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Theoretical and Legal Base for Referendum

01 marzo 2019 -
Theoretical and Legal Base for Referendum

Contributo selezionato da Filodiritto tra quelli pubblicati nei Proceedings “5th ACADEMOS Conference 2018”

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Contribution selected by Filodiritto among those published in the Proceedings “5th ACADEMOS Conference 2018”

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GABURA Adrián[1]

[1]Faculty of Social Sciences, University of Ss. Cyril and Methodius in Trnava (SLOVAK REPUBLIC)

 

Abstract

The article deals with the theoretical and legal base of the referendum, where the author looks at the reasons behind existence of the referenda, from the historical point of view, but also from the reasoning from the point of view theoretical division of power. Also, author tries to explain existence of this institute based on the theories of the originating power. Very important part of the work is also comparison of different legal ways of enabling execution of referenda. Some countries do have this instrument only on theoretical basis, where it is allowed to use this means of decision making, like Czech Republic, but almost do not use it at the state level, some countries which are completely allowing this institute are not using it in practice.

Specific legal base is referenda without direct legal power, like the UK – what is actually today’s biggest case. Then there are countries, like Switzerland, which are using the referenda on regular basis and the decisions adopted in this process are compulsory transferred to the law.

 

Introduction

“Referenda is the constitutional institute, which main purpose, is to secure citizens of the state, to co-interacts at first hand at creation of the state will. Citizens in referenda enforce their title by voting, which has legal effect ... Voting of citizens without legal effect is popular initiative, popular voting.”*

 

Theoretical base for referendum

From theoretical point of view, it could be said, that “referendum is politically neutral way of deciding, which favour current public opinion” [1]. In broader sense, the referendum does represent call of nation to the immediate action, mainly law-making. That is basic institute of direct democracy. However, it is irregular institute only completing other forms of power execution. On the other side in the narrow meaning this really means deciding of the people [2].

Exactly connection with the concept of “current public meaning” is connected with seeing referendum negatively. “Primarily hysteria of mass decision making and irrational behavior of the crowd, but also non-ability of all community to consider complicated questions with national importance” [3], are considered as the worst. It is based also on the negative experience from the misuse of any of the instruments of democracy from the side of totalitarian regime.

But as stressed in the previous sentence, by the same way, were misused also institutes of representative democracy. Lexicologically it is expected, that the word “referendum” is originating from the expression “referred ad populum” what does mean submit matter for decision to people [4]. This institute was developed from antic people gatherings as were “agora” or “forum” [5]. The name on its own started be used, through the use within the territory in Switzerland, where originally was the people’s vote, but more hearing of the opinions from the village, about which delegates then refer at higher gathering. From the Latin name of this procedure “ad audiendum et referendum” then this institute got its name. “Citizens through their constitution are deciding, if they will be executing purely through parliament, or will be in some cases executing directly. Both forms on the administration of public matters are equal; when is which of them applied and the conditions of their applicability are regulated exhaustively in Constitution.”** Following Bröstl this is the desirable supplement of “election democracy” [2], Sadly, just theoretically in comparison with representative democracy, this form has higher level of legitimity as representative democracy [6]. Dahl, maybe influenced by geographical determinism, claims that referendum is more appropriate for small units [7].

In his opinion the large units are more complicated in praxis for applicability of the referenda. There are several types of referenda. The main division is the state or local level referenda (within local we mean also municipal level of referenda – sometimes there is a problem to divide between local as on the for example federal state or municipal referenda in literature). Also, the division of referenda can be for referenda ex post (cancelation of already existing legal act) or ex ante (before acceptance of the legal regulation) also the same applies for active or passive referenda, depending on who initiate the referendum. Usually there are only options for either citizens or parliament (with several national exceptions). Also, sometimes, the referenda can be classified for obligatory and facultative [8], if the law constitutes an obligation to do the referendum, before any further action will be taken, or the referendum and its declaration is purely in the will of the citizens. Hloušek and Kopeček dived referenda also based on their content to – constitutional, law-making, financial and so on [9].

Special institute are then also so called demonstrative referenda in non-democratic regimes as “a demonstration of support of majority” [7, p. 117] Usual in these cases is extremely high turnaround (not usual for the region), often supported by the legal obligation to attend. “Mechanism of referendum initiated by citizens serves as a “gun in deposit”, which leads stubborn politicians to that, that while creating public politics, they shall respect will of the people” [10]. “Facultative referendum is referendum, which could be called based on the consideration of the state organ, or also when set number of voters decided to request the call for referendum.”*** On the other side “obligatory referendum might be defined as referendum, which parliament must give to the citizens to approve, when deciding about essential decisions, which have character set by the Constitution.”*** Usually is this institute set to the constitutional documents of given state, regarding the character of the law, as the highest law, originating from the originators of all power of the given state [11]. “Execution of state power directly by citizens is individual form of application of the state power by the citizens, who are original bearers of power.”**** Within Latin legal proverb “Nemo plus iuris ad alium transferre potest quam ipse habet” (no one can transfer more power than he or she has) could people not transfer their power to the elected representatives if they had not power on their own. In any referenda, there should be applied the rule of subsidiarity. If any question is not possible to deal with at the representative levels (there is no will or it is legitimate), the question shall be dealt with at the level of power originators – citizens, who shall make the final decision. Or from experience i would dare to say, also shall this decision not take. Referendum on the state level shall be also some sort of insurance of the state power originators, in the meaning of theory of counterbalance, during not appropriate behaviour of elected representatives, citizens holding the power in hands, may use it, without using the representatives [12].

Rosputinský divides functions of referenda to this subcategory [13]:

1. Law-making – it is a certain type if allowance for the citizens create, change or annul valid law, by the allowance to break the law-making monopoly given to the elected representatives. Law acts shall be created not only by parliament but also by citizens in referendum. When the difference is in formal expression of the result of law making process and it the process on its own (for example “Act” and “referendum result”).

2. Participating – which at the first hand relates with law making function and represents sharing of the citizens on the public administration by direct voting, through which citizens enter to the active position and are not only passive recipients of decisions of representatives.

3. Corrective – issuing from the basic rules of referendum – the rule of subsidiarity of referendum and a rule of counterbalance. The substance is in the possibility of citizens entering to the deciding of the way of execution of public power administration also in the time between elections to the parliament or other elected body of representatives and also by that correct the deciding of parliament.

4. Articulatory – referendum gives possibility to express own interests or aims also to minorities and interest groups, not directly represented in parliament.

5. Opposing function – which serves as an instrument of eventual disagreement with the execution of state power by the opposition (either by opposition represented or not in parliament). Referendum shall be used only when there is no chance for reaching an agreement in parliament.

6. Thematizing – notifying on the serious problems of the society and themes urgently needing attention, or potential popularization of the certain ideas.

7. Legitimatize – via which is confirmed legitimacy of certain parliament decisions directly by citizens. Through this function is strengthened the authority and power of the parliament.

8. Avoiding function – use when the referendum is initiated by the public organs in the cases when the public organs are trying to avoid responsibility for “not popular decisions”.

Articolo pubblicato in: Diritto dei Paesi dell’UE


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