ABSTRACT
Referendums are often portrayed as instruments that are dangerous to rights and freedoms, particularly in the case of minorities (Bell, 1978; Gunn, 1981; Gamble, 1997; Haider-Markel et al., 2007). This danger would come from a natural tendency of the majority to be tyrannical and discriminatory towards minorities. This fear was in fact an argument put forward by the Founding Fathers of the United States to outlaw referendums at the federal level (Magleby, 1995: 19–20), and that country is the source of the greatest number of studies on the impact of referendums on minorities. Those studies show that, statistically, the risks of infringement of the rights of minorities are greater in states where direct democracy procedures are employed (Lewis, 2011). Yet the supposed hostility of referendum procedures to rights and freedoms has not always been taken for granted. For example, from the time of Jean-Jacques Rousseau’s Social Contract to recently in France, the sovereign people were perceived as best able to protect rights and freedoms, including by means of referendums (Fatin-Rouge Stefanini, 2003: 74). However, and more generally, the risk that referendums could kill freedom is a recurring criticism, and this criticism has grown louder with the crisis of representative democracy and rise of populism. In contrast, decisions adopted by representatives are reputed to be better able to protect minority rights because they are taken after deliberations in which various elements of the debate can be weighed one against the other (Eule, 1990: 1525). Decisions made by representatives are thus the results of discussions and compromises that take into account the different interests at stake, and these include the protection of rights and freedoms, including those of minorities (Moeckli, 2011: 777). In contrast, referendums allegedly do not favour such balancing because they do not leave room for debate (see, for example, Lewis, 2011: 366). This is not always accurate since, among the broad range of referendum formats, some take place after debates in assemblies, which may make recommendations (for example, the messages from federal authorities in Switzerland concerning popular initiatives), formulate the question (for example, in the case of the Portuguese referendum on article 115 of the constitution), or decide on the content of a text (for example, the French referendum on article 89 of the constitution). However, it is true that no debate can really be held with citizens, or among citizens. They will just have the choice of adopting or rejecting a text, of answering ‘yes’ or ‘no’ to a question, of choosing among several possible responses, but they will not be able to negotiate the content of the proposals. The supposed opposition between referendums and freedoms is, however, revealing of the evolution of the very notion of democracy. This debate contrasts the traditional conception of democracy, that is, ‘government of the people, by the people, for the people’, with the modern conception of democracy, which is sometimes called ‘constitutional democracy’. This conception integrates the rule of law and the respect for fundamental rights and freedoms proclaimed in constitutional and international texts. The classical conception leads to enshrining political choices directly determined by the majority of citizens; the modern conception is intended to submit expression of the majority will, even when expressed through a referendum, to compliance with the law. The theory of the sovereignty of the people amplifies the differences between these approaches because the sovereign people, original holder of power, are by nature unlimited and are even less able to impose limits on themselves when they express themselves directly through a referendum. Moeckli points out: ‘Simply stated, this debate opposes, on the one hand, who depict the people as the absolute sovereign on whose will, finding its expression on direct democratic processes, no limits can be imposed with, on the other hand, those who argue that in a state based on the rule of law, even the people must comply with certain fundamental rules, including respect for human rights’ (2011: 775). Present-day respect for democratic values would therefore suppose that it is not possible to infringe on fundamental rights and freedoms, including by referendum. This theme is especially relevant in a period of return to grace of referendum procedures, in particular in the name of the need to allow the people to express themselves directly on the issues that are the most important for the social, societal, political and economic future of states. Citizens themselves want to intervene more frequently in public debates and political decision-making; such participation is seen as a means of overcoming the real or supposed failure of their representatives to respond to their concerns in an appropriate manner. The increase of popular initiatives throughout the world in recent years can be analysed as a consequence of this claim. However, this development is not without danger to rights and freedoms, since such initiatives can be powerful tools for challenging representatives’ political choices, no matter what they are. While the risk that referendums could undermine freedom is real, especially for unpopular minorities, safeguards have nonetheless been established by some states to try to reconcile citizens’ aims with the values to which modern democracies aspire.
