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25 March 1997 Doc. 7781
ADOC7781
REPORT1
on instruments of citizen participation in
representative democracy
(Rapporteur: Mr Dumeni COLUMBERG,
Switzerland, Group of the European People's Party)
_____
Summary
The active interest and involvement of the electorate in public affairs is essential in keeping democracy alive. However, in most Council of Europe member states the political institutions are designed in such a way that the citizen participation in political life provided for by the institutions is limited to the election of representatives. In these times of increasing disillusionment with politics, one cannot help wondering whether voters should not be given more opportunity to take part in the political decision-making process, as well as electing their representatives.
The report notes that the opportunities offered by representative democracy for direct participation by citizens in the political process must be developed further, in response to their emancipation. In addition to the disappointment already mentioned, and the discontent stirred by certain decisions of state authorities on vital issues, two new factors tip the scales in favour of enhanced opportunities for citizen participation: the generally higher level of education and the increasingly powerful information and communication technologies now available.
There are different types of referendum in Europe which offer such opportunities, but research is needed to assess the results obtained and highlight the danger of such consultations turning into plebiscites when used by the Executive to reinforce its own power.
To minimise this risk the draft resolution proposes basic principles for selecting, launching and implementing means of consulting the electorate by referendum.
I. Draft resolution
1. A truly living democracy depends on the active contribution of all citizens. Their participation in political life and their co-operation within political institutions are a decisive factor for the smooth functioning of democratic institutions.
2. The poor rate of participation in many elections held in member states and, in general, citizen dissatisfaction with the functioning of pluralist democracies calls for a debate on the phenomenon, which is hardly surprising since democracy is a permanent quest demanded by new circumstances and changing attitudes.
3. The causes of this phenomenon are many: the contrast between the complexity of political terminology and the simplification and dramatisation of media presentations of the issues at stake; the fact that information can be communicated instantly while politicians are assumed to be slow in reaching decisions; the fact that people do not understand the complexity of the problem and expect quick, apt solutions; the discrepancy between election promises and their implementation.
4. The anxiety generated by this state of affairs creates a need among citizens to participate more in political decision-making with a view to preventing a deterioration in their situation or improving it.
5. The Assembly therefore considers that the opportunities for direct citizen participation in political life offered by the representative system must be enhanced to correspond more closely to citizens' aspirations.
6. A prior observation is necessary to prevent a misunderstanding, with potentially weighty implications, which tends to set direct democracy against representative democracy. The harmonisation of mostly contradictory and conflicting needs of citizens or groups of citizens, dictated by the general interest, can be achieved only through parliamentary deliberations. The use of direct democracy must be regarded as a complement. Even in Switzerland, often held up as an example of direct democracy, 95% of decisions are taken by parliament.
7. However, before developing forms of direct democracy — for example, interactive communication facilities on information networks and referendums — we must consider their viability and possible adverse effects.
8. Information facilities, however sophisticated, would not be able — at least not in the foreseeable future — to extend the bilateral dialogue between one elected representative and one citizen to a dialogue between one elected representative and a number of citizens; the electronic forum is not yet fully tried and tested.
9. The national referendum is written into the constitutions of representative democracies but varies from one country to another in terms of its objectives, its subjects and its means of implementation. Referendums run the risk of becoming plebiscites when they are used by the executive to reinforce its own power.
10. This risk exists in democracies consolidated over time and particularly in those countries with large populations which are therefore more difficult to govern than small countries. The risk is even greater in new democracies which are therefore more fragile.
11. Implemented in relatively small communities for practical issues, regional and local referendums cause less concern and are recommended.
12. Nevertheless, the Assembly realises not only the drawbacks but also the positive aspects of consulting the electorate directly, such as the fact that it enables a minority of citizens to express their opinion and be heard by government and can stimulate a democratic debate either legitimising a decision taken by the government or approving an opinion rejected by the government.
13. Abuse of referendums must not obscure their real aim which is to render representative democracy more participative and in so doing to consolidate it and to serve as an antidote to the current malaise undermining it.
14. The realisation of this aim demands that the principles and rules guaranteeing the distinction which must be made between referendums and plebiscites are observed.
15. Consequently, the Assembly invites the member states:
i. to perfect, if necessary, their system of representative democracy by striking a balance between the exercise of responsibility of political power and the role of citizens in the decision-making process. Without such a balance, we will be unable to prevent either the erosion of confidence in the representative system or the rash use of frequent referendums which would make any long-term policy based on fundamental options random, ineffective or even impossible;
ii. to regard all subjects as suitable for being submitted to a referendum, with the exception of those which call in question universal and intangible values such as the human rights defined in the Universal Declaration of Human Rights or the Convention for the protection of human rights and fundamental freedoms;
iii. to take account in their thinking of the distinctions to be made between the reforms necessitating a referendum whose result is decisive, and the reforms conducives to a consultative referendum, aimed at enabling political leaders to improve their programmes and decisions;
iv. to make provision for referendums designed to repeal existing laws as well as referendums offering the choice between various options;
v. to envisage rules to ensure that citizens are properly informed about all the issues involved in the referendum and that questions and proposals are worded completely unambiguously;
vi. to limit the number of subjects per referendum to be held the same day to clarify the debates on the documents subjected to a vote and to help citizens to reach a decision;
vii. where appropriate, to create organs responsible for applying these rules and guarantee the independence of such organs;
viii. to lay down rules and guiding principles which, in order to prevent any misuse of the referendum:
a. enable a referendum to be set in motion by minority groups, whereby the number of signatories should be fixed by each state in accordance with a threshold considered to be significant compared with the total electorate;
b. ensure that the referendum is preceded by a debate in parliament;
c. fix a quota for participation in the ballot which discourages abstentionism while guaranteeing a minimum rate of participation enabling the result obtained to be regarded as representative and valid.
II. Explanatory memorandum
by Mr COLUMBERG
TABLE OF CONTENT Page
I. INTRODUCTION 6
II. DIRECT DEMOCRACY/ ORIGIN AND CAUSES 6
III. THE DIFFERENT TYPES OF REFERENDUM 7
IV. REFERENDUM AND POPULAIRE INITIATIVES
AT LOCAL LEVEL 8
V. POSITIVE AND NEGATIVE ASPECTS OF THE REFERENDUM 10
VI. IS DIRECT DEMOCRACY OUTSIDE INSTITUTIONAL
SYSTEM A POSSIBILITY? 11
VII. CITIZEN CONSULTATION: BRIDGING THE GAP BETWEEN
REPRESENTATIVE DEMOCRACY AND PARTICIPATION 12
VIII. INSTRUMENTS OF PARTICIPATION IN A
REPRESENTATIVE SYSTEM 13
IX. CONCLUSIONS 16
APPENDIX 17
I. INTRODUCTION
1. Is democracy in trouble in Europe? There is talk of a widening gulf between politicians and citizens in all countries. In the absence of genuine participation by their electorate, political leaders often take decisions which give rise to profound frustration. Citizens often complain that the only time they participate in political life is during election periods. Some are demanding recourse to various forms of direct consultation to meet this need for greater participation. However, even though we must respect such frustrations and demands, we must not lose sight of the need to examine the instruments of citizen participation in the light of the history, traditions and institutional systems of individual countries.
2. There is a problem in defining direct democracy; it would be too easy to say that this form of democracy occurs where the people decides on an agenda of problems of common interest, and also on the solutions to them.
3. As everyone knows, such a democratic ideal cannot be applied to numerically large communities, and therefore gives rise to the need for mediation or representation. Such an ideal appears even more illusory in times such as ours, characterised as they are by very complex social problems and the very specialised knowledge required to deal adequately with such complexity.
4. However, the mediation offered by the representative system is widely criticised, and in some cases rejected, although this does not necessarily mean rejection of the democratic ideal.
5. Since mediation is essential, the consolidation of democracy depends on the inclusion in the representative system of means whereby citizens can be involved in the drawing up of programmes and the decision-making process. Thinking in this area should clear up misunderstandings concerning the concepts of representative democracy and direct democracy, acknowledge the dysfunction common to all representative systems and assess the possibilities for direct citizen involvement in order to identify the principles and optimum conditions for the use of such possibilities.
II. DIRECT DEMOCRACY: ORIGIN AND CAUSES
6. The first thing to note is that the texts on this subject confuse the concepts of direct democracy and referendum. In the past few decades referendums have become diversified in terms both of the procedure for implementing them and of the subjects on which they have been launched. Referendums were originally designed to settle constitutional and territorial questions. For example, the referendums held in France between 1793 and 1870 (ten in all) were aimed at the approval or amendment to a constitution or a territorial modification (for example the incorporation into France of Avignon in 1791, of Mulhouse in 1798 and of Nice in 1860, the establishment of the Swiss Republic in 1802, etc.). Subsequently they also dealt with social problems (for example the abolition of the prohibition of alcoholic drinks in Finland in 1930 and the introduction of religious education in Estonia in 1923). However, of all the countries which have introduced referendums, Switzerland, Italy, Liechtenstein and Ireland are the only one in which the referendum system has developed to the point of determining the country's political life2.
7. As part of the revision of the provisions of the Maastricht Treaty on fundamental rights and European citizenship, an Italian/Austrian proposal, which is interesting because it is innovative, stipulates in Article 8.c that the citizens of the Union may — through a proposal drafted in the form of articles signed by at least one-tenth of the voters of each of the member States of which there may not be less than three — promote the adoption of European legislative instruments.
III. THE DIFFERENT TYPES OF REFERENDUM
8. Is the referendum a means of satisfying the citizen's need to be involved in political discussions? Political leaders can no longer evade this question without being confronted with more and more frequent crises which threaten the representative system, thus causing a draft towards plebiscitary and anti-democratic practices.
9. In this respect, it is interesting to quote Mr Pierre Pactet3: "The referendum procedure can become nothing less than democratic and present the gravest of dangers if it degenerates into plebiscite. In theory, the distinction is clear since we can say that it is a referendum if the people's response is given in accordance with the question asked and it is a plebiscite if it is given in accordance with the personality of the author of the question. In fact, the two are virtually indistinguishable since it is often difficult to separate the question from its author, particularly if that author is an individual, for example the President of the Republic (see Article 11 of the French Constitution of 1958) and not a collegiate organ or assembly (see Article 27 of the Constitution of the Republic of Ireland).
10. Generally speaking, it can be considered that this shift from referendum to plebiscite is greatly facilitated when certain characteristic factors coincide, the most important undoubtedly being a threat posed at the start: we have a plebiscite if the author of the question states that a favourable response is the condition for his remaining in office since he is then inviting citizens to reply in consideration of the person and not the question. Other factors are the concentration and personalisation of power to the advantage of the author of the question; an excessively complex question; the requirement for a single reply when there are really two questions; and manipulation of opinion by official propaganda. In a democracy, the plebiscite constitutes a scandalous form of pressure exerted on citizens as a whole."
11. There are various types of referendum in Europe. Professor Silvano Möckli's study4 proposes the following definitions:
- Referendum: vote on a text put to the people by the authorities;
- Obligatory referendum: vote which is mandatory under the legal rules currently operative;
- Minority optional referendum: vote held at the instigation of a number of constituent states, a minority of members of parliament or a section of the electorate who wish the people to pronounce on a text produced by the authorities;
- Plebiscitary optional referendum: vote held at the instigation of a majority of members of parliament, the government or president who wish, but are not obliged, to seek the view of the people on a given subject;
- Popular initiative: instrument allowing a section of the electorate to submit to the authorities a text which will subsequently be put to a popular vote.
Professor Möckli specifies, however, that "these definitions cannot encompass the whole range of instruments existing in Europe or take account of the specific peculiarities of every legal system"5.
12. This diversity is sufficient to show that one cannot talk about referendums in general without taking appropriate precautions, that they cannot be regarded as a miracle solution, and that a certain amount of thought is required to ensure that citizen participation actually achieves its aim: enlightened and responsible participation in the preparation and taking of political decisions.
IV. REFERENDUMS AND POPULAR INITIATIVES AT THE LOCAL LEVEL
13. Initially, for a good many countries, democracy at the local level developed in the form of direct democracy; citizens participated directly in decision concerning local government. As public responsibilities gradually became more complex and more numerous, direct democracy progressively gave way to representative democracy; citizens nominated their representatives, who alone took the decisions affecting the community as a whole.
14. Nowadays, the scope of public responsibilities and, in most countries, the size of municipalities have grown to such an extent that the running of a local community by means of direct democracy is very difficult. Despite this evolution, the institution of the referendum as an element of direct democracy has nonetheless been retained or introduced in several representative democracies.
15. There are various different ways of initiating a local referendum: it may be a matter for the local council alone; a certain percentage of citizens may take the initiative, but it is still up to the local council to decide whether the referendum should take place; the requisite percentage of citizens may make the referendum obligatory; or lastly, the law may make the holding of a referendum on certain subjects obligatory.
16. The following examples show the diversity of situations:
- Sweden, where the Local Government Act contains the following provision: "The assembly may resolve that, as part of the preparation of a matter to be discussed by the assembly, viewpoints are to be obtained from members of the municipality or the county council. This can be done by means of a referendum, an opinion poll or some similar procedure. In this connection the municipal election committee may be engaged if its other activities are not impeded thereby"6.
- France, where a law on the territorial administration of the Republic was passed in 1992 providing for the consultation of the electorate at the level of the commune on matters within the competence of the latter,the initiative for such a procedure belongs solely to the mayor and the municipal councillors. The municipal council decides on the principle and the organisational arrangements for such a consultation either on the proposal of the mayor or at the written request of one third of the members of the council or the majority of the members, depending on the population of the municipality7;
- Germany, where local referendums can be initiated in either of two ways. The municipal council may decide on its own initiative (a procedure which is not possible in Hesse); this decision must be taken by at least the majority of the members of the municipal council (in Baden-Württemberg and Schleswig-Holstein two-thirds). Alternatively, the citizens may request a referendum by written application which, under the relevant legislation of the former GDR as well as that of Hesse and Schleswig-Holstein, must be signed by at least 10% of the local citizens8.
17. Referendums and popular initiatives have been discussed within the Congress of Local and Regional Authorities of Europe, notably when the Congress was asked to give an opinion on the Recommendation of the Committee of Ministers (R(96)2) to Member States on referendums and the popular initiatives at local level, which was adopted on 15 February 1996.
18. The points to be noted in this recommendation are:
— two statements of principle:
"Convinced that this right can be most directly exercised at local level and that the management of important local affairs should involve more effective citizen participation while losing none of its efficiency;"
"Considering nevertheless that representative democracy must remain the basis of local democracy, without detracting from the system of direct democracy which in cases where it is part of the country's institutional tradition may, as appropriate, replace or co-exist with it;"
— and the guidelines on referendums and popular initiatives, including the provisions applying to consultative referendums.
19. For countries with a pluralist democratic system, the use of local or regional referendums is a means of transforming mentalities and enhancing the operation of their system.
V. POSITIVE AND NEGATIVE ASPECTS OF THE REFERENDUM
20. Opinions are divided on the scope and result of referendums:
— The issues are complex, the questions asked may be simple or ambiguous, and the answers are brief: yes or no. It is for this reason that some regard the referendum as unsuitable or even dangerous. Others say that, during the period preceding the vote, it provides an opportunity for an in-depth public debate in which political leaders have to convey the complexity of the situation, and in this way it reduces the adverse effects of the party system. The answer to this is that the public debate gives rise to all kinds of manipulation and is therefore distorted.
— Some consider the referendum as an instrument which minorities use in order to destabilise society. The nuclear option in the defence field, which they consider as an indispensable means of ensuring a country's security and the balance of power could be compromised by a handful of pacifists. Others believe that on the contrary the majority decision would be even more vindicated if the whole population were invited to give their opinion.
— The referendum may be a means of relieving elected representatives of their responsibility where no agreement is possible either within the majority or between the majority and the opposition on issues over which alliances break down. This negative view of the referendum is not shared by those who consider it only natural that, in a democratic regime, the powers of the representatives should be subject to the rights of the people, including the right to intervene directly and decisively on the most serious issues. Parliament can therefore draft new legislation after taking note of the citizens' choices.
— Irrespective of the complexity of the issues, should we not take account of their nature and of any circumstances which might lead to a dramatisation of the pre-referendum debate and cause people to lose sight of the main principles which should guide everyone's thinking? Is, for example, the abolition of the death penalty an issue which can be put to a referendum? The referendum may reflect contradictory mood-swings regarding a long-term social blueprint. The parliamentarian, as a political leader, is duty-bound to place the national interest above fluctuations in public opinion.
21. However, it might be argued that the doubts concerning the choice of certain subjects reflect an attitude of distrust towards citizens, whom elected representatives should treat as adults. On what basis should the selection criteria be chosen? The referendums on divorce in Italy and on abortion in Ireland took place in a way that does not seem to justify this distrust. Some consider, however, that divorce and abortion are not subjects of a comparable nature and with comparable implications. As in the case of the death penalty, the swing of the pendulum reflects variations of mood dictated by circumstances.
22. The experience of Lithuania which held three referendums in 1995 and 1996 is a good illustration of the democratic use of this means of consultation. Each referendum concerned amendments to the constitution proposed by elected representatives (a minimum of one-third of the members of the Seisma are required to set a referendum in motion) and rejected by citizens. The rate of participation was 52,1% in the first referendum and 52,5% in the second referendum; the third was considered null and void because only 39,7% of the electorate voted instead of the required 50%. A referendum can also be set in motion by citizens on the condition that a petition has been signed by 300 000 citizens.
23. With reference to Switzerland, where citizen participation is a regular and routine occurrence, some stress that there is a low turnout for a considerable number of referendums.
VI. IS DIRECT DEMOCRACY OUTSIDE INSTITUTIONAL SYSTEMS A POSSIBILITY?
24. According to currents of thought which have been influenced by new consultation techniques, citizens could be consulted directly by elected representatives, and vice versa, and elected representatives could be questioned directly by citizens, thanks to the interactive possibilities offered by these new facilities. Such exchanges, putting elected representatives and citizens on an equal footing, might enable citizens to express their needs more fully and, better still, enable them to suggest programmes or, at any rate, influence those which would be drawn up in the last instance by elected representatives, and monitor their implementation.
25. I do not intend to comment in detail on this subject, which has been entrusted to my colleague, Senator Jean-Pierre Masseret9. I would, however, like to make two observations: telematic facilities, however sophisticated, would not be able — at least not in the foreseeable future — to extend the bilateral dialogue between one elected representative and one citizen to a dialogue between one elected representative and a number of citizens. If individuals' varied needs are to be understood by a community with a view to their harmonisation, it is essential to engage in dialogue at group level. In addition, information and opinion gathering and the monitoring of measures taken cannot be placed on the same level, in terms of the requirements and difficulties involved, as the formulation of political programmes designed to serve the general interest. The same kind of observation can be made with regard to those who think it possible to transpose to the national level the forms of direct democracy that are possible at the local level.
26. The "digital city" experiment in Amsterdam and the "city card" scheme in Bologna are worthy of interest and should encourage similar experiments elsewhere, at local level. It would be dangerous to suggest them at any other geographical level.
VII. CITIZEN CONSULTATION: BRIDGING THE GAP BETWEEN REPRESENTATIVE DEMOCRACY AND PARTICIPATION
27. Have universal suffrage, parliament's expanded role, the growing importance of political parties and the vote (regarded as a satisfactory criterion of participation) really succeeded in making the representative system a fully democratic system? "Universal suffrage legitimises representation as much as, or more than, it gives the people control over decisions".10 The awareness which citizens have of this state of affairs becomes particularly acute in a context of economic crisis and accounts for the sometimes violent questioning not of democracy itself, but of the system and the leaders who are supposed to ensure its smooth functioning. If we refuse to change this system, it is doomed. If we agree to run the risk of change, we stand a chance of being able to steer it in the right direction. Such change must ensure the continuity of participation within the framework of representative democracy — a participation that is not confined to election periods.
28. Developing a forum for direct consultation of the citizens is not contrary to representative democracy. Direct consultation methods are a complement to the machinery of representative democracy. In Switzerland 95% of legislative decisions and 5% of the other decisions are taken by parliament in a system with frequent recourse to the instruments of direct democracy. In fact representative democracy can be reinforced by the use of these instruments.
29. Is the referendum a dangerous weapon because it enables minorities to influence the fate of the majority in the state? I think not. One of the aims of the referendum is to enable a minority of citizens to express their opinion and be heard by the ruling majority. Democratic debates prompted by the preparation of referendums could be an opportunity for legitimising decisions taken by the majority or approving a decision rejected by the majority. According to the rapporteur, in order to enable those not in power to gain a hearing, the signature threshold for initiating a referendum should be fairly low. The campaign prior to the referendum should enable citizens to gain a better understanding of the issues involved in the draft legislation on which they are required to vote.
30. On the other hand, should the result of the referendum be made conditional on a quota? In Switzerland, there is no threshold for validating the results of a referendum, a practice which is challenged in other countries11. This should be decided by those participating in order to prevent the kind of injustice which occurred in Italy during the referendum on the prohibition of bird hunting (1990). According to Italian law, if the referendum is to be valid 50% of the total electorate must vote in it. Unfortunately only 49% of the electorate turned out and the result — 48% for the prohibition and 1% against — was declared null and void. Such levels of participation give rise to unstable situations which jeopardize the legitimacy of the rule of law12.
VIII. INSTRUMENTS OF PARTICIPATION IN A REPRESENTATIVE SYSTEM
31. However, as we have already stressed, referendums should be used with caution in order to avoid two pitfalls: the drift towards plebiscitary practices and unduly frequent recourse to such votes —which hamper the efficient functioning of the institutions.
32. Furthermore, in terms of the choice of types of referendum and the arrangements for holding them, we must avoid the danger which Professor Möckli mentions in his study: "in practice, the procedures in place (for referendums) do not allow the populace to have any real say in the holding of a popular vote ... because only in the rarest of cases do they allow a popular vote to be held if the ruling majority does not want one. It is fair to conclude that the popular vote continues to be a means for the government to exercise power rather than a means whereby the people can curb the government's power".13
33. Consequently, in order to ensure the renewal of democracy the existing consultation procedures must be rethought in a way that shows a concern to avoid any abuses of the referendum system which might lead to deadlock and inefficiency. We should therefore adopt an approach based on questions common to all the different forms of vote.
a. Aims of the referendum
34. One could, for example, broadly identify three purposes which a referendum might serve:
— submission of draft outline legislation/fundamental provisions for approval or repeal;
— consultation of the electorate by the public authorities before drafting legislation or taking a decision on a national political issue of paramount importance;
— promotion of a referendum by citizens with a view to a constitutional or legislative amendment or the taking of a policy decision on an issue of national importance.
These aims should be assessed in the light of the choice of subjects.
b. Choice of subjects
35. This is one of the most difficult questions to address at national level; indeed, at local level, the subject-matter of referendums very rarely concerns proposals or questions affecting the very foundations of society, ethical or moral issues which call into question a way of life, attitudes rooted in age-old customs, tradition and history. The death penalty and divorce are examples of subjects which go beyond the local framework.
36. Some think that unduly controversial or complex subjects should be ruled out. This statement brings us face to face with two contradictions: firstly, one cannot, as a democrat, proclaim the sovereignty of the people and its supreme responsibility and, at the same time, deny that it has the necessary maturity when it comes to taking a decision on certain types of question. Secondly, one cannot wish to take its place for questions of this kind and, at the same time, use it as a final resort by asking it, via a referendum, to arbitrate a situation in which political deadlock has been reached.
37. Consequently, a distinction between subjects which should or should not be put to a referendum does not seem justified, though we should consider the link between the type of referendum and the nature of the subject and make our choices accordingly14.
c. Choice of the type of referendum: obligatory or optional?
38. In his report, Professor Möckli observes that the obligatory referendum most commonly concerns a revision of the constitution, territorial modification or membership of a supranational organisation, in other words issues of fundamental importance15.
39. In my opinion, the link between the obligatory referendum and issues of fundamental importance is justified and should be the rule. Furthermore, the result of such a referendum should be binding and have legal force16.
40. The optional referendum, which may be sub-divided into the minority optional referendum and the plebiscitary optional referendum is, according to Professor Möckli's study, distributed as follows: twelve countries have only the plebiscitary optional referendum; five countries have only the minority optional referendum; and seven countries have both.
41. This type of referendum raises a question which is of great importance from the point of view of citizen participation in the political debate: if it is optional in terms of the decision to hold it, must it be binding in terms of the results?
42. If participation of this kind is to be encouraged, action must be taken in two areas to motivate the electorate:
i. give the electorate greater scope for initiating a referendum, ie set a low minimum number of signatures for "minority" type of referendum;
ii. make it mandatory to follow up the results of both the "plebiscitary" and the "minority" type of referendum and take the main trends in the results into account in measures proposed by the political authorities.
43. As Professor Möckli points out, "usually it is the ruling majority which decides whether or not an issue should be put to a referendum. Only in Denmark, Slovakia, Lithuania, Hungary, Spain, France, Switzerland, Italy, Liechtenstein, San Marino and Slovenia is it possible under the system to initiate a referendum against the wishes of the ruling majority".17
d. Wording of questions, draft legislation/constitution
44. But it is not enough to widen and deepen the referendum system by incorporating different instruments and giving non-majority forces and the electorate greater access to it. It is also important that the results should not be distorted by inappropriately or ambiguously phrased questions.
45. The choice and wording of questions, draft legislation or draft constitutional provisions should be accompanied by statutory guarantees concerning the membership of the bodies responsible, once the decision has been taken to hold the referendum, for proposing questions or draft legislation, seeing to it that the questions are consistent with the purpose of the referendum and ensuring that the questions asked are in conformity with the constitution.
e. Choice of conditions for preparing the debate
46. If citizens are to participate responsibly in decision-making, and whether their participation is purely consultative or extends to the actual taking of decisions, they must be suitably prepared so that they are able to form an opinion. Responsibility for this lies not only with the media, but also with political leaders. It should not be forgotten that political leaders themselves hold hearings with experts and carry out fact-finding visits and personal research in order to form their own judgments. These efforts should also serve to enlighten members of the public, the majority of whom do not have the same investigative possibilities. Information which the authorities make available or disclose to the public should be presented in such a way as to ensure balance and impartiality.
47. Consequently, responsible citizen participation in the political debate depends on the provision of optimum conditions for obtaining information and exchanging views or engaging in dialogue on the basis of rules drawn up democratically by the public authorities. Such conditions must be created by the authorities on the basis of rules drawn up democratically. The procedures ensuring that such rules are drawn up democratically will vary from one country to another. Steps must be taken, however, to ensure that citizens are involved in them in one way or another.
IX. CONCLUSIONS
48. If we are to set about achieving genuine democracy, we cannot afford to be impatient. This is a project on a vast scale, perhaps too vast for a generation impatient to make the most of technological advances and for leaders faced with the pressures of the short term. There are those who must understand that it takes time to construct a future, and others who must realise that the future is not a matter for the younger generations alone: with increased life expectancy, and all the questions this will bring with it, the future is opening up to all generations.
A P P E N D I X
SUMMARY OF THE STUDY BY PROFESSOR SILVANO MÖCKLI: INSTRUMENTS OF DIRECT DEMOCRACY
In his study on "Instruments of direct democracy" prepared at the request of the Committee on Parliamentary and Public Relations, Professor Silvano Möckli finds that, despite the great variety of systems and procedures for exercising direct democracy in the Council of Europe member states, it is the state authorities which reserve the right to decide
- whether a referendum is to be held
- how an important issue is to be put to a referendum.
Few states allow a referendum even against the wishes of the state authorities, and strict requirements have to be met in such cases. Only five states allow a section of the electorate to initiate a referendum on an issue of its own choosing; and only Switzerland and Liechtenstein set relatively low requirements in terms of the number of signatures of persons requesting the referendum and the minimum participation rate in the vote.
It is uncommon for a referendum to be held on a major policy issue; except in Switzerland and Liechtenstein, the holding of such a referendum is an exceptional event occurring under exceptional political circumstances; between 1980 and mid-1994, 54 referendums were held in the 26 states covered by Professor Möckli's study (not including Switzerland and Liechtenstein), in other words an average of four a year; over the same period, 116 referendums were held in Switzerland and 27 in Liechtenstein18.
The misgivings about direct citizen participation in decisions on major policy issues contrast with the favourable attitudes towards direct democracy which are widespread in political circles; during election campaigns, there is never any shortage of declarations of intent by leading politicians and political parties to the effect that "the people" must be more fully involved in the political decision-making process.
What are the reasons for these misgivings? If the electorate is entitled to decide certain major issues by referendum, that encroaches on the sphere of competence of another state authority, usually Parliament; for the minority in Parliament, a referendum is synonymous with the reconsideration of a parliamentary decision; the opposition can therefore hope to destabilise the majority through the result of the referendum; what is at stake is the electorate's confidence or lack of confidence in the government; the "fight" for votes in the referendum becomes a kind of election campaign.
A referendum is only of interest to the majority in Parliament if it can hope to gain political advantages from it:
- in the event of internal disagreements (the referendum thus serves as a form of arbitration),
- the majority does not want to take responsibility for a crucial decision and leaves it to the electorate to decide (= referendum),
- the majority is in difficulty and it is hoped that the referendum will confer a new legitimacy on it both internally and externally.
But the majority does not want to relinquish its right to initiate a referendum and is therefore usually against minority optional referendums or popular initiatives; at a stretch, it might accept the plebiscitary optional referendum; if it is absolutely necessary to give in to pressure for a minority optional referendum, an attempt is often made to set high requirements in terms of a quorum and the participation rate; where a minority optional referendum is possible and the requirements are relatively low, the whole political machinery or system is changed as this is scarcely compatible with parliamentary government given that a referendum of this kind puts considerable pressure on the ruling majority to take the interests of the opposition into account.
This overview of procedures and practices in the area of direct democracy in the Council of Europe member states shows that:
- referendums on major issues are more an instrument for exercising power than an instrument for curbing the government's power and ensuring grassroots political participation (example of the reform of the plebiscitary optional referendum in France, which strengthens the position of the President of the Republic at the expense of Parliament and the State Council;
- a representative democracy can be democratic without possessing instruments of direct democracy where the political players perform their proper function;
- instruments of direct democracy do not provide "miracle" solutions to political problems of all kinds;
- if elements of direct democracy are introduced, they should not be a mere semblance of increased grassroots participation, but should actually permit such participation through the minority optional referendum with relatively low requirements; such forms of participation should first of all be tested at local level.
BIBLIOGRAPHIC NOTES
- Citizens' participation in political life: "Citizens and representative democracy: the current crisis", by Mr Jean-Pierre Masseret, Senator, France - Interparliamentary Conference on "Citizens, representative democracy and European construction", Paris, Senate, 16-18 September 1993
- Citizens' participation in political life: "Citizens and representative democracy: future prospects", by Mr Jean-Pierre Masseret, Senator, France - Interparliamentary Conference on "Citizens, representative democracy and European construction", Paris, Senate, 16-18 September 1993
- Report on the Interparliamentary Conference on "Citizens, representative democracy and European construction", Paris, Senate, 16-18 September 1993
- Citizens' participation in political life: "Direct democracy: merits and limits?" by Mr Dumeni Columberg, Deputy, Switzerland - Interparliamentary Conference on "Citizens, representative democracy and European construction", Paris, Senate, 16-18 September 1993
- Electronic Democracy - General report by Mr Stefano Rodotà, Professor at the University of Roma, Italy - Seminar on "Electronic Democracy", Paris, Senate, 23-24 March 1995
- Electronics serving the citizens: new ways of promoting democracy by Mr Jeffrey Abramson, Professor at the Brandeis University, U.S.A. - Seminar on "Electronic Democracy", Paris, Senate, 23-24 March 1995
- Information technologies in the new democracies by Mr Kazimierz Krzysztofek, Professor at the Institute for Cultural Studies, Warsaw, Poland - Seminar on "Electronic Democracy", Paris, Senate, 23-24 March 1995
- Bologna "Citycard" project by Mr Stefano Bonaga, Town Councillor, Bologna, Italy - Seminar on "Electronic Democracy", Paris, Senate, 23-24 March 1995
- Political control and democratisation of new technologies by Mr André Vitalis, Professor at the Université Michel de Montaigne, Talence, France - Seminar on "Electronic Democracy", Paris, Senate, 23-24 March 1995
- Record of proceedings of the Seminar on "Electronic Democracy", Paris, Senate, 23-24 March 1995
- Instruments of direct democracy in the member states of the Council of Europe - Study by Mr Silvano Möckli, Institut für Politikwissenschaft, Hochschule St Gallen, Switzerland (1996), Council of Europe Publishing, Strasbourg, 1996
- Local referendums - Publication in the series "Local and Regional Authorities in Europe" of the Council of Europe, N° 52, 1993
Reporting committee: Committee on Parliamentary and Public Relations
Budgetary implications for the Assembly: none
Reference to committee: Order No. 489 (1993)
Draft resolution adopted by the committee on 21 February 1997
Members of the committee: Mrs Mihaylova , M. Kelam (Vice-Chairman), Mrs Arnold, Mr Berceanu, Sir Andrew Bowden, MM. Brennan, Bugli, Mrs Bušic (Alternate: Domljan, Vice-Chairman), MM. Cardona, Christodoulides, Colombier (Alternate: Masseret), Columberg, Dagys, Diacov, Dzasokhov, Eversdijk, Mrs Fernandez de la Vega, Mr Fogaš (Alternate: Fico), Mrs Grzeskowiak, MM. Henry (Alternate: Staes), Horn, Hughes, Kollwelter, Kotlar, Koulouris, Külahli, Laakso, Lauricella, Lekberg, Likhachev, Lummer, Martins, Mignon (Alternate: Seitlinger), Minarolli, Moser, Mrs Nistad, MM. Pahor, Pantelejevs, Mrs Ragnarsdóttir, MM. Rott, Samofalov (Alternate: Popesku), Speroni, Svoboda
N.B. The names of those members who took part in the vote are printed in italics.
Secretaries to the committee: Mr La Porta and Mrs Theophilova
1 1by the Committee on Parliamentary and Public Relations
2 2The French, Lithuanian (see para.22) and Slovak delegations to the Committee on Parliamentary and Public Relations emphasise that in their countries, referendums also deal with major policy issues. The French delegations reminded the meeting that, in France, in connection with the 1958 Constitution, the following questions were submitted to referendum : the Evian Agreements ending the war in Algeria, the election of the President of the Republic by direct universal suffrage, and subsequently the ratification of the Maastricht Treaty on European Union.
3 3 Author of a reference book for law faculties in France, entitled Institutions politiques, Droit constitutionnel, Editions Masson, Collection Droit, Sciences économiques, 11th edition
4 4 See Instruments of direct democracy in the member states of the Council of Europe, Council of Europe publishing, Strasbourg, page 9 as well as the summary in Appendix I
5 5 See Instruments of direct democracy in the member states of the Council of Europe, Council of Europe publishing, Strasbourg, page 9
6 6 "Local referendums", a publication in the series "Local and regional authorities in Europe" of the Council of Europe, No 52, 1993, page 8
7 7 "Local Referendums", page 8
8 8 "Local Referendums", page 11
9 9 See Bibliographic Notes, page 16
10 10 Dominique Rousseau, professor at the University of Montpellier I — Le Monde, 1 February 1996
11 11 According to many members of the Committee on Parliamentary and Public Relations, and particularly the British and French delegations, a low signature threshold for popular initiatives would result in too many referendums and would encourage the propagation of extremist attitudes or opinions incompatible with the European Convention on Human Rights. One Italian delegate favoured a 3% threshold for initiating a referendum.
12 12 On the contrary, the Italian delegation to the Committee on Parliamentary and Public Relations thinks that 50,01 is a minimum percentage for the result of the referendum to be considered valid.
13 13See Instruments of direct democracy in the member states of the Council of Europe, Counci of Europe publishing, Strasbourg, page 24
14 14 Many members of the Committee on Parliamentary and Public Relations and in particular the French delegation believe that the number of subjects submitted for referendum should be limited.
15 15 See Instruments of direct democracy in the member states of the Council of Europe, Council of Europe publishing, Strasbourg, pages 11-12
16 16 This opinion is not shared by members of the British and French delegations.
17 17See Instruments of direct democracy in the member states of the Council of Europe, Council of Europe publishing, Strasbourg, page 24
18 18Rf 1, page 5