Once more unto the breach, dear friends!
In the wake of the fiasco that was the referendum on RTV Slovenia, both the ruling coalition as well as the opposition are (again) mulling changes to referendum legislation. This was of course expected but it is none the less a most unwelcome turn of events, especially since constant abuses of referendum legislation in the minds of what seems to be majority of the voters now warrant limiting legal possibilities for holding a referendum.
There are broadly three sets of proposals in this debate. What (hopefully) follows is their deconstruction.
Set a referendum day
Proposed by Slovene Democratic Party (SDS) of Janez Janša. What the largest opposition party proposes is that a specific day in the year be set by law in advance and on that day any and all referendums which were called early enough in the year are to be held. On the surface, the proposal is quite appealing: no matter how many referendums are called, all the votes are held on the same date and instead of spending four million euro per referendum, you spend four million once and be done with it.
However, there is a huge – and I mean galactic – caveat. Let’s say for argument’s sake that the referendum date would be set on 1 June and the decision to hold a referendum would have to come no later than 30 May, because a month of campaigning has to be allowed for. Technically this means that any law passed after 30 May on which a referendum is to be held, will be “on ice” for up to thirteen months. If there ever was a neat way to temporarily block a law, this is it.
As we know, calling a referendum is a piece of cake in Slovenia, especially if you’re a political party which can muster 30 signatures in the parliament. This was was the case with almost every referendum ever held in Slovenia, be they consultative or subsequent (legislative). If the proposed provision were to be enacted, a law – no matter how urgent or crucial or just plain practical – could be blocked out of sheer politicking just by collecting the necessary signatures. Add to that the fact that by the time the referendum will be held the debate on the issue will have died long ago ans with it all the niceties connected with either “yes” or “no” vote, and you get a situation where the electorate is even less informed about the issue once it actually comes up for a vote and – even more – has to vote on multiple issues at the same time.
Indeed, one can easily argue that the idea of a single referendum day (or even two) per year in fact decreases democratic standards in Slovenia which are not all that high to begin with. Furthermore: although the idea was floated by the largest opposition party it is a given that – despite being prone to losing crucial battles – SDS will in time again be the ruling party in Slovenia. When that happens, such a provision on referendum would work very much against them, especially if they would be still given to radically altering legislation across the board. Actually, pengovsky refuses to believe that SDS leadership is as short-sighted as not to see that and that the entire idea is simply a red herring or a tactical move which – after it will be rejected by the parliament – will enable them to claim that they tried to do something
Set a quorum necessary for validity of referendum
We’ve been over this already in some other setting. But the bottom line is this: if a vote is called and majority of people don’t bother to show up, how can it be that their decision to stay at home has more merit than decision of the minority (no matter how small) which decided to exercise their right to vote? Seriously, people…
Revoke the 30 MP signatures provision
Floated by the ruling left-wing coalition – notably Social Democrats led by PM Borut Pahor – the idea sounds, well, tempting. No doubt a lot of people would see it as taking candy from a spoiled brat. But not really. You see, the “30 signatures” provision is in the constitution for a reason. It is an essential element of a system of checks-and-balances. It provides the parliamentary minority with an instrument to prevent what de Tocqueville and Mills called “tyranny of the majority”. Because not all decisions are good or sensible, even though the majority voted in favour. So the provision goes beyond it’s current use as a political weapon of legal destruction.
Yes, the provision was abused many times under circumstances that -although perfectly legal – didn’t really warrant invoking it. But the parties currently running the show will inevitably come into a situation where they will be glad that the provision is in place. Even more: Slovenia may come into a situation where a question, vital to the future of the republic will be decided on and the only voice of reason will be a small, across-the-isle ad hoc coalition with the “30 signatures” provision being their only hope of preventing a decision of disastrous consequences.
And if you think this is a purely hypothetical scenario, think again. We saw that film a couple of times already. Or at least variations of it. In pengovsky’s opinion, the “30 signatures” provision was and is intended to be used in extreme cases. That it was abused doesn’t mean that it has to be abolished.
What to do?
Nothing. Direct democracy and checks-and-balances are not things you tamper with in a heat of a moment. Besides, there is nothing fundamentally wrong with current referendum legislation. It’s just that it is being abused beyond any sense of decency. But that is not a question of legislation but rather a question of political culture.