sunt pacta politica etiam servanda? Gli accordi di coalizione nella forma di governo tedesca, in 16(2) Diritto Pubblico Comparato ed Europeo, 761 (2014).

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subject to the consent of the members of the party. In December 2013, that consent was expressed by an overwhelming majority of 76%. A more specifically legal expression of the desire for increased democracy has taken the form of proposals to amend the Basic Law to introduce more instruments of direct democracy at the federal the level. A proposal was made in the 1990s by the Mehr Demokratie association,131 which is assuming a more and more important role in Germany and maintains links with the various Länder132 (we have already described its role in Hamburg). Another proposal was made in 2002 by members of the SPD and the Greens,133 but it did not obtain a 2/3 majority in both Houses, which is required to amend the Basic Law. More recently, on 11 June 2013, the Social Democratic Party presented a new proposal for constitutional revision. The proposal aimed at introducing at the federal level the popular initiative (Volksiniative), the popular proposal (Volksbegehren), the popular decision (Volksentscheid), and the referendum. According to this proposal, the current Article 78 of the Basic Law would become the last paragraph of Article 77, and a new Article 78 would provide for the possibility of presenting to the Bundestag a bill (Volksinitiative) signed by 100,000 voters. If the proposal is not accepted by the Bundestag within 6 months, a referendum (Volksentscheid) would be held within the six successive months in which a the majority of valid votes, which corresponds to at least one-quarter of those entitled to vote, could enact the bill. Moreover, one million voters had the right to submit to a referendum a law already passed by the Bundestag (popular referendum). The Bundestag, by a decision by a two-thirds majority, may submit to a referendum a federal law (parliamentary referendum). The proponents of the referendum have the right at any stage of the proceedings to be heard by the Bundestag and the Bundesrat. This proposal, as is evident, replicates in many respects the referendums already provided for by the Weimar Constitution and the constitutions of the Länder. After the elections of 2013, as we have seen, the coalition agreement between the CDU and the SPD was submitted to a referendum to the members of the SPD. The agreement does not make explicit reference to the referendum and to direct democracy, but there is a paragraph specifically devoted to popular participation.134 In this context the agreement relies above all on digitization. The goal is to make Germany a ‘digital champion’ within the ‘digital agenda’ of the European Commission. Public participation must be enhanced without affecting the speed and efficiency of governmental procedures. The goal is to engage citizens as well as representatives of civil society in the

131 132 133 134

See A. De Petris, Gli istituti di democrazia diretta, supra n. 119, 335 et seq. See the site of the association, available at www.mehr-demokratie.de/. See A. De Petris, Gli istituti di democrazia diretta, supra n. 119, 331 et seq. Deutschlands Zukunft gestalten. Koalitionsvertrag zwischen CDU, CSU und SPD. 18. Legislaturperiode, 151, available at www.bundesregierung.de/Content/DE/StatischeSeiten/Breg/koalitionsvertrag-inhaltsverzeichnis.html.

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discussion of planning for future, by developing new forms of popular participation and communication to bring together the people in a common endeavour. Even without express reference to direct democracy, the commitment of powerful forces to respond to the growing demand for popular participation, to bridge what looks increasingly like a ‘gap’ of German constitutional law, seems clear.135 What will happen concretely in the coming years is difficult to predict, but the process of overcoming the monopoly of representative institutions now seems unstoppable, even in Germany.

2.4

2.4.1

Spain

Setting the Stage: the Political Significance of Direct Democracy and the Equivocal Treatment of the Referendum by the Spanish Legislature

The starting point of any study or assertion concerning the formal structure adopted by the Spanish Constitution (Constitución espaňola de 1978) (CE) on direct democracy is Article 23(1) CE which states: “Citizens have the right to participate in public affairs, directly or through representatives freely elected in periodic elections by universal suffrage.” In the Spanish Constitution democratic participation can, therefore, be divided into two forms or modalities: representation and direct action of the people. It should be stressed that there are two distinct ways of structuring the participation of the entire people as a political entity. There are not two structural procedures with one accorded priority based on the perception that one of the two procedures in question is more deeply and intensely democratic because of the attribution of a qualitatively superior weight thanks to the direct participation of the people in the formation of the collective opinion. In a constitutional democracy the procedures for the formation of political will are normally found in the conception, developed by administrative law doctrine, of the “unitary act” (acto complejo), a concept that integrates a set of activities (phases) of different types and conditions in the same sequential process, all equally implicated, none of which is exclusively responsible for the end result. This result is in principle the product of the joint operation of this set of activities and is expressed in a single act. In this sense, it is not surprising that in this process a number of manifestations, both direct and indirect, of the popular will gradually 135 See the introduction to the SPD bill: “Die im Grundgesetz verankerte parlamentarisch-repräsentative Demokratie hat sich in der Bundesrepublik Deutschland über mehr als sechs Jahrzehnte bewährt. Doch auch der Wunsch nach stärkerer Beteiligung wächst in der Bevölkerung. Anders als in Ländern und Kommunen, in der EU und in vielen befreundeten Nationen kennt unsere Verfassung außer zur Neugliederung des Bundesgebietes und zur Ablösung des Grundgesetzes (Artikel 29 und 146) keine Volksabstimmung. Dies wird weithin als Lücke empfunden. Die Bundesrepublik Deutschland braucht deshalb heute auch auf Bundesebene eine bürgerfreundliche Regelung für die Durchführung von Volksinitiativen, Volksbegehren, Volksentscheiden und Referenden.”

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come together, without necessarily resulting in the democratic superiority of one over the other. The same must be said in connection with acts of political will formation occurring in one step: they should not be categorized as more or less democratic by virtue of the fact of the use of indirect or direct participation of the people. Article 23(1) CE, therefore, prescribes two different formulas for the procedural effectuation of the presence of the people in the democratic process. These formulas are not hierarchically ordered, but it is worth thinking about the possible situations of functional specialization of the political action of the people. This means that in the Spanish constitutional system when the people act themselves it is neither more politically significant nor substantially distinct from the people, acting as a higher authority, who choose their own representatives who then form, through dialogue and contestation, the collective opinion. In our model of constitutional democracy, political will emerges inexorably from the people, but there are many routes and mechanisms by which the popular will may be organized and manifested. All these routes serve instrumentally to produce the final result; each is indispensable with respect to its particular situation; each responds to its own functional situation, which operates as the fundamental interpretative criterion of its task. The structural configuration of all must certainly be respected. This is especially true when considering the direction that the two crucial challenges that affect our immediate situation are taking which make harder and more difficult the practical structuring of democratic life: – The increasingly pluralistic nature – we might even say the fragmentation – of modern societies, which requires for the formation of the common democratic will that the diversity of opinions be decanted through a laborious, stormy, delicate, and extremely slow collective debate which excludes the imposition of a unilateral will, especially with respect to the decision itself. – The growing impenetrability and slipperiness of the problems to be resolved by a public opinion that is less and less aware of the content and scope of the policy issues under consideration. This results in the opportunity to present simplifying formulas based on simple, Manichean, ‘yes or no’ dilemmas, which provides tremendous manipulative potential and fertile ground for the creation appearances. Summarizing and concluding these preliminary remarks about the political nature of the institutions of direct democracy, we cannot accept in a constitutional democracy, or, at the very least, in the Spanish model of constitutional democracy of 1978, the famous and controversial argument of Carl Schmitt founded on the radical opposition and the insurmountable tension between two opposing and irreconcilable principles, unrestrained and perennially disposed to come into conflict: representation and democracy. Spanish constitutional logic seems even to push in the opposite direction, since it accepts as a postulate only one principle: the democratic will of the people meets an insurmountable limitation

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in the values, precepts, and procedures laid down in its time by the constituent power. Consequently, outside of the Constitution there is no valid manifestation of democratic will. The Constitution is the concrete, legal expression of the idea of legitimacy that Thomas Paine called “government by society”: the democratic construction of politics by society. This democratic regime is defined through procedures provided for by the Constitution, especially through political representation that acts with and through political parties. It was this very understanding of democracy which was clearly articulated in the session of the constituent debate in which the issue of the role of the institutions of direct democracy in the Spanish Constitution was explicitly and publicly addressed: In a country where the fundamental evil was not [party politics], but according to Rapporteur Solé Tura in the session of June 6, 1978, the negation of parties […], to denounce the evil of party politics is a disservice to the cause of the consolidation of democracy that we are trying to accomplish. […] The problem we have today is not party politics, but, rather to ensure that the parties are working to ensure that they are representative, that they are strong, to ensure that they are recognized as the concrete interpreters for the great masses of the population. This is fundamental. […] And we must also ensure […] the importance of the role of a democratically elected Parliament […] The forms of direct democracy do not consist solely in the referendum; there are many other mechanisms of direct democracy. Direct democracy does not only mean the possibility of a referendum, but also other ways of intervention, participation, and decision-making, and this is precisely what the Constitution permits in other articles. (Session of June 6, 1978, p. 2942 DSC) In the light of those statements we must take into account that, if in the intention of its drafters, the Spanish Constitution aspires to give precedence to any procedure for the formation of democratic opinion, this is also consistent with the election by the people of representatives from political parties; election in itself – let’s not forget – also requires direct action of the people. This was, finally, the great ambition of the Constituent Assembly. Leaving aside, however, these considerations related to the atmosphere and to the problems of contemporary democracy to which we will refer later, for now it is important to note that the Spanish Constitution has four configurations, or, if you prefer, four functional modalities, for the opinion of the people to be expressed directly and without intermediaries: the popular legislative initiative pursuant to Article 87(3) CE; the so-called consultative referendum pursuant to Article 92 CE; two constitutional revision referendums in Title X CE; and diverse referendums at the territorial level governed both by Title VIII CE and the transitional provisions of the Constitution.

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It should be stressed here that the link or point of convergence in Spanish positive law of these three types of referendums, besides the fact of the personal participation of the entire body of citizens of the political entity, is the existence of a common regulatory standard, namely the Ley sobre regulación de las distintas modalidades de referéndum (LOR) (Organic Law 2/1980 of 18 January 1980), which implements the provisions of Article 92(3) of the Constitution (“An organic act shall lay down the terms and procedures for the different kinds of referendum provided for in this Constitution”) and which provides for a common, shared operational-procedural structure for these referendums. From this follows the obvious question: what can be the reason why Article 92(3) CE establishes a general regime of the referendum and provides for the same legal treatment, if the different manifestations of this institution are not the expression of a great political idea forged in the repository democratic idea of the Rousseauan tradition? Each of the referendums provided for in the Constitution responds inevitably to its own inescapable causal dynamics, related to a specific and concrete concern or functional interest of the Constituent Assembly and has no necessary relationship of material relevance with any of the others. The elements common to all these types of referendums, moreover, except for the fact of the direct participation of the people exercising a fundamental right, do not seem to be significant enough to justify the same treatment. The Constituent Assembly, in drafting Article 92(3) CE, was not very attentive or, at the very least, consistent with its functional conception of the role of institutions of direct democracy. La Ley sobre regulación de las distintas modalidades de reférendum (LOR) (Organic Law 2/1980 of 18 January 1980) must be understood as an unnatural common framework, as a sort of normative act or shared procedural structure for actions that end up artificially channelled into various types of referendums: that is to say, it does not have to be considered as a further extension of pure democracy to the political body or even as the final expression of different institutional manifestations of a common stem. The same can be said about the popular legislative initiative pursuant to Article 87 CE in that it does not depend on an institutional structure attributable to the substantive idea of democratic identity. Also, its only comparable feature is the functional hypothesis of the intervention of the citizen body in political life – in this case in the initial phase of the promotion or the innovative creation of law – without any intermediation. In this way the unitary rules that Article 92(3) CE provide for all types of referendums – stipulated and then reiterated in Article 1 LOR – is explicable only by the unfortunate inclination of the Constituent Assembly to employ a very questionable legislative technique, which, by combining and simplifying what is operationally so palpably different, gave rise to significant complications and problems of an operational nature. Such problems have resulted in the fact that every decree for holding a referendum is necessarily forced to introduce certain specific rules to fill the normative gaps, for example with respect to subsidies to political parties where that had to be done on each particular occasion. Evidence

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of the foregoing is the fact that the same LOR, Article 11(1), expressly recognizes in matters related to referendums the supplementary character of the Ley orgánica de régimen electoral (Organic Law 5/1985 of 19 June 1985) (“The referendum process will be subject to the general electoral regime as applicable and not contrary to this Act”). In this sense, it would probably have been better – except for the possibility of the adoption of an organic law on rules for the regulation of a fundamental right pursuant to Article 81 CE – to have provided a specific rule for each type of referendum that was appropriate for the different functional conditions where there is an appeal to the people; or, in the alternative, that each of these functionally different procedures be the subject of a separate treatment in independent titles within the same General Electoral Law (Ley Electoral General or LOREG). To this we may add that the early date of the enactment of the LOR, approved towards the end of the post-Constituent Assembly government of the UCD (Unión de Centro Democrático), in order to fill of the legal vacuum that was incompatible with the urgent need to implement the Constitution with respect to territorial autonomy, helped to fuel the collection of technical shortcomings of the law in question. If circumstances had permitted, it would have been desirable to review the contents of the law in depth so that it could have facilitated a differentiated treatment of various models of referendum and would have taken account of the functional characteristics of each.

2.4.2

The Institutions of Direct Democracy in the Process of Drafting the Constitution: The Referendum and the Popular Legislative Initiative. The Legislative Process

A

The constitutional procedure of Article 92 CE in the work of the Constituent Assembly and the different types of referendum. 1. During the process of gestation of the Spanish Constitution of 1978, as regards the articles governing the institutions of direct democracy, it can be said that only the current Article 92 CE was subject to significant changes that merit consideration. The then Article 85 CE, in its initial drafting, provided for three possibilities for referendum:136 136 It its initial version, the text of the then Art. 85 drafted in the session provided: “1. Approval of laws voted by the Cortes Generales and not yet sanctioned, political decisions of special importance, and the repeal of laws already in force may be submitted to a referendum of all citizens. 2. In the first two cases in the preceding number, the referendum shall be convoked by the King on the proposal of the Government, on the initiative of either of the two Houses, of three Assemblies of the Autonomous Territories. In the third case, the initiative may be proposed by 750,000 voters. 3. The time limit provided for in a prior part of this section for the royal sanction, if counted, in that case, runs from the official publication of the result of the referendum. 4. The result of the referendum shall be binding for all citizens and all organs of the state. 5. An organic law

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– The legislative approval or ratification referendum, which permitted, on the initiative of the Government, of the two Houses, or of three Assemblies of the Autonomous Communities, the submission to the direct vote of the electorate the last phase of elaboration of a legislative text for its final enactment as law. – The legislative repeal referendum, which permitted, on the initiative of the Government, of the two Houses, of three Assemblies of the Autonomous Communities, or of 750,000 voters the submission to a popular referendum for the repeal of a law in force. (This was, therefore, a case of the double direct intervention of the people, who, at first, could propose the referendum and then could vote for repeal.) – The advisory referendum, which was binding on matters of special importance, on the initiative of the Government, of one of the two Houses, or of three Assemblies of the Autonomous Communities. During the same session of the debate in the Constituent Assembly in which Professor Solé Turá made the statement cited above, it was decided, significantly, to restrict the scope of this procedure, limiting it for present purposes to forms of democracy compatible with the framework of the Party State (Stato de Partidos). So Article 92(2) CE says that only the President of the Government, with the prior authorization of the Chamber of Deputies, may submit to the King the holding of a referendum. This means that the initiative to hold a referendum resides exclusively with the person who possesses the most responsibility for the exercise of the executive power, the person, who, in the tradition of Spanish politics, has come to be identified with the possessor of political power or the leader of the parliamentary majority. There is, in principle, no possibility of using the referendum to produce imbalances at the parliamentary level, and much less if holding a referendum is subject to the prior approval of the Chamber of Deputies, the body which must have confidence in the President of the Government and which can vote no confidence in him, given that the Spanish parliamentary system gives this right only to the lower House and not to the Senate. In the constitutional configuration of Article 92(2) CE, the referendum was designed, therefore, as an instrument intended to coexist harmoniously with the idea of parliamentary representation, and is not designed as a tool intended to facilitate executive-legislative confrontation. Add to this that the LOR (Article 5(2)) includes an obligatory temporal distancing between the date of the holding of the referendum and the holding of elections, for the manifest purpose of preventing a direct collision between these two votes:

shall govern the conditions of the legislative referendum and the constitutional referendum and of the popular initiative of the present article and that of article 80.”

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The referendum may not take place […] during a period between the 90 days before and 90 days after the date of the holding, in the territory affected, of parliamentary elections or general local elections, or other general referendums. Any referendum convoked during that period will be automatically suspended, and any referendum having been held during that period will have to be rerun. As things stand, we must wonder what might be the function of the referendum called at the initiative of the President of the Government in the Spanish constitutional model. The answer is to a large extent provided by the first paragraph of the same Article 92 CE, which states that the referendum, on the one hand, relates to “political decisions of special importance” and, on the other hand, is “advisory”. If you add the safeguards which the Constituent Assembly has provided for the holding of the referendum to limit its effect – it is not binding – we see clearly that we are in the presence of a legal construct in which the fears and distrust far outweigh the hopes and expectations that the constituents had placed in it. More than opening a way to the direct participation of the citizenry, the design of a series of safeguards and precautions make its use difficult and make recourse to it of only limited utility. Moreover, this model of referendum, mostly serves functionally to strengthen the political leadership of the President of the Government, possibly against both his own party and the political opposition, allowing him to draw directly on the same source of power that supports the position of both of them. In this sense, the referendum appears to be designed as a tool for the chief executive to control the political parties. Even the formulation of the referendum question is not free from negative aspects. It is the initiator of the referendum who ultimately determines the question of special importance that should be answered by the referendum. It is the President of the Government who sets in motion the referendum process; and it falls to him to set the time of the vote in light of the circumstances, and to define the object and the subject-matter of the question. In this regard, the Congress of Deputies, even if it is competent to participate in decisions with respect to these matters and possesses the right to deny approval, does not seem to be in a position to effectively exercise this right because it is unthinkable for it to oppose the President of the Government – in the Spanish the constitutional system the one who actually receives the popular investiture – with a parliamentary majority. The conclusion to which a reading of the provisions of Article 92 CE leads is that the authors of the Constitution, when it came to amending the original version of this provision, did not dare to eliminate it directly and chose, instead, to defuse it, turning it into a procedure defined more by what it could not do rather that by the concrete functions that were supposed to be entrusted to it. This conclusion, is, in a certain sense, confirmed by the inappropriate placement of Article 92 CE in the context of the constitutional system, since the constitutional article

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providing for the consultative referendum, as a tool of political action for the President of the Government, is located in Chapter 2, devoted to the making of the law, of Title III of the Constitution, concerning the Cortes Generales. This is a further indication that the original conception of the referendum was not followed in drafting the final Constitution. It is very likely that in the background of the process of the reduction of the constitutional scope of the referendum lurks the presence of the negative weight of the plebiscitary tradition of the Franco dictatorship, as well as the particular rules established by the Ley para la Reforma Política, the law which, during the Political Transition, brought about the transition from dictatorship to constitutional democracy. The repudiation of Francoism and its laws and the concern to avoid reproducing a process which existed during the Transition to help overcome the potential opposition of Cortes to the elaboration of the new Constitution (Article 5) – giving the King the right to call for a binding referendum – no doubt worked as negative stimuli to inspire the current version of Article 92 CE. Thus, the provision in question provided for a type of referendum that in its concrete application has given rise to a number of complications. This same interpretation regarding the nefarious implications of the little thought out reformulation of the former Article 85 in the current Article 92 CE, serves to explain the inadequate drafting of the third paragraph of the latter. As opposed to the original text that included – distinguishing the legislative referendum from the referendum on constitutional revision and the legislative initiative, and omitted territorial referendums as matters reserved for a common organic law – the law presently in force includes a general clause according to which regulation of the entire process is entrusted to a single organic law. This indicates that the express renunciation of the democracy of identity, effectuated by the amendment sponsored by Solé Tura as Rapporteur on behalf of the entire Commission (except for the Popular Party) – had as a direct consequence the loss of coherence and substantive meaning of direct democracy. These aspects were not correctly reflected by the drafters of the Constitution. That, as explained, is the main reason for some of the notable technical defects of the norm in question that we see today. Finally, therefore, the inadequate redrafting of this provision was also the cause of the propensity of the rules for referendums governed by the LOR to experience at the outset technical and systematic errors. 2. The second type of referendum provided for in the Spanish Constitution is the two cases provided for in Title X regarding constitutional revision. In this regard the Constitution indicates two different revision procedures: the simplest, pursuant to Article 167 CE, and the more complex, pursuant to Article 168 CE. The first applies to matters in Titles III through IX and in Title I, except for the first section of Chapter II. In all these cases, the procedure turns out to be rather difficult and requires the approval of two-thirds of both Houses or of the absolute majority of the Senate and two-thirds of the Congress. This phase successfully accomplished, the referendum is only

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possible, on the initiative of least a tenth of the members of either of the two Houses, within 15 days following the parliamentary approval. It is important to note that we are faced with a situation where utility and political calculation are in radical opposition with respect to the advisory referendum provided for by Article 92 CE, as we have already discussed. In fact, unlike what happened in that case, in the case of Article 167 CE, the objective pursued by the legislator who introduced the referendum was not to create a passive procedure without practical effect, but to institute an active requirement that has a capacity for a huge mobilization, which means that the procedure for constitutional revision may be undertaken if there already exists a high quorum. The referendum is designed as a tool that serves to block and to make inadvisable, if it were possible at all, recourse to constitutional revision. All this has to do with the peculiarity that characterizes constitutional revision in the Spanish system. Unlike what happened in other neighbouring countries, in Spain constitutional revision was intended as a deterrent to constitutional change. The dominant idea at the time of the drafting of the Constitution was that the best way to provide for the stability of the democratic system inaugurated by the Fundamental Law of 1978, breaking with the tradition of the political failures of democracy, consists in giving the new constitutional text a special rigidity, capable of making it immune from circumstantial changes poorly founded on the collective will. To this end a process of constitutional revision was designed that required the approval of a supermajority that could be attained only if it were possible to obtain a broad consensus among the political forces that had participated in the drafting of the fundamental law. Further compounding this difficulty is the requirement of the potestative referendum, introduced with full awareness by the Constituent Assembly, in a political environment, as already mentioned, of mistrust and fear of any direct appeal to the people. Only if you are sure you will be able to count on a broad consensus of two-thirds of the Congress, can you embark on the path of constitutional revision. Otherwise you run the risk that the minority will instigate the involvement of the people to judge the appropriateness of the change. The result is obvious: in 37 years of constitutional life there have been only two constitutional amendments, both pursuant to Article 167 CE. These amendments affected the language of Article 13(2) CE, having introduced in 1992 the words “and passive” (y pasivo) with reference to the right of suffrage of non-Spanish citizens; and the controversial reformulation of Article 135 CE in 2011 with respect to matters of budgetary stability. Both reforms could be satisfactorily undertaken thanks to the fact that they were able to count on broad political support, having been signed onto by the principal political parties, not only by the governing majority. Without doubt, on the second occasion there was the possibility of raising certain objections that was likely to translate into opposition to the project, which, raised at the outset, averted the inclusion of the referendum within the

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constitutional amendment process under Article 167 CE, which had been conceived as a brake to constitutional change. In this case, the same distrust of the referendum plays an opposite role compared with the referendum provided for by Article 92 CE. While in the former situation the Constituent Assembly had been lukewarm towards the mechanisms of direct democracy which led it to design a referendum that was of little operational utility, now identical reservations allowed the Assembly to incorporate a mechanism that was thought to be easily operable as a means of deterrence from undertaking initiatives of constitutional reform if there was not thought to be a broad consensus. The referendum in this case operates as a brake to reform. It puts into the hands of a minority the possibility to appeal to the people, and, therefore, the power to block it. In the Spanish constitutional system some key consensus points, such as, for example, those relating to the territorial configuration of the State, were more the product of a governing elite aware of the pressing need to reach agreements essential for the establishment of the democracy, than that of the collective will of the society as a whole. Article 168 CE provides for the other type of constitutional referendum and applies in the case of the complete revision of the Constitution. Article 168 also applies to amendments which affect the Introductory Title, the articles on fundamental rights included in the First Section of the Second Chapter of Title I, as well as Title II relative to the Crown. In this case the referendum is an inescapable requirement that occurs procedurally at the time of the final phase of the process of amendment. In the amendment procedure under Article 168 CE, the approval of the new text by a two-thirds vote of both Houses is required, as well as its subsequent ratification – with the same majority – by a new Parliament elected specifically because of the immediate dissolution of the prior Parliament, and the final ratification by referendum. In this case it should be stressed that the referendum of final approval is temporally subsequent to the holding of parliamentary elections that, given the circumstances in which they are held, the principal object of debate is the constitutional revision. This new direct consultation with the people seems only to reinforce the dissuasive effect that the referendum takes on in constitutional revision. The referendum, therefore, is configured as a real barrier to the amendment that arises after the representatives who had been formally chosen by the vote of the people – which is understood as having the effect of expressly conferring on them the confidence of the people and they thereby enjoy the confidence of the society – had already expressed the will of the people they represent. An unfortunate mechanism for the conclusion of the revision process, which, in practice, becomes inoperative and which was conceived as a corrective to the lack in the Spanish Constitution of the inviolability of constitutional clauses of the type contained in the Constitution of the Fifth French Republic, which declares that the Republican form of the State is immutable

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3. The third type of referendum is the referendum on territorial issues, namely, all those referendums that in one way or another relate to the implementation, modification, or definition of the competences of the Autonomous Communities. The Constitution provides five cases: a. The initiative referendum on autonomy (Article 151(1)), intended to initiate the process of the establishment of those Autonomous Communities that are assuming plenary powers (Articles 148 and 149) and which had not previously submitted to referendum their own Statutes (Estatutos). This is the case of Andalusia, which, moreover, once pressured for modification of Article 8 of the LOR in order to allow the calculation of votes (an absolute majority was required) to be done with reference to the new Autonomous Community as a whole and not with reference to the individual provinces that wished to accede to it; b. The approval referendum for Autonomy Statutes – the institutional norm of each Community – pursuant to Article 151(2)(1) and (2); c. The approval referendum for Autonomy Statutes that, in accordance with the provisions of Article 151(2)(5), were presented to and approved by the Cortes Generales in the form of organic laws that was used for the approval of the Statutes of the Basque Country, Catalonia, and Andalusia. In fact, in these three historic cases, it was an article employed to bring about the establishment of certain Autonomous Communities or the approval of their Statutes, and whose purposes were fulfilled with the performance of these functions; d. The referendum provided for in Article 152(2) for the amendment of the Autonomy Statues approved pursuant to Article 151 (the Basque Country, Galicia, Andalusia, and Catalonia). This provision has served recently to bring about the revision of the Statutes of Catalonia and Andalusia, and, since every Statute may establish the procedure for its amendment, this type of referendum has been made available for other Statutes, such as that of Valencia; e. The referendum for the incorporation of Navarre into the Autonomous Community of the Basque country, provided for in Transitional Provision 4 of the Constitution. Regardless of these five specific cases of referendum, the real crux of the problem is the possibility of introducing new referendums expanding the list specifically included in the Constitution, in particular the possibility of extending to the ordinary governance of the Autonomous Communities the referendum of a political nature referred to Article 92 CE. The legal instrument to that effect might be provided by a norm of the Autonomous Communities themselves. In this respect, there is a doctrinal controversy that the particular wording of Article 149(1)(32) CE has helped fuel. That provision says: “The State shall have exclusive competence over […] authorization of popular consultations through the holding of referendums.”

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This is a formula that seems to introduce a distinction between the referendum and the popular consultation that employs the referendum. That distinction would seem to include other modalities of an undefined nature that would be sufficiently capable of expressing the democratic will of the Autonomous Community. Apart from the fact that this provision seems to have been designed with the sole purpose of preserving the monopoly power of the central government to authorize any consultation in the Autonomous Communities, what is certain is that its literal meaning leaves open a window for the acceptance of the existence of other types of autonomous popular consultations, that, even if they do not formally take the name of referendum, could still operate as manifestations of direct democracy, including those able to transcend narrow internal territorial dimensions. The first assertion is corroborated by the particular drafting of paragraphs 1 and 2 of Article 2 of the LOR, which gives the Government the power to authorize the holding of a referendum, on the proposal of its President and in the name of the State. The second, however, is not absolutely clear in that the LOR contains a mandatory prohibition on the introduction of other referendums besides those provided for in the Constitution and, therefore, supports an implicit reading that leaves open the possibility of approving an Autonomous Community law on popular consultations as coming within the domain of Article 23 CE. In other words, the crux of the matter lies in whether we are facing a mandatory standard or an open clause, which implicitly makes possible the introduction of new referendums within the sphere of autonomy? Or, from another perspective, whether a popular consultation held by an Autonomous Community by means of a referendum may become a potential means of expression of direct democracy contemplated by Article 23 CE? If that were the case, everything would seem to indicate that on that occasion the natural recipient of the effect produced by the referendum would be none other than the central executive. Certainly, given the relative impact that the holding of a referendum may have on the usual inner workings of the democratic life of an Autonomous Community and the ordinary formation of its collective will, its logical projection would appear to produce a constant source of tension that in recent decades has come to dominate the political process: the relations of the Autonomous Communities with the central government. In this way the referendum may end up being transformed into a possible tool in a confrontation between the central government and the ‘people’ of an Autonomous Community, one that is capable of opening a route not originally foreseen by the Constitution, through which the threat of the self-determination of certain territories would be increased. This, in fact, could pave the way for a constitutional breakup. At bottom, the issue at stake is whether it would be possible to provoke a constitutional rupture through the process of holding a referendum which, appealing to the old identity theories of Rousseauan democracy, would be able to forego the constitutional route for

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amendment, which in a constitutional democracy is the natural means of incorporating the change into the Constitution without triggering its destruction. The Constitutional Court in a number of important Judgments has definitively resolved the constitutional vagueness. In Judgment 103/2008 of 11 September 2008 and its Judgment 31/2010 of 28 June 2010 the Court stated that the referendum is a matter reserved exclusively to the LOR and clarified the substantive meaning of the referendum. With respect to the constitutional meaning of the referendum, Judgment 103/2008 of 11 September 2008 concerning the Ley del Parlament Vasco de convocatoria y regulación de una consulta popular para recabar la ciudadana la opinión sobre la apertura de un proceso de negociación para alcanzar la paz y la normalización política, introduces a distinction between “referendum”, and “popular consultation” based on three elements that conceive of the “referendum” as an institution of direct democracy: a) identity, the persons consulted are the voters possessing the right to express the general will; b) content, the subject matter of the consultation must concern a matter of a political nature which expresses the general will; (c) procedure, all the rules for its structure and regulation as an electoral process rest exclusively with national legislation, the LOR, and, possibly, the LOREG. Only when these three requirements are fulfilled can one properly speak of a referendum to which Article 23 CE applies. This implies that its regulation is reserved exclusively to the State by means of the organic law on referendums referred to in Article 92(3) CE. With respect to the popular consultations provided for in the laws of the Autonomous Communities, however, there is no trace of the democratic idea linked to popular sovereignty: at most they could be regarded as expressions of a “tertium genus” related to participatory democracy, a conception derived from Article 9(2) CE, which has no relation to the political-democratic principle in its traditional sense. This does not prevent the Autonomy Statues – in their dual status as organic laws within the meaning of Article 82 CE and rules for referendums for the Autonomous Communities Article 152(2) – even if this was not originally contemplated, from establishing the requirement that any revision of its own constitutional text be approved directly by the people in a referendum. It is a corollary that the Constitutional Court has derived from the power of self-government of the Autonomous Communities. This has meant that some Autonomy Statutes (Valencia, Extremadura, Aragon) have incorporated the requirement of a referendum to approve corresponding modifications in their recent reforms. B The popular legislative popular initiative The popular legislative initiative is regulated in the Spanish Constitution of 1978 in Article 87(3), which states: An organic law shall establish the manner in which popular initiative in connection with the submitting of non-governmental bills shall be regulated, as

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well as the requirements therefore. In any case, no fewer than 500,000 authenticated signatures shall be required. This initiative may not touch on matters concerning organic law, taxation, international affairs or the prerogative of granting pardons. Legislative implementation has taken place by means of Organic Law 3/84 of 26 March 1984, Reguladora de la Iniciativa Legislativa Popular. This law defines and configures the general structure of the initiative. The initiative of the sponsoring Committee must contain certain features: – The text cannot include issues that are distinct or lack homogeneity among themselves; – A bill having the same subject matter as that of popular legislative initiative has not been previously presented in either of the two Houses; – It is not a mere reproduction of the same text already presented in the same term; – It does not affect the matters referred to in Articles 87(3) CE or 131(1) CE (an economic planning law or the general budget of the State). It is believed that an initiative is also precluded if its object is to propose a constitutional revision; the text of Article 166 (CE) implicitly excludes this possibility. The Presidency of the Congress of Deputies has 15 days to consider and evaluate the proposal. If the result of this examination is negative there is the possibility in some cases of curing the defects and, in all cases, of appealing in amparo to the Constitutional Court against that decision. This is the logical consequence derived from the relationship between the legislative initiative and the right to participate in public matters directly consecrated by Article 23 CE. In this way the right of initiative in the Spanish system is configured in constitutional terms as a subjective right and enjoys the same protection as any other right of the same type. If, instead, the Presidency of the Congress of Deputies considers the legislative initiative permissible, a period of 9 months begins for the collection of signatures. This period is extendable for another 3 months at the discretion of the Presidency itself. It should be noted here that approval of the eligibility criteria of the initiative precedes the act of collecting the 500,000 signatures required in support of the initiative. It is the responsibility of the Central Electoral Committee (Giunta Eletorale Centrale) to guarantee and to supervise the collection of signatures, as well as their final verification. There is here a break with the old tradition dating back to Weimar, which attributed to the executive, specifically to the Minister of the Interior, the decision on the admissibility of a legislative initiative and provided that this decision was to be made only after the collection of the number of signatures required. This change is intended to objectify and facilitate the process of collection of signatures, without incurring costs in the event that the proposal cannot be accepted because it deals with matters on which it is excluded. In

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general, we observe a trend in the system towards the progressive institutionalization of the mechanisms for the holding of a legislative initiative, as well as mechanisms to facilitate the initiative when it arises, which tend to convert it into a State-protected action, without, however, its losing its status as a direct manifestation of the political will of the electorate and therefore of society. From the moment of its qualification, the initiative follows a procedure which is the same as that of any bill, except that in the case of an early dissolution of Parliament it does not lapse, leaving the existing text in effect to be considered by the subsequent legislature. In any case, it is a modality of direct participation of the people in the legislative process that is of little practical use, since being separated from the repeal referendum, it usually does not produce great effects. In this regard it deserves mentioning that in Spain in 37 years of democracy there have been only 66 proposals, of which only 12 have managed to gather the 500,000 signatures needed for the consideration of the proposed text. Of these 12 only one proved successful, which resulted in changing the Ley de propiedad horizontal. This initiative, the Ley de reclamación de deudas comunitarias of 1995, was enacted in the Fifth Legislature as part of another bill into which it was incorporated. A rather poor result for an institution that can only be activated with so much difficulty.

2.4.3

The Practice of the Referendum in Spanish Political Life. Current Problems of the Referendum in Spain: “Right to decide” and Democracy; its Political Implications for the Mass Society

2.4.3.1 Referendum and Political Debate The referendum has always been a contentious point in Spanish constitutional life.137 It was so at its inception when, faced with the lack of an organic law on the referendum 137 See AAVV., Encuesta: el Referéndum en la Constitución. en Teoría y Realidad Constitucional, nº 30. 2012; Aguado Renedo, Cesar, Referéndum autonómico y jurisprudencia constitucional, en Teoría y Realidad Constitucional, nº 28. 2011; Aguiar de Luque, Luis, Democracia Directa y Estado Constitucional. Madrid 1997; Alonso de Antonio, Ángel Luis, Análisis Constitucional de la ley catalana de consultas populares no refrendatarias y otras formas de participación ciudadana. Madrid 2015; Barceló, Mercé, Derecho a Decidir. Teoría y práctica de un nuevo derecho. Madrid 2015; Carrasco, Manuel, Referéndum versus consulta, en Revista de Estudios Políticos, nº 160, 2013; Carreras, Francesc , ¿Puede celebrarse un referéndum en Cataluña?, en El Cronista del Estado de Derecho Demicrático y social. Nº 42, 2014; Corcuera, Javier, La competencia en materia de consultas populares por la vía del referéndum en la STC 31/2010 sobre el Estatuto de Autonomía de Cataluña, en Revista Catalana de Dret Públic. Especial STC 31/2010, 2009; Cruz Villalón, Pedro, El referéndum consultivo como modelo de racionalización constitucional, en Revista de estudios políticos, Nº 13, 1980; Cuenca Miranda, Alfonso, Comentario a los arts. 1ª 7 de la LOR en Delgado-Iribarren, M. Comentario a la Ley Orgánica del régimen electoral general y a Ley Orgánica de referéndum. Madrid 2014; Fossas i Espader, Enric, Interpretar la política: comentario a la STC 42/2014, de 25 de marzo, sobre la Declaración de soberanía y el derecho a decidir del pueblo de Cataluña, en Revista Española de Derecho Constitucional, nº 101, 2014; González Ayala, Mª Dolores, Democracia directa e instituciones de Democracia directa en el ordenamiento constitucional español, en Trujillo Fernández, G., López Guerra, L., y González

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pursuant to Article 92(3) CE, the Government decided to hold referendums on the basis of the Decree-Law provided for by Article 86 CE for approval of the Autonomy Statutes of the Basque Country and Catalonia (Royal Decree-Law 13/1979 and Royal Decree-Law 14/1979), thus directly contradicting Article 81 CE, which reserves to an organic law the regulation of this matter which is, moreover, expressly excluded from the scope of Article 86, the constitutional norm that authorizes the use of Decree-Laws “in case of extraordinary and urgent need”. Also controversial was the modification made to the LOR shortly after its approval in order to cover, by revising certain rules, the situation that had been created in the province of Almería with respect to a referendum for the approval of the initiative for the establishment of the Autonomous Community of Andalusia. In short, the absolute majority required by the original text of the law had not been achieved in that province: it was necessary to proceed to post-referendum modification of that law to validate what was not in accordance with the provision of the law, so as to enable the province of Almería to join the Andalusian Community. The consequences of that process were definitive in two ways. On the one hand, it opened the way to the generalization of the process of autonomy throughout the Spanish territory, undermining in the medium term the twospeed model, namely the model that included two different types of autonomy which varied according to the level of jurisdiction. On the other hand, on the purely political level, it marked the beginning of the end of the political forces that had led the Political Transition, which, starting from this referendum, began their inexorable decline and later led to their political demise. Similarly, political controversy erupted shortly after the rise to power of the Socialist Party with the first referendum, held in 1986 pursuant to Article 92 CE by the President of the Government Felipe González, on the continuance of Spanish membership in NATO. On that occasion, the way in which the referendum process unfolded, which led to the strengthening of the role of the leader of the majority party, was the subject of a bitter debate that even resulted in a political force traditionally favourable to the Atlantic Pact,

Trevijano, P., La experiencia constitucional 1978-2000. Madrid 2000; Lasagabaster, Iñaki, Consulta o Referéndum. La necesidad de una nueva reflexión jurídica sobre la idea de democracia. Bilbao 2008; Linde Paniagua, Enrique, Comentario ala art. 92 CE, en Alzaga, O. Comentario a la Constitución española de 1978. Madrid 1998; López Basaguren, Alberto, Sobre Referéndums y Comunidades Autónomas. La ley vasca de la ‘consulta’ ante el Tribunal Constitucional, en Revista d’ Estudis Autonòmics i Federals nº 9. 2009; López González, José Luis, El referéndum en el sistema español de participación política. Valencia 2005; López, Jaume.- Refererénduns. Una inmersión rápida. Barcelona 2017; López, Jaume y Requejo, Ferran, Análisis de experiencias de democracia directa en el ámbito internacional (1995-2007). Oñati 2009; Martín, Esther, Comentario a la sentencia sobre el Estatuto. Competencia en materia de consultas populares (art. 122), en Revista Catalana de Dret Públic. Especial STC 31/2010, 2009; Pérez Sola, Nicolás.- La regulación constitucional del referéndum. Jaén 1994; Santamaría Julián, Participación política y democracia directa, en Estudios de Ciencia Política y sociología. Homenaje al profesor Carlos Ollero. Madrid 1972, pág 143 y ss.; Santamaría Pastor, Juan Alfonso, Comentario al art. 92 CE, en Garrido Falla, F., Cazorla Prieto, L. Comentarios a la Constitución española. Madrid 2001.

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the Popular Party, to support abstention, although this was not consistent with its beliefs. In this sense, and despite its purely advisory nature, the referendum in question afforded the opportunity to transfer to the voters the responsibility for a political action which was normally that of the President of the Government. By a narrow majority (51% yes, 39.85% no, 6.54% blank, 39.38% abstention) the electoral body assumed the political responsibility for a change of position of the leader of the ruling party. It should also be said that, although neither his holding of the referendum nor his conduct of it provoked controversy, the referendum under Article 92 CE held in Spain in 2005 on the occasion of the still-born European Constitution envisioned by the Maastricht Treaty had a successful outcome. As is well known, however, the failure to approve the Constitution by other European nations prevented its improvement and led ultimately to the paralysis of the project. Currently the referendum is often the subject of controversy because, besides being used at the territorial level to promote a number of statutory reforms (first in Catalonia in 2006 and then in Andalusia) which have resulted in the current crisis of the unity of the State which Spain is experiencing, it is frequently associated with a purported “right to decide” which can have unexpected consequences. The importance and topicality of this question require a detailed study of both the circumstances in which it developed and the issues that it raises. 2.4.3.2

The Current Problems of the Referendum in Spain: ‘The Right to Decide and Democracy’ The decisions of the Constitutional Court of 25 February 2015 resolved, on the one hand, the appeal on grounds of unconstitutionality (5829-2014) of the President of the Government against the Ley del Parlamento de Cataluña (10/2014) of 26 September 2014 (Ley de consultas populares no referendarias y otras formas de participación ciudadana) and, on the other hand, the appeal of Decree 129/2014 of 27 September 2014 of the Generalitat de Cataluña (Decree de convocatoria de la consulta sobre el futuro no referendum político de Cataluña) by denying the possibility within the existing constitutional framework to the Generalitat de Cataluña or to any Autonomous Community the power to convene a referendum that raises the question of the right of a local authority to turn itself into an independent state. Contrary to appearances, the rulings mentioned above deny that possibility by recognizing the referendum as one of the manifestations of the democratic “right to decide”: in so doing, they not only do not sufficiently and conceptually clarify correctly the core of the problem, but, most importantly, they pave the way to new questions that may lead to questioning the democratic essence of the Constitution and even threaten the very survival of our democratic culture.

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This is a risky and provocative statement: for this reason it seems appropriate to analyze in detail the case law of the Court and to examine its fundamentals, to try to deliberately assess what is really at stake here. It is a fundamental debate on the actual content of modern democracy and the real meaning of the instrumental mechanisms for its operation. In this sense, the arguments actually invoked by the Constitutional Court in the Judgments mentioned previously are three: they, in turn, implicate three other important constitutional questions: a. The constituent power and the Constitution as a limit to the actions of established powers. b. The significance of the referendum within the framework of representative democracy according to the definition of, among others, Article 23(2) of the Constitution and the possible existence of a third kind of similar, or relatively similar, model such as “participatory democracy”. c. The distribution of constitutional competencies and the possibility that the Autonomy Statutes or the laws of the State which enlarge the areas of territorial jurisdiction attribute to the organs of the Autonomous Communities powers with respect to referendums capable of calling into question the constituent power or those which may be considered logical derivations from it. The first two issues are basic questions, the third is somewhat formal. With reference to the latter the Court deals thoroughly with the question of competence and resolves it simply but accurately. This did not prevent the supreme interpreter of the Constitution from limiting itself in its opinion to dealing with the first of these issues without bothering to define with clarity Constituent Power, or its relationship with the Constitution and its constitutional powers. Therefore, the problem deepens as to whether or not there exists in the Constitution implicit inviolable limitations on constitutional power. It is a difficult issue, complicated by the fact that in our Constitution, characterized by its well-known “ideological indifference”, there may be found “clauses written in stone”. In this way, even if it resolves the question of competence, there remains to be clarified the question of principle, namely the question whether it is possible legally to completely deprive the State of its attributes, such as power, or, put another way, the most important of all questions: what are the mandatory limits that prevent the central State from being constitutionally weakened by other territorial and constitutional bodies so as to lose the essential characteristics of a State? This means, beyond any other consideration, potentially transforming the solution of the first problem (there is no legal competence that allows the Catalan Autonomous Community referendum) into a clause that is a mere obstacle of a temporal nature that may be surmounted legally by arrangements for the transfer of power. By this change, however, the Constitutional Court would be leaving open, but without prejudice, the real

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underlying problem, which can be expressed in the following terms: whether the referendum as a tool of direct democracy, that is, as an expression of the “will to decide” of the people (of all the people) is compatible with the Spanish Constitution of 1978? The question whether in a constitutional democracy a referendum that is based on the “right to decide” can lead to the self-determination of Catalonia (the second question indicated above) becomes, in this way, the key point that the ruling does not address precisely or sufficiently. In that regard, the Court simply makes a disquisition on the meaning and the nature of political participation in referendums not compatible with the Constitution pursuant to Article 92, which Article 149(1)(32) considers to be within the exclusive jurisdiction of the State. In this regard the Court almost constructs a type or model of constitutional “non-referendary participation” (participación no referendaria), but, however, without undertaking the task of defining adequately the resulting constitutional concept of referendum and, for this purpose, merely postpones, or better yet, simply makes reference to the jurisprudence already developed in two prior decisions. The two prior decisions that contain direct statements on the meaning of the constitutional referendum and its relationship with the “right to decide” are: Judgment 42/2014 of 25 March 2014, on the resolution of the Parliament of Catalonia of 23 January 2013, approving the Declaración de soberanía y el derecho a decidir del pueblo de Cataluña, and Judgment 103/2008 of 11 September 2008, on the constitutional legitimacy of the Ley de regulación y convocatoria de una consulta popular al objeto de recabar the opinion ciudadana en la Comunidad Autónoma del País Vasco sobre la apertura de un proceso de negociación para alcanzar la paz y la normalización política. A. Fundamentos jurídicos Nos. 3 and 4 of Constitutional Court Judgment 41/14 of 25 March 2014 say: References to the ‘right to decide’ are not to be interpreted as claiming an independent character, or directly related to the first principle in the Declaration of Sovereignty and of the Right to Decide of the Catalan Nation, but are included in the initial part of the Declaration (in direct relation to the initiation of a ‘process’) and other principles of Declaration (second, third, seventh, and ninth, paragraph 2). These principles, as we shall see, are in conformity with the Constitution and support the interpretation that the ‘right to decide of the citizens of Catalonia’ is not established as a manifestation of a right to self-determination that is not recognized in the Constitution, or as an attribution of sovereignty not recognized by it, but as a political aspiration that can be reached by means respectful of constitutional legality with regard to the principles of ‘democratic legitimacy’, of ‘pluralism’, and ‘legality’ expressly proclaimed in the Declaration with a close relation to the ‘right to decide’.

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And, even more significant, subparagraph (a) of Fundamento juridico No, 4, adds: The second point of the Declaration proclaims the principle of ‘democratic legitimacy’. One of the fundamental principles consecrated in our Constitution is the democratic principle, which has been considered by this Court to be our highest as reflected in the first subparagraph of article 1 of the Constitution (STC, 204/2011 of December 15, 2011, FJ 8). Among the most obvious and constitutionally relevant manifestations of the principle is, among others, one that requires the greatest possible identity between rulers and ruled, one that requires that the represented elect their representatives from their peers, one that dictates that the formation of the will occurs through a procedure in which the majority principle is operative, and, therefore, the attainment of a given majority is a formula for the integration of competing wills, and one that requires that the minority can make proposals and express its views with respect to those of the majority. A basic element of the democratic principle is the process of decision-making; democracy is important as a matter of procedure, not only as a result. All these manifestations of the democratic principle are reflected in the constitutional text, whose application must fall within it. This is a consideration that is expressly included in the Judgment, which states: It is hereby declared that references to the ‘right of citizens of Catalonia to decide contained in the first part of the document, and in principles second, third, seventh, and ninth, second paragraph, of the Declaration approved by the Resolution of the Parliament of Catalonia are not unconstitutional if interpreted in the sense described in Fundamentos juridicos 3 and 4 of this Judgment. There is no need to resort to any interpretation. All this derives directly, according to the case law of the Court, from the Constitution itself: it is clearly included in the democratic category of “the right to decide”, which, moreover, according to a certain interpretation, appears to be fully admissible with regard to the exercise of the powers of the Autonomous Communities. However, given the ambiguity and the lack of clarification of the meaning of the concept, everything seems to indicate that for the Constitutional Tribunal referendary consultations (which also include the referendum) or non-referendums (among which we include those provided for by the Ley de Consultas catalana), where appropriate, can be considered a direct expression of a “right to decide” that conforms to the Constitution. B. On the other hand point Fundamento juridico 1.2 of Judgment 103/2008 says:

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The referendum is an instrument for the direct participation of citizens in public issues, namely, the exercise of a fundamental right recognized by Article 23(1). It is not the channel for effectuating any right to participation, but, specifically, for the exercise of the right of political participation, i.e. of that participation ‘that normally is exercised through representatives and that, exceptionally, can be exercised directly by the people’ (STC 119/1995 of July 17, 1995, FJ 3). It is, therefore, a form of direct democracy, and not a mere manifestation ‘of the participatory phenomenon that has had and continues to have so much importance in contemporary democracies and to which our constituent was particularly sensitive,’ so that it formalized as ‘a general mandate to the constituted powers that they promote participation in various areas’ (Articles 9(2) and 48 CE) or as a real subjective right (for example, Articles 27(5), 7, 105, and 125 CE […] In Article 23(1) CE these modalities – representative and direct – of what is known in the Western world as political democracy, ‘a form of inorganic participation that expresses the general will,’ (STC 1119/1995 of July 17, FJ 4), but does not include other forms of participation to express individual or collective, but not the general attributable to the electoral body. From this second Judgment the existence of two types of democracy both formally and qualitatively different seems indubitably inferable: ordinary representation and an extraordinary representation which corresponds with so-called direct democracy also known by some writers as the “democracy of identity”. It is precisely within this second type or form of democracy where the referendum fits. The Court states in its Judgment that the referendum represents the direct exercise of the right referred to in Article 23(1) of the Constitution. If we compare both Judgments it is easy to conclude that, according to the Court, an interpretation of the referendum as a manifestation of the “right to decide” of the subject people who, in this extraordinary and direct way, are exercising the powers attributed to them by Article 23(1) CE, would be perfectly conformable to the Constitution. This is not, however, applicable to the case of Catalonia, nor to any other Autonomous Community, because of its lack of competence and the suitability of the subject. This notwithstanding, the importance of the Court’s reasoning is that it opens the way for the identification of the referendum referred to in Article 92 CE with both the “right to decide” and, even more, to its definition as a palpable expression of direct democracy or identity. At this point it is appropriate to question the reasoning of the Court and to ask three questions: – Is it permissible to invoke democratic-constitutional legitimacy for the “right to decide” of the people expressed through a referendum? Put another way, is the constitutional

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concept of the referendum compatible with a “right to decide” which operates as an aspect of direct democracy? – To support what we just said, does it mean leaving open the possibility that the people’s democracy conflicts with representative democracy as expressed by the political parties? – What are the consequences that this approach might possibly have for the complex relations between the State and the Autonomous Communities, not only for the ordinary functioning of institutions, but also at a time when appeals to the people and democratic sovereignty began to appear on the horizon? Already from a first reading of the text of the Judgments cited, it is clear that the Constitutional Court does not employ clear and precise conceptual categories. Said otherwise, its constitutional language includes terms that relate to concepts that are not clearly defined (“right to decide”) or to vague formulations (“direct democracy”) that historically have been invoked in a controversial manner in democratic life, and have ended up justifying the Jacobin and Napoleonic plebiscites and other recent events, so that the mere allusion to them evokes the dangers that they harbor. If it is true that words are never neutral, it is even truer that concepts can be even less so. It is supremely dangerous for constitutional law to assume the constitutionality, that is, the compatibility of certain concepts and the logic of certain concepts and categories with the Constitution, and to deny on the basis of the conditions described immediately below some of the consequences inherent in the argument. The law should not be susceptible to the traps posed by its own logic. This is especially important with respect to issues that are to be resolved in accord with the democratic sensitivity of the society in times when the depth of social feeling that attributes to representatives and, more concretely, to the political parties, accused of kidnapping democracy and the degradation of political life, is beginning to be felt more and more forcefully. On this point it is worth mentioning that the maxim that served as a justification for Louis Napoleon to organize the plebiscite that led him to assume the name of Napoleon III was the urgent need “to exit legality and to reinstate justice”. There is no doubt, both within the constitutional order and in the process of gestation of our fundamental law, as well as in comparable jurisdictions and jurisprudential doctrine, that there are sufficient arguments not only to counter the interpretative solution adopted by the Constitutional Court on the constitutionality of the “right to decide” and its possible incarnation in the doctrine of direct democracy/identity, but even for criticizing the doctrine as unconstitutional, undemocratic, and contrary to the fundamental assumptions that govern our political coexistence. The Constitutional Court has not only built its case law on a disclaimer of fundamental categories of representative constitutionalism, but has left open a huge hole on the waterline of democracy that should quickly be filled with the rationale for democratic politics and considerations of law.

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Consider, first, the positive law. Article 92(1) CE says: “Political decisions of special importance may be submitted to all citizens in a consultative referendum.” A summary examination of this provision teaches us a number of things: i. The Constitution expressly chooses the term ‘decision’. ii. The referendum by which the people are consulted is framed within a complex structure that relates to the formation of political opinion, in which the intervention of the people is only an intermediate stage between the proposal of the President of the Government and its acceptance by Congress. iii. The referendum was designed in the initial drafting as an instrument or a phase within the legislative process (as evidenced by its current position in a Chapter – II of Title III – whose heading is entitled “Drafting of Bills”); its significance cannot be understood outside the context in which it was inserted and the role that it was intended to play: one phase of a broader process and involving a plurality of participants and steps. iv. The constitutional debate on this article was exceptionally rich. As we have already seen, it led to such a substantial modification of the text initially proposed and involved an important speech by Deputy Solé Turá – which was endorsed by the majority – which expressed a sense of distrust, which was reflected in the initial draft of this provision and, in general, in the institutions of direct democracy. The three different forms of referendum provided for in the first draft of Article 92 CE drew inspiration from the previous Republican Constitution of 1931. From this initial draft, almost nothing remained except for the word ‘decisions’ and a conception of the referendum understood as a tool of control in the complex process of formation of the will, which was reserved for an organic law, which became the LOR. The role of the referendum, given the tenor of the Constitution, is not to make a vehicle for the direct expression of the popular will: rather, it seems to aim at the incorporation of popular opinion within a process of formation of the will in which a plurality of organs and persons participate. It is not, therefore, the people as referee which intervenes in the development of a complex act, but rather a the people as subject which operates more as a mechanism of control than as the protagonist of a decision. In this way our Constituent Assembly opted, consistently with the principles expressed in Articles 1 and 6 CE, in favour of a conception of democracy that the referendum is not intended as an institution of direct democracy – a democracy of identity is not possible – but as a mechanism for more representative participation of citizens in the democracy. This signifies the complete renunciation of the old ideas of Rousseau and Condorcet (Lettres d’un bourgeois de Virginia à un citoyen de New Haven, 1788) and the affirmation that in a Democracy of the Moderns there is no room for a conception of democracy other than that which defines it as a tool of control. As things stand, the referendum of Article 92 CE corresponds to a legal form that:

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– With respect to its own internal structure does not contribute to the formation of agreement for the integration of wills, guiding an initial opinion towards a shared principle through the continuous addition of opinions that blend into a final result. The referendum appears as a mere confirmation of the individual wills measured numerically and as having the objective not so much as coming to an agreement, but rather as revealing the state of positions on a given issue. – It is not an appropriate means of representing social opinion, whose usual fragmentation makes it irreducible to a simplistic answer. The result of the referendum obeys only the law of the majority and it does so with a simplification that is hardly democratic. – Serves the significant function of a check on the balance of power game, acting as a counterweight. – Can in no case serve as an alternative instrument of participation to the representative democracy of political parties because it acts at one point in time without the continuity that is necessary for the resolution of any particular measure or policy option. To forget its exceptional and unique character and to use it repetitively and continuously would destabilize other constitutional institutions. Pérez Llorca, in particular, like Solé Turá, stressed the last two considerations. Especially the last one, when, as has been abundantly explained, rejecting the views of Fraga Iribarne, who proposed the inclusion of a referendum linked to the principle of direct democracy, warned that fundamental to the model of democracy was the strengthening of political parties and their democratic position so that they are capable of effectively participating in the life of the society. To summarize, of the two possible theoretical models of the referendum, our Constituent Assembly opted, without doubt, in favour of the only one compatible with the idea of constitutional democracy: the referendum as a means of oversight. A review of the theoretical models and the existing literature, however, teach us that the second theoretical model of referendum is possible only in books and in the fevered speculation of those who tried to devise a constitutional fraud to destroy democratic legitimacy. In this respect the Republican Constitution of 1931, which initially inspired the text of the Constitution of 1978, is much closer to this second model of democracy. This was probably due to the influence of the Weimar Constitution – or, better, by a partial reading or interpretation of the German Constitution of 1919 – and the special atmosphere of revolutionary conflict that existed in those years. Article 66 of the Spanish Constitution of 1931 provided that “[t]he people may initiate a decision through a ‘referendum’ for laws voted by the Cortes”. According to Pérez Serrano, this provision did not appear in the initial draft of the Comisión Asesora Jurídica, and was included as a result of a amendment proposed by the most radical sectors of the Republican movement, contrary to the views of the Socialists and the unexpressed suspicion of the principal part of the Republican party. The institution did not have the opportunity to

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come into play, but that does not prevent us from stressing that according to the literal wording of its terms (“the people may initiate a decision”) and the inclinations of its supporters, it would not be at all strange to see in it an appeal to the thought of the person who at that time was the principal political theorist of the decision and the precursor of the democracy of identity: an appeal, therefore, to a minority interpretation with tremendous practical implications that the “right to decide” has for a democracy. The Weimar Constitution groups together, somewhat diffusely, a collection of institutions for direct participation that have served as a model for all subsequent constitutionalism. In this regard it exercises a double influence: i. The concern of Max Weber, who in his writings of 1917 on the constitutional reconstruction of post-war Germany, echoing the fears of Ostrogosky and Bryce, defends the need to strengthen the plebiscitary-charismatic element, and the role of the referendum as an alternative source of legitimacy to the representative election and to the degradation of the political parties. Rather than revive the old formula of Rousseau and Condorcet on a people that expresses its opinion in the first instance, Weber’s aspiration is to pave the way for the man with his own ideas and who is on a mission (the entrepreneur of modern industrial economy turned into a political leader) to channel ideas in politics and not be submerged by bureaucracy. ii. In conjunction with the legacy of Weber, the Weimar Constitution included a second contribution that was more significant from the point of view of the drafting of the positive law, that of Hugo Preuss, the intellectual heir and constitutional of executor of Weber’s, but also a constitutionalist with his own ideas, linked intellectually to Gierke. Hugo Preuss, Professor in Berlin, to whom was entrusted the preparatory work for the Constitution of 1919, was motivated by another principal concern: to defend constitutional democracy. Preuss’s famous article in the Berlin press in 1919 indicates that he clearly understood that it was a choice between Wilson and Lenin, between representative democracy and the Soviet model. Wilsonian democracy coincided with that of Constant, which we know as the Democracy of the Moderns, a pluralistic society represented by elected governors who come from the people and act subject to the law, protecting fundamental rights. iii. For this model of democracy, whose supreme value is the recognition of social diversity (and for which differences and diversity of opinions constitute an indispensable value that provide a foundation for understanding that human diversity is a good to be protected), agreement constitutes the only way of forming collective opinion. Representative democracy is a way of doing politics in which social diversity reaches agreement at a given time in order to be able to function together, but that does not amount to the renunciation of difference. The agreements are the result of natural differences and have a temporary character. For politics to be truly democratic and to include everyone all the time, it is necessary that all participate in a process of collective harmonization,

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compromising their opinions and integrating them into the common formulation. Democracy is, therefore, a temporary agreement about what to do in a given situation, and beyond this concrete case, you can keep your different and divergent views. The greater the integration and debate, the greater the degree and depth of qualitative democracy. In a democracy, however, the difference of opinions is permanent and in that lies the great richness of politics: the possibility that a multitude of permanently opposed opinions on different issues can repeatedly arise in collective life. From this perspective, the role of political parties is fundamental. Not only do they represent social diversity, but they also make it operational, bringing to the debate different options. They allow the active participation of those wishing to participate directly in politics, and, on the other hand, they allow those who are passive, who do not want to participate or because of their obligations cannot do so, to remain inactive. They perform an educational function for the different segments of society and for the protagonists in the political process by providing ideas, alternatives, and solutions, and by assuming responsibilities for which they are continually required to account (accountability). But, above all, their role is essential when agreement is necessary, because they modulate and shade differences and convert them into consensus. This was the reason that motivated Kelsen to publish, in 1929, a second edition of his The Essence and Value of Democracy to refute the hopeless resignation towards political parties expressed by Triepel. In this context, we can understand that the role of the direct participation mechanisms provided for by the Constitution of Weimar was, for the majority of doctrinal writers, of a narrowly limited scope, and was designed as a tool of control. It was a device meant to curb the abuse of constitutional power; a resource provided for the possibility that Parliament might be deadlocked, in which case the President would be obliged to settle the matter in debate in favour of the majority vote of the society. This is a type of legislative referendum like that which was proposed in the initial text of the Spanish Constitution of 1978, before the changes made by the Constitutional Committee of the Congress. This did not prevent the holding of important debates on this subject and on the final meaning of democracy that are of interest to us, even if they were only brief and almost telegraphic. A first doctrinal confrontation had as its setting the tribute published in honour of the late Max Weber. In opposition there are, among others, Richard Thoma and Carl Schmitt. The first defends representative democracy and political parties as a political form consistent with the Weimar Constitution project. The second builds on his theory of decision as the foundation of politics and the expression of sovereignty. It is not the place here to dwell on the many consequences that this initial controversy had throughout the Weimar experience. What matters here is that in 1927 Carl Schmitt published a booklet titled Volksentscheid und Volksbegehren (Referendum and Popular Initiative), whose subtitle was A Contribution to the Interpretation of the Weimar Constitution and the Doctrine of

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Direct Democracy, which had as its goal to connect the popular initiative with the decision of the people understood as an expression of direct democracy. In this work direct democracy responds to an idea of politics based on the decision and not on agreement. Two other contemporaneous works by this author, The Concept of the Political and Theory of the Constitution, both of 1928, underpin his reasoning: a) pluralism is incompatible with the State and the goal of politics is the political unit; b) there are two competing models of democracy that exist in a tension difficult to reconcile within the democratic Constitution, namely, democratic identity that is based on the decision and representation which takes shape in legality and rights. The democracy of identity is purer in terms of democratic integrity than representation: it expresses the true essence of the people who decide in the public square, in the forum, on their leader. The second is the result of resignation and it always necessarily pales in the face of democratic identity. Only the democracy of identity is capable of achieving the ultimate objective of politics, the internal unity that is represented by the State in the face of a disintegrating pluralism. Democratic identity and State power are transformed into each other, like the two sides of a long equation, which gives meaning to political reality in the struggle against the external enemy, a struggle that is existential. Herman Heller will undertake the responsibility of reminding us of the sophistry that underlies Schmitt’s conception, which neglects to consider that our democracy has pluralism as its starting point, and the fact that in a pluralistic democracy one does not decide, but one agrees, that in a democracy there is no decision without consensus. The decision responds to the logic of power; the agreement responds to the logic of democratic politics. Politics does mean controversy even though both stem from the same polysemy, from a common root. There is no need to say that a conception of the referendum linked to the democracy of identity necessarily evokes the ghost of Schmitt and the consequences that his thesis had for a regime like National-Socialism, which always invoked the legality conferred by the law of full powers of 1933 and that affirmed its compatibility with the charismatic legitimacy of leader. We must insist, however, that for this political model the decision occupies the place that democracy reserves to the agreement. This is not the place to dwell on the controversy of the doctrine of Weimar. It is enough to remember the influence that all the writers involved exerted on subsequent constitutionalism and to recall that in the Republican Constitution of 1931 there are echoes of their contributions with respect to the referendum and to many other institutions. It is even more important to remember that despite the tendentious and false conceptual manipulations that were present and the multiple misunderstandings to which they gave rise, Schmitt’s doctrine is revived at various times by writers who wield his ideas as if they constituted great discoveries of democratic truth. And this is very serious because even though his formulations can be refuted rationally, on many occasions, by virtue of his

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brilliant exposition, they provide a ready apology for totalitarianism, dictatorship, and, ultimately, of the denial of the very rationale for democracy. Following this train of thought, we have to point out that in the late 1960s, just at the time when Europe witnessed a growing debate and a crisis of representative democracy and political parties, there suddenly became famous an essay by Ernest Fraenkel (Die repräsentative und die plebiszitäre im demokratischen Komponente Verfassungstaat) in which the author defended the existence of two supposed components of the constitutional State, one plebiscitary and the other representative. It should be remembered that Fraenkel was one of the members of Schmitt’s study group which was politically active on the socialdemocratic left. Even more important is that his 1968 work put into play the old argument that the basis of democracy is the decision and not the agreement, an idea clearly related to Schmitt’s position linked with a decontextualized Rousseau, and defended the superiority of the democracy of identity over representative democracy. As Benjamin Constant said, the Democracy of the Moderns involves taking a markedly distinct approach from the idea of collective self-government which, ultimately, is the real meaning of the term democracy. From this perspective there is no room for any ‘decision’ or for a referendum model built on an understanding of democracy that aspires to achieve identity between rulers and ruled. The referendum in constitutional democracy is a control mechanism which acts in the process of the formation of the collective will. It is not the expression of a “right to decide” which can have a democratic foundation only if you consider that the thesis of Carl Schmitt is democratic. For this reason it is not easy to understand the scope of Judgment 42/14 of 14 March 2014 of the Constitutional Tribunal. It presents a reading of the Constitution that is consistent with the “right to decide” (FJ 3 and 4, op. cit.). Nor is it easy to understand the recognition of two different forms of democracy made by the other previously cited Judgment 103/2008 of 2008, on the legitimacy of constitutional law 9/2008 of the Basque Parliament. Democracy is unitary, constitutional and representative, and manifests itself through a variety of mechanisms ordered according to functional criteria, without one of these having a qualitatively superior weight to another. This is precisely why that argument must be considered dangerous and risky for constitutional jurisprudence. The principal premise of a jurisprudence that had as its immediate consequence the denial of the constitutional legitimacy of the legal mechanisms that have been used by certain sectors to try to hold a referendum on self-determination is not clear. It is profoundly wrong that the vague and culturally ill-defined concept of the referendum used by the Constitutional Court leaves an open door to a ‘decisional’ reading of democracy, and that there has been no effort to construct a constitutionally adequate notion of that mechanism consistent with the role of rightful control according to the logic of democracy. If there is still any remaining doubts to be clarified in this regard, one should read the first few pages of a book that collects the views and works accompanying the Ley 9/2008 of the

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Parlament Vasco of 2008, which discuss the “right to decide” understood as the product of a qualitatively different model of democracy (Iñaki Lasagabaster, Consulta o Referéndum, Bilbao, 2008, p. 8). The concern about the risks inherent in the jurisprudence in question has as much to do with the possible use of the referendum campaign in order to procure the self-determination of an Autonomous Community, once steps are taken to overcome the obstacle represented by the lack of competence or inclusiveness of the subject people. The big threat to the Constitution and to democracy is that by invoking the considerations of the Court in its Judgments, asserting a concept of the referendum which incorporates “the right to decide” implicates an operating tool that has a qualitatively superior value than the ordinary political action that is required to reach an agreement. A similar interpretation of the referendum presents an aspect lacking in protection for the current democratic culture. We should insist on what this all means. Without taking on an inappropriately pretentious attitude, it should be recalled that one of the lines of debate that today is agitating German constitutionalism flows precisely from this stream. Authors like Hanns Wiegand, Otmar Jung, Schiffers Rehinard, or Frank Decker, starting from different positions and beliefs, have very recently reminded us that the opposition of direct democracy and representative democracy, as well as having given birth to sad historical experiences, has acquired a particularly alarming connotation today, allowing a minority, relying on the simple passiveness of the majority, to appropriate power by invoking a democratic legitimacy that democracy itself does not recognize. In this same way Christopher Lasch, in recent years, has warned about the dire consequences that derive from the transformations that have occurred in the cultural life of contemporary societies. It is not only that an active culture is gradually being replaced by a passive one, supported by extensive virtual networks that allow humans to partake of cultural assets without participating in their gestation, discussion, and ultimate construction. It is, above all, the fact that we live in a world where artifices that simplify complexity constantly present us with false appearances of things that we believe we know and in reality we do not, where standardization and homogenization blur the tastes and the aptitudes of people to know and to evaluate, where gigantic forces contribute to confound the individual who tends to dominate less and less a world he believes to have mastered. In the midst of all this generalized loss of cultural references, in which knowledge is mixed and confused with information, to accept the constitutional relevance of a referendum that is unlikely to be suitable to identify rulers and ruled, and serves only as a conduit for a messy democratic protest – and can entail terrible risks. In the coming years it is possible that we will witness new appeals to the superior will of the people to manifest itself as the sovereign decision-maker. New political and social questions will lead to the search for solutions that are qualitatively better according to the criteria of democratic identity. There would be nothing strange, then, that in opposition

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to the simple, but slow and possibility corrupt representative system, and believing to improve it, we are actually helping to lay the groundwork for the destruction of democracy itself – against which, with undeniable sagacity, a recent article by the great German intellectual Heinrich Winkler places us on guard. (La Gran Ilusión, Der Spigel, 21, XI, 2011). Democracy is agreement, but the agreement is only possible when mediation takes place with great clarity and transparency, and this is the great danger that looms over contemporary democracy. In this sense it is no coincidence that one of the rare French Constitutional Council contributions to comparative constitutional law is the “right not to be confused”. This contribution was elaborated in a ruling in which the referendum and the electoral function are mutually connected. Faced with a decision, constitutional democracy requires agreement and clarity, a clarity that is lacking precisely at a time when our critical sense seems to becoming increasingly weak. In the twenty-first century terms and concepts must be clear, otherwise chimeras, promising to show the true way to democracy, will impose themselves and lead us to the old path of tyranny, in which government of the people is only an appearance, a flatus vocis.

2.4.4

The Catalan Question

The events that took place in Catalonia confirm the argument made here. On the one hand, and from the constitutional law perspective, the conflict over the possible amendment of Catalan autonomy statute has been a conflict between autonomic-legality and constitutional-legality, mediated by the idea of democracy and popular sovereignty (legalitylegitimacy). According to the Spanish government and the parliamentary majority that supports its position, popular sovereignty is expressed in the Constitution (which provides for the indivisible unity of the Spanish nation, Article 2) and in its institutions. And it is up to the Constitutional Court to assess the violation of the fundamental norm and also, since the reform of the Organic Law of 2015 (Organic Law 15/2015 of 16 October), to levy monetary sanctions and directly promote their enforcement. In contrast, according to the government of the Catalan Generalitat, which has a majority of one vote in the regional Parliament, the constitutional legality is subject to the endorsement of a popular will that must be demonstrated in a referendum. That is precisely why during these years the debate has been focused on the constitutional competence of the referendum to determine the meaning and scope of an extension of the limits to the autonomic competences provided for in the statute of Catalonia, which in the reading of Catalan nationalists can go as far as the independence (self-determination), while according to the Madrid government and the minority represented in the Catalan Parliament, such power infringes on the competence of the State granted by Article 92 of the Constitution and in addition, is impossible because

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it would destroy the national sovereignty and the indissoluble unity of the Spanish nation established in Articles 1.2 and 2 of the Spanish Constitution. Thus, the legal debate has been between the claim of the Catalan community of providing itself with a referendum that would allow it to directly consult the people (Law 10/2014 of 26 September on popular consultations different from referenda and other forms of citizen participation), and the reiterated declaration of unconstitutionality of their projects by the Constitutional Court (Judgment 31/2015 of 25 February 2015). Faced with these declarations, the Generalitat has put forward the “right to decide” of the Catalan people, a variant of direct democracy understood as the right to self-determination, which requires the holding of a popular consultation. This led to the approval of a second Catalan law on referendum (Law 19/2017 on the referendum on self-determination of Catalonia) again declared unconstitutional by the Constitutional Court (Constitutional Court Judgment of 17 October 2017). In both cases (2014 and in 2017), the Generalitat, denying any democratic legitimacy to the ruling of the Constitutional Court, set out to hold two referenda that, without respecting the legally established procedures and with abstentions of more than 50% of the electorate, resulted in pronouncements favorable to independence. The second of these pronouncements, declared illegitimate and unconstitutional by the Constitutional Court and by the Government, gave rise to an ambiguous declaration of independence and to the proclamation of the Catalan Republic by the Barcelona Parliament, which in turn triggered in response the intervention on the Catalan autonomy and the call for elections to the Catalan Parliament by the head of the Government under Article 155 of the Constitution, with the review of the Senate. But secondly, in a more political sense, the conflict has been posed in terms of confrontation between law and Constitution as a rational order, on the one hand, and popular will (“right to decide”), on the other, expressed in terms of democratic illusion and frequently constructed in virtual terms. In other words, faced with the declaration of unconstitutionality of the referenda, the Generalitat, protected by a majority of one vote in the Parliament, has called and held the referenda and proclaimed that their results are binding, proceeding to create a virtual reality that supports and leads to independence. In summary, we are faced with an assumption that the democratic illusion supported by an unconstitutional referendum demands to create a new legality that clashes with the constitutional text, but that appeals to the democratic legitimacy expressed in street demonstrations, social networks and virtual media. A clear assumption of confrontation between the traditional democratic representation and the new modes of virtual expression of democratic opinion combined with spurious forms of direct democracy.

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2.5

2.5.1

Referendum and Direct Democracy in Europe

Other European Countries

The Referendum in Other European Countries

Most European systems provide for referendums initiated on the request of governmental institutions (the President, the Government, or Parliament) and sometimes at the request of the electorate. In some cases, a referendum is mandatory, especially on laws to amend the constitution. Many referendums in recent years concerned the European Union: there were several referendums on the Maastricht Treaty, on the Treaty Establishing a Constitution for Europe, and on accession by new states to the European Union. Almost all the countries that have recently joined the EU, especially since 2003, have held a referendum on accession: Malta, Slovenia, Hungary, Lithuania, Slovakia, Poland, the Czech Republic, Estonia, and Latvia. In Croatia the referendum on membership in the European Union was held in January 2012. The Constitution of Belgium does not contemplate and therefore, according to most, forbids the referendum, which would undermine the representative system and, most importantly, the complex balance between the Flemish and the Francophone communities. This is evidenced by the experience of the only national referendum, which was held in 1950 on the restoration of the monarchy under Leopold III, who had manifested Nazi and fascist tendencies during World War II. The outcome of the referendum was favourable to the king, with a vote of 57.68%, but Leopold III decided to abdicate anyway because of the controversy that the referendum had triggered and because almost all of the favourable votes came from the Flemish community.138 Article 41 of the Constitution provides for referendums, but only at the municipal and provincial levels. Likewise, the Constitution of the Netherlands does not provide for referendums, but this silence was not intended to be restrictive, as in the case of Belgium.139 Local referendums were held in Haarlem, Leiden, and Amsterdam in 1991 and 1992. The first national referendum was held on 1 June 2005 on the European Constitution, and resulted in a negative vote of 61.54%. Only local referendums are permitted in Cyprus, where the law on municipalities provides that any community could become a municipality through a local referendum. In the United Kingdom, home of Parliament and of representative democracy, the referendum had great difficulty in establishing itself, so much so that, until a few years ago, the British system was ranked among those in which the referendum was absent or 138 See M. Pacifico, Il referendum nel Benelux, in 7 Diritto Pubblico Comparato ed Europeo(2005), 1290. See also V. Bogdanor, Western Europe, supra Chapter 1, n. 188, 87 et seq. 139 See M. Pacifico, Il referendum nel Benelux, supra n. 138, 1299 et seq.

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reform without approval by referendum.149 From the 1990s on, in fact, all the major reforms were subjected to referendum. Most of the referendums were on the devolution processes, others on Europe, and in 2011 there was a referendum on one of the most characteristic aspects of the United Kingdom: the majoritarian electoral system. That referendum, sought by the Liberal Party, was held on 6 May 2011, but the proposal to introduce some flexibility into the majoritarian electoral system was rejected by 68.5% of the vote.150 After the 1973 referendum on Northern Ireland,151 referendums were held in 1979 on devolution in Scotland152 and Wales,153 with negative results, in 1997 again on Scotland154 and Wales,155 this time successfully, and in 1998 on Northern Ireland156 and Greater London.157 The outcome of these referendums were the Government of Wales Act, the Scotland Act, and the Northern Ireland Act, all of 1998, and the Greater London Authority Act of 1999. Following these important referendums, the Political Parties, Election and Referendums Act 2000 was enacted to provide rules for the conduct of referendums. It gives the Electoral Commission the responsibility for organizing and overseeing the conduct of referendums. The general regulation of the referendum process most definitively means that that the referendum is no longer a unique “constitutional experiment”. The enactment of the 2000 law has transformed it into a kind of constitutional reform of the contemporary legal order which still remains without a written Constitution and therefore lacks a specific procedure 149 Id., 18. On the referendums held in the United Kingsdom, see A. Torre, Un referendum per tutte le stagioni: sovranità del Parlamento e democrazia diretta nel Regno Unito, in 7(3) Diritto Pubblico Comparato ed Europeo (2005), 1338; J.O. Frosini & A. Torre (eds.), Democrazia rappresentativa e referendum, supra n. 141, and in particular A. Torre, Il referendum nel Regno Unito, supra n. 141, 11 et seq. 150 On this event see C. Martinelli, Molto rumore per nulla, ovvero il referendum elettorale nel Regno Unito, in J.O. Frosini & A. Torre (ed.), Democrazia rappresentativa e referendum, supra n. 141, 375 et seq. 151 See G. Montella, I confini d’Irlanda: limiti e carenze del Northern Ireland (Border) Poll 1973, in J.O. Frosini & A. Torre (eds.), Democrazia rappresentativa e referendum, supra n. 141, 175 et seq. 152 See M. Caielli, La devolution scozzese: il referendum sullo Scotland Act 1978 del 1° marzo 1979, in J.O. Frosini & A. Torre (eds.), Democrazia rappresentativa e referendum, supra n. 141, 217 et seq. On the origin of the Scottish secessionist movement, see A. Torre, Referendum e sovranità parlamentare nel Regno Unito, in E. Palici di Suni (ed.), Democrazia diretta e partecipazione popolare nell’età di internet, special issue of Diritto Pubblico Comparato ed Europeo, 4/2014, 1628. 153 See G. Aravantinou Leonidi, The Welsh Veto. Il referendum in Galles del 1979: gli esiti inattesi di un ‘espediente politico’, in J.O. Frosini & A. Torre (eds.), Democrazia rappresentativa e referendum, supra n. 141, 261 et seq. 154 See F. Del Conte, Scotland said yes. Gli Scozzesi si pronunciano positivamente sull’attuazione della riforma devolutiva, in J.O. Frosini & A. Torre (eds.), Democrazia rappresentativa e referendum, supra n. 141, 241 et seq. 155 See F. Clemente, Settemila voti che hanno fatto la differenza: il referendum sulla devolution in Galles del 1997, in J.O. Frosini & A. Torre (eds.), Democrazia rappresentativa e referendum, supra n. 141, 277 et seq. 156 See G. Caravale, Un voto per la pace? Il referendum sul Belfast agreement del 22 maggio 1998, in J.O. Frosini & A. Torre (eds.), Democrazia rappresentativa e referendum, supra n. 141, 191 et seq. 157 See S. Pennicino, Un sindaco per Londra o the importance of being “elected.” Il referendum sulla creazione della Greater London Authority, in J.O. Frosini & A. Torre (eds.), Democrazia rappresentativa e referendum, supra n. 14, 309 et seq.

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In Malta there have been six referendums since 1870. In 2003 there was a referendum on EU membership; and in May 2011 a referendum on divorce. Malta was the only EU country not to recognize divorce. A bill on divorce was proposed to the Government by Jeffrey Pullicino Orlando, a member of the centre-right Nationalist Party. Prime Minister Lawrence Gonzi was deeply opposed to divorce, but decided on this issue that it was necessary to consult the people through a referendum. At the end of a heated referendum campaign, in which the opposition party supported divorce, the electorate voted in favour of divorce by 54% of the vote, and the Prime Minister soon after declared that a divorce law would enacted by Parliament. After the institutional referendum of 1974 to choose between monarchy and republic, the Constitution of Greece of 1975 provided that, following the French model, the President could call referendums on critical national issues. With the constitutional reform of 1986, which reduced the role of the Head of State, the decision to call a referendum is now entrusted by the new Article 44 to the Government and must be approved by Parliament by an absolute majority. The constitutional revision of 1986 also added to the ‘national’ referendum the referendum on laws passed by the Parliament, but not yet been promulgated, relating to a “serious social problem”. In this case the proposal must be submitted by two-fifths and then approved by three-fifths of the Members of Parliament.163 In 2005, the opposition parties proposed a ‘social’ referendum on the law of ratification of the Treaty Establishing a Constitution for Europe, but that proposal was rejected by the majority.164 A referendum to decide whether Greece was to accept the bailout conditions proposed by international and European creditors in the government’s debt crisis took place on 5 July 2015. The proposal was rejected by a majority of over 61%, following strong encouragement by Prime Minister Alexis Tsipras. After the referendum, however, Tsipras had to accept new harsh conditions to avoid financial collapse of Greece and to keep the euro. Article 43 of the Constitution of Austria states that any law before its promulgation may be subjected to a referendum at the request of a majority of the members of the National Council. Pursuant to Article 44, laws for the total revision of the Constitution are subject to a referendum before promulgation, and, at the request of one-third of the members of the National Council, laws of partial revision, too. In Austria the referendum has been used only rarely. In 1978 there was a referendum on nuclear energy and in 1994 on accession to the EU. As in Germany, however, from the 1970s direct democracy has 163 See V. Perifanaki Rotolo, Fra autoritarismo e democrazia: la difficile istituzionalizzazione del referendum in Grecia, in M. Caciagli & P.V. Uleri (eds.), Democrazie e referendum, supra n. 72, 234 et seq.; B. Bernardini d’Arnesano, Il referendum in Grecia: le molteplici potenzialità di un istituto ancora poco valorizzato, in 7 Diritto Pubblico Comparato ed Europeo (2005), 1236; C. Kyrkos & G. Makropoulou, Referendum, supra Chapter 1 n. 190, 4. 164 B. Bernardini d’Arnesano, Il referendum, supra n. 163, 1244; C. Kyrkos & G. Makropoulou, Referendum, supra Chapter 1 n. 190, 5.

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had many applications at the level of the Länder and, following the constitutional revision of 1984, also at the municipal level.165 The Constitution of Luxembourg, after the constitutional revision of 2003, provides in Article 114 that in the constitutional amendment process the second reading of the proposed amendment in Parliament may be replaced by a referendum, on the request of a quarter of the Members of Parliament or of 25,000 voters. According to Article 51 of the Constitution, moreover, voters may be called upon to decide through a referendum on matters and in the manner prescribed by law. On 4 February 2005, a law on the referendum was enacted, and in July of that same year a referendum was held on the European Constitution,166 which was approved by 56.52% of the voters. A constitutional referendum was held on 7 June 2015 on the extension of voting rights to non-citizens, who in Luxembourg represent 45% of the population: the referendum was rejected by the voters. The Constitution of Portugal of 1976 did not provide for instruments of direct democracy, which were later introduced by subsequent constitutional amendments.167 Currently, Article 115 provides that a referendum may be proposed by both the President of the Republic on a proposal from the Assembly of the Republic or from the Government, or by citizens, who must, however, submit their request to the Assembly of the Republic. The referendum must concern important issues of national interest on which the Assembly or the Government is empowered to act by means of an international agreement or a law, but certain matters are excluded (laws of constitutional revision, budget and tax law, laws concerning the powers of Parliament). Law No. 15, the Organic Law on the Referendum (LORR) was enacted on 3 April 1998. The same year two referendums were held: one on the decriminalization of abortion and the other on the creation of six administrative regions. In both cases the required quorum of participation provided for by the Constitution was not attained. Only 31.94% of eligible voters participated in the first referendum and 48.29% of eligible voters in the second. The referendum on decriminalization of abortion during the first 10 weeks of gestation was again submitted to the electorate by the Government in October 2006. The referendum was held in February 2007, but again the quorum of 50% was not reached. In Ireland a referendum is required to definitively approve a constitutional law amending the Constitution, pursuant to Articles 46 and 47 of the Constitution. With the constitutional law of the 1972, Ireland agreed, with 83% of the vote, to join the European Communities. There were also favourable results on referendums on ratification of the

165 F. Palermo, Il referendum, supra Chapter 1 n. 186, 1312 et seq. 166 On the debate prior to the referendum of 2005, see A. Rigo, The ratification process of the European Constitution in Luxemburg: A large consensus amongst the political class for holding a referendum, supra Chapter 1 n. 176. 167 On the referendum in Portugal, see C. Bassu & T.E. Frosini, Il referendum in Spagna e Portogallo, adelante con juicio, in 7 Diritto Pubblico Comparato ed Europeo (2005), 1227.

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Single European Act, the Maastricht Treaty, the Treaty of Amsterdam, and the Treaty of Nice. The Treaty of Lisbon failed in a referendum in 2008, with a 53.4% negative vote. A year later, however, a new referendum reversed that result, with 67% of the votes in favour of ratification. A constitutional law authorizing divorce was approved in 1995 with just a 50.3% positive vote, while in 2002 there was a negative vote on abortion. In October 2013, a referendum that proposed the abolition of the Senate was defeated by the surprisingly narrow vote of 51.7%. These referendums (and therefore the proposals for constitutional amendment) were rather frequent. Less can be said for the complex procedure set out in Article 27 of the Constitution, according to which the President, either on his own initiative or at the joint request of a majority of the members of the Senate, and at least one-third of the members of the House, may propose a referendum on a law passed by the two Houses, but not yet promulgated.168 As we have seen in the case of the United Kingdom, the referendum has, in fact, become necessary for most important laws of constitutional significance, even within the framework of a flexible constitutional system, one without a written Constitution, which therefore does not stipulate specific procedures for constitutional revision. The Irish system, with its rigid, written Constitution and a procedure for constitutional amendment governed by it, resembles the British system in providing for a referendum on laws of constitutional revision, and in this respect it differs from all other European countries, which have procedures for constitutional revision that do not necessarily require any type of referendum169 or provide for it, as required or optional, along with other forms of heightened legislative requirements (e.g., special parliamentary majorities, dissolution of Houses of Parliament). That a referendum is the only heightened requirement for the revision of the Constitution in Ireland is accentuated by the fact that the case law, since McKenna v. An Taoiseach (1995), has reaffirmed that the Government must remain neutral and thus may not finance a campaign in support of a particular referendum result. Citizens must be free to decide one way or the other.170 Parliament, therefore, has its role as legislator, but amendment to the Constitution requires, in addition, the direct, express approval of the sovereign people, without constraints by the Government or of representative bodies. Paradoxically, therefore, Ireland, which had introduced the referendum in its Constitution to differentiate itself

168 On the referendum in Ireland, see M. Suksi, Bringing in the People, supra n. 89, 186 et seq.; M. Gallagher, Referendum e democrazia, supra Chapter 1, n. 188, 183 et seq. See also V. Bogdanor, Western Europe, supra Chapter 1, n. 188, 80 et seq.; L. Volpe, L’“Esmeralda virtuosa”: la democrazia diretta in terra gaelica, in 7(3) Diritto Pubblico Comparato ed Europeo (2005), 1383,1389 et seq. 169 As in the case of Germany, Hungary, or Portugal, where laws of constitutional revision must be approved by Parliament by a two-thirds majority. 170 The approach adopted in the McKenna case was reaffirmed in 2012 by the Supreme Court in McCrystal v. Minister for Children and Youth Affairs, a case concerning the Thirty-first Amendment on the rights of the child. See M. Cerroni, Irlanda – Approvato con referendum il trentunesimo emendamento alla Costituzione sui diritti dei bambini, in DPCE online 2013-2.

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from the United Kingdom, stressing popular sovereignty rather than parliamentary sovereignty,171 finds itself to be the only European country, along with the United Kingdom, where constitutional laws are distinguished from ordinary laws only for purposes of the referendum. Among the Scandinavian countries, Denmark is the one that recognizes the referendum to the greatest extent. The Constitution provides for a mandatory referendum for final approval of constitutional laws (Article 88)172 and for laws that determine the age for voting (Article 29). A referendum may also be requested by one-third of the Members of Parliament on ordinary laws that have been approved but not yet promulgated (Article 42) and by the Government for laws which transfer constitutional powers to international bodies, when the law was not approved by a majority of five-sixths (Article 20). In Danish constitutional history, recourse has been had to the referendum many times in all the situations provided for by the Constitution.173 In Sweden, proposals to introduce referendums date back to the end of the 1800s.The first consultative referendums took place in 1922 on the prohibition of alcohol. There have been referendums on traffic (1955), on rents (1957) and on nuclear energy (1980). Chapter VIII of the Basic Law on the Form of Government contains a provision from 1974 concerning the consultative referendum (Article 4), indicating that the social democratic majority thought that a compulsory referendum would be against the Swedish parliamentary system. In 1979, a non-socialist government introduced the possibility of a referendum, at the request of one-tenth of the Members of Parliament and with the consent of a one-third of them, as a procedure for the adoption of a fundamental law (Article 15). Nonetheless, in Sweden there have been no constitutional referendums pursuant to Article 15.174 Other consultative referendums were held on the European Union. In 1994, Sweden agreed to join the European Union, with an 83.3% turnout and 52.3% of the vote. This result was a “personal triumph” for the Prime Minister Ingvar Carlsson.175 The Euro failed in a referendum in 2003, with a 55.9% negative vote. The constitutional reform of 2011 has made it easier to hold a local referendum: if a proposal for a referendum is signed by at least one-

171 See Chapter I, subsection 3 and note 188. 172 In Denmark, as in the other Scandinavian countries, the Parliament which approves a law amending the Constitution must be dissolved and the new Parliament must reenact the same exact text to effectuate the constitutional amendment. 173 On the referendum in Denmark, see P. Svennson, I referendum nella politica danese, in M. Caciagli & P.V. Uleri (eds.), Democrazie e referendum, supra n. 72, 136 et seq.; Id., Denmark: the Referendum as Minority Protection, in M. Gallagher & P.V. Uleri, The Referendum Experience in Europe, St. Martin Press, New York, 1996, 33 et seq.; M. Suksi, Bringing in the People, supra n. 89, 183 et seq. 174 On the evolution of the referendum in the constitutional history of Sweden, see M. Suksi, Bringing in the People, supra n. 89, 212 et seq. 175 Ch. Brown-Humes, Sweden in 1994, in Britannica Online Encyclopedia; A. Burke, A Doubtful Referendum, in Great European Expectations, www.nnn.se/n-model/eu/eu.htm.

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tenth of the voters residing in the municipality, this proposal must no longer be supported by the majority of members of the local assembly, but only by a third of them. The Constitution of Finland provides in Article 53 for the possibility of consultative referendums as provided for by law. A general law enacted in 1987 stipulates that every referendum and the procedures for its implementation must be set forth by a special law.176 We have already referred to the website “Open Ministry-Crowdsourcing Legislation”, established in 2012 to promote citizens’ initiatives and dialogue with institutions.177 The Constitution of Norway does not provide for referendums, but in accordance with a constitutional convention referendums may be held and there have actually been some consultative referendums.178 In Scandinavian countries, the use of referendum has been crucial in recent years for decisions relating to the European Union.179 The 1994 referendum on joining the European Union had a negative outcome in Norway, but was positive in Finland and in Sweden. In a 1998 referendum, Denmark voted in favour of the Maastricht Treaty, but in 2000 it voted against the introduction of the euro (as did Sweden in 2003). The case of Iceland180 is quite unusual. In 1944 Iceland decided by national referendum on its independence from Denmark. The Constitution, drafted a short time before the end of World War II, was immediately approved. The text, which was intended as temporary, largely reproduced the Danish Constitution, replacing the king with a president. Since then, the Constitution has been partially revised four times. Finally, the need to agree on a new Constitution was strongly felt in the wake of the financial crisis of 2008, which had caused the collapse of major banks and had shown the inability of the Government to act in a timely and effective matter. This resulted in a series of popular protests that gave rise

176 On the referendum in Finland, see M. Suksi, Bringing in the People, supra n. 89, 219 et seq. 177 See Ch. 1, Sect. 1.1. 178 See T. Bjørklund, Le consultazioni referendarie in Norvegia tra partiti e movimenti, in M. Caciagli & P.V. Uleri (eds.), Democrazie e referendum, supra n. 72, 160 et seq. 179 On referendums in the countries of Northern Europe, see M. Suksi, Rappresentanza e referendum in Scandinavia e il caso della Finlandia, in M. Caciagli & P.V. Uleri (eds.), Democrazie e referendum, supra n. 72, 124 et seq.; F. Duranti, Il referendum nei Paesi del Nord Europa: principi ed esperienze, in 7(3) Diritto Pubblico Comparato ed Europeo (2005), 1268. 180 See H. Fillmore-Patrick, The Iceland Experiment (2009-2013): A Participatory Approach to Constitutional Reform, DPC Policy Note, Sarajevo, August 2013, available at http://www.democratizationpolicy.org/pdf/dpc%20policy%20note%202_%20the%20iceland%20experiment.pdf;, Reconstituting Iceland – constitutional reform caught in a new critical order in the wake of crisis, Conference paper, Leiden, January 2013, available at www.academia.edu/2463798/Reconstituting_Iceland_constitutional_reform_caught_in_a_new_critical_order_in_the_wake_of_crisis; A. Renwick, Iceland’s Constitutional Reform Referendum, Reading Politics, University of Reading, available at https://blogs.reading.ac.uk/readingpolitics/2012/10/22/icelands-constitutional-reform-referendum/; B. Bjarnason, Iceland’s ‘crowd-sourced’ constitution is dead, 29 March 2013, available at studiotendra.com/2013/03/29/icelands-crowd-sourcedconstitution-is-dead/; Th. Gylfason, Democracy on Ice: a post-mortem of the Icelandic constitution, in OpenDemocracy, June 2013, available at www.opendemocracy.net/can-europe-make-it/thorvaldur-gylfason/democracy-on-ice-post-mortem-of-icelandic-constitution.

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to the so-called “Kitchenware Revolution”. The organizers of the protests made four specific requests: remove the Government, remove the board of the Central Bank, remove the board of the government agency in charge of monitoring banks (the Financial Supervisory Authority), and call new elections. All these requests were accepted and in April 2009 new elections were held, which saw the defeat of the Independence Party, which had been in power for 18 years, and the emergence of a new coalition, consisting of Social Democrats and Greens. In 2010 and in 2011 President Ólafur Grímsson called two referendums on the basis of Article 26 of the Constitution, which had never been applied before then. That article provides that should the President refuse to promulgate a law, it may be submitted to the electorate, which will decide whether to approve or to reject it. In referendums in 2010 and in 2011, the population sided with the President against Parliament’s resolution which was intended to assume the debts of the banks of Iceland, thereby making them the responsibility of the taxpayers. This highlighted the importance that the referendum procedure could assume in Iceland. In November 2009, an unofficial national assembly was held in Reykjavik, without the endorsement of the Government, to define the values deemed most important by Icelandic society and to plan for the future of the country. The meeting was attended by 1,200 Icelandic citizens selected from the national registry and from representatives of interest groups. The entire population was involved in the initiative both at its inception and later through social networks and by email (in 2009, 94% of Icelanders were using the Internet). The following values were identified as the most important for Icelandic society: integrity, equal rights, respect, justice, love, freedom, responsibility, sustainability, and democracy. In June 2010, a law was enacted to elect a Constituent Assembly composed of 25-31 delegates elected directly by citizens and charged with preparing a draft revision of the Constitution to be submitted to the Parliament. The Constituent Assembly was preceded by a national forum, structured on the model of the National Assembly, of thousands of voters selected from the national register, who could suggest non-binding proposals and recommendations on the new Constitution. The forum was held on 6 November 2010, and insisted, among other things, on the need for referendums on major issues, including membership in the European Union. Elections for the Constituent Assembly were held at the end of the same month, on 27 November 2010, but in January 2011, the Supreme Court invalidated the elections for procedural defects. Parliament then appointed a Constituent Committee that prepared a draft Constitution and submitted it to voters through the web. A great many proposals were included in the draft that described itself as “the world’s first crowdsourced constitution”. As provided by law, in October 2012, a non-binding referendum was held on the proposed Constitution, in which 49% of the eligible voters participated, which accepted the proposals of the Constituent Committee. In March 2013, the proposed Constitution was approved by Parliament which was then dissolved. The new Parliament, however, contained a majority coalition formed by the Independence Party and the Progressives, who did not intend to proceed

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with constitutional reform. So this, for the time being, is the last word on one of the most interesting experiments in direct democracy, initiated directly by the electorate and subsequently endorsed, by necessity, by the representative institutions. The constitutions of the countries of Eastern Europe, approved following the collapse of the Soviet Union, accord a significant role to the referendum, as a reaction to the excessive statism that had characterized the period of Soviet domination, but also on the basis of the constitutional traditions, already discussed, of Czechoslovakia and of the Baltic countries.181 The Constitution of Bulgaria entrusts the National Assembly with the task of deciding on calling a referendum (Article 84) and provides a broad scope for local referendums (Article 136). The Constitution of Slovenia provides that the National Assembly may call a referendum on its own initiative or on a proposal by one-third of the members of the National Council or by 40,000 voters. If thirty members of the National Assembly so request, a proposal for a constitutional revision must be submitted to the voters. According to the Constitution of Hungary, a national referendum must be held by Parliament on the proposal of at least 200,000 voters, while a referendum may be held by Parliament on a proposal from the President of the Republic, the Government, or 100,000 voters. The outcome of the referendum is binding on Parliament and is valid if half the voters plus one participate and if the result produces a majority of half the votes plus one. The referendum may relate to any matter which falls within the competence and responsibility of Parliament, but referendums are prohibited in the areas enumerated in Article 8 (revision of the Constitution, budget, elections, international obligations, human resources, organizations within the jurisdiction of Parliament, dissolution of Parliament or other representative bodies, declarations of war, state of emergency, or national crisis, and declarations or extensions of a state of defence, participation in military operations, and granting of pardons). The Constitution of Slovakia contains extensive and complex provisions on the referendum. A referendum is required to approve a constitutional law that ratifies agreements between Slovakia and other states (Article 7). A referendum may be employed to decide other matters of public interest. The referendum is proclaimed by the President at the request of 450,000 citizens or on the basis of a decision of the National Council. For the referendum to be valid, one-half of the eligible voters must participate and the proposal must receive a majority of the votes. The proposal approved by the referendum must be enacted as a law. The National Council may amend or update the referendum decision only with a constitutional law and not within 3 years. The President of the Republic may be removed from office by a referendum called for by a resolution adopted by the National

181 See A. Ciammariconi & A. Di Gregorio, Il referendum nei nuovi Stati membri dell’Unione Europea, in 7(3) Diritto Pubblico Comparato ed Europeo (2005), 1406.

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182 See A. Ciammariconi & A. Di Gregorio, Il referendum nei nuovi Stati membri, supra n. 181, 1418. 183 In 1998, there was a referendum on the particularly sensitive issue of citizenship. About 53.9% of the voters opposed the repeal of a law allowing more favourable conditions than those established previously for acquiring Latvian citizenship. In 1999 a referendum concerning pensions did not reach the quorum of participation required (at least half of the voters in the last election); in 2003, there was a referendum on the EU, which we have already discussed. In 2007 a referendum held pursuant to Art. 72 on two national security laws which had been suspended by the President, did not reach the proportion of voters required for its validity, but in view of the high number of votes cast against these laws, they were later repealed. In the 2011, a referendum on a proposal for dissolution of Parliament was favoured by 94.3% of the voters! In 2008 a referendum on a proposal, requested by one-tenth of the population to incorporate in the Constitution the possibility of a referendum on the dissolution of Parliament did not reach the required quorum of participation. In 2012, a proposal to include in the Constitution Russian as a second official language was rejected by 74.8% of the voters.

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calls new elections. In all three Baltic Republics, a referendum is required for constitutional amendments concerning the fundamental principles of the Constitution. Regarding constitutional amendments concerning fundamental principles, according to the Constitution of Poland, the referendum is optional and may be proposed by onefifth of the deputies, by the Senate, or by the President of the Republic. Pursuant to Article 125, a referendum on matters of particular importance for the state may also be proposed by an absolute majority of the House of Representatives or by the President with the consent of the Senate. Romania, born in 1859 from the union of the principalities of Moldavia and Wallachia following a referendum,184 gives a major role to direct democracy. With a formula similar to that contained in Article 3 of the French Constitution, the Romanian Constitution provides, in Article 2, that national sovereignty resides in the people who exercise it by means of their representatives chosen in free, fair, and periodic elections, as well as by referendum. The referendum, on matters of national interest, is called by the President, after having consulted the Parliament. A referendum is always required for the final approval of constitutional amendments. In the case of suspension of the President for gross violations of the Constitution, the decision of the Houses of Parliament in joint session is submitted to a referendum. Two such cases have already occurred. In April 2007, President Traian Băsescu was suspended by Parliament in joint session, but the proposal to remove him from office was rejected by a large majority by the electorate in the referendum of 19 May 2007. Băsescu, re-elected by direct universal suffrage in December 2009, was again suspended by Parliament in joint session on 6 July 2012. A national referendum took place on 29 July 2012, but this time the required quorum of participation, a majority of register voters, was not attained. After the decision of 21 August 2012, with which the Constitutional Court validated the results of the referendum, the President resumed his functions.185 The Constitution of Croatia provides for one optional referendum and one mandatory one, as well as the possibility that a law could provide for an advisory referendum.186 According to Article 87, a referendum on a proposal for an amendment of the Constitution, on a bill, or on another matter within Parliament’s competence, may be required by Par184 Following the Congress of Paris of 1856, the great powers of Europe decided to unify the principalities of Moldavia and Wallachia in what would be become Romania. The Moldavian and Wallachian populations elected their own representatives respective ‘divani’ (assemblies), which, in 1857, voted almost unanimously in support the union of the two principalities. See Y. Bruley, L’affaire des ‘divans ad hoc’: Concert européen et consentement des populations dans la naissance de la Roumanie (1856-1859), in M. Ortolani & B. Berthier (eds.), Consentement des populations, plébiscites et changements de souveraineté, Serre, Nice, 2013, 127 et seq. 185 See D. Bosioc, Romania: la sospensione del Presidente Traian Băsescu e il referendum revocatorio del 29 luglio 2012, in 15 Diritto Pubblico Comparato ed Europeo (2013), 271; Id., Referendum e riforma costituzionale in Romania: a good practice?, in E. Palici di Suni (ed.), Democrazia diretta, supra n. 354, 1729. 186 Such possibility was provided for only in 2010.

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liament, by the President of the Republic on the proposal of the Government, or by 10% of the electorate.187 Article 142 stipulates that any decision concerning the accession of Croatia to a union with other states must be ratified by referendum. A referendum on independence was held in 1991, and in 2012, a referendum on membership in the European Union. Fearing that a low turnout could derail a referendum so important for Croatia, the quorum of a majority of voters, which had initially been required for the validity of the referendum, was abolished in 2010. About 43.51% of the eligible voters participated and the favourable votes were 66.27%. In 2013, a referendum was held to prohibit same-sex marriage. In 2003, a law had been enacted that allowed the recognition of homosexual couples after a cohabitation period of at least 3 years. To counter a recent draft law of the centre-left Government, which aimed to extend the rights of homosexual couples, allowing them to register as “life partners”, a group called “In the Name of the Family”, fearing that this could lead to the introduction of same-sex marriage in Croatia, requested a referendum pursuant to Article 87 of the Constitution, to amend the Constitution to specify that marriage is a union between a man and a woman. The referendum took place on 1 December 2013, and, although the majority Government was opposed, 65% of the voters were in favour of the proposal. Only 35% of the population participated in the vote, but that, as it turned out, had no bearing on the validity of the referendum, which was binding, in accordance with Article 87. The new provision was therefore included in Article 62, second paragraph, of the Constitution.188 Article 34 of the Constitution of the Swiss Confederation recognizes the following political rights to protect the free formation of the will and the integrity of the vote: – the right of petition (Article 33); – the popular initiative for the total revision of the Federal Constitution (Article 138); – the popular initiative for the partial revision of the Federal Constitution (Article 139); – the mandatory referendum (Article 140); – the optional referendum (Article 141). A complete revision or a partial revision of the Constitution may be proposed by 100,000 voters. The initiative for the partial revision may be formulated as a general proposal (in which case it must be elaborated by the Federal Assembly) or as a detailed bill (in which case the Federal Assembly could put forth a counter-proposal).

187 In the original text of the Constitution, there was no provision for the popular initiative, which was later introduced by the constitutional revision of 2000. 188 On the regime for the referendum in Croatia, on its application, and on its problematical aspects, see T. Cerruti, Il referendum nella Repubblica di Croazia: un istituto in fase di evoluzione, E. Palici di Suni (ed.), Democrazia diretta, supra n. 354, 1714.

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It is mandatory to submit modifications of the Constitution, membership in a collective security organization or in a supranational community, or federal laws adopted as urgent by the Federal Assembly to the vote of both the people and the cantons. On the other hand, popular initiatives for the total revision of the Constitution, those for partial revision that have been rejected by the Federal Assembly, and a proposal for a total revision of the Constitution in the event of disagreement between the two chambers must be submitted to the electorate. An optional referendum on federal laws and decrees and treaties other than those subject to mandatory referendum can be requested by 50,000 voters or by eight cantons. Between 1848 and 1995, 437 referendums have been held, of which 311 were mandatory and 126 optional.189 A complete revision of the Constitution was undertaken in 2000 through a mandatory referendum.190 In 2013, the people and the cantons rejected a proposal for a constitutional amendment for the direct election of members of the Federal Council and the annual election by the Council (instead of by the Federal Assembly) of the President and the Vice President of the Confederation.191 A referendum was held in February 2014 “against mass immigration” and amid a great deal of comment in other European countries, according to which, within 3 years the Federal Government has to establish caps for residence permits and annual quotas for all foreigners, calculated according to the needs of the economy. The referendum, initiated by a right-wing nationalist party and opposed by other political forces, was approved by 17 of the 26 cantons, but by only 50.3% of the population. So Switzerland will have to renegotiate agreements with the European Union, most importantly the Schengen Agreement on the free movement of persons to which it had acceded in 2002.192 Finally, it is worth noting that since 1998 the Confederation has begun to experiment with the use of electronic voting, first for Swiss voters living abroad and then, gradually, at the cantonal and the national levels.193

189 J.F. Aubert, Leçon suisses, in Pouvoirs No. 77 (1996), 125 et seq. See also K.W. Kobach, Switzerland, supra n. 57, 108 et seq; H. Kriesi, La lunga e complessa vicenda della Confederazione elvetica, in M. Caciagli & P.V. Uleri, Democrazie e referendum, supra n. 72, 67 et seq; A. Auer, L’esperienza del referendum in Svizzera e negli Stati Uniti, in M. Luciani & M. Volpi (eds.), Referendum. Problemi teorici ed esperienze costituzionali, supra n. 54, 72 et seq.; G. Malinverni, Gli istituti di democrazia diretta in Svizzera, in 8 Annali della Scuola post-universitaria di Studi Europei 76 (Roma 1986). 190 See M.P. Viviani Schlein, Uno strumento insostituibile per la democrazia semidiretta: il referendum in Svizzera, in 7(3) Diritto Pubblico Comparato ed Europeo (2005), 1371. 191 See V. Fara, Svizzera. Il popolo rifiuta l’elezione popolare del Consiglio federale, in DPCE online 2013/3. 192 On the consequences of the referendum for the relationship between Switzerland and the European Union, see R. Kunz, Schweiz-EU: Wohin führt der bilaterale Weg nach der Annahme der Volksinitiative “Gegen Masseneinwanderung”?, in ZaöRV 74 (2014), 329 et seq.; S. Gerotto, L’iniziativa popolare svizzera “contro l’immigrazione di massa”. Qualche considerazione non del tutto ‘a caldo’, in federalismi.it, No. 4/2014. 193 See P. Macchia, La democrazia semi-diretta: il caso della Svizzera, in E. Palici di Suni (ed.), Democrazia diretta, supra n. 354, 1654.

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2.5.2

The Popular Initiative in Europe

2.5.2.1 The Popular Initiative in European Countries As we have seen, the referendum on a popular initiative has spread to a number of European countries, such as Switzerland, Latvia, Croatia, and France, as well as to some Italian regions, through which the electorate is called upon to decide on a proposal of constitutional or ordinary law presented by a number of citizens or, in the case of France, by one-fifth of the members of Parliament with the support of one-tenth of the electorate. The power of legislative initiative in many countries, particularly in Northern Europe, is attributed only to the Government and to parliamentarians. Some Mediterranean and Eastern European countries give that power to the electorate, with differences that relate mostly to the number of eligible voters required to submit a proposed law and therefore a different attitude towards popular participation in the formation of laws. It takes 50,000 voters in Italy (Constitution, Article 71) and the same number is required in much smaller Lithuania (Constitution, Article 68). Fifty thousand voters could propose a law in Hungary under its old Constitution, but such a possibility is now excluded from the Constitution which came into force in 2012. It takes 100,000 signatures in Poland (Constitution, Article 118) and in Austria proposals can come from one-sixth of the voters in at least three Länder (Constitution, Article 41). In Romania the right of initiative is recognized to 100,000 voters, who must however come from at least one quarter of the counties and in each of these counties the proposal must be signed by at least 5,000 voters; the popular initiative is not available for matters concerning taxation, international affairs, amnesty, and pardon (Constitution, Article 74). In Spain the popular initiative is made rather difficult because it takes 500,000 voters (Constitution, Article 87), while in Portugal it is 35,000 (Constitution, Article 167 and Law No. 17/2003) and in Slovenia 5,000 (Constitution, Article 88). In Latvia, as we have seen, one-tenth of the electorate may submit to the President a draft to be submitted to Parliament (Saeima) (Constitution, Article 65 and Article 78). 2.5.2.2 The Popular Initiative in the European Union Although the popular initiative is not a feature of all European countries, the European Union, in the Treaty of Lisbon, has introduced the right of initiative for European citizens as a way to compensate for and to attenuate the democratic deficit of most EU institutions: not direct democracy alongside representative democracy, but rather direct democracy as a step towards a democratization of the Union and its popular legitimacy, a step towards the construction of a European political citizenship. Article 11(4) of the Treaty on European Union provides that

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Not less than one million citizens who are nationals of a significant number of Member States may take the initiative of inviting the European Commission, within the framework of its powers, to submit any appropriate proposal on matters where citizens consider that a legal act of the Union is required for the purpose of implementing the Treaties.194 The requirements were specified in Regulation No. 211/2011, which entered into force on 1 April 2012. The minimum number of Member States to which citizens must belong was stipulated to be one quarter of them (and thus, today, seven) and for each state a minimum number of signatures is required that is equal to the number of members of the European Parliament elected in each Member State multiplied by 750, determined according to a table annexed to the Regulation and later amended by Commission Delegated Regulation (EU) No. 531/2014 of 12 March 2014.195 The numbers relate, therefore, on the one hand to the number of states and on the other to citizens in proportion to the population of each state: union of states and union of citizens, representation of states and representation of citizens, direct democracy for European citizens, but based on their citizenship in Member States, and on the population of the states and their respective weight in Europe. The number of signatures required out of one million citizens is proportionate and perhaps slightly below the average of the number of signatures required for the initiative in the countries in which it exists: one million signatures for the twenty-eight EU countries corresponds to an average of approximately 35,700 signatures for each country. So the different requirements for individual countries for the initiative, its presence or absence, and the ways of making it more or less easy inevitably disappear at the European level.

194 See G. Bordino (ed.), Un nuovo diritto per la democrazia e lo sviluppo in Europa. L’iniziativa dei cittadini europei (Ice), il Mulino, Bologna, 2013; C. Bova, Il diritto d’iniziativa dei cittadini europei ed i confermati limiti dell’iniziativa legislativa popolare in Italia, in Forum dei Quaderni Costituzionali 2010; G. Allegri, La partecipazione delle società civili nazionali ed europee all’iniziativa dei cittadini europei (Ice), in attuazione dell’art. 11, par. 4 del TUE e del regolamento UE n. 211/2011, in Rivista AIC No. 2/2012; F.R. Dau, La democrazia partecipativa alla prova dell’ordinamento comunitario. L’iniziativa legislativa dei cittadini europei, in DPCE online 2014-1; G. De Togni, L’iniziativa dei cittadini europei (Ice). Tra democrazia rappresentativa e prove di democrazia partecipativa, in Rivista dell’Associazione Italiana dei Costituzionalisti, September 2014; G. Porro, Democrazia diretta e Unione europea: il ruolo dell’Iniziativa dei cittadini europei (ICE), in E. Palici di Suni (ed.), Democrazia diretta, supra n. 354, 1585; A. Manzella, La democraticità del processo legislativo dell’Unione Europea, in Il Filangieri, Quaderno 2014, 7; N. Lupo, L’iniziativa legislativa nella forma di governo dell’Unione europea ed il ruolo dei Parlamenti nazionali, id., 17; F. Ferraro, L’iniziativa dei cittadini europei alla prova dei fatti, id., 53; A. Maffeo, Il procedimento dell’iniziativa dei cittadini europei tra presente e futuro, id., 71; P. Ponzano, L’iniziativa dei cittadini europei: teoria e pratica, id., 91. 195 For example, for Germany which has 96 deputies in the European Parliament 72,000 signatures are required, France with 74 deputies 55,500 signatures, Denmark with 13 deputies 9,750 signatures, and Cyprus with 6 deputies 4,500 signatures.

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To collect one million signatures in at least seven countries does not seem easy, but technology is a great help: the Regulation expressly refers to electronic collection systems (Article 6). For the collection of signatures, an organizing committee consisting of at least seven individuals from seven different states must apply for registration to the Commission in advance of the proposal. The Commission assesses acceptability within 2 months (Article 4). On receipt of duly signed petitions for the initiative, within 3 months the Commission sets forth in a written communication its legal and political conclusions, what action, if any, it intends to undertake, and its reasons for so acting (Article 10). In the short time since its entry into force the European initiative has already been utilized many times. There is a special website of the European Union,196 which contains official information pertaining to the right of initiative of European citizens and a wealth of information on procedures to be followed and on the outcomes of the initiatives already presented. We learn from the site that two initiatives have already reached the final stage with Commission communications: “Right2Water” (Water and sanitation are a human right! Water is a public good, not a commodity!) and “One of Us” (Juridical protection of the dignity, the right to life and of the integrity of every human being from conception in the areas of EU competence in which such protection is of particular importance). The initiative “Right2Water” urged the European Commission to propose legislation that includes the universal human right to drinking water and sanitation, as recognized by the United Nations, and that would promote the provision of water and sanitation services as basic public services for all. With its 19 March 2014 communication, the Commission has undertaken some concrete activities: to intensify efforts for a full implementation of EU water legislation by Member States; to launch a public dialogue at the European level on the drinking water directive to assess its scope and modalities for its improvement; to increase the knowledge of citizens by making more transparent and simplifying the management and dissemination of data on urban waste water and drinking water; to consider the undertaking of a comparative analysis of water quality; to promote a structured dialogue among stakeholders on transparency in the water sector; to collaborate with other initiatives to expand the range of criteria for water services and to improve the transparency and accountability of water service providers by allowing citizens to access comparable data on key economic indicators and quality; to encourage innovative approaches to development assistance and to promote best practices in Member States; to defend universal access to drinking water and to sanitation as a priority area in the context of sustainable development goals for 2015; and finally, to invite Member States, within the framework of their competence, to take account of concerns expressed by citizens through this initiative and to encourage them to intensify their efforts to ensure that everyone can have access to safe, clean, and affordable water. To follow up on the initiative, on 23 June 196 http://ec.europa.eu/citizens-initiative/public/welcome?lg=en.

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2014, the Commission launched a public consultation on the directive on drinking water (“Consultation on the Quality of Drinking Water in the EU”). On 28 May 2014, the European Commission responded to the European citizens’ initiative “One of Us”, by deciding not to present a legislative proposal. The initiative “One of Us” asked the European Union to stop financing activities that involved the destruction of human embryos, in particular in the areas of research, development aid, and public health. The Commission, however, considered that the existing funding framework, recently discussed and agreed to by EU Member States and by the European Parliament, was appropriate.

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3.1

The United States

3.1.1

Revival of Direct Democracy

Massachusetts and North Dakota adopted the initiative and referendum in 1918. They were the last states to do so during the Progressive Era. It was not until more than 40 years later that additional states adopted these instruments of direct democracy. Alaska was admitted to the United States as a state in 1959 with provisions for the initiative and referendum in its constitution. During the 1960s and continuing in the decades that followed, seven states and the District of Columbia adopted the initiative or referendum, or both. As of 2013, twenty-four states and about half of American cities provided for the initiative. Today about 70% of the population lives in either a city or a state that allows the initiative.1 Ten states adopted the recall for state and local officials during the Progressive Era and another two during the following decade. After 1959, another eight states adopted the recall.2 The modern day revival of direct democracy in the United States as a significant factor in American politics, however, may be said to date from the approval in 1978 of Proposition 13 in California by means of citizen initiative.3 The success of that citizen initiative to limit property taxes sparked renewed interest in the initiative and referendum to respond to voter concerns that seemed intractable to resolution by state legislatures. As for recall, although there were a few recall elections during the Progressive Era and the decades that followed, the number of recall elections for state and local officials increased significantly after 1980. 1

2

3

See generally John G. Matsusaka, For the Many or the Few: The Initiative, Public Policy, and American Democracy, Chicago, University of Chicago Press, 2004, pp. 1-9. In 2000, the initiative was available in fifteen of the twenty largest cities. See id., pp. 160-161. For citations to state constitutional and statutory provisions providing for the recall of state and local officials, see National Council of States Legislatures, Recall of State Officials, available at http://www.ncsl.org/research/elections-and-campaigns/recall-of-state-officials.aspx. There were 293 statewide initiatives during the years 1911-1920. The number of statewide initiatives declined sharply after that and then increased significantly after 1978. There were 389 statewide initiatives from 1991 to 2000 and 346 from 2001 to 2010. M. Dane Waters, Initiative and Referendum Almanac, Durham, North Carolina, Carolina Academic Press, 2003, 8 (for 1911-1920 and 1991-2000); Initiative and Referendum Institute, IRI Historical Database, available at http://www.iandrinstitute.org/ (for 2001-2010 and list of all statewide initiatives from 1904-2010).

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The revival of interest in direct democracy since 1978 may be attributed to several factors. First and foremost, as evidenced by Proposition 13 and many other citizen efforts to reduce taxes, is the so-called “tax revolt”. As a result of the huge government expenditures needed to prosecute World War II and later the Cold War, national tax exactions rose to unprecedented heights. Higher taxes were also needed at national, state, and local levels to support the greatly expanded welfare state and an enlarged range of government services and activities. In those states where the instruments of direct democracy were available, citizens more and more resorted to the initiative and referendum to limit or reduce taxes, to provide for more local control of tax revenues, and to shift the funding of government activities from general taxes to fees paid by users of particular services.4 Second, during the past 30 years or so, there has been steadily increasing voter dissatisfaction with the operation of the political process, at both national and state levels. Reform from state legislative bodies was not forthcoming, as elected legislators had strong interests in not changing the process they had successfully used to obtain and to retain their offices. As a result, voters utilized the initiative and referendum process for various electoral reform measures, such as the regulation of campaign financing, the establishment of term limits for legislators, and the apportionment and reapportionment of legislative districts. Third, numerous economic, social, environmental, and civil rights issues have arisen over the past several decades, which the normal legislative process has not, from the perspective of many citizens, dealt with properly or at all. For example: education reform, environmental reform, abortion, gay rights and same-sex marriage, gun control, criminal law and the death penalty, tort reform, labour reform, drug policy, gaming, and animal rights. Citizen-initiated referendums have been held on all of these subjects. The revival of direct democracy in the United States was limited for the most part to states in the western part of the country. During the 1980s and 1990s, legislation to adopt the initiative process was introduced in almost every state in the nation, but was enacted in only one, Mississippi, but with significant restraints on its use.5 Speculation about the limited appeal of the initiative process following California’s adoption of Proposition 13 has focused on the negative example which many people saw in the California experience: that the ad hoc intervention of the people in the legislative process leads to governmental dysfunction and enhances the power of special interests.6

4 5 6

John G. Matsusaka, For the Many or the Few: The Initiative, Public Policy, and American Democracy, Chicago, University of Chicago Press, 2004, 13. Richard J. Ellis, Democratic Delusions: The Initiative Process in America, Lawrence, Kansas, University Press of Kansas, 2002, pp. 38-42. Id.

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3.1.2

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The Initiative and Referendum

The initiative and referendum do not exist at the national level in the United States. The Constitution of the United States does not allow voters to participate directly in the process of constitutional amendment or in the legislative process. Article I of the Constitution vests “all legislative powers herein granted to the Congress of the United States”. It would require an amendment to the Constitution to establish a national initiative or referendum and it is extremely difficult to amend the Constitution. So the initiative and referendum exist only at the state and local levels in the United States and depend on state constitutions or state laws for their existence.7 At the state level, all states except Delaware now require voters to approve amendments to the state constitution by referendum, but only 18 states allow voters to propose constitutional amendments by initiative. In all other states constitutional amendments can only be proposed by the legislature. Twenty-four states and the District of Columbia allow voters to initiate legislative measures. The use of the initiative, for both constitutional amendments and legislative measures, is highly concentrated in 5 western states: California, Oregon, Colorado, Washington, and Arizona.8 Each state has its own requirements and procedures to place a voter initiated measure on the ballot, but the basic process is the same. Let’s take Oregon as an example.9 First, the Constitution of Oregon specifically reserves the powers of initiative and referendum to the people: 1. The legislative power of the state, except for the initiative and referendum powers reserved to the people, is vested in a Legislative Assembly, consisting of a Senate and a House of Representatives. 2. (a) The people reserve to themselves the initiative power, which is to propose laws and amendments to the Constitution and enact or reject them at an election independently of the Legislative Assembly. […]

7

8

9

In a famous, often-quoted statement, United States Supreme Court Justice Louis Brandeis wrote: “It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” New State Ice Co. v. Liebmann, 285 U.S. 262 (1932), 311 (dissenting opinion). The ‘experiments’ of Oregon and California with direct democracy both during the Progressive Era and more recently have provided the ‘laboratories’ suggested by Justice Brandeis. Initiative and Referendum Institute, Initiative Use, Jan. 2013, available at http://www.iandrinstitute.org/; Initiative and Referendum Institute, Constitutional Amendments, Report 2006-3, Oct. 2006, available at http://www.iandrinstitute.org/docs/REPORT%202006-3%20Amendments.pdf. “Oregon holds the record for the most statewide initiatives, with 363 between 1904 and 2013.” Initiative and Referendum Institute, Oregon, available at http://www.iandrinstitute.org/states/state.cfm?id=23.

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3. (a) The people reserve to themselves the referendum power, which is to approve or reject at an election any Act, or part thereof, of the Legislative Assembly […].10 The Constitution also extends the powers of initiative and referendum to local political units.11 The Oregon Constitution stipulates that a statutory initiative may be proposed only by a petition signed by a number of qualified voters equal to 6% of the total number of votes cast for all candidates for governor at the last election for governor. A petition for an initiative to amend to the Constitution must be signed by a number of qualified voters equal to 8% of the total number of votes cast for all candidates for governor at the last election for governor. A referendum on an act or on part of an act of the legislature may be ordered by a petition signed by a number of qualified voters equal to 4% of the total number of votes cast for all candidates for governor at the last election for governor.12 Oregon, unlike some other states, does not place any subject matter restrictions on initiatives nor does it require that the initiative specify a funding source for mandated expenditures. Oregon has no distribution requirement for petition signatures, as some other states do, which require that a certain number of signatures be collected in different political subdivisions of the state. Also, Oregon does not limit how soon an initiative may be resubmitted to the voters. An initiative petition must include the full text of the proposed law or amendment to the Constitution. A proposed law or amendment to the Constitution may embrace one subject only and matters properly connected with it. Oregon law requires that the ballot shall include the following elements: a caption that does not exceed 15 words, a simple and understandable statement that describes the result if the measure is approved that does not exceed 25 words, a simple and understandable statement that describes the result if the measure is rejected, an impartial summary of the initiative and its major effect that does not exceed 125 words. These items, after having been prepared by the Attorney General and approved by the Secretary of State, subject to review by the Supreme Court, provide the language which appears on the ballot and in a Voters’ Guide prepared by the

10 11

12

Constitution of Oregon, Art. IV, Sect. 1. Art. IV, Sect. 1(5): “The initiative and referendum powers reserved to the people by subsections (2) and (3) of this section are further reserved to the qualified voters of each municipality and district as to all local, special and municipal legislation of every character in or for their municipality or district. The manner of exercising those powers shall be provided by general laws, but cities may provide the manner of exercising those powers as to their municipal legislation. In a city, not more than 15 percent of the qualified voters may be required to propose legislation by the initiative, and not more than 10 percent of the qualified voters may be required to order a referendum on legislation.” For example, in 2014, the number of signatures required to place an initiative or referendum on the ballot are: for an amendment to the Constitution – 116,284; for the enactment of a law – 87,213; for a veto referendum – 58,142.

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Oregon Secretary of State.13 The Constitution also states that “[i]t shall be unlawful to pay or receive money or other things of value based on the number of signatures obtained on an initiative or referendum petition”.14 The initiative process has been criticized for taking many public decisions out of the hands of the people’s elected representatives and in effect turning them over to corporations, interest groups, and those opposed to the interests of minorities.15 These critics see the initiative as defeating the central constitutional purpose of establishing a representative government, whose legislative process assures deliberation, compromise, and the protection of minority interests, which is embodied in the Guarantee Clause of the Constitution of the United States (“The United States shall guarantee to every State in this Union a Republican Form of Government[…]” Art. IV, Sect. 4). Regulation or reform of the initiative process has proved difficult for a number of reasons, such as the freedom of speech rights of proponents of initiative to spend unlimited amounts of money in the collection of signatures and in campaigns for or against initiative measures.16 Perhaps the best indicator of perceived problems with the constitutional and statutory initiative is its failure to be adopted at the national level or in about half the states of the country.

3.1.3

Recall

Recall is a method of direct action by the people for removing an official from office before the end of his or her electoral mandate.17 Recall does not exist at the national level in the United States; there is no recall for federal officials. Recall for local officials was first adopted by the City of Los Angeles in 1903. Soon after, Oregon (1908), Michigan (1908), and California (1911) adopted recall for state officials by amendment to their constitution. The last states to adopt recall were New Jersey (1993) and Minnesota (1996). At present, 19 states have provisions in their constitution or laws that allow for the recall of state officials 13 14 15

16

17

See State of Oregon, Secretary of State, State Initiative and Referendum Manual (2012), available at http://library.state.or.us/repository/2010/201001191116512/2012.pdf. Id., Art. 1, Sect. 1b. See, e.g., Cody Hoesly, Reforming Direct Democracy: Lessons from Oregon, 93 California Law Review 1191 (2005). See also David S. Broder, Democracy Derailed: Initiative Campaigns and the Power of Money, New York, Harcourt Inc., 2000. E.g., Meyers v. Grant, 486 U.S. 414 (1988) (invaliding a measure prohibiting payment for the collection of signatures for initiatives); Citizens Against Rent Control v. City of Berkeley, 454 U.S. 290 (1981); First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978). See Thomas Cronin, Direct Democracy: The Politics of Initiative, Referendum, and Recall, Cambridge, MA, Harvard University Press, 1989, pp. 125-156; Larry Gersten & Terry Christensen, Recall!: California’s Political Earthquake, Armonk, N.Y. & London, M.E. Sharpe, 2004; Henry S. Noyes, The Law of Direct Democracy, Durham, N.C., Carolina Academic Press, 2014, pp. 31-68; Joseph Zimmerman, The Recall: Tribunal of the People, Albany, State University of New York Press, 2013; National Conference of State Legislators, Recall of State Officials (June 6, 2012), available at www.ncsl.org/research/elections-and-campaigns/recall-of-state-officials.aspx.

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and 28 states allow for the recall of local officials. Recall differs from impeachment in that in most cases an official may be recalled for any reason. Unlike removal from office by the impeachment process, recall does not usually require that an official be accused of certain crimes or actions.18 It is permissible in most cases to use the recall process to remove an official for politically motivated reasons. The California Constitution is typical. It provides that “[r]ecall of a state officer is initiated by delivering to the Secretary of State a petition alleging reason for recall. Sufficiency of reason is not reviewable”.19 It should be noted that the impeachment process has been used somewhat more frequently than recall to remove state officials (particularly governors and judges). The impeachment process, however, is not available to the people at large; it must be initiated, prosecuted, and resolved by state legislators. Recall, however, is a tool of direct democracy; it puts removal of state and local officials in the hands of the voters. The recall process begins with the circulation of a petition to require a recall election for a state official (governor, state legislator, judge, etc.) or a local official (mayor, city council member, school board member, etc.). A specified number of signatures from eligible voters must be collected in a limited period of time. The signatures are then verified by election officials, and if the requisite number of valid signatures are presented, a recall election is held. The reason there are so few statewide recall elections is that in most states the number of signatures required is quite high and time periods for the collection of signatures are short. In Colorado, for example, the number of signatures required from eligible voters is 25% of the votes cast in the last election for the official being recalled and the time period during which they must be collected is limited to 60 days. Eight other states also have a 25% requirement and most of the other recall states require 15% or more. In almost all recall states the period for the circulation of petitions is 90 days or less. There have been only three recall elections for governors in American history: the governor of North Dakota was removed from office in 1921, the governor of California was removed from office in 2003, but the governor of Wisconsin survived a recall election in 2012. Petitions have been circulated to recall governors on other occasions, but all failed to satisfy requirements to trigger a recall election. Although the number of gubernatorial recall elections is too small to justify a conclusion, it is possible that state-level recall elections may now be becoming more frequent. Recall elections against state legislators, which are more common, have also increased in frequency in recent years.

18

19

For example, the Constitution of the United States provides: “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other High crimes and Misdemeanors.” Art. II, Sect. 4. Constitution of California, Art. 2, Sect. 14(a). Eight states, however, do require that recall be for a specified reason. E.g., Alaska (lack of fitness, incompetence, neglect of duties, or corruption); Minnesota (serious malfeasance or nonfeasance during the term of office in the performance of the duties of the office or conviction during the term of office of a serious crime).

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The recent gubernatorial recall elections, in California in 2003 and in Wisconsin in 2012, as well as recent recall elections involving state legislators and judges, may be harbingers of more direct involvement of the people in the political affairs of the state between regularly scheduled elections. The recent California and Wisconsin experiences indicate that a strong partisan effort (leadership and financial support), taking advantage of general dissatisfaction with the state of the economy and/or dissatisfaction with specific governmental decisions, could be successful in changing governors or party control of state legislatures (and thereby changing governing philosophies) during the term of an elected governor or state legislature. The recall of Democratic Governor Gray Davis of California and his replacement with the Republican Arnold Schwartzenegger in 2003 provided voters in all recall states with a high-profile, highly publicized example of the recall process and how it works. It is discussed in Section 3.1.6, infra. Recall elections in Wisconsin in 2011 and 2012 are even better examples of the people’s attempt to change the state’s political orientation without waiting for the next regularly scheduled gubernatorial and legislative elections. Wisconsin, a state located in the upper Midwestern part of the United States, had long been a leader in progressive politics. During the Progressive Era, Wisconsin led the nation in protecting workers’ rights, instituting social programs, fostering public education, adopting a progressive income tax, and combatting the power of corporations. In many cases Wisconsin’s actions set an example which other states and the federal government eventually followed. During subsequent decades, politics in Wisconsin drifted back to the centre, but the political atmosphere was generally cooperative and conciliatory, as best exemplified by the moderate policies of Governor Tommy Thompson, a centrist Republican, who served from 1987 through 2001. Thompson was succeeded by two other moderate governors, one a Republican and one a Democrat. During the 2009-2010 legislative term, Democrats outnumbered Republicans in both the state Senate and Assembly. In the gubernatorial and legislative elections in November 2010, however, conservative Republicans captured both the governorship and both houses of the state legislature. Under the aggressive leadership of the new governor, Scott Walker, the legislature enacted sweeping changes to Wisconsin laws that moved the state in a very conservative direction, rejecting the progressive and moderate political philosophies of Wisconsin’s past. Reaction to the new measures (most importantly, the severe limitation of the powers and rights of public employee unions) provoked massive and long-lasting protests throughout the state. At one point, fourteen Democratic members of the state senate left the state to prevent the senate from having the necessary quorum to enact a fiscal measure that was central to the governor’s agenda. In 2011 those opposed to the governor’s policies mounted a recall effort against six Republican state senators, hoping to oust these senators, replace them with Democrats, and take control of senate. Partisans of the governor responded by seeking to recall three

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Democratic state senators. In the ensuing recall elections, the Democratic senators retained their seats. Two of the six Republicans were recalled and replaced by Democrats, but the Republicans still retained their majority in the senate by a majority of one vote. In 2012, opponents of the governor and the Republican majority in the legislature presented petitions with enough signatures to require a recall election for the governor as well as for four Republican state senators. The recall election for the governor required the voters to choose between the significantly different policy orientations of Governor Walker and his Democratic opponent, Tom Barrett. After a hard-fought, enormously expensive electoral campaign, that attracted national interest, Governor Walker was reelected. In fact, voter turnout in the recall election was greater than in the gubernatorial election of 2010, and Walker’s majority over Barrett, who was also the Democratic candidate in the 2010 gubernatorial election, was greater than it was in the 2010 election. What should we make of the Wisconsin experience with recall in 2011 and 2012? Neither Governor Walker nor the state senators subject to recall elections were accused of crimes, corruption, or misconduct. Those calling for their recall simply disagreed with the policies that they were implementing through the normal processes of government. Because of the actions of Governor Walker and the Republican legislature, however, Wisconsin had embarked on a policy path that marked a significant break from traditional Wisconsin values and policy orientations. As massive protests and demonstrations against (and also for) the new policies indicated, popular emotions were inflamed. Most affected were members of public employee unions (teachers, police, fire fighters, state and local administrative and service personnel, etc.) whose rights to negotiate with their employers had been greatly curtailed. The situation was chaotic. By allowing voters to respond immediately to the actions of the governor and state legislature, the recall process provided recourse to those opposed to the fundamental reorientation that was taking place in Wisconsin politics. The reaffirmation of the voters of their support for Governor Walker and the senators subject to recall elections exercised a calming effect. The losers now knew that it was clearly the will of the voting majority that Wisconsin make new and different policy choices. To reverse that direction, those opposed to these new policies now knew that they would have to convince the voting public to change their views, and thereby the state’s policies, in the next regularly scheduled election. The recall process, then, although it failed to oust the governor or to change political control of the legislature served a valuable purpose of presenting clear choices and letting the voters decide. Two recent recall elections in Colorado raise a different set of questions and concerns. In 2012, the Colorado legislature enacted gun-control legislation to require background checks for all purchases of firearms and to ban ammunition magazines over 15 rounds. The legislation was enacted in response to mass shootings at a high school in Columbine, Colorado (1999, 15 deaths), a movie theatre in Aurora, Colorado (2012, 12 deaths), and an elementary school in Newtown, Connecticut (2012, 28 deaths). Gun rights advocates

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gathered enough signatures to require recall elections for two state senators, one involving the president of the senate. Besides ousting these legislative leaders of the gun-control effort, the proponents of the recall sought to send a message to state legislators not only in Colorado, but throughout the United States: they would be subject to recall if they supported stricter gun-control laws. After a campaign heavily financed by the National Rifle Association and other gun rights advocates, both senators were ousted in recall elections in September 2013, even though polls at the time indicated overwhelming support for expanded background checks for purchasers of guns. Voter turnout was light, voting by mail was not permitted, and there were reports that workers supporting the challenged senators were harassed and intimidated by proponents of gun rights. Another state senator and supporter of stricter gun laws resigned soon after rather than face a recall election that might have cost her party control of the senate.20

3.1.4

Direct Democracy at the Local Level

Direct democracy in the United States began at the local level. The New England town meeting is its most enduring and powerful symbol.21 The availability of the instruments of direct democracy at the local level depends on the state constitution or state law. Today, more than 70% of Americans live in cities which have the initiative or referendum process or both.22 More than 80% of American cities with a population of over 250,000 have the initiative and/or the referendum.23 Of the 20 most populous cities, all except Chicago, Philadelphia, Indianapolis, Memphis, and Boston require voter participation in charter amendment and the enactment of certain municipal ordinances and/or allow voter participation more generally in the process of enacting (or rejecting) municipal ordinances.24 As with the initiative and referendum at the state level, the initiative and referendum at the local level are significantly more prevalent in the western states than in other regions of the country.25 In recent years voters at the local level have decided a wide variety of matters initiated by voter petition or referred to the voters by municipal authorities.26 Amendments to the city’s charter usually require the approval of the voters. While many

20

21 22 23 24 25 26

Jack Healy, Official Quits In Backlash On Gun Vote in Colorado, New York Times, 28 November 2013, at 16. See also Jack Healy, Facing a Recall After Supporting Stronger Gun Laws in Colorado, New York Times, 28 July 2013. See generally Frank M. Bryan, Real Democracy: The New England Town Meeting and How It Works, Chicago, University of Chicago Press, 2004. John G. Matsusaka, I&R in American Cities, in Initiative and referendum Almanac, op. cit., 31. Id., 36. Id., 32. Id. For the early history of direct democracy at the local level, see Winston W. Crouch, Municipal Affairs: The Initiative and Referendum in the Cities, 37 The American Political Science Review 491 (1943).

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proposed charter amendments are technical and attract little voter interest, others may be quite controversial and lead to lively debate and intense voter interest. For instance, in 2010 the small city of Portland, Maine (population 65,000) conducted a referendum on whether its charter should be amended to provide that the city’s mayor should be directly elected by the people, what the powers of the directly elected major should be, and whether the “instant runoff voting” method27 should be used for the mayoral election. Prior to that time, the mayor was elected by the members of the City Council and as mayor served only in a figurehead capacity. Portland voters approved the proposed amendments after a spirited electoral campaign during which the political and financial implications of the proposed changes were thoroughly debated. Similarly, in 2002, the voters of San Francisco, California, acting on a citizen initiative, adopted an amendment to that city’s charter to provide for instant run-off voting for elections to the city’s Board of Supervisors and for most other citywide offices. Some city charters require that certain actions of city legislative authorities, in addition to amendments to the charter, be submitted to the vote of the people before they take effect. The most common items in this category are the issuing by the municipality of general obligation securities or the incurring of financial obligations in excess of a certain stipulated amount.28 Municipal decisions affecting local land use are often the subject of an initiative or referendum.29 Decisions with respect to land use are extremely important and sensitive. They have significant implications for property values, local taxation, economic development, the characteristics of neighbourhoods and cities, and quality of life of residents. The initiative and referendum are frequently used to attempt to limit or prevent residential or commercial development (like low-income housing or “big box” stores) through the enactment of general growth restrictions or through measures designed to stop specific projects.30 Real estate developers and those according priority to economic development have challenged such measures in court. In recent years, developers and other commercial interests have themselves resorted to the instruments of direct democracy to obtain voter approval for their projects. Challenges by pro-development interests to voter-imposed restrictions rely on a number of legal theories, but principally on the ground that the particular measure adopted by initiative or referendum was “administrative”, as opposed to 27

28 29

30

Instant run-off voting is a method of conducting multicandidate elections where voters do not vote for a single candidate, but indicate their preferences in rank order. If no candidate receives more than 50% firstplace preferences, the winner is determined by allocating the votes of those voters whose candidates received fewer votes to their second preferred candidate. See, e.g., City of Portland, Maine, Code of Ordinances, Part I, Charter, Art. VII, Section 16, available at www.portlandmaine.gov/DocumentCenter/Home/View/1102 (p. 16). See Initiative & Referendum Institute, Phyllis, Meyers, Report on Direct Democracy and Land Use: Eminent Domain and Big Box Development at the Local Ballot Box (2007), available at http://www.iandrinstitute.org/reports-papers.cfm. See also Clayton P. Gillette, Voting with Your Hands: Direct Democracy in Annexation, 78 Southern California Law Review 835 (2005). Craig N. Oren, The Initiative and Referendum’s Use in Zoning, 64 California Law Review 74 (1976), 76-77.

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“legislative”, in nature and thus not within the competence of the voters.31 The United States Supreme Court, however, has taken a broad view of “legislative” action and has sustained restrictive local land use measures adopted by voters.32 State courts have also considered these issues. For instance, in a recent decision, the Maine Supreme Judicial Court allowed a citywide vote on whether the city could sell a portion of a local park to a real estate developer and whether to adopt stricter rules on the sale of publicly owned spaces. A group of voters filed a petition to amend an ordinance of the City of Portland. The City argued that the matters involved were ‘administrative’ and not ‘legislative’, and thus could not properly be the subject of a citizen initiative. The provision of the Portland City Code at issue reads, in pertinent part: The submission to the vote of the people of any proposed ordinance dealing with legislative matters on municipal affairs or of any such ordinance enacted by the city council which has not yet gone into effect may be accomplished by the presentation of a petition therefor to the city council […].33 The Court said that it would liberally construe grants of initiative and referendum powers in order to “facilitate, rather than to handicap, the people’s exercise of their sovereign power to legislate”.34 In deciding that the initiative in question was legislative rather than administrative, the Court relied on a functional approach, focusing on the effects of the exercise of the initiative power rather than the intrinsic characteristics of the act in question […]: an act exceeds the scope of the initiative power if it compels or bars action by elected officials that would seriously hamper governmental functions.35 Representatives of minority groups, like low-income people or racial or ethnic minorities, have also challenged voter-approved municipal land use plans and particular projects on the ground that they discriminate against them and thereby violate the Constitution of the United States. We consider this subject in detail below. (See 3.1.5, Direct Democracy in the Courts, infra).

31 32 33 34 35

See, e.g., City of Eastlake v. Forest City Enterprises, Inc., 426 U.S. 668 (1978). Id. Portland, Maine City Code, Sect. 9-36(a) (emphasis supplied), available at www.portlandmaine.gov/DocumentCenter/Home/View/1073 (p. 22). Friends of Congress Square Park v. City of Portland, 2014 ME 63 (2014), ¶8 (citation to cases omitted). Id., ¶16.

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3.1.5

Direct Democracy in the Courts 36

As we already know, one of the principal objectives of the drafters of the American Constitution was to contain democracy by establishing a representative form of government that was specifically intended to be one step removed from the people, to be composed of capable and disinterested citizens, and to function in a deliberative manner. The Federalist Papers37 state that objective quite explicitly (clearly distinguishing the Constitution’s “republican form of government” from a “democracy”) and the Constitution itself contains a provision whereby “[T]he United States shall guarantee to every state in this union a republican form of government […].”38 Although significant advances have been made since the adoption of the Constitution in 1788 in expanding democracy (i.e., the participation of the people in the political process) at the national level, all these advances (like extending the franchise to former slaves, women, and persons between 18 and 21 years of age; legislative and judicial protection of the right to vote; the direct election of United States senators; etc.) were in making government more representative, not at all in allowing direct participation by the people in the law-making process. Unlike some foreign constitutions, the Constitution of the United States does not contain any provision for lawmaking or amending the Constitution by popular vote. Moreover, the Constitution, as the supreme law of the land, prescribes a number of legal rights which the United States Supreme Court and lower federal courts are responsible for protecting, even against national or state legislative or popular majorities. So, for both these reasons – the constitutional commitment to a representative form of government and the rights mandated by the Constitution – questions raised by direct democracy have frequently come before the courts for resolution. According to the political scientist Kenneth Miller: The conflict between direct democracy and the courts has become more intense as the two powers have gained strength. Twenty-four states now allow citizens to enact laws directly, and the use of the initiative process in the United States has grown several-fold since the 1970s. In several states, especially in the west, citizens have increasingly sought to use the initiative process to dictate outcomes in the most important areas of state responsibility, including taxing and spending, education, environmental regulation, election law, and criminal justice policy. At the same time, the judicial power has greatly expanded as courts have used judicial review to enforce a growing sphere of minority and 36 37 38

For a comprehensive treatment of the law of direct democracy in the United States today in casebook form, see Henry S. Noyes, The Law of Direct Democracy, Durham, N.C., Carolina Academic Press, 2014 See Chapter 1. 1.2.1.2 United States Constitution, Art. IV, Sect. 4.

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individual rights, especially in the areas of equal protection, due process, privacy, free speech, and criminal procedure and punishment. By redefining many political controversies in terms of rights, courts have shifted much policy making from majoritarian political processes to the judicial arena.39 From the perspective of the courts, constitutional rights take precedence over normal democratic politics and it is the function of courts to protect these right not only against legislative encroachment, but also against their violation by the people directly through the initiative and referendum process.40 In a number of early cases, federal and state courts upheld citizen law-making by initiative and referendum against challenges based on the Guarantee Clause of the Constitution. In Pacific Telephone & Telegraph Co. v. Oregon (1912), the United States Supreme Court upheld the initiative and referendum provisions of the Oregon constitution against the contention that “the direct exercise of the powers of government by the people at large would remove from a Republic the feature which distinguishes it from a democracy”.41 The Court, however, did not reach the question of whether direct democracy was compatible with republican government. It deemed the question posed to be a “political question” and not subject to judicial review. According to the Court: As the issues presented, in their very essence, are, and have long since by this court been, definitely determined to be political and governmental, and embraced within the scope of the powers conferred upon Congress, and not therefore within the reach of judicial power, it follows that the case presented is not within our jurisdiction […].42 A few years earlier, however, the Oregon Supreme Court dealt with the question of the compatibility of the initiative and referendum with the constitutional requirement of “a republican form of government”. In its opinion in Kadderly v. City of Portland (1903),43 it explained:

39 40

41 42 43

Kenneth P. Miller, Direct Democracy and the Courts, New York, Cambridge University, Press, 2009, 3. Id., 9. The Supreme Court struck down laws enacted by the vote of the people in a number of important decisions. See, e.g., Guinn & Beal v. United States, 238 U.S. 347 (1915); Pierce v. Society of Sisters, Griffin v. California, 380 U.S. 609 (1965); Lucas v. Forty-Fourth General Assembly of Colorado, 377 U.S. 713 (1964); Reitman v. Mulkey, 387 U.S. 369 (1967); Washington v. Seattle School Dist. No. 1, 458 U.S. 457 (1982); U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995); Romer v. Evans, 517 U.S. 620 (1996); American Tradition Partnership, Inc. v. Bullock, 567 U.S. — (2012). Cf. Hollingsworth v. Perry, — U.S. — (2013). Pacific States Telephone & Telegraph Co. v. Oregon, 223 U.S. 118, 124 (1912) (argument for the plaintiff in error). Id., 151. Kadderly v. City of Portland, 44 Ore. 118, 74 710 (1903).

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The government is still divided into the legislative, executive, and judicial departments, the duties of which are discharged by representatives selected by the people. […] The legislative and executive departments are not destroyed, nor are their powers and authority materially curtailed. Also, initiated laws must comply with the constitution and they could be amended or repealed by the elected lawmakers.44 Although court decisions during the Progressive Era, at both state and national levels, upheld the constitutionality of the initiative and referendum, concerns arose about the constitutionality of these instruments of direct democracy and certain measures adopted by their use after the greatly increased use of these instruments of direct democracy precipitated by the adoption of Proposition 13 in California in 1978. According to Kenneth Miller: [T]he most troubling questions about the initiative process go far beyond the details of the individual ballot measures. The more profound concerns are whether direct democracy, over time and perhaps unintentionally, undermines institutions of representative government, and whether it poses a systematic threat to minority and individual rights.45 The governmental system adopted by the Framers of the Constitution relied principally on the institutional mechanisms of the separation of powers and checks and balances to assure that while government would operate in the interests of the majority, minority rights would also be protected. But the initiative process was specifically designed to allow the people to bypass these institutional checks. That poses a dilemma for the courts: on the one hand, in the name of “the sovereignty of the people”, they feel obligated to respect the people’s will as expressed through the initiative and referendum process; on the other hand, however, they view themselves as guardians of the substantive rights enshrined in the Constitution itself. As Kenneth Miller remarks: “When a court strikes down a voterapproved initiative, it is not checking a coordinate department of representative government, but the people themselves.”46

44

45 46

Id., 720. See generally Hans Linde, Kadderly at 100: The Oregon’court’s most fateful decision, in Oregon State Bar Bulletin, October 2003; David Schuman, The Origin of State Constitutional Direct Democracy: William Simon U’Ren and ‘The Oregon System’, 67 Temple Law Review 947 (1994). See also Hans Linde, Who Is Responsible for Republican Government?, 65 University of Colorado law Review 709 (1994) (arguing that it is the responsibility of judges to monitor direct lawmaking by giving real content to the Guarantee Clause and to apply it rigorously). Kenneth P. Miller, Direct Democracy and the Courts, op. cit., 67. Id., 88. See also Julian N. Eule, Judicial review of Direct Democracy, 99 Yale Law Journal 1503 (1990), 15031508.

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The first question that courts having to rule on the constitutionality of legislation or amendments to state constitutions47 enacted pursuant to the initiative and referendum process had to resolve was what standard of review should be applied: should the reviewing court, recognizing that the legislative or constitutive product of direct democracy represents the sovereign will of the people (rather than the act of their representatives), accord it a higher degree of deference or should the court apply the same standard of review that it applies to legislation enacted through the normal legislative or constitutional amendment process? Or even, as one legal scholar has argued, should the courts “demand additional judicial attention because [the legislative and constitutive products of direct democracy] bypass the legislative filtering system designed to protect minority interests”.48 A review of decisions of the United States Supreme Court indicates that the Court subjects state laws and constitutional amendments adopted pursuant to the direct democracy process to the same level of scrutiny as it subjects laws and constitutional amendments adopted by the institutions of representative democracy. In a few early cases, dissenting justices argued that more deference was owed to laws and constitutional amendments adopted by the sovereign people themselves,49 but the Supreme Court now routinely reviews the products of state and local initiatives and referendums just as it would review acts of representative bodies. The Supreme Court has reversed the results of state initiatives and referendums in a number of highly sensitive areas, such as race relations and reform of the electoral process. In several cases, voters acting by initiative and referendum enacted constitutional amendments, state laws, or municipal ordinances to repeal laws or ordinances prohibiting racial discrimination or mandating special protection or affirmative action for members of certain minority groups. The Court invalidated these citizen-enacted measures because it viewed them as “placing special burdens on racial minorities within the governmental process”.50 In the Court’s view, amendments to state constitutions or the enactment of 47

48 49

50

From the perspective of federal law, there is no difference between an amendment to a state constitution and ordinary laws enacted by the states. Each is subordinate to federal law by virtue of the Supremacy Clause of the Constitution of the United States. “This Constitution and the laws of the United States which shall be made in pursuance thereof … shall be the supreme law of the land, and the judges in every State shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding.” Constitution of the United States, Art. VI (2). Julian N. Eule, id., 1503. See, e.g., Reitman v. Mulkey, 387 U.S. 369 (1967) (“[T]his decision … cuts deeply into state political processes[.]” Dissenting opinion of Justice Harlan, 387); Hunter v. Erickson, 393 U.S. 385 (1969) (“[I]t is the Court’s opinion here that casts aspersions on the right of citizens to vote.” Dissenting opinion of Justice Black, 397). Hunter v. Erickson, id.; Washington v. Seattle School District No. 1, 458 U.S. 457 (1982). See also Romer v. Evans, 517 U.S. 620 (1996) (holding voter amendment to Colorado constitution to disallow laws banning discrimination based on sexual orientation violated the Equal Protection Clause). But see James v. Valtierra, 402 U.S. 137 (1971) (holding that requirement of voter approval of low-rent housing projects was constitutional because race was not necessarily a determinative factor in how voters voted; writing for the Court,

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laws that make it more difficult for racial minorities to advance their interests through the normal legislative process violate the Equal Protection Clause of the Constitution of the United States. In a recent high profile case, however, the Court approved an amendment to the Michigan constitution enacted by its voters through the initiative and referendum process to prohibit “preferential treatment to […] any individual or group on the basis of race, sex, colour, ethnicity, or national origin in the operation of public employment, public education, or public contracting” against a constitutional challenge based on the Equal Protection Clause.51 This prohibition applied to all public colleges, universities, community colleges, and school districts in the state. This amendment was in response to an earlier Supreme Court decision that allowed the University of Michigan’s law school to make limited use of race-based preferences in its admissions procedures.52 The Court narrowly defined the question before it: It did not view the case as raising the question of the permissibility of race-conscious admissions policies under the Constitution but whether, and in what manner, voters in the States may choose to prohibit the consideration of racial preferences in governmental decisions, in particular with respect to school admissions.53 According to the Court, since the prohibition of race-conscious admissions policies could have been accomplished through ordinary legislative action that in this case it was done by the voters instead is not a constitutional violation. But is not this case a perfect illustration of the problem raised by one legal scholar that the representative legislative process is structured to allow for deliberation and the protection of minority rights, but that those protections are lacking in the initiative-referendum process.54 Another important group of cases involves voter actions to reform the political or electoral process. In a significant number of these cases, measures adopted by voter initiative and referendum at the state or local level were invalidated as contravening provisions of the Constitution of the United States. For instance, in a recent case, the Supreme Court invalidated a voter-approved state law that prohibited contributions by corporations to

51 52 53 54

Justice Black said: “Provisions for referendums demonstrate devotion to democracy, not to bias, discrimination, or prejudice.” id., 141). But see the dissenting opinion of Justice Marshal, id., 143-145 and a scathing critique of the decision by Derrick A. Bell, Jr., The Referendum: Democracy’s Barrier to Racial Equality, 54 Washington Law Review 1 (1978), 1-9. Schuette v. Coalition to Defend Affirmative Action, Integration and Immigration Rights and Fight for Equality by Any Means Necessary, — U.S. — (2014). Grutter v. Bollinger, 539 U.S. 306 (2003). Schuette v. Coalition to Defend Affirmative Action, Integration and Immigration Rights and Fight for Equality by Any Means Necessary, — U.S. — (2014), Slip Opinion, 4. See Julian N. Eule, Judicial review of Direct Democracy, 99 Yale Law Journal 1503 (1990).

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political campaigns55 and in an earlier decision the Court invalidated a municipal voterapproved measure that placed limits on contributions to political campaigns.56 In both cases the Court held that the limits imposed violated the freedom of speech protected by the First Amendment.57 The Supreme Court has also invalidated voter-approved amendments to state constitutions and state laws that imposed term limits on the state’s representatives and senators in the United States Congress. In U.S. Term Limits, Inc. v. Thornton, the voters of the state of Arkansas adopted an amendment to that state’s constitution that limited the Arkansas’ United States representatives to three (2-year) terms and United States senators to two (6year terms) in office. The preamble to the proposed amendment stated: The people of Arkansas find and declare that elected officials who remain in office too long become preoccupied with reelection and ignore their duties as representatives of the people. Entrenched incumbency has reduced voter participation and has led to an electoral system that is less free, less competitive, and less representative than the system established by the Founding Fathers. Therefore, the people of Arkansas, exercising their reserved powers, herein limit the terms of elected officials. The Supreme Court held that the Arkansas amendment violated the Qualification Clauses of the United States Constitution58 by imposing an additional requirement for those seeking election to the United States Congress (i.e., that they had not already served three terms in the House of Representatives or two terms in the Senate).59 As for the operation of direct democracy itself, American courts have protected the initiative and referendum process against what it regards as unconstitutional limitations or interference. For instance, in one case the Court invalidated a Colorado law that made it a crime to pay persons who circulated initiative petitions. The Court regarded the Col55 56 57

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59

American Traditional Partnership v. Bulloch, 567 U.S. — (2012). Citizens Against Rent Control/Coalition for Fair Housing v. City of Berkeley, California, 454 U.S. 200 (1981). The principal decisions on the relation of campaign financing to First Amendment protection of freedom of speech are Buckley v. Valeo, 424 U.S. 1 (1976) and Citizens United v. Federal Election Commission, 558 U.S. 310 (2010). See also McCutcheon v. Federal Election Commission, — U.S. — (2014). “No person shall be a Representative4 who shall not have attained the age of twenty five years, and been seven years a citizen of the United States, and who shall not, when elected, be an inhabitant of that state in which he shall be chosen.” Constitution of the United States, Art. I, Sect. 2, Cl. 3. A similar clause applies to the Senate. Constitution of the United States, Art. I, Sect. 3, Cl. 3. U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995). See also Cook v. Gralike, 531 U.S. 510 (2001) (invalidating a voter-approved amendment to the Missouri constitution which required ballots for U.S. Senate and House elections to contain the statement “Disregarded Voters’ Instruction on Term Limits” adjacent to the name of a candidate who failed to take any one of eight specified legislative acts to support term limits).

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orado law as a restriction on freedom of speech which is protected by the First Amendment to the Constitution of the United States.60 State courts have also been active in ruling on the structuring and operation of the initiative and referendum processes, dealing with issues like signature requirements for initiatives, subject matter restrictions, the content and wording of the initiative petition or referendum question, circulation of initiative petitions, signature verification, campaign finance and disclosure requirements, etc.61 For example, in an important case decided in 1998, the Supreme Court of Oregon invalidated a voter-approved “crime victim’s rights” initiative on the ground that the measure enacted by the voters was a “revision”, rather than an “amendment”, of the Oregon Constitution since it violated the “one subject rule” of the Oregon Constitution.62 By closely scrutinizing ballot initiatives and invalidating them if they do not comply with constitutional or statutory requirements as to form and content, state courts, as exemplified by the Oregon court’s decision, are able to prevent the enactment of measures that are confusing or misleading or result from manipulative political compromise. As we have seen, it is not unusual for judges to nullify the people’s will as expressed through the initiative and referendum process. If the decision was rendered by a federal court on the basis of the Constitution of the United States, the people have no recourse against the judiciary.63 If the decision was rendered by a state court, however, the people, at least in some states, are not without recourse. There are two avenues that are open to voters, at the state level, who are unhappy with judicial decisions invalidating voterapproved measures: recall and judicial retention elections. Eight states allow the recall of state judges;64 and twenty states have elections for the retention of judges on the expiration of their terms.65 Although the authors are not aware of state judicial recall or retention elections in reaction to state court judges’ invalidating a voter-approved law or constitutional amendment, that is certainly a possibility in about half of the states. And importantly, state court judges may feel pressure to decide one way or the other when passing on the

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Meyer v. Grant, 486 U.S. 414 (1988). See also Buckley v. American Constitutional Law Foundation, Inc., 525 U.S. 182 (1998). See also Prete v. Bradbury, 438 F.3d 949 (9th Cir. 2006) (upholding a voter approved initiative which made it unlawful “to pay or receive money or other things of value based on the number of signatures obtained on an initiative or referendum petition.”) See generally, Henry S. Noyes, The Law of Direct Democracy, op. cit., 69-332. Armatta v. Kitzhaber, 959 P.2d 47 (Or. 1998) (“We conclude that, although it purported to be a single amendment to the Oregon Constitution, Measure 40 contains two or more constitutional amendments that must be voted upon separately …”). “The judges, both of the supreme and inferior courts, shall hold their offices during good behavior, and shall at stated times receive for their services, a compensation, which shall not be diminished during their continuance in office.” Constitution of the United States, Art. III, Sect. 1. See also Alexander Hamilton, Federalist No. 78, in The Federalist Papers (Clinton Rossiter, ed.), New York, 2003, 463-471. Arizona, California, Colorado, Minnesota, Nevada, North Dakota, Oregon, and Wisconsin. Alaska, Arizona, California, Colorado, Florida, Idaho, Illinois, Indiana, Iowa, Kansas, Maryland, Missouri, Nebraska, New Mexico, Oklahoma, Pennsylvania, South Dakota, Tennessee, Utah, and Wyoming.

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constitutionality of a voter-approved measure because of the possibility of recall or of defeat in the next judicial retention election if popular sentiments are flouted. Two prominent examples of voters removing judges from office after unpopular decisions illustrate the problem. (1) The recall of Chief Justice Rose Bird of the California Supreme Court and two Associate Justices of that Court (Cruz Reynoso and Joseph Grodin) in 1986 because of their votes in a number of cases in opposition to the death penalty. Perhaps not coincidently, several years later, in 2002, the California Supreme Court refused to review a “25 years to life” prison sentence imposed under a voter-approved law that mandated such sentence for a third felony conviction.66 The third felony conviction triggering California’s so-called “three strikes law” in this case was the theft of three golf clubs priced at $399 apiece. The three strikes law had been adopted overwhelmingly by the voter initiative-referendum process in a highly emotional atmosphere in which California voters expressed their intense desire to get tough on crime, particularly on repeat offenders. (2) The vote in November 2010 to remove three Iowa Supreme Court justices who had voted to legalize same-sex marriage.67 Perhaps not coincidently, the Supreme Court in the neighbouring state of Wisconsin (which allows for the recall of judges), rendering its decision during the Iowa recall campaign, upheld a voter-approved amendment to the Wisconsin constitution prohibiting same-sex marriage.68 The role of the courts in policing the laws adopted by the initiative process makes the courts the final arbiters in many important public policy sectors. That has led to the paradoxical outcome noted by Professor Ellis: In bypassing the representative institutions that the framers relied upon to safeguard democracy, direct democracy has ironically contributed to our increasing reliance on the least accountable branch of government. Judges themselves more and more find themselves […] asked to serve as the main check against the populist will.69

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The California Court of Appeal affirmed Ewing’s conviction in an unpublished opinion. No. B143745 (Apr. 25, 2001). The Supreme Court of California denied Ewing’s petition for review. The Supreme Court of the United States affirmed. Ewing v. California, 538 U.S. 11 (2003) (holding that California’s three strikes law and its application in this case did not violate the Eight Amendment’s prohibition on cruel and unusual punishments). A.G. Sulzberger, Ouster of Iowa Judges Sends Signal to Bench, New York Times, Nov. 3, 2010. McConkey v. Van Hollen, 783 N.W.2d 855 (Wisc. 2010) (upholding a voter-approved amendment to Wisconsin constitution prohibiting same-sex marriage). See also Julian N. Eule, Crocodiles in the Bathtub: State Courts, Voter Initiatives and the Threat of Electoral Reprisal, 65 University of Colorado law Review 733 (1994). Richard J. Ellis, Democratic Delusions, op. cit., 176.

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3.1.6

Direct Democracy in California

The modern rebirth of interest in direct democracy in the United States may be dated to 1978, with the approval by California voters of Proposition 13.70 Since that time the initiative process has been employed at the statewide level in California and other states numerous times to enact into law a wide variety of significant measures. Between 1978 and 2000, for example, Californians voted on 117 different measures, approving 51 of them. Among the measures enacted into law pursuant to the initiative process were several limiting taxes and establishing procedures making it more difficult to raise taxes (like requiring a supermajority vote in the state legislature), establishing term limits for state officials (1990), prohibiting the state from providing health care, public education, or other social services to illegal immigrants (1994), mandating severe prison sentences for repeat offenders (1994), ending racial preference laws (1996), and ending bilingual education (1998). The California Constitution defines the initiative as “the power of the electors to propose statutes and amendments to the Constitution and to adopt or reject them” (Article 2, Section 8(a)). An initiative measure may be proposed that sets forth the text of the proposed statute or amendment to the Constitution and is certified to have been signed by electors equal in number to 5% in the case of a statute, and 8% in the case of an amendment to the Constitution, of the votes for all candidates for Governor at the last gubernatorial election. (Article 2, Section 8(b)) The referendum “is the power of the electors to approve or reject statutes or parts of a statute”, and may be proposed by presenting a petition certified to have been signed by 5% of the voters for Governor in the last gubernatorial election. (Article 2, Section 9). The Constitution recognizes that

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Proposition 13 (People’s Initiative to Limit Property Taxation) was approved by voters in 1978. It capped property taxes at 1% of value and limited increases in assessments. It also established a two-thirds voting requirement for the state legislature for any change in a state statute which raises taxes. Proposition 13 is now contained in Art. 13A of the California Constitution. Previously, in 1933, California voters approved a measure to require a two-thirds vote for the passage of the state budget. In 2010, however, California voters approved Proposition 25, which amended the Constitution to require only a simple majority to approve the state budget. California Constitution, Art. XII, Sect. 4. The constitutionality of Proposition 13 was upheld by the United States Supreme Court against a challenge based on the Equal Protection Clause. Nordlinger v. Hahn, 505 U.S. 1 (1992). Plaintiffs argued that “by only allowing property to be reassessed when it changes owners Proposition 13 created huge discrepancies in property tax bills among Californians owning properties of similar or identical value.” Richard J. Ellis, Democratic Delusions: The Initiative Process in America, op. cit., 135.

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[t]he legislative power of this State is vested in the California Legislature which consists of the Senate and Assembly, but the people reserve to themselves the powers of initiative and referendum. (Article 4, Section 1) The Constitution also grants the powers of initiative and referendum to “the electors of each city or country” (Article 2, Section 11(a)). California provides an excellent laboratory for examining the operation and effects of direct democracy in a large and diverse political unit.71 First, California is a large and prosperous state, with a population in 2014 of about 38 million people and a gross domestic product in 2012 of about $2 trillion. It is by far the most populous state in the United States and, if it were a country, it would rank thirty-fourth in population and ninth in gross domestic product. California is economically diverse: its major economic sectors are manufacturing, engineering, agriculture and natural resources, information technology, health technology, finance, the arts, and tourism. It is also ethnically and culturally diverse: in 2012 non-Hispanic whites and Latinos each comprised about 39% of the population, Asians about 13%, and blacks about 6%. There are significant regional differences between the northern and southern parts of the state as well as between the coastal areas and the agricultural and forested areas of the central and eastern parts of the state. How well has the representative political process accommodated the wide variety of interests to which such diversity gives rise? Is direct democracy a useful or detrimental supplement to the normal operations of representative government? Let’s examine two areas where measures enacted through the initiative process have had a significant impact: (1) state and local budget policy; and (2) minority rights. Proposition 13 was only the beginning of a continuing effort by California voters to set state and local revenue and expenditure policy through the initiative process. As we have already seen, the constitutional amendment enacted by Proposition 13 severely limits governmental authorities from raising taxes on real estate. This limitation takes on additional significance when viewed in the light of the tremendous increase in the value of real property over the past several decades. The initiative process has also been used to impose limits on the state income tax72 and the state sales tax73 and to abolish state death and gift taxes.74 On the expenditure side, the initiative process has been used to require a certain

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Provisions governing the initiative, referendum, and recall are contained in Art. 2 of the California Constitution. Detailed provisions for the structure and operation of the initiative and referendum are contained in California Statutes, Arts. 9000-9295. Penalties for violation of the laws pertaining to the initiative and referendum are contained in California Statutes, Arts. 18600-18680. Proposition 63 (2004) (minimum 1% surtax on millionaires). Proposition 163 (1992) (prohibition of sales tax on food). Proposition 6 (1982).

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Direct Democracy in Comparative Law level of funding for a variety of special purposes, like education75 (by far the most important), after school programs,76 early childhood development,77 stem cell research,78 wildlife protection,79 etc. In addition, the super-majority vote requirement for the enactment of any legislative measure to raise taxes places a significant additional limitation on the ability of people’s representative in the state legislature to manage the state’s budget.80 Voter-imposed limitations on revenue sources, voter-imposed spending mandates, and voter-imposed supermajority requirements for legislative measures to raise taxes remove large portions of the state budget process from the representative political process. Revenue and spending priorities are to a great degree no longer set through a deliberative legislative process which considers the budget as a whole and which allows trade-offs and compromises between groups with different policy interests and preferences. Also, the piecemeal approach to budgetary policy made possible by the initiative process opens the way to individuals and groups who wish to protect or advance their particular interests through a narrowly tailored voter-approved expenditure or tax benefit.81 Furthermore, the initiative process, as it now works in practice in California, requires considerable expense and organization to gather the number of signatures required to place a measure on the ballot as well as sufficient resources to mount a successful electoral campaign on its behalf.82 Some regard the average voter now as no more than a tool of special interests which seek to advance their own agenda by bypassing the duly elected representatives of the people operating within the constitutional checks and balances framework. Other observers of the initiative-referendum process in California come to different conclusions. John Matsusaka, for instance, after a detailed analysis of the voter-imposed revenue and spending restrictions concludes:

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Proposition 98 (1988). Proposition 98 (called the “Classroom Instructional Improvement and Accountability Act”) was adopted by a vote of 50.7% to 49.3%. It amended the California Constitution to mandate that 40% of state expenditures be for elementary and secondary education. California Constitution, Art. 13B. Proposition 49 (2002). Proposition 10 (1998). Proposition 71 (2004). Proposition 117 (1990). Proposition 13 mandated a two-thirds vote to increase taxes. The California Constitution provides that “[a]n initiative embracing more than one subject may not be submitted to the electorate or have any effect. Art. 2, Sect. 8(d). See, e.g., Norimitsu Onishi, California Ballot Initiatives, Born in Populism, Now Come From Billionaires, New York Times, Oct. 17, 2012, A15. See also The Perils of Extreme Democracy, The Economist, April 20, 2011. There were slightly more than 10,000,000 votes cast in the November 2010 gubernatorial election. So it would now require 504,760 certified signatures on a petition to place a statutory initiative on the ballot and more than 800,000 certified signatures for a constitutional amendment. Since 2010, average cost for gathering the required signatures for an initiative has been about $2,000,000. Collecting signatures is usually done by a professional petition management firm. See generally David S. Broder, Democracy Derailed: Initiative Campaigns and the Power of Money, New York, 2000 (especially Chapter 2, entitled “The Initiative Industry”). According to Border: “initiative campaigns have become a money game, where average citizens are subjected to advertising blitzes of distortion and half-truths …” Id., 18.

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Voter initiatives have imposed some significant constraints, but fewer than is often claimed. At most, 33% of California’s 2000-2010 state spending was locked in by initiatives, and it seems likely that much of that money would have been spent for its dedicated purpose even if it had not been required. On the revenue side, initiatives have not placed any significant limits on the legislature’s ability to tap the two most important revenue sources for state government, income and sales taxes.83 Another scholar sees “the initiative as part of the system of representative government in which direct legislation remedies some of the legislature’s shortcomings and serves as a fitting complement to the legislative process”.84 He also argues that it is unfair to compare the initiative-referendum process with an idealized version of the representative legislative process, where knowledgeable insiders, special interests, and the well organized and wealthy often succeed in advancing their agendas at the expense of the general public.85 Furthermore, it is possible for spending and revenue problems created by initiative to be solved by later initiatives.86 Over the past few decades, California voters have approved a number of measures which have affected minorities negatively. For instance: the requirement that voting materials be printed only in English (1984), the establishment of English as the official language of the state (1986), ending racial preferences (1996), ending bilingual education (1998), recognizing marriage only between a man and a woman (2008).87 Most of these measures were challenged in court on the ground that it violated a provision of the Constitution of the United States, in most cases the Equal Protection clause of the Fourteenth Amendment. Should the courts allow the results of citizen initiatives to stand or at least to show great deference to their results because they represent the direct expression of the will of the sovereign people? Or should the courts examine these measures in light of the same constitutional standards that they apply to ordinary legislation? These questions, 83

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John G. Matsusaka, A Case Study on Direct Democracy: Have Voter Initiatives Paralyzed the California Budget?, The Council of State Governments, The Book of the States (2010), 337, available at http://knowledgecenter.csg.org/kc/system/files/Matsusaka.pdf. Richard Briffault, Distrust of Democracy (Review of David B. Magleby, Direct Legislation: Voting on Ballot Propositions in the United States, Baltimore, 1984), 63 Texas L. Rev. 1347 (1985), 1350. “When direct legislation ‘in the field’ is set against an idealized construct of the legislative process, it is bound to fall short.” Id. See, e.g., Proposition 25 (Majority Vote for Legislature to Pass the Budget Act) (2010) (doing away with the requirement of a two-thirds vote of the state legislature to enact the state’s budget); Proposition 30 (Temporary Taxes to Fund Education) (2012) (imposing temporary increases to the state income and sales taxes to support California state schools). Proposition 8 (2008). See generally Derrick A. Bell, Jr., The Referendum: Democracy’s Barrier to Racial Equality. 54 Washington Law Review 1 (1978); Kevin R. Johnson, A Handicapped, Not “Sleeping,” Giant: The Devastating Impact of the Initiative Process on Latina/o and Immigrant Communities, 96 California Law Review 1259 (2008).

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which have been raised with particular urgency in California, have been considered in the previous section. (See 1.5, Direct Democracy in the Courts, infra.) Direct democracy is also significant at the local level in California.88 Los Angeles adopted the initiative in 1903 and was soon followed by a number of other large California cities. In 1911, voters approved an amendment to the California Constitution which extended the initiative, referendum, and recall to the state as a whole and to all cities and counties. California has long been the leader in local direct democracy in the United States. The most common areas for initiatives at the statewide level in California are taxes and public finance; in contrast, the most common areas for local initiatives are land use, local governance, and public safety.89 While the use of the statewide initiative has been criticized as having been captured by big money, special interests, the leading student of the local initiative has concluded that The major criticisms of the statewide initiative, for example, that it benefits special interests, depresses [voter] turnout, or tramples minority rights, do not seem to apply to the local initiative. Local voters appear to use this process to tackle issues that are not adequately resolved by their elected representatives or by state policy, and there is no evidence that it leaves the average voter worse off.90 The recall has also played an important role in California.91 California leads the nation in the number of recall elections for state legislators. The recall is also significant at the local level (for mayors, city councillors, and other local officials). In 2003 California voters recalled their then Governor, Gray Davis, midway through his 4-year term, and replaced him with Arnold Schwarzenegger. A prior effort to recall Governor Davis, in 1999, failed to gather the necessary number of signatures on petitions to require a recall election. The 1999 recall effort against Governor Davis was motivated principally by his preventing the entry into force of Proposition 187 (which would have denied a social service benefits to illegal aliens) and by his signing of two restrictive gun-control laws. The 2003 recall effort focused principally on Davis’ alleged mismanagement of California’s finances, particularly his handling of the events leading up to California’s “electricity crisis” of 2001-2002, which severely damaged the state’s economy. Another significant issue was the unpopularity of a vehicle licensing fee introduced by Davis to deal with a state revenue shortfall. The most 88 89 90 91

See generally Tracy M. Gordon, The Local Initiative in California, Public Policy Institute of California, San Francisco, 2006. Id., 22. Id., 55. The Office of the California Secretary of State has prepared a detailed Procedure for Recalling State and Local Officials (Revised May 2014), available at www.sos.ca.gov/elections/recalls/procedure-recalling-stateand-local-officials/.

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important difference, however, between the 1999 and the 2003 efforts to place a recall election on the ballot was a $2,000,000 contribution by a politically ambitious Republican to replace Governor Davis, who was a Democrat. This large infusion of money into the signature-gathering effort made the difference between the 1999 and the 2003 recall efforts in placing the recall question on the ballot. In another extremely high profile and controversial recall effort, Californians recalled the Chief Justice of the California Supreme Court and two Associate Justices after the Court had rendered a series of unpopular decisions concerning the death penalty and sentencing. (See Section 2.2.5, supra, for a discussion of the recall of Chief Justice Rose Bird, and its implications for judicial independence). Despite the complications caused by direct democracy for the budgetary and priority setting processes of state government, as well as the possible infringement on the rights and interests of minorities by popular majorities, Californians are generally satisfied with the initiative. Constitutional amendments and statutes adopted by voter initiative that are later found to be unwise may be repealed or modified by later initiatives. In those cases where the adopted measure violates the state or federal constitution, courts are available to invalidate them, and they have done so on numerous occasions. While the instruments of direct democracy are certainly imperfect in many respects, the ability of Californians to make use of them, to become directly involved in the law-making process (through the initiative and referendum) and the administrative and judicial processes (through the recall) at both state and local levels are deemed to be a salutary supplement or corrective to representative government.92

3.1.7

Direct Democracy in the Electronic Age

Some see the Internet as holding out prospects for the greater participation of voters in the legislative process. According to the leading Internet direct democracy activist, “The Internet offers a potential for direct democracy so profound that it may well transform 92

But see Fareed Zakaria, The Future of Freedom: Illiberal Democracy at Home and Abroad, New York, W.W. Norton & Co., 2003, who draws the following conclusions after a close examination of the initiative and referendum process in California: “Referendums and initiatives have accelerated the process of taking power away from politicians and giving it to the “people,” but always through an ever-growing class of professional consultants, lobbyists, pollsters, and activists. In the name of democracy, we have created a new layer of enormously powerful elites […]. Those who have lost out as this revolution has proceeded are the institutions of representative democracy: Congress, politicians, the political parties, the administrative agencies, government itself. The new elites also have fewer checks on them than did those before them. The old party was rooted in a base, a philosophical tradition, and was visible and accountable […]. But who monitors the consultants, fundraisers, pollsters, and lobbyists who now run American politics. By declaring war on elitism, we have produced the politics of a hidden elite, unaccountable, unrepresentative, unresponsive, and often unconcerned with any large public interest. 197-198.”

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Direct Democracy in Comparative Law not only our system of politics but also our very form of government.”93 In this writer’s view, direct democracy was rejected by the Framers of the Constitution only because it was unfeasible in a geographically extensive and populous nation. Now, however, Internet technology has made direct democracy operationally feasible. Voters have ready access to information via the Internet, communication with voters and among voters is easy thanks to email, and voter preferences can be quickly and accurately obtained through the Internet.94 Others take a different view. They start from the proposition that the Framers established a representative form of government, not because direct democracy was not workable in a large and extensive political unit, but because of representative government’s intrinsic advantages: laws made through a process of deliberation and compromise by representatives selected for their competence, thoughtfulness, and probity. As one scholar opined, “when the Internet voting process is combined with the initiative and referendum, this new voting system could undermine our representative republican democracy”.95 Another scholar has criticized direct democracy for undermining the electoral process that is essential to representative government. According to him “low voter turnout in general elections and a proliferation of single-issue referenda [have] undercut trust and pride in representative democracy”.96 The effect of increased direct democracy made possible by electronic means would only serve to further undermine (not supplement) the process of representative democracy. Starting from the proposition that “Today, the initiative process is anything but democratic […] since getting initiatives on the ballot and passed is no longer a populist effort, but has become a vast political industry, run by professionals,” combined with the fact that “initiatives are by nature all-or-nothing affairs that tend to polarize individuals”, two leading scholars of e-democracy conclude that “the Internet has the potential to polarize Americans even more”.97 The Internet, however, may turn out to be an effective means of enhancing representative democracy. Ideally, it allows citizens to access information and opinion from a wide variety of sources. It has the potential to expose them to different views about particular subjects

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Dick Morris, Direct Democracy and the Internet, 34 Loyola of Los Angeles Law Review 1003 (2001), at 1003. See also Dick Morris, Vote.com, Los Angeles, Renaissance Books, 2001. The mechanics of Internet voting have not yet been worked out. For a comprehensive consideration of how Internet voting might be structured, see California secretary of State, California Internet Voting Task Force, A Report on the Feasibility of Internet Voting (2000), available at http://elections.cdn.sos.ca.gov/ivote/final_report.pdf. Rebekah K. Browder, Internet Voting with Initiatives and Referendums: Stumbling Towards Direct Democracy, 29 Seattle University Law Review 485 (2006), at 490. See generally Cass Sunstein, Republic.com, Princeton, Princeton University Press, 2001. C. Jon Delogu, Tocqueville and Democracy in the Internet Age, Ann Arbor, Mich., Open Humanities Press, 2014, 182-183. R. Michael Alvarez & Thad E. Hall, Point, Click, and Vote: The Future of Internet Voting, Washington, D.C. Brookings Institution Press, 2004, 71, 74.

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and to access real-time interchange and debate between proponents of different positions. Furthermore, it provides a communication and organizational platform for citizens with common interests or concerns to come together to participate as a group in the political process.98

3.2

3.2.1

Canada

Democracy and Government in Canada: English and French Backgrounds, the Parliamentary Tradition, ‘Representative’ and ‘Responsible’ Government

Direct democracy plays a small role in Canada, almost exclusively at the provincial and local levels. To the extent that it plays a role in Canadian government at any level (national, provincial, or local) it is almost always advisory rather than binding.99 It almost always takes the form of a referendum or what is sometimes called a plebiscite.100 An understanding of Canadian attitudes towards government, the role of representative institutions, and the role of the people is necessary to understand Canadian attitudes towards direct democracy. Canada is a federal state, comprised of a central government and ten provincial governments. There are also three territories. The provinces differ greatly in history, religion, and culture, all of which influence their attitudes towards the role of the people in government. The principal divisions historically and today are between the province of Quebec, the province of Ontario, the four Maritime Provinces (Newfoundland and Labrador, Nova Scotia, New Brunswick, and Prince Edward Island), and the four western provinces (Manitoba, Saskatchewan, Alberta, and British Columbia). The differences between Quebec and the other nine provinces are the most pronounced. European presence in what is now Canada began in the early seventeenth century with the establishment of French settlements in what are now the Maritime Provinces and Quebec. In subsequent years, the French developed an extensive fur trapping industry stretching far to the west and south into what are now the states of the Upper Midwest of

98

See Hans K. Klein, Tocqueville in Cyberspace: Using the Internet for Citizen Associations, 15 The Information Society Journal 213 (1999), available at https://pdfs.semanticscholar.org/c8ac/25db840fa0a74e7d2985c1fb89043ab73dc5.pdf. 99 According to one commentator, direct democracy is a misnomer for the type of voter participation which exists in Canada. Dan Rowat, Our Referendums are not Direct Democracy, Canadian Parliamentary Review (Autumn 1998), 29, available at www.revparl.ca/21/3/21n3_98e_Rowat.pdf. 100 In Canada, the terms ‘referendum’ and ‘plebiscite’ have been used interchangeably, although the term ‘plebiscite’ seems to have become mostly obsolete in both English and French. Instruments of direct democracy in Canada and Quebec, 3rd ed., 2001, available at www.electionsquebec.qc.ca/documents/pdf/DGE-6350.3-va.pdf, 3-4.

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the United States and down the valley of the Mississippi River to the Gulf of Mexico. Later, British colonists moved into areas which are now part of Canada, and the British Hudson Bay Company established claims to a vast area stretching from Hudson Bay to the Pacific Ocean. In the 1750s armed conflict erupted between Great Britain and France for control of the northern portion of the North American continent. The British were victorious and in the Treaty of Paris of 1763, which ended the conflict, France ceded all of its North American possessions (except Louisiana, which it ceded to Spain, and two small islands in the Atlantic Ocean, which it retained) to Great Britain. The British Royal Proclamation of 1763 officially established the British colony of Quebec and added territory to the existing British colony of Nova Scotia. At the time of the British “Conquest”, the population of the territory involved was predominately French. Nevertheless, the Proclamation of 1763 established an English form of government (a Governor appointed by the king, an appointed Council, and a General Assembly elected by the people) and empowered it to make laws “as near as may be agreeable to the Laws of England” as well as to establish courts of justice to determine “all Causes […] as near as may be agreeable to the Laws of England […]”.101 Eleven years later, however, with separatist feelings developing in Britain’s North American colonies, the British Parliament enacted the Quebec Act of 1774,102 to better assure the allegiance of Quebec, which was at that time about 99% French. The Quebec Act greatly enlarged the territory of Quebec as defined by the Proclamation of 1763, allowed Catholics to hold public office (by eliminating reference to the Protestant faith in the mandatory oath of office), eliminated the elected General Assembly, and allowed French civil law (rather than English common law) to govern in civil matters. During the years following the “Conquest”, strong nationalism developed in Quebec. According to the historian Kenneth McNaught, [Quebec] nationalism was a complex, if vital amalgam of ideas, sentiment and ambition. It combined agricultural clericalism of the most conservative variety with racial self-consciousness and the status-seeking opportunism of a legalprofessional clan which was very aware of ‘foreign’ [i.e., British] control of economic power.103 During the late 1770s and 1780s, as a result of the American Revolution (1776-1783), about 40,000 English Loyalists left the American colonies and relocated to Quebec and the Maritime Provinces, thereby significantly augmenting the English presence there. In the

101 Royal Proclamation of 1763, R.S.C. 1985, App. II, No. 1. 102 British North America (Quebec) Act 1774 (U.K.), 14 Geo. III, c. 83. 103 Kenneth McNaught, The History of Canada, New York, Praeger Publishers, 1970, 67.

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years that followed, there continued to be substantial English in-migration from the United States, particularly into what are now Ontario and the Western Provinces. The era of the American Revolution exercised an enormous influence on Canada. First, as embodied in the Quebec Act, British efforts to retain the loyalty of the French population of Quebec led Britain to allow it to retain its Catholic, authoritarian, and civil law traditions and institutions, rather than to seek to encourage the development of a Protestant, democratic, and common law culture. Second, the migration of English Loyalists from the newly independent American colonies introduced a strong monarchical, anti-republican, and anti-democratic political orientation.104 The Loyalists rejected the political (democratic) and social (egalitarian) values of the American Revolution and strongly resisted their introduction into the areas of Canada where they settled. In 1791, in order to take account of the influx of English Loyalists into the western part of the province of Quebec during and after the American Revolution, Quebec was divided into two parts by the Constitutional Act, 1791:105 the western half became Upper Canada (what is now southern Ontario) and the eastern half became Lower Canada (what is now southern Quebec). English institutions and the English common law were established in Upper Canada, while Lower Canada retained the institutions and law established by the Quebec Act of 1774, with the addition of an elected Assembly. The Constitutional Act, 1791, thus created what would eventually become the French, Catholic province of Quebec and the English, Protestant province of Ontario. The 1791 Act was a conscious reaction by English statesmen to the American Revolution, which they thought was caused by ‘too much democracy’, lack of sufficient aristocratic element in the colonies, lack of an established church[…] ‘Democracy’ was to be confined within reasonable limits by the appointive Legislative Council and especially by the creation of a colonial nobility, with hereditary rights to seats in the Council, which was to be a colonial House of Lords.106 In 1837 rebellions broke out in both Upper and Lower Canada against British rule. The rebellions were crushed in the following year, but discontent with British rule continued.

104 “To understand Canada it is necessary to understand the two philosophies underlying [the American Revolution] as the two associated with French and English. This materialistic continent rests upon idealistic foundations: upon the strong religious convictions of New France and New England, which give the primary antithesis, Catholicism as against Protestantism; and upon the almost equally strong political convictions which give the second antithesis, monarchy and republicanism. It is out of all four of these major creeds that modern Canada is built.” Arthur R.M. Lower, Colony to Nation: A History of Canada, Toronto, Longman, Green & Co., 1946, 109. 105 Constitutional Act (U.K.), 31 Geo. III, c. 31. 106 Arthur R.M. Lower, Colony to Nation: A History of Canada, Toronto, Longmans, Green & Co., 1946, 124.

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Direct Democracy in Comparative Law In 1840, by the Act of Union,107 Upper and Lower Canada were merged into a single colony, the United Province of Canada. In his report recommending the constitutional changes that were embodied in the Act of Union, its author, Lord Durham, made the famous statement that he had found “two nations warring in the bosom of a single state”.108 It was his hope that eventually French Canadians would become, as historian Robert Bothwell writes, “an artificial minority, because the anglophones of Montreal and the Eastern Townships [of southern Quebec] joined to the anglophones of Upper Canada would create a permanent majority in the legislature”.109 A few years later, in 1848, movement away from British control of colonial Canada resulted in the acceptance by Great Britain of the principle of “responsible government”: decisions pertaining only to Canada (i.e., those which did not impact the British Empire) should be made on the basis of advice from persons who enjoyed the confidence of the elected Assembly. British implementation of the responsible government policy calmed Canadian discontent with British rule and marked a major step towards the independence of Canada. Since its initiation, the principle of responsible government has been a cornerstone of Canadian constitutional tradition.110 The next major development in the constitutional evolution of Canada was the enactment by the British Parliament of the British North America Act in 1867.111 Renamed the Constitution Act, 1867, in 1982, it continues to provide the basic framework for the government of Canada today.112 The Act establishes the Dominion of Canada, comprised of the provinces of Ontario (the former Upper Canada), Quebec (the former Lower Canada), Nova Scotia, and New Brunswick “with a Constitution similar in Principle to that of the United Kingdom”. Of particular interest to our consideration of direct democracy is the central principle of the British constitutional tradition: the supremacy of Parliament. This principle triumphed in the contentious and at times violent struggles between Parliament and the monarchy in seventeenth century England. Parliamentary supremacy meant that all legislative power resided in Parliament. Neither the monarch nor the courts had the power to resist the will of Parliament as expressed in the laws enacted by it. Thus, in the words of the preamble to the British North America Act, since Canada has “a Constitution similar in Principle to that of the United Kingdom”, the principle of parliamentary

107 Act of Union (U.K.), 3 & 4 Vict., c. 35. 108 Lord Durham, Report on the Affairs of British North America, Vol. 2, Sir C.P. Lucas, ed., Oxford, Clarendon Press, 1912. 109 Robert Bothwell, The Penguin History of Canada, Toronto, Penguin Canada, 2006, 185. 110 See Patrick J. Monahan & Byron Shaw, Constitutional Law, Toronto, Irwin Law, Inc., 4th ed. 2013, 41-48; Peter W. Hogg, Constitutional Law of Canada, Toronto, Carswell, 5th ed. supplemented, updated annually, 9(2). 111 Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3. 112 See generally Patrick J. Monahan & Byron Shaw, Constitutional Law, Toronto, Irwin Law, Inc., 4th ed. 2013, 53-162.

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supremacy as understood in Great Britain, is deeply embedded in Canadian constitutional tradition.113 Is direct democracy consistent, then, with the parliamentary tradition as it was and is still understood in Great Britain? Is the referendum, for instance, open to the objection that it diminishes the importance of parliamentary debate and compromise, and thereby detracts from the influence of Parliament?114 A. V. Dicey, perhaps Britain’s most eminent constitutionalist, argued in an 1890 article, that direct democracy may be an option in the British constitutional system. The House of Commons has ceased to be a body of men to whom the electors confide full authority to legislate in accordance with the wisdom or interests of members of Parliament. It is really a body of persons selected for the purpose of carrying out the policy of the predominant party. It is not the fact that voters choose a respectable squire or successful merchant because they know him to be a worthy man, and that he will legislate more wisely for them than they could for themselves; they elect a member […] because he pledges himself, more or less directly, to vote for certain measures and to support certain political leaders.115 Dicey then suggests that the referendum may correct some of the deficiencies of party government: The party system, whatever its advantages […] is opposed to the sovereignty of the people, which is the fundamental dogma of modern democracy. That system throws the control of legislation into the hands of a party, and then into the hands of the most active or the most numerous section of that party. But that party may be, and probably is, a mere fraction of the nation. The principle of the Referendum, on the other hand, is to place, at any rate as regards important legislation, parties, factions, and sections under the control of the national majority. […] The time has come when we ought all to consider the

113 Constitutional developments in Canada, however, have led to two modifications of the principle of parliamentary supremacy: (1) the Constitution Act, 1867 established a federal state so that certain constitutional limitations are now imposed on the legislative power of the national Parliament in favour of the provincial parliaments; and (2) the adoption of the Canadian Charter of Rights and Freedoms in 1982 establishes the supremacy of Charter principles and requires courts to invalidate legislation which violates those principles. See Patrick J. Monahan & Byron Shaw, Constitutional Law, Toronto, Irwin Law Inc., 4th ed. 2013, pp, 8586. 114 See A. V. Dicey, Ought the Referendum To Be Introduced into England?, op. cit., 502. See Chapter 1.1.1 and Chapter 2.5. 115 Id., 506.

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possible expediency of introducing into England that appeal to the people which is by far the most original creation of Swiss democracy.116 Despite Dicey’s analysis and recommendation, however, direct democracy was never really introduced in Great Britain until quite recently. While there have been a few referendums (the first in 1973), they are rare and non-binding.117 There have been only two national referendums (in 1975, on whether the U.K. should remain in the European Community; and in 2011, on whether the system of electing Members of Parliament should be changed) and nine regional referendums (three in Wales, three in Scotland, two in Northern Ireland, and one in Greater London), all on sensitive and controversial political questions. These referendums are more properly characterized as part of the political process, rather than as the direct involvement by the electorate in the law-making process. Early in the twentieth century courts in Canada and Great Britain had the opportunity to rule on the consistency of enacting law by popular referendum and the Canadian Constitution.118 In re The Initiative and Referendum Act119 was an appeal from the Court of Appeal of Manitoba to the British Privy Council to consider the question whether Manitoba’s Initiative and Referendum Act of 1916, which provided that laws may be made and repealed by the direct vote of the electors of the province, exceeded the powers of the provincial legislature to enact. The Judicial Committee of the British Privy Council invalidated the Act, as, in its view, it encroached on the legislative powers which Section 92 of the British North America Act allocated to the provincial legislature. In a later decision, however, the Privy Council upheld the validity of a law enacted by the provincial legislature of Alberta after a referendum in the province approved the law and the provincial referendum statute mandated that the legislature must enact the measure if it was approved by the voters.120 Nevertheless, the 1919 decision of the Privy Council has exercised and still exercises a significant influence on the Canadian view of whether direct democracy is compatible with the principle of parliamentary supremacy. Major constitutional revision took place in 1982 with the enactment by the British Parliament of the Canada Act 1982.121 By that Act, the British Parliament relinquished all 116 Id., 510-511. 117 See generally House of Lords, Select Committee on the Constitution, Referendums in the United Kingdom, 12th Report of Session 2009-2010, available at https://publications.parliament.uk/pa/ld200910/ldselect/ldconst/99/99.pdf. 118 The Supreme Court of Canada was established in 1875, but appeals to the Judicial Committee of the British Privy Council were not abolished until 1949. See 1 Peter W. Hogg, Constitutional Law of Canada, Toronto, Carswell, 5th ed. supplemented. 119 In re The Initiative and Referendum Act, [1919] A.C. 935. (“Sect. 92 of the Act of 1867 entrusts the legislative power in a Province to its Legislature, and to that Legislature only.” 945) 120 Rex v. Nat Bell Liquors Ltd., [1922] 2 A.C. 128. 121 Canada Act 1982 (U.K.), 1982, c. 11. An act of the British Parliament was necessary to amend the Canadian Constitution. By the Stature of Westminster of 1931, the British Parliament relinquished all legislative

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its authority to legislate for Canada. The Canada Act 1982 also enacted the Constitution Act, 1982,122 which, in its Section 52(2) provides that the Constitution of Canada includes the following: the Constitution Act, 1867; the Canada Act 1982; the Constitution Act, 1982 (which includes the Canadian Charter of Rights and Freedoms); and a list of specifically enumerated statutes and regulations enacted between 1867 and 1982 that have constitutional status. It is important to note that Section 52(2) says that the Constitution ‘includes’ the enumerated sources. Thus, consistent with British constitutional tradition, there may also be unwritten sources of constitutional law that derive from custom, usage, tradition, practice, or generally accepted principles that are also part of the Canadian Constitution. What conclusions about the Canadian conception and practice of democracy can we draw from Canada’s history of constitutional development: its original ties to France, its long-lasting relationship to Great Britain, its evolution towards legal independence, and the special situation of Quebec, a populous French, Catholic province with strong authoritarian and clerical traditions, in a nation which is now mostly Protestant and whose development has been largely influenced by English and American ways of thinking about government? Let’s consider two aspects of this question: the legal and the socio-cultural. In a long and thoughtful opinion in 1998, Reference re Secession of Quebec in 1998,123 the Supreme Court of Canada considered the legal meaning of democracy in Canada in its response to one of the questions posed to it: “Under the Constitution of Canada, can the National Assembly, legislature or government of Quebec effect the secession of Quebec from Canada unilaterally?” According to the Court, democracy is one of the “four fundamental and organizing principles of the Constitution which are relevant to addressing the question before us[…]”124 After stating that “Democracy is a fundamental value in our constitutional law and political culture”,125 the Court proceeds to define exactly what “democracy” means as a principle of Canadian constitutional law. The Court says that “Democracy is commonly understood as being a political system of majority rule”. But, according to the Court, to determine what this means we must trace the evolution of the democratic tradition from its origins in the Magna Carta (1215) and before, through the long struggle for Parliamentary supremacy, which culminated in the English Bill of Rights in 1689, the emergence of representative political institutions in the colonial era, the development of responsible government in the nineteenth century and eventually the achievement of the Confederation itself in 1867. “[T]he Canadian tradition” […] is “one

122 123 124

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authority over Canada, but amendments to the British North America Act were excluded from the application of the Statute. Constitution Act, 1982, is Schedule B to the Canada Act 1982 (U.K.), 1982 c 11. Reference re Secession of Quebec [1998] 2 S.C.R., 217. Id., 240. The other three principles are federalism, constitutionalism and the rule of law, and respect for minorities. “Such principles and rules emerge from an understanding of the constitutional text itself, the historical context, and previous judicial interpretation of constitutional meaning.” Id. Id., 252.

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of evolutionary democracy moving in uneven steps toward the goal of universal suffrage and more effective representation”.126 The Court thus conceives democracy in “institutional terms”: “Historically, this Court has interpreted democracy to mean the process of representative and responsible government and the right of citizens to participate in the political process as voters.”127 As for the sovereignty of the people, while It is, of course, true that democracy expresses the sovereign will of the people […] Canada as a whole is also a democratic community in which citizens construct and achieve goals on a national scale through a federal government […] It would be a grave mistake to equate legitimacy with the ‘sovereign will’ or majority rule alone to the exclusion of other constitutional values. […] At both the federal and provincial level, by its very nature, the need to build majorities necessitates compromise, negotiation, and deliberation.128 Finally, the Court responds to the objection that constitutionalism is incompatible with democratic government. This would be an erroneous view. Constitutionalism facilitates – indeed makes possible – a democratic political system by creating an orderly framework within which people may make political decisions. Viewed correctly, constitutionalism and the rule of law are not in conflict with democracy, rather they are essential to it.129 Moving from the legal and institutional level, at the socio-cultural level, too, Canadians may not be comfortable with direct democracy. Patrick Boyer, a former Member of Parliament and a leading advocate for direct democracy argues that Strong Tory values in early Canadian society which stressed prescription, authority, order, and hierarchy, all reinforced […] deference to authority by animating and directing life in an integrated community, where the political good superseded concern for individual rights As a consequence, individuals instinctively developed a sense of their place in the grand order of things, and it was a place, fundamentally, from which one did not challenge authority. […] Seeking consensus, hoping for approbation, leery of untidiness, fond of regula-

126 Id., 254. Language in quotation marks is from Reference re Provincial Electoral Boundaries (Sask.), [1999] 2 S.C.R. 158, 186. 127 Reference re Secession of Quebec [1998] 2 S.C.R., 254. 128 Id., 255-256. 129 Id., 260-261.

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tion, Canadians inhabited a setting which up to now has provided for the emergence of a timid form of democracy.130 Boyer makes the point, though, that Canadian attitudes may be changing, as there is a rising cynicism about politics and especially about parliamentary democracy.131 He maintains that it would reinforce and stimulate the democratic impulse and strengthen Canadian identity for Canadians to engage in public debate about important national policies from time to time which the referendum process requires when it is activated.132

3.2.2

Direct Democracy at the National Level

The instruments of direct democracy are the initiative, the referendum, and recall. The referendum is the only one in use in Canada,133 and almost exclusively at the provincial and local levels. The Canadian Constitution, as defined in Section 52(2) of the Constitution Act, 1982,134 contains no provision for the direct participation of the people in the enactment of laws or in the amendment of the Constitution. The Constitution Act, 1867, was adopted without any direct participation of the people, although there were calls by political leaders in Quebec and Ontario at that time for the question of the proposed constitutional changes to be submitted to voters.135 There was also no direct participation of the people in the fundamental constitutional changes which occurred in 1982. There have been three national referendums in Canada: 1898, 1942, and 1992. All three were advisory rather than legally binding. The first two were conducted under statutes specifically authorizing the particular referendum.136 In 1992, Parliament enacted the Act to Provide for Referendums on the

130 Patrick Boyer, Direct Democracy in Canada: The History and Future of Referendums, Toronto, Dundurn Press, 1992, p. 10. See also Patrick Boyer, The People’s Mandate: Referendums and a More Democratic Canada, Toronto, Dundurn Press, 1992, p. 3 (“Canada has remained a timid democracy. The establishment that has run our country has proceeded comfortably – not always in the interests of the people, nor indeed of the country itself – supported by Canadian’s deference to authority and a strange willingness to be passive spectators in our own land.”) 131 See especially, Boyer, The People’s Mandate, id., 13-21. See also Stéphane Dion, Rising Cynicism: Who Is to Blame?, Canadian Parliamentary Review (Winter 1993-94), 33-35, available at www.revparl.ca/english/issue.asp?param=147&art=981; David E. Smith, A Question of Trust: Parliamentary Democracy and Canadian Society, Canadian Parliamentary Review (Spring 2004), 2429, available at www.revparl.ca/27/1/27n1_04e_Smith.pdf. 132 Boyer, The People’s Mandate, id., 6. 133 Instruments of direct democracy in Canada and Quebec, 3rd ed., 2001, available at www.electionsquebec.qc.ca/documents/pdf/dge_6350.3_v.a.pdf, 12. 134 “The Constitution of Canada includes (a) the Canada Act 1982, including this Act; (b) the Acts and orders referred to in the schedule; and (c) any amendment to any Act or order referred to in paragraph (a) or (b).” 135 Boyer, Direct Democracy in Canada, op. cit., 14-16. 136 Prohibition Plebiscite Act, S.C. 1898, 61 Victoria c. 51; Dominion Plebiscite Act S.C. 1942-43, c. 1.

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Direct Democracy in Comparative Law Constitution of Canada (Referendum Act),137 which provided the legal basis for the third national referendum and is now available for future national referendums “on any question relating to the Constitution of Canada”.138 According to the Act, a referendum may be held only at the behest of the government; the people have no power to initiate a referendum on a constitutional question. The Act specifies the legislative procedure for the adoption of a motion of referendum by Parliament, establishes responsibilities and procedures for the conduct of the referendum election, lays out detailed rules for the formation and operation of “registered referendum committees”, regulates the expenses of and contributions to registered referendum committees, and establishes rules for radio and television broadcasts relating to the referendum campaign. The 1898 referendum posed the question: “Are you in favor of the passing of an Act prohibiting the importation, manufacture or sale of spirits, wine, ale, beer, cider and all other alcoholic liquors for use as beverages?” About 44% of eligible voters cast ballots. There was a small majority in favour of prohibition (278,487 favoured prohibition and 264,571 were opposed). Prohibition won in all provinces except Quebec, where it was overwhelmingly defeated (122,614 to 25,582). The question of the prohibition of alcoholic beverages was highly controversial and raised strong emotions throughout Canada at that time. Patrick Boyer regards the 1898 referendum positively from the perspective of participatory democracy. Although not binding, it finally gave a full opportunity to everyone to come forward and have their say. No longer were arguments and facts confined in their presentation to assemblies of the like-minded. The country erupted, not in a rampage of mob rule, but in a profoundly democratic exercise.139 Given the close margin of the vote and the clear rejection of prohibition by Quebec, the Canadian government decided not to move for prohibition at the national level, but rather to leave the question up to the provinces individually. Soon after, all provinces but Quebec adopted prohibition laws. In 1942 Canadian voters were presented with a national referendum regarding conscription. The issue was highly controversial in Canada, especially in the province of Quebec, where national conscription had been strongly resented historically. The government elected in 1940 had pledged during the electoral campaign that it would not institute 137 S.C. 1992, c. 30. 138 Id., Section 3(1) of the Act provides: “Where the Governor in Council considers that it is in the public interest to obtain by means of a referendum the opinion of electors on any question relating to the Constitution of Canada, the Governor in Council may, by proclamation, direct that the opinion of electors be obtained by putting the question to the electors of Canada or of one or more provinces specified in the proclamation at a referendum called for that purpose.” 139 Boyer, Direct Democracy in Canada, op. cit. 24.

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conscription for overseas military service. The situation in Europe, especially the grave threat to Great Britain, convinced the Canadian government that it might need to send combat troops abroad. So the government sought to be released from its election pledge. The question posed to Canadian voters was: “Are you in favor of releasing the government from the obligation arising out of any past commitments restricting the methods of raising men for military service?” The vote in favour of releasing the government from its pledge was 2.95 million to 1.65 million. All of the provinces except Quebec voted to release the government from its pledge. Quebec voted overwhelmingly (78.9% ‘no’ votes) not to release the government. The referendum proved politically useful to the government by allowing it to argue that it took the will of the people into account and by giving it time to defuse the conscription issue.140 The 1992 referendum in nine of the ten provinces was conducted pursuant to the recently enacted Referendum Act. The referendum in Quebec was conducted separately, pursuant to its own authorizing legislation. The question posed was the same in the Quebec referendum and in the national referendum: “Do you agree that the Constitution of Canada should be renewed on the basis of the Agreement reached on August 28, 1992?” That question allowed voters to express their opinion with respect to the constitutional changes proposed by the Charlottetown Accord, an agreement reached by the prime minister and government of Canada and the prime ministers and governments of all the provinces. The Accord represented a reconfiguration of the balance between the powers of the provinces (by providing for equal representation of all provinces in an elected senate), the adoption of a Charter of Rights, and the recognition of Quebec as “a distinct society within Canada”. Quebec was also accorded a variety of rights and powers, like a guarantee of 25% of the seats in the House of Commons and the Senate, a guarantee of three judges on the nine member Supreme Court of Canada, and a transfer of jurisdiction over a number of specified matters from the national government to the government of Quebec. Overall the national vote was 44.8% in favour of the Accord and 54.2% opposed. The vote in Quebec was 55.4% against the Accord and 42.4% in favour. The vote in the most populous province of Ontario was an almost evenly divided: 49.8% ‘yes’ versus 49.6% ‘no’. According to Canadian constitutionalist Peter Hogg, “The referendum result […] brought to an end the search for a constitutional accommodation of Quebec […] and led to a resurgence in the popular support for the separatist movement in Quebec.”544

140 Boyer, Direct Democracy in Canada, op. cit. 42.

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3.2.3

Quebec: la société distincte 141

The province of Quebec is very different from the nine other provinces of Canada: linguistically, religiously, culturally, in its legal system, as well as its historical experience, particularly its ‘Conquest’ by the English in 1760. From that time to today, Quebec and rest of Canada have been trying to work out the appropriate constitutional and legal relationship to deal with these differences. It is instructive to note here the views expressed by Alexis de Tocqueville in the 1830s. According to Tocqueville, “I don’t believe that they [the French and the English] will ever merge into an indissoluble union.”142 More specifically, he writes, The [French] Canadiens form a separate people in America, a people which has a distinct and inveterate nationality […], which has its language, its religion, its laws, its customs, which is more compact than any other population in the new world, who might be able to be conquered, but not integrated, by force into the Anglo-American race.143 This difference has been given legal recognition since the Quebec Act of 1774. As Canada was moving to finalize its constitutional independence from Great Britain during the 1970s and 1980s (culminating in the Canada Act of 1982) and more recently to work out the constitutional implications of that independence, Quebec sought to secure clear constitutional recognition of its difference from the other provinces of Canada as well as Constitution-based protections for those differences.144 In 1980, just before the major constitutional changes that occurred in 1982, a referendum was held in Quebec on a question adopted by the National Assembly of Quebec proposing that the government of Quebec enter into negotiations with the rest of Canada to allow Quebec to be a sovereign state, but associated economically with the rest of Canada (what was called “Sovereignty-Association”).145 Quebec voters rejected this proposal: 60% voted ‘no’, and 40% voted ‘yes’. 141 See generally Brian O’Neal, Distinct Society: Origins, Interpretations, Implications, Background Paper, Library of Parliament, 1995, available at https://bdp.parl.ca/content/lop/researchpublications/bp408-e.htm. See also Peter W. Hogg, Constitutional Law of Canada, Toronto, Carswell, 5th ed. supplemented, 4-10 – 4-11. 142 Alexis de Tocqueville, Tocqueville au Bas-Canada: Écrits datant de son voyage en Amérique et après son retour en Europe, 1831 à 1859, Montreal, Les Éditions du Jour, 1973, 61, available at http://classiques.uqac.ca/classiques/De_tocqueville_alexis/au_bas_canada/tocqueville_au_bas_canada.pdf. 143 Id., 123. 144 For Quebec’s view of the history of the legal relationship between Quebec and the rest of Canada from the Royal Proclamation of 1763 to the present see Gouvernement du Québec, Québec’s Political and Constitutional Status: An Overview, 1999, available at www.sqrc.gouv.qc.ca/documents/institutions-constitution/statutpolitique-qc-en.pdf. 145 “The Government of Québec has made public its proposal to negotiate a new agreement with the rest of Canada, based on the equality of nations; this agreement would enable Québec to acquire the exclusive power to make its laws, levy its taxes, and establish relations abroad – in other words, sovereignty – and at

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Soon afterward, in 1982, the Canada Act and the Constitution Act, 1982 came into force effectuating important constitutional changes. Quebec, however, refused to approve these measures and maintained that the Canadian Constitution could not be amended without its consent. The Canadian Supreme Court, however, decided otherwise.146 Nevertheless, Quebec refused to participate in subsequent constitutional adjustments called for by the Constitution Act, 1982 and opted out of the provisions of the Charter of Rights to the maximum extent possible.147 To respond to Quebec’s concerns, the prime minister of Canada and the ten provincial prime ministers agreed in the Meech Lake Accord of 1987 to insert language into the Constitution Act, 1867 that would have explicitly recognized Quebec as different from the rest of Canada and accorded power to the National Assembly of Quebec to protect Quebec’s distinctiveness. However, the Meech Lake Accord was not effectuated due to the decision of two provinces not to agree to the constitutional changes. A later attempt to explicitly constitutionalize Quebec’s distinctiveness, the so-called Charlottetown Accord was rejected in a national referendum held in October 1992. In the Quebec provincial elections of 1994, the Parti Québécois, which had pledged to hold a referendum on independence if elected, was victorious. The referendum question posed to Quebec voters in October 1995 was: Do you agree that Quebec should become sovereign after having made a formal offer to Canada for a new economic and political partnership within the scope of the bill respecting the future of Quebec and of the agreement signed on June 12, 1995? Quebec voters only narrowly rejected sovereignty (50.6% to 49.4%). Reacting to the extremely close vote in Quebec, the federal House of Commons approved a resolution introduced by the national government to respond to Quebec’s concerns for its place in the Canadian governmental system. That resolution recognized Quebec as “a distinct society”.148 The resolution is of doubtful legal significance. It will certainly have no bearing the same time, to maintain with Canada an economic association including a common currency; no change in political status resulting from these negotiations will be effected without approved by the people through another referendum; on these terms, do you give the Government of Québec the mandate to negotiate the proposed agreement between Québec and Canada?” 146 Reference re Amendment of Constitution of Canada, [1981] 1 S.C.R. 753 (Patriation Reference); Reference re Amendment of Canadian Constitution, [1982] 2 S.C.R. 793 (Quebec Veto Reference). 147 “Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act of a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.” Constitution Act, 1982, Section 33(1). See also Peter Hogg,1 Constitutional Law of Canada, 4-8. 148 “Whereas the People of Quebec have expressed the desire for recognition of Quebec’s distinct society: (1) the House recognize that Quebec is a distinct society within Canada; (2) the House recognize that Quebec’s distinct society includes its French-speaking majority, unique culture and civil law tradition; (3) the House

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undertake to be guided by this reality; (4) the House encourage all components of the legislative and executive branches of government to take note of this recognition and be guided in their conduct accordingly.” Resolution of the Parliament of Canada recognizing Quebec as a distinct society within Canada. Parliament of Canada, Journal No. 267, 16971 (Nov. 29, 1995). But see Melvin Smith, The Implications of Recognizing Quebec as a Distinct Society in the Constitution, Public Policy Sources, No. 7 (1997), available at http://oldfraser.lexi.net/publications/pps/7/ (arguing that a ‘distinct society’ clause for Quebec in the Constitution itself would have a significant impact on the interpretation of the Constitution). Act respecting constitutional amendments (regional veto), S.C. 1996, c. 1. Motion adopted 11 November 2006. Pierre Marquis, Referendums in Canada: The Effect of Populist Decision-Making on Representative Democracy, Library of Parliament, 1993, 13, available at www.parl.gc.ca/content/lop/researchpublications/bp328-e.htm.

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provided governments with a convenient mechanism form backing out of commitments while shifting responsibility to the electorate.153

3.2.4

Direct Democracy at the Provincial Level

In its 1912-1913 legislative session, the Saskatchewan legislature adopted the first provincial legislation to permit direct democracy, the Direct Legislation Act. The Act provided for both voter initiated legislation and referendum. Shortly thereafter, Alberta enacted its own Direct Legislation Act (March 1913), also allowing voters to initiate legislation and to vote in referendums. Manitoba’s Initiative and Referendum Act (1916) and British Columbia’s Direct Legislation Act (1919) soon followed. These acts, however, had little effect. The 1913 Saskatchewan act was repealed later that same year. The Alberta act, although it survived a constitutional challenge in 1922, was rarely used and eventually repealed in 1958. The Manitoba act was held to be unconstitutional in 1919. The British Columbia act essentially became moot after the 1919 decision on the unconstitutionality of the Manitoba act. Lacking for the most part general initiative and referendum legislation, the provinces from time to time enacted specific laws to submit a single question to voters. These referendums, although not initiated by voters and not binding, allowed voters to express their views on some important and controversial issues, thereby complementing the normal legislative process. Provincial referendums, however, have been infrequent. Between 1878 and 2000, there were only 56 provincial referendums, and more than half of them (33) dealt with the prohibition or regulation of alcoholic beverages.154 Some of these referendums, however, were significant and did help to resolve important contemporary public policy issues. According to Patrick Boyer: Canadians in various provinces from 1916 to 1992 have gone to the ballot box to render a verdict on, among other matters, whether women should vote [British Columbia, 1916], whether a public health insurance program should be implemented over doctors’ objections [British Columbia, 1937], when provinces should join or separate from Confederation [Newfoundland, 1948], whether clocks should run on fast or slow time [British Columbia, 1952; Saskatchewan, 1956; Alberta, 1967 and 1971], whether power companies should be government owned [Alberta, 1948], whether agricultural products should be marketed one way or another [Manitoba, 1951; Ontario, 1957], whether a 153 Id., 15. 154 App. I – Referendums held in Canada, in Instruments of direct democracy in Canada and Quebec, 3rd ed., 2001, available at www.electionsquebec.qc.ca/documents/pdf/dge_6350.3_v.a.pdf, 65-67.

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causeway should be built to PEI [Prince Edward Island, 1988], whether Frenchlanguage rights in Manitoba should be set aside [Manitoba, 1983], whether the Government of Saskatchewan should pay for abortions [Saskatchewan, 1991], whether the Northwest Territories should be divided [Northwest Territories, 1982, 1992] and even whether new instruments of direct democracy should be created by statute in BC [British Columbia, 1991] and Saskatchewan [Saskatchewan, 1991].155 Between 2000 and 2014, there were ten provincial referendums held in six provinces (Ontario, British Columbia, Nova Scotia, Newfoundland and Labrador, New Brunswick, Prince Edward Island) on a variety of questions: electoral reform, gaming, Sunday shopping, taxation, and public education. All the provinces, except Ontario, now have legislation that provides for referendums at the provincial level, although the statutes vary from province to province.156 Some allow referendums on “any matter of public interest or concern”, but a few allow for referendums only on specific matters. In only one province, Saskatchewan, do voters have the right of initiative.157 In the others, referendums must be proposed by certain designated public officials, such as the province’s Lieutenant Governor or Minister of Justice. Also, in most cases the referendum is not binding. Saskatchewan, again, accords more influence to the voters: a referendum is binding if more than 60% of the votes cast in a referendum support it, but to be binding at least 50% of the electors entitled to vote in the referendum must do so. Particularly significant provincial referendums, with major constitutional implications for the particular province as well as for Canada as a whole, took place in Newfoundland on 3 June 1948 and 22 July 1948 and in Quebec in 1980, 1992, and 1995. The referendums in Quebec were considered in the previous section. The two Newfoundland referendums of 1948 were held to determine what form of government the inhabitants of Newfoundland

155 Boyer, Direct Democracy in Canada, op. cit., 96. 156 Alberta, Constitutional Referendum Act, R.S.A. 2000, c. C-25; Alberta, Election Act, R.S.A. 2000, c. E-1, Sect. 128; British Columbia, Constitutional Amendment Approval Act, R.S.B.C. 1996, c. 67; British Columbia, Referendum Act, R.S.B.C. 1996, c. 400; Manitoba, The Balanced Budget, Fiscal Management and Taxpayer Accountability Act, S.M. 2008, c. 44; C.C.S.M. c. B5, Section 10(1) (referendum required for tax changes); Quebec, Referendum Act, R.S.Q. 1978, c. C-64.1; New Brunswick, Elections Act, R.S.N.B. 1973, c. E-3, Sect. 129; Nova Scotia, Liquor Control Act, R.S.N.S. 1989, c. 260, Sect. 43 (allows referendum on matters related to the sale of alcoholic beverages); Prince Edward Island, Plebiscites Act, R.S.P.E.I, 1988, c. P-10; Saskatchewan Referendum and Plebiscite Act, R.S.S. 1990-1991, c. R-8.01 (Section 7 allows citizens to initiate a plebiscite, the only province to do so). Plebiscites may also be held in Canada’s territories. See, e.g., Northwest Territories, Elections and Plebiscites Act, S.N.W.T. 2006, c. 15; Nunavut, Plebiscites Act, S.Nu. 2013, c. 25. 157 The Minister of Justice must direct a plebiscite when he or she receives a petition, signed by at least 15 per cent of the electors, requesting that a question concerning a matter within the jurisdiction of the government be put to electors.

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wanted.158 At that time Newfoundland was not part of Canada, but a British colony. In 1934, because of serious financial difficulties that the colony was experiencing, the British replaced Newfoundland’s representative government with an appointed Commission with both executive and legislative powers. In effect Newfoundland was ruled directly from London. As finances improved, Great Britain decided to restore representative government: but what form of government should be established? The British suggested a referendum, which was held in June 1948. Three options were presented to Newfoundland voters: (1) continuation of Commission government, (2) confederation with Canada, or (3) return to “responsible government” as it existed in 1933 (which meant de facto independence for Newfoundland within the British Empire). None of the three options obtained a majority in the June 1948 vote (responsible government – 44.5%; confederation with Canada – 41.1%; Commission government – 14.3%). Six weeks later, a run-off referendum was held offering Newfoundlanders the choice between the top two options: responsible government or confederation with Canada. After a vigorously contested campaign, Newfoundlanders voted 52.3% for confederation and 47.4% for responsible government. Despite the closeness of the vote, Canada accepted Newfoundland as its tenth province and the British, anxious to be relieved of responsibility for its financially stressed colony, strongly supported confederation with Canada. Newfoundland officially joined Canada on 31 March 1949. It is noteworthy that no referendum was ever held on Newfoundland’s joining the Canadian confederation in the other nine Canadian provinces.

3.2.5

Direct Democracy at the Municipal Level

According to the Canadian political scientist Louise Quesnel, “[m]unicipal politics in English Canada is characterized […] by a non-partisan approach, absence of the party system and by a decision-making process whose goal is consensus, even in large cities”.159 Given these attitudes to local politics, she continues, instruments of direct democracy, like the referendum, are “not the best formula for protecting solidarity and favouring the emergence of the common interest; [they have], moreover, the distinct disadvantage of furthering anonymity and isolation”.160 Nevertheless, even in the non-partisan, consensus-building spirit of Canadian municipal government, direct participation of citizens in the determination of municipal policy

158 See Patrick Boyer, Direct Democracy in Canada, 119-123; Instruments of direct democracy in Canada and Quebec, 3rd ed., 2001, supra n. 553, 21-22; Neil Penney, The Parliamentary Tradition in Newfoundland, 4 Canadian Parliamentary Review, No. 2, 1981, 14-15, available at www.revparl.ca/4/2/04n2_81e_Penney.pdf. 159 Louise Quesnel, Public Consultation: A Tool for Local Democracy, Toronto, ICURR Press, 2000, 2, available at www.muniscope.ca/resource/dm/840914306166201858.pdf?n=file_Public_consultation.pdf&inline=yes. 160 Id. (citing Jane J. Mansbridge, Beyond Adversary Democracy, Chicago, The University of Chicago Press, 1983, 275).

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may play a useful role. In Canadian cities that role has usually taken the form of ‘consultation’ rather than the adversarial initiative and referendum process. Some cities have established residents’ committees and neighbourhood councils to permit the expression of the views of the people as part of the municipal policy-making process. In all cases, however, the role of these committees and councils is merely ‘consultative’ or ‘advisory’. Actual decision-making authority remains the exclusive province of elected municipal officials. The foremost examples are the Resident Advisory Groups established by the city of Winnipeg in 1971 and neighbourhood councils established in Montreal in 1989 (name later changed to District Advisory Committees) and in Quebec City in 1993. These consultative groups take different forms. In Quebec City, for example, members are elected by the people; in Montreal, members are appointed by the city council and are best viewed as subcommittees of the council. The legal basis for the participation of the public in the municipal policy-making process is found in provincial legislation, either in a general law (like a Municipal Act), in a special law (like a Planning Act), or in a city charter approved by the provincial legislature.161 Most provincial laws allow a municipality to conduct a referendum on any subject within the jurisdiction of the municipality. Only three provinces allow municipal referendums to be initiated by voter petition (British Columbia, Alberta, and Saskatchewan); in the others, municipal referendums must be proposed by the municipal council. In all provinces except Saskatchewan and New Brunswick, referendums are not binding; they are consultative only, although some provinces require binding referendums for municipal borrowing which exceeds a certain level (British Columbia, Quebec, New Brunswick). Specific requirements (like public hearings or obligatory referendums) exist for other types of municipal actions (e.g., the adoption and amendment of planning and zoning by-laws, municipal amalgamation, or local improvement projects).

161 See, e.g., British Columbia, Local Government Act, R.S.B.C., 1996, c. 323; Vancouver, Vancouver Charter, S.B.C., 1953, c. 55; Alberta, Municipal Government Act, R.S.A,. 2000, c. M-26; Saskatchewan, Urban Municipality Act, R.S.S., 1983-1984, c. U-11; Manitoba, Municipal Act, 1996, C.C.S.M., c. M225; Ontario, Municipal Act, 2001, S.O., c. 25; Quebec, Loi sur les élections et les référendums dans les municipalités, 1987, R.L.R..Q., c. E-2.2. For a useful discussion of the legal relationship between provincial and municipal authorities, see Donald Lidstone, Assessment of the Municipal Acts of the Provinces and Territories (2004), available at www.fcm.ca/Documents/reports/Assessment_of_the_Municipal_Acts_of_the_Provinces_and_Territories_EN.pdf.

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3.3

3.3.1

Referendum and Direct Democracy in America

Latin America

Introduction

The apparent novelty represented by the integration of various mechanisms of direct democracy in the more recent constitutions of Latin American republics could lead to the hasty and erroneous conclusion that in the region the direct involvement of citizens in political issues is limited to the vote and is expressed only at the time of elections. It may be true that the current constitutions, in comparison to those successively in force over the two centuries of these republics’ existence, display the greatest number of provisions for the definition and the control of such mechanisms. Nevertheless, it is equally true that, in the course of the principal historical events characterizing some of these republics, direct popular participation has played a fundamental role in the constitution, the consolidation and the safeguarding of political and judicial institutions, together with the preservation of democratic forms, notwithstanding the many challenges arising, then as now, from their complex historical evolution. The passage from monarchy to republic must necessarily be accomplished through the will of the citizens: no liberating impulse would have been possible or could have lasted in the absence of or in opposition to this. Among the former Castilian institutions the cabildo emerged, which for three centuries constituted the principal foundation for the government of Latin America. In such a vast and far-flung territory the power of the king is mediated by local authorities composed of the inhabitants who, acting together in the cabildo, administer government, justice and the common good. This extensive local power in America was to lead to the adoption of a federal system in many of the republics and, in any case, to a marked conflict – still not fully resolved even in the case of today’s unified republics – with the concept and the exercise of centralized power. Spanish America reacted, largely through the instrument of its cabildos, to the power vacuum in the Spanish monarchy caused by the absence of Ferdinand VII, detained in France. On the 20th of July 1810 the cabildo of Santa Fe, in an emergency session, opened its doors to the city’s population in order to debate the need to assume control of the city, even if temporarily, thus giving rise to the foundation of what was to become the republic of Colombia. In the course of that session it was acknowledged that what took place was “on the basis of the fact that the population had assembled in the public square” in order to “preserve the Supreme Government of the Kingdom”. To that end the local residents of Santa Fe proclaimed the council member José Acedevo y Gomez as their representative, further setting up a deputation consisting of Manuel de Pombo, Miguel de Pombo and Luis Rubio, also local residents, in order to confer with the Viceroy Antonio José Amar y Borbon and to convey to him their requests, among them the request to make arms available

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to the assembly, to which he acceded. In this manner the cabildo entrusted the supreme power in the kingdom to an interim governing Junta, to the acclamation and approval of the population. This Junta was to wield political power until the adoption of a constitution. The cabildos of the other cities in the New Kingdom of Granada made their own choices, some joining with Santa Fe, others preferring the idea of a Granadine Confederation, while most remained loyal to the monarch, refusing to take part in any of these political developments. Following the separation from the Castilian monarchy the other viceroyalties, capitanías generales and presidencias, in the troubled historical process which led to their transformation into republics numerous internal conflicts arose during the frenetic and bloody nineteenth century. In the case of the Republic of Colombia the sequence of short-lived constitutions and failed projects culminated in the constituent process of 1886 from which emerged the Charter which guided its development for more than a century and which permitted the formulation of a common purpose. The participation of the citizenry played a fundamental role in this process, given that in each municipality, in line with the tradition of the cabildo, this was how those principles were sanctioned which provided the general guidelines for the National Council of Delegates and for the procedures followed by the constituent body. The “Acuerdo sobre reforma constitucional” of 30 November 1885 in effect constituted the basic law of the Republic, its eighteen principles forming the pillars underpinning the 1886 constitution. The binding nature and the legitimacy of these principles were derived specifically from their popular approval, as is made explicit in the third article of Chapter II of the agreement concerning the implementation of the constituent process. It was the citizens of the time who approved the Fundamental Law of the Republic in the first referendum in its history. Only 14 of the existing 605 municipalities failed to approve it, and many citizens in these made depositions to the Supreme Court of Justice, which acted as scrutineer. The two brief and unfortunate interludes in the democratic tradition of the Republic of Colombia which occurred in the twentieth century yielded important lessons for the citizenry. The first, at the beginning of the century, saw the dissolution of Congress and the appointment, performed in the name of the people but without consultation, of a constituent legislative assembly. This episode taught the citizens the need for popular control of political power in order to ensure legitimacy and taught the political parties their duty to rise above political factions to safeguard democracy. These two factors together gave birth to Republicanism, whose principal legal legacy is the Acto Legislativo n.3 of 1910, with its modification of the political constitution in order to introduce systems for the control of constitutionality of the law, in line with the visionary proposal of Assembly member Nicolas Esguerra Ortiz. To this day, 105 years later, any citizen may initiate a public instance of unconstitutionality and consequently ask the Constitutional Court to declare the inapplicability of any law or act having legal force which is in conflict with the

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constitution. This tradition of control, guaranteed by an independent Constitutional Court and by an active and critical citizenry, has characterized more than half of the Republic of Colombia’s constitutional history. In the fifth decade of the century much was likewise asked of the citizens and the political parties, the leaders being obliged to set aside factions and squabbling in order to reach an agreement of cooperation known as the agreement of the Frente Nacional. Citizens, including women for the first time in republican history, were charged with the responsibility of giving their verdict on the approval of this agreement on the first Sunday of 1957, in the second referendum of the Republic’s history. The Constitution was approved and the crisis was averted on thanks to the citizens’ volition.162 Popular participation is also at the root of Colombia’s existing constitution. The process which led to the creation of the Constituent Assembly arose out of a student movement which at the time of the elections on 11 March 1990 attempted to include in the ballot a “septima papeleta” with the aim of supporting the proposal for the convocation of such an Assembly. These ‘papeletas’ were counted unofficially and the over two million votes in favour marked the beginning of the sequence of events which concluded with the promulgation, on 4 July 1991, of the political Constitution. Almost half of the documents issuing from the deliberations of the assembly and published in the Constitutional Gazette contain a variety of projects presented by citizens. In this constitution, as we shall see, the participation of the citizens in the constitution, exercise and control of political power plays a predominant role.

3.3.2

The Right to Participate in the Constitution, Exercise and Control of Political Power

States which acknowledge democracy as the system of interaction between the people and the public authorities must face complex challenges in order to arrive at an appropriate organization of their own multiple elements. In effect, the means of coordinating typical institutions of representative democracy – serving normally to regulate the processes for election of representatives together with the procedures for the implementation of relevant decisions made by them – and participative democracy, whose aim is to extend the scope for the intervention of citizens in the management of public affairs so as to permit them to take their own independent decisions, is not always by any means simple. For example, complex theoretical issues are raised as well as practical questions relating to (i) which decisions can be taken exclusively by elected representatives, and which directly by citizens; (ii) who takes the initiative in processes of drafting legislation; (iii) whether it is possible for electors or elected to reverse a decision taken by the other party, as happens, for example, in cases involving acknowledgement of the legitimacy of a referendum for the 162 This referendum was called plebiscite.

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repeal of a reform approved by Congress, or (iv) in which circumstances is the people’s intervention required in order to resolve a conflict between public authorities. In the same way tough questions arise in relation to (v) the scope for control of public authorities on the part of citizens and (vi) the relation between these citizens and state bodies charged with controlling the operations of the state. Beyond this general consideration relating to the tensions within representative democracy and questions concerning participative democracy, it is important to establish an analytical distinction within democracy depending on whether or not the participation of citizens has as its aim the constitution, exercise and control of political power, where some Constitutional Courts discriminate between democracy as representation, or as decision-making, or as control.163 To each of these dimensions is connected a combination of constitutional rights of various types whose recognition is, on the face of it, essential for a democratic system. Thus, for example, democracy understood as representation (constitution of political power) implies the right to take part in elections of representatives for public institutions or for individual positions, together with the right to stand as a candidate. In turn, democracy understood as decision-making (the exercise of political power) implies various types of rights among which are numbered, for example, the right of regulatory initiative in relation to public bodies, the right to foster mechanisms for regulatory modification through participation in the relevant decisions, or the right to decide questions submitted to the citizenry by public bodies. Lastly, democracy in the sense of control (control of political power) implies a number of guarantees such as the right to initiate legal action in defence of the Constitution or the law; the right to revoke the mandates of elected officials when they have failed to pursue the programs proposed by the citizens; the right to take part in cabildos abiertos or in processes of reporting back on investigations of the management activities performed by the authorities, and the right to participate in the preparation of budgets and, in general, to keep a check on the actual public management activities performed by the various authorities. It is thus clear that one of the most critical challenges in regard to democratic systems operating within states, which assign a growing number of obligations on public authorities in pursuance of their objectives, consists in the reinforcement of participative democracy and of all matters relating to those aspects of democracy interpreted either as the exercise or as the control of political power. An examination of Latin American constitutional texts leads us to conclude that many of these aspects of democracy are recognized, to a greater or lesser extent and through a variety of instruments. In this manner are regulated both the traditional institutions of representative democracy and the complex forms of direct or semi-direct democracy which allow citizens not only to take direct control of decisions 163 See, e.g., ruling C-150/2015 of Colombia’s Constitutional Court.

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but also to take initiatives designed to control or fulfil a consultative role in regard to the activities of those exercising political power. Participative democracy strengthens the narrow requirement whereby sovereignty is rooted in the people and even if its exercise can be delegated to representatives, the citizens nevertheless retain the faculty of expressing themselves directly. This possibility of unmediated exercise raises numerous problems in regard to (i) the manner in which its expression is to be formalized, (ii) the relations which must be established between the direct verdict of the people and the tasks of implementation assigned to elected officials. Thus, for example, the guidelines provide for differing rules depending on the questions which may be the subject of a referendum, thus postulating high levels of confidence in regard to citizens’ capability to pronounce on particularly complex matters or, in other cases, fixing limits to the scope for their intervention depending on the nature of the decision. In the same way, the rules regarding levels of support for various initiatives are far from uniform, displaying differences in terms of the percentage of electors needed to approve a given initiative as well, in some cases, as on the voter turnout. Citizens’ participation in the sense of control is also characterized by numerous variations, at least on the constitutional level. In some cases, among political rights, citizens’ right to participate in certain public questions in a controlling role is recognized in a highly explicit manner while in other cases this is not made explicit. Latin American democratic models also allow, to some extent and at least in formal terms, citizens’ faculty of keeping check on public affairs and of instituting mechanisms of control and of sanction applied to public authorities, over and above that represented by periodic elections. This applies, for example, in cases where the right of recall (revocatoria del mandato) of elected officials is recognized on the basis of various guidelines. In these cases the people, having voted, may exercise the right of recall in relation to those who, for example, have not kept the promises made during the election campaign, thus not respecting the mandate granted by those who had exercised the right of voting. The present work is concerned principally with describing, in general terms and from the point of view of their participative aspects, the key elements towards an understanding of democratic systems. In this context the central concern is the mechanisms at the disposal of the citizens for the exercise of political power through active initiatives, for decisionmaking on questions which may affect them and for the effective control of political authority through checks on the activities of state bodies and public authorities. Consideration of the existing framework does not suggest the existence of any degree of homogeneity between the various jurisdictions. On the contrary, clear legislative differences emerge concerning (i) the degree of constitutional recognition afforded to mechanisms of citizen participation; (ii) the level at which the latter can be expressed; and (iii) the circumstances in which recourse to the people is contemplated in the context of republican constitutions.

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This work therefore aims to provide an overview of the topic in order to make a contribution to the description of the status quo in this regard.

3.3.3

Popular Exercise of Political Power

Direct democracy, in the sense of popular exercise of political power, displays three judicial elements worthy of note in the constitutions of Latin American republics: (i) the clause defining the social and democratic state under the rule of law, (ii) the political rights of the citizen, (iii) mechanisms of participation as such. In the following pages, these will be dealt with in relation to each country, in alphabetical order. The clause regarding the social and democratic state under the rule of law is formulated in the following ways: Argentina has a federal republican representative government;164 Bolivia is a unitary social state under the rule of law, plurinational, communal, free, independent, sovereign, democratic, intercultural, decentralized, with autonomous elements;165 Brazil is a democratic state under the rule of law;166 Chile is a unitary167 and democratic republic;168 Colombia is a social state under the rule of law organized in unitary form, decentralized, democratic, participative and pluralist;169 Costa Rica is a democratic, free and independent republic170 with a popular, representative, participative, alternative and responsible form of government;171 Ecuador is a social state under the rule of law, sovereign, unitary, independent, democratic, pluricultural and multi-ethnic;172 Salvador is a sovereign state173 with a popular, republican, democratic and representative form of government;174 Guatemala is a free, independent and sovereign state, whose system of government is republican, democratic and representative;175 Honduras is a sovereign state under the rule of law, constituted as a liberal, democratic and independent republic;176 the Dominican Republic is a social and democratic state under the rule of law,177 whose people may exercise their political power through their representatives or directly;178 Mexico is a representative,

164 165 166 167 168 169 170 171 172 173 174 175 176 177 178

Art. 1 of the Constitution. Art. 1 of the Constitution. Art. 1 of the Constitution. Art. 3 of the Constitution. Art. 4 of the Constitution. Art. 1 of the Constitution. Art. 4 of the Constitution. Art. 9 of the Constitution. Art. 1 of the Constitution. Art. 83 of the Constitution. Art. 85 of the Constitution. Art. 140 of the Constitution. Art. 1 of the Constitution. Art. 7 of the Constitution. Art. 2 of the Constitution.

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democratic, lay and federal republic;179 Nicaragua has a representative democratic government;180 Panama is a sovereign independent state with a unitary, republican, democratic, representative government;181 Paraguay is a social state under the rule of law, unitary, indivisible and decentralized, which adopts a representative, pluralist and participative democracy for its government;182 Peru is a democratic, social, independent and sovereign republic;183 Uruguay has a republican democratic government184 and Venezuela is a democratic social state of law and justice.185 The majority of the constitutions of Latin American republics acknowledge that sovereignty resides in the people, excepting those of Chile and Costa Rica, where reference is made to the Nation. The fact that in some republics the people are sovereign while in others it is the Nation is immaterial as regards the popular exercise of political power, given that the latter depends on the political model adopted, which may be representative, participative or mixed. This largely depends on the political rights accorded to citizens and on the instruments or mechanisms available for the direct exercise of this power. The history of each of the Latin American republics has encouraged the emergence of various institutions relating to the rights and mechanisms for the democratic participation of citizens, deriving from a shared set of characteristics. In the Republic of Argentina, possibly due to the recurring and unfortunate interruptions in its democratic tradition, citizens are afforded the “right of resistance” in the face of active threats to its institutional arrangements and democratic system.186 As regards direct democracy, allowance is made for the popular legislative initiative187 and for two types of popular consultation:188 binding (i.e., relating to bills before parliament and introduced by Congress at the instigation of the Chamber of Deputies; if approved the bill is converted to a law which is automatically enacted) and non-binding, which can be proposed by Congress or by the President in accordance with their differing areas of competence. In this case the popular vote is not binding. In the Republic of Bolivia, which has a large native population, democracy is participative, representative and communal. Communal democracy and, in general, the term ‘communal’ also when used in other contexts, refers to native nations and peoples. In this context the citizens have the right to participate in the constitution, the exercise and the

179 180 181 182 183 184 185 186 187 188

Art. 40 of the Constitution. Art. 9 of the Constitution. Art. 1 of the Constitution. Art. 1 of the Constitution. Art. 43 of the Constitution. Art. 82 of the Constitution. Art. 2 of the Constitution. Art. 36 of the Constitution. Art. 39 of the Constitution. Art. 40 of the Constitution.

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189 190 191 192 193 194 195 196 197 198 199 200

Art. 26 of the Constitution. Art. 11 II of the Constitution. Art. 240 of the Constitution. Art. 241 of the Constitution. Arts. 257 and 259 of the Constitution. Art. 294 of the Constitution. Art. 1 of the Constitution. Art. 14 of the Constitution. Art. 18 of the Constitution. Art. 49.15 of the Constitution. Art. 27 of the Constitution. Art. 61.2 of the Constitution.

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In the Republic of Chile the need to make recourse to the people arises not infrequently in relation to certain matters, and this is performed in a routine institutional manner, as in the case of the periodic elections. The plebiscite201 is the instrument of direct democracy used in these cases. In the plebiscite, the people will adjudicate on conflicts between the President of the Republic and the Congress in cases where the former does not ratify the laws passed in both chambers of the latter, which then reaffirms them with a qualifying majority202; the President of the Republic may then call a plebiscite as above,203 subject to constitutional approval by the Constitutional Court.204 Since a more detailed analysis regarding the Republic of Colombia will appear in a later section of this work, it appears superfluous to dwell on it here: the reader is referred to that section. In the Republic of Costa Rica citizens have the right of popular initiative on questions relating to amendment of the constitution as well as on legislative matters.205 Even if the regulation of such initiatives is submitted to the law, the Constitution specifies that the support of 5% of the electorate is required for the exercise of this right. Questions relating to the budget, issues of taxation or the approval of public debt, and administrative contracts or ordinances are excluded. In the Republic of Ecuador the predominant role of Presidential power in the formulation of democratic mechanisms is evident, possibly as a result of the continued and problematic crises of governability occurring over recent decades. Citizens have the right to express themselves on matters of public interest and consequently have a number of mechanisms of direct democracy at their disposal, such as the popular regulatory initiative, popular consultation and the recall.206 A popular initiative can be used to initiate the creation, revision or abrogation of legislation approved by the legislature or by any other organ possessing regulatory authority and must be endorsed by at least 0.25% of those registered on the relevant electoral roll. The body in question has 180 days to assess the proposal and, if no response is forthcoming, it will come into force. In cases regarding legislative bills the President has the power to make modifications, at least in part. Where proposed modifications to the constitution are involved they must be endorsed by not less than 1% of registered voters. No further proposals for revision of the constitution by popular initiative may be made for such time as the first is pending.207 Popular consultations are amply regulated since the President of the Republic may convene them “in regard to matters he deems opportune” on his own initiative or by request of autonomous regional 201 202 203 204 205 206 207

Arts. 5 and 15 of the Constitution. Art. 128 of the Constitution. Art. 32.4 of the Constitution. Art. 93 of the Constitution. Art. 123 of the Constitution. Art. 61 of the Constitution. Art. 103 of the Constitution.

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governing bodies or of the citizenry. This type of request cannot be referred to matters relating to taxation or the country’s administrative political organization and further, the matters to be submitted to the electors first pass scrutiny by the Constitutional Court.208 The recall may be applied to any authority elected by popular vote and may be initiated by at least 10% of those registered on the electoral roll after the first year of the mandate and before the last year. For the recall of the President of the Republic the support of at least 15% of those registered on the electoral roll is required. In the Republic of El Salvador, as in the case of Argentina and for similar reasons, the “right of insurrection” is recognized for purposes of re-establishing the constitutional order violated by the breaking of the rules in regard to the form of government, the established political order or serious breaches of constitutional rights.209 Notwithstanding this, in relation to direct democracy the Constitution does not provide for any mechanism for popular participation. Instead it reiterates that the democracy is representative and seeks to protect it through measures such as the prohibition on a single official party or the provision that parties must abide by the principles of representative democracy.210 In the Republic of Guatemala the situation of the citizens is very different, since political power is wielded by the people’s delegates,211 with no reference in the Constitution to any mechanisms of citizen participation. The only reference is to a specific right of petition in the political arena, which can be exercised exclusively by Guatemalan citizens. It is further stated that, in the absence of a response within 8 days, the petition is to be considered rejected.212 In the Republic of Honduras, in accordance with the constitutional amendment of 2011, citizens have at their disposal two mechanisms of direct democracy: the referendum and the plebiscite. A referendum can be invoked for the purpose of approving or rejecting an ordinary law as well as constitutional provisions or amendments. A plebiscite is called in order to elicit a decision from citizens in regard to constitutional, legislative or administrative questions which the authorities have not already pronounced on. A referendum or plebiscite initiative requires the support of 2% of the electorate. Congress must then examine the motion and determine the terms of the consultation – this being the closest in nature to the referendum or plebiscite – requiring a simple majority when relating to statutes, or a two-thirds majority in matters relating to constitutional legislation. Such consultations must preferably be organized on dates fixed for general elections. Participation is obligatory and for approval the level of participation must be not less than 51% of the participation registered at the last general election, with a majority of valid votes being in 208 209 210 211 212

Art. 104 of the Constitution. Art. 87 of the Constitution. Art. 85 of the Constitution. Art. 141 of the Constitution. Art. 137 of the Constitution.

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favour. Once approved the new legislation does not require Presidential endorsement and nor is it subject to Presidential veto. It must be published in order to come into force. Provisions resulting from the above-mentioned procedures can be waived or modified only by following the same steps as for their approval.213 In the Dominican Republic, whose constitution is also very recent, the citizens are accorded the right to invoke a popular legislative initiative as well as to deliberate on matters presented in a referendum, while also maintaining the right to make petitions to the public authorities.214 The popular legislative initiative requires the support of at least 2% of the electoral roll,215 while its other regulatory characteristics are determined by reference to the prevailing law. At the municipal level citizens may initiate plebiscites as well as popular initiatives and referendums. The regulation of these is determined by reference to the Organic Law of the local administration.216 The referendum, also referred to as popular consultation, is regulated by reference to the law. Notwithstanding this the constitution stipulates three rules in relation to referendums: of these the first two, as per Article 210 of the constitution, states that the referendum cannot have the aim of the confirmation or the recall of any authority, whether elected or nominated, and that the vote of 2/3 of members of both chambers is required for its approval. The third, as per Article 272 of the constitution, states that constitutional reforms in relation to rights, duties and fundamental guarantees, questions of territorial and municipal organization, rules on nationality, citizenship and non-citizens, the currency or constitutional amendment proceedings all require ratification by citizens through a referendum. In the Republic of Mexico, native peoples and communities are given a degree of autonomy217 within which the population is provided with various mechanisms for citizen participation in keeping with their specific traditions. As for other central American republics, citizens are accorded the right of petition in relation to political questions, and this right is reserved exclusively to citizens.218 The reforms of recent years, particularly those introduced in 2013 and in 2014, have introduced constitutional provisions for democratic organization in order to permit popular participation and consultation in the formulation, implementation, control and assessment of the development plan and programs.219 This innovation may be due at least partially, as already stated in relation to Bolivia, to the ILO’s treaty n.169, whose Article 7 provides for the participation of native and tribal peoples in planning. Apart from this mechanism, other forms of direct democracy

213 214 215 216 217 218 219

Art. 5 of the Constitution. Art. 22 of the Constitution. Art. 97 of the Constitution. Art. 203 of the Constitution. Art. 2 of the Constitution. Art. 8 of the Constitution. Art. 26 of the Constitution.

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Direct Democracy in Comparative Law available to citizens are the legislative initiative and the popular consultation.220 A minimum of 0.13% of those on the electoral roll have the right of initiative in regard to laws and decrees.221 The popular consultation, when related to questions of national relevance, may be invoked, inter alia, by a number of citizens equivalent to at least 2% of the electorate, without the need for authorization by a majority of either house of Congress. If the turnout comprises at least 40% of the electorate, the result will be binding for the authorities. Matters which cannot be decided by consultation include any limitation of human rights recognized in the constitution, the principles enshrined in Article 40 (see note 19), electoral matters, state revenue and expenditure, national security and organization and the operations and regulation of the standing army. The consultation takes place on the same day as the federal elections and prior to its organization the National Court of Justice must pronounce on its constitutionality.222 In the Republic of Nicaragua no mention is made of mechanisms of direct democracy other than a repetition of the formula, so common in this region of Latin America, whereby citizens have the right to present petitions for political ends.223 In the Republic of Panama both the popular initiative and the referendum are provided for in questions within the jurisdiction of the municipalities.224 The initiative may also be used in relation to the merging of two municipalities225 and to call a Parallel Constituent Assembly.226 The referendum on the other hand is specified in order to approve reforms to the constitution enacted by the National Assembly227 or the Parallel Constituent Assembly228 and to approve international treaties relating to the interoceanic canal.229 In the Republic of Paraguay what appear currently to be the most common mechanisms of direct democracy in Latin America, that is, the legislative initiative and the referendum, are recognized. Article 123 of the constitution acknowledges the right of popular legislative initiative, while leaving its regulation to the law. On the subject of the referendum the constitution goes a bit further, specifying that, without prejudice to rules which may be determined by law, it may, as in the case of Argentina, be binding or non-binding and stating that international relations, international treaties, expropriations, national defence, limitations on real estate ownership, the banking and monetary system, loans, the budget and elections may not be subject to a referendum.230 It is also contemplated that citizens, 220 221 222 223 224 225 226 227 228 229 230

Art. 35 of the Constitution. Art. 71 of the Constitution. Art. 35.VII of the Constitution. Art. 29 of the Constitution. Art. 239 of the Constitution. Art. 238 of the Constitution. Art. 314 of the Constitution. Art. 313 of the Constitution. Art. 314 of the Constitution. Art. 325 of the Constitution. Arts. 121 and 122 of the Constitution.

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in the number of 30 electors, may propose amendments to the constitution which must then be approved by both chambers and by the people through a referendum.231 In the Republic of Peru the mechanisms of direct democracy are the referendum, the legislative initiative, the recall in relation to certain authorities and the request for audit.232 Referendums can be held in relation to draft legislation including constitutional legislation, municipal by-laws and legislation regarding processes of devolution. The abolition or curtailment of fundamental rights, tax or budget legislation or current international treaties cannot be subjected to referendum.233 Amendments to the constitution must be approved by an absolute majority of members of parliament and must be ratified through a referendum, unless the amendment is approved by a majority of 2/3 of parliamentarians in two successive legislatures.234 It is also possible, by means of a referendum, to merge two or more departments or provinces or districts in a region in order to modify local electoral boundaries.235 Citizens have the right to invoke a legislative initiative236 in accordance with the provisions of the law, as well as initiatives in regard to constitutional amendments,237 when requested by at least 0.3% of the electorate. It is possible to revoke the mandate of mayors and councillors, who are authorities elected by the people and may be re-elected.238 In the Republic of Uruguay provision is made for the legislative initiative and the abrogative referendum, even if citizens may not make use of these mechanisms of direct democracy for matters of taxation or for those reserved exclusively to the initiative of the executive.239 An initiative for the amendment of the constitution may be requested by at least 10% of electors on the National Civic Register. Parliament may formulate alternative proposals to those presented by citizens. Proposals drawn up by the National Convention of Constituents when convened must likewise be determined by referendum.240 In the Republic of Venezuela, as for Ecuador and Colombia, the list of mechanisms of democratic participation is extensive, including the referendum, the popular consultation, the recall, constituent, constitutional and legislative initiatives, the cabildo abierto and the citizens’ assembly, whose decisions are binding.241 The referendum, used in cases of particular national importance, may be initiated by the President of the Republic, by a majority of the National Assembly or by at least 105 citizens whose names are on the civil and

231 232 233 234 235 236 237 238 239 240 241

Art. 290 of the Constitution. Arts. 2 and 31 of the Constitution. Art. 32 of the Constitution. Art. 206 of the Constitution. Art. 190 of the Constitution. Art. 107 of the Constitution. Art. 206 of the Constitution. Art. 194 of the Constitution. Art. 79 of the Constitution. Art. 331 of the Constitution. Art. 70 of the Constitution.

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Direct Democracy in Comparative Law electoral register.242 Also subject to referendum are draft bills before the National Assembly in cases when supported by a 2/3 majority of members, together with international treaties which could compromise national sovereignty or transfer powers to supranational entities, when decided by the President of the Republic, 2/3 of the members of the National Assembly or 15% of electors on the civil or electoral roll.243 The referendum may be abrogative in regard to laws or by-laws having legal force but is not admissible in regard to budget, tax or public credit legislation or to that relating to amnesties or the tutelage, safeguarding and development of human rights or in regard to the ratification of international treaties.244 The recall is provided for in relation to all positions elected by popular vote and may be called, after half of the term of the mandate has elapsed, by not less than 20% of electors. The recall is considered to be approved if not less than 25% of electors have participated in the voting and if the number of votes in favour are equal to or exceed the number obtained when the official was elected.245 The constituent popular initiative, that is, that used to convene the Constituent National Assembly, may be initiated by at least 15% of registered voters.246 The popular initiative for the amendment of the constitution requires 15% of registered electors,247 while the popular legislative initiative may be initiated by at least 0.1% of registered electors.248 For the composition of the Citizens’ Authority, in cases where the National Assembly fails to reach agreement on the choice of leader for the Authority, a popular consultation on the basis of the list of candidates chosen by the Republican Moral Council is provided for.249

3.3.4

The Popular Control of Political Power

The above brief synopsis shows that the phenomenon of direct democracy has been widely embraced in Latin American constitutions, at least in recent years. Faced with this situation, it is easy to fall into the temptation of thinking that in this continent direct democracy is accounted for exclusively by these mechanisms for the popular exercise of political power. However, as stated at the beginning of this study, one of the most important elements of democracy – at least in the judicial tradition here examined – is the control of the activities of public authorities.

242 243 244 245 246 247 248 249

Art. 71 of the Constitution. Art. 73 of the Constitution. Art. 74 of the Constitution. Art. 72 of the Constitution. Art. 348 of the Constitution. Art. 341 of the Constitution. Art. 204 of the Constitution. Art. 279 of the Constitution.

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This control, not infrequently involving social phenomena as in the case of Colombia’s network of observers, plays a judicial role of the utmost importance: the control of constitutionality in regard to legal provisions which has increasingly permeated our constitutions, even leading, in regard to the Interamerican Court of Human Rights, to the proposal for the application of another legislative control – this time of convencionalidad – on the validity of internal legal provisions among the states comprising the interamerican system of human rights. The democratic nature of the control of constitutionality, in line with the peculiarities of the judicial tradition of this part of the world, consists in the right for any citizen to initiate an instance of unconstitutionality concerning legal provisions, which is recognized as a fully-fledged political right. Other Republics also follow this line – in the case of the Republic of Colombia dating back over 100 years – which has, it should be said, characterized their democratic tradition to such a degree that their constitutional tribunals have become the setting in which the humble citizen can take on the powers-that-be in order to defend the constitution and hence the rule of law. This is why it is perhaps worth dwelling on this form of democratic judicial control. Brazil’s Supreme Court has the authority to investigate and evaluate direct instances regarding the unconstitutionality of laws or federal and state legislative provisions.250 Bolivia’s Plurinational Constitutional Court recognizes in relation to instances of unconstitutionality251 that they can be initiated by any person in regard to any legal provision not compatible with the constitution.252 The Supreme Court of Ecuador has the same power with reference to public instances of unconstitutionality.253 The same is true of the Supreme Court of Honduras,254 the Constitutional Section of El Salvador’s Supreme Court of Justice,255 the Supreme Court of Panama,256 Peru’s Constitutional Court257 and that of the Dominican Republic.258

3.3.5

The Experience of the Republic of Colombia

Colombia’s adoption of its political constitution was the result of an extremely complex democratic process. In the course of this, among many obstacles and despite the fact that the existing constitution provided that its own amendment be effected only by a decision 250 251 252 253 254 255 256 257 258

Art. 102, Sect. 1 of the Constitution. Art. 202, Sect. 1 of the Constitution. Art. 132 of the Constitution. Art. 436, Sect. 2 of the Constitution. Art. 185, Sect. 1 of the Constitution. Art. 174 of the Constitution. Art. 206, Sect. 1 of the Constitution. Art. 202, Sect. 1 of the Constitution. Art. 185, Sect. 1 of the Constitution.

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of Congress, the decision-making power of the primary constituent authority is acknowledged and, by virtue of this, the National Constituent Assembly was convened, which, amid an atmosphere of intense participation and with the declared aim of enhancing democracy, approved the constitution in force today, whose Article 1 declares that the Colombian State is a democratic, participative and pluralist democracy. The markedly democratic and participative nature of the 1991 constituent process is clearly revealed in the decision of the Supreme Court of Justice, which refused to confirm the limits on the jurisdiction of the Constituent Assembly, which the national government had sought to impose on it. In the words of the decision: The Court is well aware of the importance and the ramifications of the decision here expressed exactly as the well-connected risks which someone dread in an ominous manner. However it also considers that within the political and juridical tradition of the Republic going back to the dawn of Independence, there is a nucleus of convictions and principles which lend legitimacy to the democratic system and which will surely predispose the citizens on one hand to proceed with the greatest possible responsibility and on the other the Constituent Assembly to interpret the needs and the hopes of the Nation, which has the right to seek new avenues capable of ensuring an improved pattern of everyday coexistence of life, peace, liberty and social justice. […] Thus, given that the National Constituent Assembly which will be elected by the people as Primary Constituent in the elections organized for the coming 9th of December cannot be limited in its jurisdiction, as specified in Decree n. 1926 of 1990, the Court shall declare the invalidity of all these limitations which both as regards motivation and as regards content limit the full exercise of sovereignty. Among these, in particular those relating to the issues raised by the political authorities, those containing the fourth of the fundamental provisions of the political agreement, those relating to the fifteenth of those provisions in which amendment of the operations of the primary constituent is delegated to the Court and others of the same or similar import.259 In the period of validity of the 1991 Constitution, considerable legislative efforts were made for the recognition of various mechanisms designed to strengthen the participative character of the democracy. Over and above these, it is possible to identify a number of specific events which gave birth to some of the mechanisms of participation provided for in the Carta Política and in the law. 259 Ruling n. 138, 9th October 1990

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The transition from a markedly representative democratic system to one in which political participation plays a fundamental role was made explicit in Art. 1 of the political constitution approved in 1991 by a Constituent Assembly. This recognition is clearly expressed in Art. 3 of the constitutional text where it is affirmed that sovereignty resides exclusively with the people, who may exercise it through their representatives or directly. It is thus clear that it is the dual nature of democracy that is being recognized, since in any case it provides that the sole holder or custodian of democracy is the people. This control is manifested explicitly in Article 40 of the Constitution, whereby the right of all citizens to participate in the constitution, exercise and control of political power is declared. Instances of this general right include the right – fundamental to a participative democracy – to elect or be elected as representatives. Specific expressions of participative democracy recognized include (i) the right to participate in plebiscites, referendums, popular consultations and other manifestations of participative democracy; (ii) the right to revoke the mandate of elected officials; (iii) the power of initiative in public affairs; (iv) the power to take action in defence of the Constitution and the law. Over and above these cases other provisions acknowledge the existence of mechanisms for the control of public proceedings such as, for example (v) the cabildo abierto (Article 103, Carta Política); (vi) the right of petition for purposes of investigating and controlling the activities of public authorities (Article 23, Carta Política); and to the same end, (vii) the duty of the state to contribute to the organization, the fostering and the endorsement of non-governmental professional, civic, union, communal, youth, charity and common good associations, in order that they may become a means of democratic representation in the varying forms of participation, consultation, control and surveillance in regard to the state (Article 103, Carta Política); (viii) the legislator is tasked with the duty of regulating the forms and the systems of citizen participation designed to watch over state activities (Article 270, Carta Política) and (ix) the rule permitting participation in processes in connection with the allocation of public resources and the control of their utilization (Articles 340 and 356, Carta Política) is provided for. The regulation on the part of the Congress of the Republic of the various mechanisms of citizen participation is the subject of legal statutory reserve (Articles 152 and 153, Carta Política), which provides for a complex additional approval procedure, at the end of which, prior to Presidential ratification of the law, a check of constitutionality is performed by the Constitutional Court (Article 241, Section 8). These are particular types of law which, in view of the subject matter on which they bear and their relative stability, have a special place in the system of sources of law, in view of their use as a parameter of constitutionality

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in regard to other legislation on the basis of their comprising part of the so-called bloque de constitucionalidad.260 Based on its jurisdiction in this area the Congress of the Republic has passed various laws to regulate citizen participation, such as laws 131/1994, 134/1994, 741/2002, 850/2003 and 1757/2015. These have led to the adoption of rules designed to (i) safeguard the effectiveness of the mechanisms mentioned above and regulated in accordance with the Carta Política; (ii) organize the central elements of the mechanisms which the Constitution has simply articulated; and (iii) provide for additional instruments of participation. This group of laws, among those dealing with the same question, manifests the existence of a true judicial regime in regard to citizen participation. The regulatory initiative The Constitution and the law provide for the possibility of citizens’ submitting draft legislation before the Congress of the Republic, the Regional Assemblies and the Municipal Councils. Ordinary or constitutional legislative initiatives require the support of 5% of electors (Articles 155 and 375 of the Carta Política) while those relating to regional ordinances or municipal agreements need 10% of electors (Article 106, Carta Política). The presentation of an initiative of this kind engenders the duty, on the part of the receiving entity, to discuss and to vote on it according to urgent status and ensuring the full involvement of the initiative’s instigator in the proceedings. This type of initiative will further be dealt with as a matter of urgency and will receive priority treatment on the agenda (Article 20 of Law 1757/2015). The prevailing judicial regime provides for various limitations on the subject matter of this type of initiative. Most importantly, the initiative must relate exclusively to areas within the competence of the public body to which it is addressed. Statutory guidelines also determine that this mechanism cannot be used in reference to budget, tax, amnesty or immunity legislation, among others, or for legislation regarding international relations (Article 18 of Law 1757/2015). This right of participation is thus intended to impose on bodies charged with adopting legislation, laws, ordinances and agreements the duty to debate and take into serious consideration the various citizens’ initiatives. This duty does not imply the requirement to approve the regulatory proposal presented. The legislator has provided – in cases where initiatives relating to laws, ordinances or agreements as described above have not been placed on the agenda or have been debated without success - the opportunity for citizens to initiate the organization of a referendum so that the people, as the ultimate source of sovereignty, may decide on the approval or otherwise of a particular piece of legislation

260 In this regard, see e.g., rulings C-708/1999, C-774/2001 and C-238/2010 of the Constitutional Court of Colombia.

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(Article 32, Law 134/1994). This mechanism highlights the tensions between representative democracy and participative democracy since, when the former has reached its limit, the latter is activated through a direct appeal to the population. The referendum This mechanism for citizen participation has the aim of bringing to the attention of citizens draft legal provisions or legislation already in force so they may decide on their ratification or abrogation. The first type, also known as a referendum of ratification, may be organized not only at a national level in order to ratify constitutional amendments (Article 378, Carta Política) or legislative amendments (Article 20, Law 1757/ 2015) respectively, but also at a regional level in order to approve provisions issuing from the various departments and municipalities (Article 32, Law 134/1994 and Articles 12 and 20, Law 1757 / 2015). For the second type of referendum, known as abrogative, specific constitutional provisions exist which permit it not only in relation to constitutional questions in cases where the Congress of the Republic has introduced modifications to the constitution on points of particular importance (Article 377, Carta Política) but also in regard to legislative provisions (Article 170, Carta Política), departmental ordinances or municipal agreements (Article 32, Law 134/1994). It is worth noting that the abrogative constitutional referendum invests the people with a power of counter-reform when Congress, in exercising its power of constitutional amendment (Article 375, Carta Política) has made modifications concerning fundamental rights, citizen participation or the Congress of the Republic. Certain limitations concerning matters, which cannot be subject to referendum are articulated in the constitution, in legislation and in the jurisprudence of the Constitutional Court. For example, Article 170 of the Carta Política specifies that questions concerning international treaties or fiscal and budget concerns cannot be subject to referendum. For the purpose of safeguarding the territorial unity of the Republic it is added that the referendum may address exclusively issues which fall within the jurisdiction of the relevant regional body. More specifically, in the case of the constitutional ratification referendum the Constitutional Court has indicated that this cannot relate to the total or partial substitution of the constitution261 as this power is reserved to the National Constituent Assembly, which is specifically entrusted with this task in accordance with the rules laid out in Article 376 of the constitution.262 261 In relation to this, see, in particular, rulings C-551/2003 and C-141/2010. 262 Ruling C-1040/2005 states: “The Court underlines that the only possessor of unlimited constituent power is the sovereign people, by virtue of article 3 of the Carta. In 1991 the original constituent authority laid out the rules for the power of constitutional amendment which lies inter alia with the Congress of the Republic, which is a body set up and regulated by the Constitution itself and which thus may exercise its competences ‘within the terms established by the current constitution’, and not in an unlimited manner. Congress, even when it modifies the constitution, is not the holder of sovereignty, which ‘resides exclusively with the people’, who alone may create a new constitution. The Court further declared that the people may

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The regulation of initiatives has not been uniform, given that different rules have been followed for their espousal. Thus, for example, in the case of the constitutional referendum of ratification the initiative must come from the national government with the support of 5% of the electorate (Article 378, Carta Política and Article 9 of Law 1757/2015), while a decision regarding the validity of its calling is the responsibility of Congress (Article 378). The initiative for referendum in regard to regional bodies is amply regulated by laws 134/1994 and 1757/2015 where (i) a referendum is declared to be obligatory in cases where a regulatory initiative fails in its objective (Article 32, Law 134/1994), (ii) a popular initiative referendum is contemplated upon prior authorization by the relevant public territorial body (Article 20 of Law 1757/2015) and (iii) a referendum is contemplated without the prior participation of these bodies when the initiative is supported by 20% of the electorate (Article 19 of Law 1757/2015). It should be cautioned that the organization of the constitutional referendum and of the regional referendums is subject to prior judicial scrutiny. This takes place before the Constitutional Court for the national level (Article 241, Section 2, Carta Política)263 or the Administrative Tribunals for regional questions (Law n.1757/2015, Article 21). For legislative referendums this scrutiny occurs after the referendum (Article 241, Section 3, Carta Política), which provokes complex tensions between the democratic principle – once the law has been approved by the people – and the supremacy of the constitution – when the law approved by the citizens is blocked by the Court. The approval of a referendum depends on the reaching of a minimum threshold of participation. In the case of a referendum of constitutional ratification the participation of more than a quarter of electors is required. The referendum is approved if more than half of these vote in favour (Article 378, Carta Política). The abrogative constitutional referendum is held when requested by over 5% of citizens registered on the electoral rolls and requires the participation of a quarter of the electorate, with more than half of those qualified voting in favour (Article 377, Carta Política). On a regional level the statutory legislator requires the same level of participation as described above, as may be inferred from Article 41 of Law 1757/2015. One of the chief constitutional concerns in relation to referendums relates to the means of safeguarding the freedom of electors. To this end both constitutional jurisprudence and the law have provided, among other things, (i) for the ban on so-called ‘block voting’ in cases of multiple referendums,264 (ii) the ban on referendums taking place when simultaassign to a Constituent Assembly the task of adopting a new constitution, as expressly stated in article 376 of the Carta. Only by means of this mechanism may the current constitution be replaced with a variant or completely different one.” 263 See rulings C-551/2003 and C-141/2010. 264 In this regard see, in particular, ruling C-551/2003 related to the constitutionality of the law calling a constitutional referendum, which reads: “Effectively a referendum is, as already explained, the summoning of the people in order for them to approve or refuse to approve draft constitutional legislation (article 3, Law

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neously other electoral contests are being held (Article 2, Carta Política),265 (iii) the ban on incentivizing or rewarding electors, since abstention could in itself constitute a legitimate form of participation designed to prevent the minimum thresholds specified in the constitution or in the law being reached. In the recent past two constitutional referendums have been held. Firstly, in 2003, a referendum on the modification of various provisions in the constitution took place on government initiative. Following the approval of Law 796 in 2003 whereby Congress provided for the referendum – with 19 questions in all – and the constitutional checks carried out by the Constitutional Court, with 4 of these questions being declared contrary to the Constitution (Ruling C-551/2003), the citizens ratified only one of the provisions included in the referendum, relating to the loss of political rights for citizens who had caused damage to state assets.266 Secondly, in the year 2010, after being invoked by the citizens and approved by Congress, Law 1354/2009 called for a constitutional referendum on the modification of Article 197 of the constitution so as to allow a second Presidential reelection. However, the Constitutional Court in its ruling C-141/2010 decided to disqualify it, thus making it impossible for the people to express their verdict. The Court’s ruling concluded that in the course of the process of drafting the law there had been various procedural failings such as to prompt a ruling of disqualification, on the basis of the provisions of Article 24, Section 2 of the constitution. Popular consultation The general popular consultation is provided for in Articles 104 and 105 of the constitution. These authorize the President of the Republic, governors or mayors to invite the people’s verdict on matters of national or local importance, as relevant.267 In these cases, unlike the referendum, it is not draft legislation which is submitted to the attention of the people, 134/1994). The possibility of ‘block voting’ in a referendum bearing on this topic is, therefore, compatible with the judicial position in question and with the protection of the freedom of the elector since, if various questions relate to the same issue, it is reasonable to suppose that they will have a similar orientation and pursue common objectives. Consequently, the opportunity afforded to the citizen desiring to cast a ‘block vote’ on a number of questions bearing on the same issue does not infringe the dual requirements of fairness and transparency, since the citizen is asked to pronounce on a single topic in its various aspects. On the other hand, the situation is quite different if in a multiple referendum questions of a heterogeneous nature are dealt with, since, in that case, the voters’ orientation on the different questions will clearly not always be the same, as the issues are independent of each other and unconnected. What possible reason could there be for inviting citizens to approve or reject ‘en bloc’ a number of very different reforms, if not fundamentally that of allowing them to express their faith or otherwise in the sponsors of the referendum? But this is not a referendum since it consists in a decision on a draft judicial provision and not a demonstration of support or otherwise in regard to a government, its investiture or to political choices which fall within its jurisdiction.” 265 See ruling C-784/2014 in this regard. 266 This was promulgated as Legislative Provision 01/2004. The other questions did not achieve the minimum participation required for approval. 267 Art. 18 of Law 1757/2015 provides for the application of the same limitations for this mechanism as for the legislative initiative.

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but a question which is of interest at the relevant regional level. The guidelines contained in Laws 134/1994 and 1757/2015 provide that the people’s verdict is binding and that consequently the authorities in question must adopt the corresponding provisions. It even states that, where action from a public body is required but is not forthcoming, the President, Governor or Mayor must be prepared to adopt the relevant provision. Although in the constitution reference is made exclusively to the government initiative, Law 1757/2015 allowed for the possibility that the people may initiate a popular consultation. This provision was deemed compatible with the constitution, since it corresponds to a reinforcement of the democratic principle, which of itself has an expansive character. According to the law cited above this corresponds to a popular consultation at the national level and may be requested by 5% of the electors. In the case of a local initiative the figure is 10% of electors (Article 9, Law 1757/2015). The participation of at least a third of the electorate is required for approval, with more than half of citizens voting in favour (Article 41, Law 1757/2015). The constitution contains specific provisions relating to the popular consultation for the purpose of convening a Constituent Assembly. Here Article 376 provides that, upon prior approval by Congress, it is possible to proceed to the convocation of the people in order for them to decide on the calling of the Assembly in accordance with provisions contained in the law as regards its composition, its duration and its jurisdiction. Here the decision in regard to the convocation requires the highest level of participation, since a third of the electorate must express themselves in favour (Article 376, Carta Política). This does not constitute a threshold of participation but, as suggested by the constitution, a specially-qualified majority. The constitution provides that, where the popular judgment is favourable to the convocation of the Constituent Assembly, it is necessary to proceed with the election of its members. It should be borne in mind that constitutional jurisprudence has expressly indicated that the jurisdiction of the Assembly should be limited to the issues specified by the people and hence any unwarranted extension of its remit by the constituent body can be subject to enquiry on the part of the Constitutional Court.268

268 Ruling C-150/2015, wherein it is stated: “The Constituent Assembly is not the appropriate forum for dealing with constitutional questions and its operations must reflect the intention of the people as expressed at the time when its creation was decided. In this manner the people, in whom sovereignty is vested, in accordance with the Carta Política, decides on the scope accorded to it. The Assembly should thus deal with those matters for which it was called into being and only on these may it take decisions at a constitutional level. Any constitutional provisions approved outside the limits determined by the people would be invalid and consequently could be subject to investigation by the Constitutional Court on the basis of the exercising of the public action of constitutionality on the part of the citizens, as specified in article 379 of the Constitution.”

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The plebiscite This form of participation can be initiated exclusively by the President of the Republic and has the purpose of submitting to popular consideration the approval or otherwise of a specific decision taken by the executive (Article 7, Law 134/1994). The law provides that this mechanism cannot in any case relate to the duration of the Presidential mandate or the amendment of the constitution. In addition, constitutional jurisprudence has indicated that the plebiscite cannot relate to the laws for ratification of international treaties, the budget or tax and tax-related issues.269 Further, in the regulation of this mechanism, the law provides, over and above the duty on the part of the President of the Republic to keep the Congress of the Republic updated on the implementation of the plebiscite (Article 20, Law 1757/2015), that the decision will be binding only if 50% plus 1 of the electors have participated, naturally on condition that more than half of the votes were in favour. Recall The constitution and the various statutory laws have provided for the possibility of the recall in regard to mayors and governors (Article 103, Carta Política). This possibility is the consequence of the recognition afforded to so-called ‘program voting’ (‘voto programático’) in the Carta Política (Article 259, Carta Política) by virtue of which elected officials have the duty of implementing the program submitted to the electors. In line with this the recall has been interpreted as a citizens’ right with the aim of relieving the abovementioned officials of their position, thus manifesting its nature as a means of influencing and controlling political power.270 It does not, according to the applicable legislative and constitutional framework, constitute a right which can be exercised in regard to any public official, as is the case, for example, in other South American jurisdictions, and neither can it be exercised in regard to all officials elected by the people. As a result, it is not subject to recall by the President of the Republic, the members of Congress or members of regional public bodies (deputies and counsellors). The most complex questions in regard to this institution are mainly related to participation in the initiative and the implementation of the recall process. Various successive statutory reforms (i.e., Laws n.131/1994, 134/1994, 741/2002, and 1757/2015) have contributed to making the requirement more flexible. Thus, at the present time, it is provided that the convocation of the people for purposes of recall requires the support of the equivalent of 30% of the votes obtained when the official was elected and that at least 40% of the valid votes cast on the day of the election must participate. The recall will then be effected if it has the support of 50% plus 1 of those participating in the corresponding polls.

269 Ruling C-150/2011 270 In ruling C-011/1994 the Court affirmed in generic terms that it was a manifestation of the wielding of political power on the part of citizens.

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The recall constitutes a valid instrument for the control of public affairs and aims to create incentives for an efficient public administration. The pursuit of this objective raises a number of questions, especially in regard to the rules for the regulation of the recall procedure, since this must not become a tool of political manipulation and nor should it be subjected to an excessive number of constraints limiting or hampering its use. In addition, from the point of view of constitutional law, it is always necessary to temper the factor of participation with the need to ensure a certain stability for elected authorities. For this reason, in the case of Colombia, no provision is made for initiating the recall procedure until a year has passed from the beginning of the mandate or when less than a year of it remains. Cabildo Abierto The Cabildo Abierto is briefly mentioned in Article 103 of the constitution, which provides for the recognition of wide powers of legislative organization. Laws n.134/1999, firstly, and 11757/2015, more recently, have regulated this mechanism to this end, providing for its applicability at the regional, departmental and local levels, and defining it as the convening of political entities (such as departmental assemblies or municipal councils) for the purpose of discussion of questions of regional interest. The jurisprudence of the Court has indicated that it consists of the “meeting of the sovereign people for free discussion of questions which are of concern or interest to them”,271 where, in a context characterized by the interaction between the public administration and the citizens, mayors and governors should be consulted. The law has provided for the obligation on the part of the authorities to respond, at a later session, to the questions presented by the citizens. Inspections and other mechanisms of citizen participation designed for control The statutory legislator has regulated inspections as being one of the mechanisms for control of public administration by the citizenry. In accordance with this position Law n.850/2003 states that it is a mechanism of democracy allowing citizens and various community organizations to exercise vigilance over public administration performed by administrative, political, judicial, electoral and legislative authorities and organs of control, together with public or private bodies or non-governmental organizations operating in the country, whether national or international, and tasked with the implementation of a scheme, a project or the performance of a public service. 271 Ruling C-180/1994

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On the basis of this definition those performing these activities are offered a variety of possible courses of action including, for example, the ability to formulate requests for information from the public authorities with a view to exercising activities of control and, where appropriate, pressing charges. A further obligation affects certain state bodies, requiring them to support these organizations in the fulfilment of their duties of social control over public administration. In close connection with this topic Law n.1757/2015 defined the notion of social control as follows: “… it consists in the right and the duty of citizens to participate, individually or through their own organizations, social networks and institutions, in their surveillance over public administration and its effects”, acknowledging further mechanisms of participation which bear on these activities of control. Among these are numbered, for example, public reporting (Article 48), participative appraisals (Article 100) and alliances for prosperity (Article 105). The public instance of unconstitutionality The 1991 constitution recognized various forms of action in defence of the constitution and of the law. Among these are numbered the public instance of unconstitutionality which may be pursued before the Constitutional Court and whereby any citizen may challenge provisions having legal force or attempts to amend the constitution considered contrary to the Carta Política. In order to pursue such an instance it is sufficient to formulate an accusation of unconstitutionality with a minimum of coherence. Constitutional jurisprudence indicates that the process is essentially public and participative (Articles 239, 241 and 242).272 It thus constitutes a powerful tool of control allowing citizens to raise doubts over the validity of legislative decisions taken by elected officials and hence it naturally provokes a tension between representative democracy, participative democracy and the supremacy of the constitution273 A final point concerning the regulatory regime in force in Colombia should be highlighted. In fact, Law n.1757/2015 has not only provided for the creation of mechanisms for the coordination and fostering of participation at the various levels of state administration, as in the case of the National Council for Citizen Participation, but has also imposed on state bodies the obligation to allocate funds for the encouragement of citizen participation by establishing the concept of “participation expenses” (Article 94). The Constitutional Court has further declared that the relevant authorities have the duty to ensure the existence 272 These instances are regulated under decree 2067 of 1991. 273 Constitutional jurisprudence, in reference to public instances, has indicated in Ruling C-1052/2001 that their recognition has allowed “the development of one of the most precious instruments for the fulfilment of the principle of representative democracy which runs through the constitution (article 1, Carta Política), permitting all citizens, through the public instance of unconstitutionality, to exercise a political right recognized in their own Higher System (article 40, Carta Política) and to apply a genuine control on the power of the legislator in the act of approving a law.”

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of these funds, failing which there can be just cause for the presentation of appeals to the judge in order to obtain their allocation in the budget.274

3.3.6

Conclusions

The mechanisms of direct democracy in Latin America, despite their apparent novelty, follow on a long republican, and even colonial, tradition, whereby local people, and their cabildos, played an important role, intervening at critical moments in the political and constitutional history of these republics. Citizens’ participation in the constitution, exercise and control of political power is not without complications. For some it amounts to a questioning of representative democracy and of the political parties. Others think it should be viewed rather as a means of reinforcing representative democracy itself, giving the people the opportunity to participate in the political debate more frequently and with a clearer agenda. What is certain is that these mechanisms, being a necessary consequence of the sovereignty of the people, have been, are and will be an essential element in the political and judicial history of these republics. In the context of Latin America we can distinguish two different approaches in regard to direct democracy. Some republics, especially in Central America, whose constitutions have not been amended recently, display a certain wariness and limit themselves to offering the citizen a right of petition on political matters. Others, with more recent constitutions and mainly located in South America, not only recognize and regulate the mechanisms of direct democracy, but associate them with important issues, such as the amendment of the constitution and, in some cases, transform them into an everyday tool, with all the associated risks connected to disproportionate powers and responsibilities which thereby are granted to certain established powers. In the democratic history of Latin America, which has not been exempt from obstacles and unfortunate episodes, the citizens’ participation in the control of constitutionality through public instances of unconstitutionality, together with their participation in the wielding of political power has been and still continues to be very important. This is because the citizens themselves are considered as primary guarantors of the supremacy of the constitution and, ultimately, of the judicial order.

274 In this regard the Court has stated: “In this manner the competent authorities will be called to answer for the omitted inclusion of these items in the preparation of the general budget and those of the bodies in question. The laws and the additional budget provisions can be subjected to judicial scrutiny in relation to the lack of legislative provision for this purpose. In the same way for the tangible fulfilment of this purpose, the concept of ‘public expenditure for participation’ shall be subject to specific regulatory supervision on the part of the executive.”

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The Colombian constitutional experience demonstrates the impulse to reinforce citizen participation, providing the citizens with mechanisms for the constitution and direct control of political power, alongside the traditional representative institutions. For this reason various institutions of citizen participation have been subject to legislative regulation and judicial interpretation with the aim of ensuring their alignment with constituents’ desire to maintain the applicability of a judicial order based on the participation of all citizens in decisions which concern them. In this sense it is possible to identify a range of opportunities for participation among which are numbered, for example, the regulatory initiative, the referendum, the popular consultation, the plebiscite, the recall, the cabildo abierto, the inspections, participative budgets and the public instance of constitutionality.

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Comparative Public Law Treatise Founded by Giuseppe Franco Ferrari Vincenzo De Falco, Administrative Actions and Procedures in Comparative Law, 2018, ISBN 978-94-6236-842-2 Silvio Gambino, Jorge Lozano Miralles, Fernando Puzzo, Juan José Ruiz Ruiz, The Spanish Constitutional System, 2018, ISBN 978-94-6236-843-9 Eloy Garcia, Elisabetta Palici di Suni, Martin Rogoff, Direct Democracy in Comparative Law, 2018, ISBN 978-94-6236-844-6

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