Recommendation
1704 (2005)1
Referendums:
towards good practices in Europe
1.
Referendums represent a long-standing political tradition in a number
of Council of Europe member states; in others, the participation of citizens
in the decision-making process through referendums is a more recent achievement,
coinciding with their passage to pluralist and representative democracies.
2.
The Parliamentary Assembly considers referendums as one of the instruments
enabling citizens to participate in the political decision-making process;
it also recognises the essential contribution of organised civil society
in the framework of participatory democracy.
3.
Despite differences in historical development, scope, frequency and impact,
in recent years the recourse to referendums in Council of Europe member
states as a whole has shown an upward trend. This is partly due to the
high number of referendums that have been held to introduce constitutional
changes in eastern European countries since the late 1980s. The main
explanation for this increase, however, is the organisation of referendums
within the European Union integration process: between 1972 and 2003
the citizens of twenty-three countries cast their vote on fundamental
stages of European Union integration in forty-one national referendums.
4.
This upward trend will continue over the next two years. In fact, the
national referendums organised in the context of the ratification of
the European Union Constitutional Treaty may be the greatest European
popular vote of all times: 250 million people in at least ten countries
will be called to state their agreement or disagreement over the most
ambitious project of European integration so far conceived. The political
weight of this popular vote will also be unprecedented, as the negative
stand of the electorate of one country could affect the ratification
of the treaty in all the others. Likewise, the position of European Union
members on the membership of a candidate country will be decided, in
some cases, by national referendums.
5.
Being convinced of the complementarity between direct and representative
democracy, the Parliamentary Assembly recommends the use of referendums
as a means to reinforce the democratic legitimacy of political decisions,
enhance the accountability of representative institutions, increase the
openness and transparency of decision making and stimulate the direct
involvement of the electorate in the political process. Complementarity
between direct and representative democracy implies that referendums
should not be considered as an alternative to parliamentary democracy
and should not be misused to undermine the legitimacy and primacy of
parliaments as legislative bodies.
6.
In this context, the Assembly recalls the activities of the Integrated
Project “Making democratic institutions work” and, in particular,
the Conference on the Future of Democracy in Europe (Barcelona, 17-19
November 2004) which defined citizen participation as a priority area
for the Council of Europe and expressed support for the further development
of innovation in the field of direct democracy, notably referendums.
In addition, the Green Paper commissioned by the Secretary General of
the Council of Europe in the framework of the same project recommends
that the Council of Europe draft a handbook on referendums and popular
initiatives.
7.
The Assembly fully endorses this three-fold approach. First of all, reiterating
the position expressed in its Resolution
1353 (2003) on the future of democracy:
strengthening democratic institutions, the Assembly believes that the
recourse to referendums should be encouraged as a way to reinforce the
democratic process in Council of Europe member states and bridge the
distance between the electorate and the decision makers.
8.
Secondly, bearing in mind that even in democratic states on some occasions
referendums have been used to legitimise undemocratic policies, the Assembly
agrees that the Council of Europe should promote good practices on referendums
with a view to reducing any possible abuse, including the risk that this
instrument be used to circumvent the principle of the rule of law or
to undermine the legitimacy of representative institutions.
9.
The promotion of good practices on referendums should include the elaboration
of guidelines addressed to Council of Europe member states as well as
the dissemination of examples of best practice, the provision of technical
assistance and the implementation of co-operation activities. In this
respect, the Assembly recalls that the Council of Europe has already
produced guidelines on local referendums, appended to Recommendation
No. R (96) 2 of the Committee of Ministers to member states on referendums
and popular initiatives at local level, as well as on constitutional
referendums, with guidelines adopted by the European Commission for Democracy
through Law (Venice Commission) at its 47th Plenary Meeting (6-7 July
2001). The Venice Commission is currently working on the possible elaboration
of general guidelines on referendums.
10.
The Assembly also recalls previous Council of Europe documents which
should be considered for the elaboration of guidelines and the promotion
of good practices, in particular Assembly Recommendation
1516 (2001) on financing of political parties, Recommendation Rec(2003)4
of the Committee of Ministers to member states on common rules against
corruption in the funding of political parties and electoral campaigns,
as well as the guidelines adopted by the Venice Commission on financing
political parties (2001) and on legislation on political parties: some
specific issues (2004).
11.
Finally, the Assembly shares the conviction that through the promotion
of good practices on referendums, the Council of Europe should assist
its member states in devising a better response to the challenges posed
by participatory democracy in modern societies. In this regard, two innovations
immediately stand out for their urgency: on the one hand, the extension
of the right to vote in local referendums to immigrants legally residing
in Council of Europe member states, in analogy with the efforts deployed
by the Council of Europe in bringing its member states to grant the right
to vote in local elections to legal immigrants, in compliance with the
1992 Convention on the Participation of Foreigners in Public Life at
Local Level; on the other hand, the introduction of the possibility of
holding referendums at all the levels in which policy decisions are made,
be it local, regional or national.
12.
Confirming its previous positions, the Assembly highlights that direct
popular participation in the decision-making process requires the electorate
to be adequately informed about those matters to be decided upon, as
well as about the democratic decision-making process in general. With
these considerations in mind, the Council of Europe should reinforce
its activities on media awareness and education for democratic citizenship,
also in the context of the elaboration of good practices on referendums.
13.
The Assembly therefore recommends that the Committee of Ministers:
i.
taking into account previous Council of Europe work in this field as
well as the ongoing work of the Venice Commission, draw up a recommendation
to member states containing guidelines on referendums, which should refer
to:
a.
the need for a clear national legal framework for holding referendums;
b. who
can initiate a referendum, with a clear indication that popular initiative
should always be possible;
c.
the referendum campaign, including provisions on the registration of
campaigners, funding of the referendum campaign and safeguards for
pluralism;
ii.
collect and disseminate examples of good practices on referendums, placing
particular emphasis on the recognition of voting rights of immigrants
who have been legally and habitually resident in Council of Europe member
states for a given time and on encouraging the plurality of levels at
which referendums can be organised;
iii.
among its activities, give priority to media awareness and education
for democratic citizenship and include these issues in its examples of
good practices on referendums;
iv.
when necessary, set up assistance and co-operation programmes to help
one or more member states in the implementation of good practices on
referendums;
v.
continue to encourage the recourse to e-voting, in compliance with its
Recommendations Rec(2004)11 on legal, operational and technical standards
for e-voting and Rec(2004)15 on electronic governance (“e-governance”);
vi.
call on Council of Europe member states to:
a.
sign and ratify the Council of Europe Convention on the Participation
of Foreigners in Public Life at Local Level;
b.
introduce the possibility of holding referendums at local, regional
and national level and inform the electorate of this possibility through
appropriate means;
c. grant
the right to vote in local referendums to foreigners who have been
residing legally in their country for a period of five years, by analogy
with the provisions on participation in local elections contained in
the Convention on the Participation of Foreigners in Public Life at
Local Level;
d. ensure
that their electorate has the means at their disposal to make informed
and balanced decisions and is made aware of the political importance
of its vote in all referendums submitted to it, including the next
referendums on the European Union Constitutional Treaty and on the
issue of the Union’s enlargement;
vii.
invite the European Union to make greater use of instruments of direct
democracy in its decision-making process and, in this context, conduct
a feasibility study on the introduction of a European Union referendum.
1. Assembly
debate on 29 April 2005 (16th Sitting) (see Doc.
10498, report of the Political
Affairs Committee, rapporteur: Mr Elo).
Text adopted by the Assembly on 29 April 2005 (16th Sitting).
