Administrative Reform Packages, pt. 4: On Referendum

Aaaand we’re back. Well, shit is going down and Ljubljana mayor Zoran Janković seems to be in quite a lot of hot water as of today, but we’ll leave that for another day (i.e.: next week), while we take a look at yet another proposal to change the constitution which was floated earlier this week and which is yet another example of systemic changes aimed at “resolving” very specific issues: the legislation on referendums.

What we’re dealing here with is of course a reflex reaction. You’ll remember that moves to change the legal provisions for calling a referendum have been floated before, most notably by the now-non-parliamentary Zares, but this time around the impetus for yet another round of changes to the constitution came as a result of the policemen’s union collection enough signatures to start referendum procedures on the austerity legislation which the Parliament passed about two weeks ago and which more or less cuts public sector expenditures, mostly by reducing the public employees’ pay checks. Given that Slovenian cops are not all that well paid (basic salary of a beat cop reportedly starts at a measly € 860) it it little wonder that the copper’s unions went all out and wanted to call a referendum on the issue. This seemed to have sobered up the ruling coalition which immediately floated the idea of changing the provisions for a referendum and which seems to have gotten the sympathetic ear of the opposition.

The problem is that it’s mostly bollocks.

Namely, this particular attempt at changing the constitution was concocted by none other than the president of the parliament Gregor Virant and provides for some pretty harsh limitations on who can call a referendum and for what purpose. Thus Virant proposes that the referendum procedures can only be initiated by 40.000 votes signing a petition (up from 2500we today), a majority in the parliament (up from a third of MPs,) that the National Council be stripped of the authority to call a referendum and – last but not least – disallowing a referendum on fiscal, monetary and human rights matters. Also, a 40% quorum for the validity of the referendum is proposed. Well, let’s take them apart one at the time:

Disallowing the referendum

Very fancy and in the current political climate where referendums appear to be a dime a dozen also very likeable. However, also mostly ineffective. You see, constitutional provisions all carry the same weight. Sure, there are differences in importance, interpretation and especially execution. For example, Chapter Two of the constitution, covering human rights and personal liberties is executed based directly on the constitution, while numerous other provisions require a legal framework to become effective. But on the whole it is not as if some constitutional provisions are more constitutional than others. Therefore, even if the parliament were to disallow a referendum on certain issues, there’s no guarantee that the said referendum will not be held as the constitutional court will always have to decide if the new constitutional provision is not denigrating some other provision.

Case in point being the idea of “forbidding referendums on human rights”. I’m sure Virant meant well, but it really is bullshit. Referedums on human rights can not be held as it is, I mean, the constitution doesn’t say that anywhere specifically, but since human rights are executed based directly on the constitution, you cannot change or limit them with a mere law. You may very well ask what then of the Family Code (basically a human rights issue), which – as you’ll remember – was defeated on the referendum. Well, take a look at this post. It was about future rights of same sex couples (to form civil unions and adopt children of their partners) against existing rights of petitioners for the referendum (to, well, call a referendum).

Things would be marginally better in case of preventing referendums on financial matters, but – again – such a provision would inevitably be pitted against other constitutional provisions.

Emasculating the National Council

Yes, pengovsky likes the sound of that as well 🙂 In fact, this is not a bad idea, but only a week or so ago Gregor Virant went ga-ga over abolishing the National Council altogether so he really should make up his mind. But taken at face value this is not really such a bad idea. As pengovsky explained in the previous instalment of this primer, the National Council is nothing but a conglomerate of special interest which has precious little to do with popular representation. Hence stripping it of the power to call a referendum is the least that could be done.

Raising the bar for MPs

As things stand now, thirty MPs can call a referendum. A third of the parliament usually (but not necessarily) means MPs of more than one political party, which means at least minimal level of coordination between the parties. Technically, this is an instrument allowing a substantial minority of MPs to force a nation-wide check of the parliamentary majority‘s decision. Raising the bar to a majority of MPs (press reports do not specify whether Virant meant an absolute or relative majority) therefore defies the point. If you can muster a majority of votes to call a referendum, why not simply change the law in question? Or prevent it from being passed in the first place.

This provision does not make sense. In fact, pengovsky suspects that it is only a thinly veiled attempt at stripping MPs of the right to call a referendum as well. Which is wrong. I know it sounds nice and squishy and there isn’t a government in the world which wouldn’t love to have a toothless opposition. But should this provision be adopted it will backfire with a clusterfuck of epic proportions.

The parliament is the representative body of the sovereign, i.e. the people. Therefore it must have all the powers the people have. Including the possibility for a substantial (note the adjective, it will become important later on) minority to call a referendum. In order to avoid the possibility of a tyrannical majority, the minority must have instruments at its disposal. I know these tend to get abused, but if this democracy thing is to work, such instruments simply must be in place. And – truth be told – not all that many referendums were called by the thirty MPs in the first place. Most were called via petitions, most of them party sponsored.

Increasing the required number of signatures on a referendum petition

OK, so the parliament passes a stupid law and the opposition will not or can not do anything about it. What do you do? Start a petition and collect signatures. If you collect enough, the law in question is put on hold while you get your thirty days to collect 40,000 verified signatures, deposited ad one of the 53 administrative units throughout the country. The thing is that to initiate this procedures you only need 2500 non-verified signatures which you can collect anywhere and just present them to the president of the parliament. These signatures are then compared to the national database of residents and if all checks out, you get your thirty days. Easy. In fact, it’s too easy.

Which is why of the entire poppycock proposal this particular provision makes the most sense. Collecting 40.000 signatures is marginally more difficult than getting just 2500 of them. As things stand now, plenty of organisations are rumoured to have these signatures collected “just in case” and use them whenever they see fit. Raising the bar to 40.000 non-verified signatures would alter the game just enough to deter some of the more crackpot referendums we’ve had in the past twenty years.

And while we’re at it, why not raise the number of verified signatures needed as well? I mean, getting 40.000 people to come to the administrative unit, fill out a form, present a proof of identity and submit to a computer check is a lot. But still, it’s only 2,5 percent of eligible voters. Not really a substantial majority, no? Pengovsky sees no harm done if the bar would be raised to 5% or 80.000 verified signatures. Hey, if you want to derail a legislative process, you might as well work hard for it.

Instituting a 40% quorum

And now the trickiest of them all. Virant again floated the idea of quorum for the validity of the referendum. Meaning that the result of a referendum would be valid only if the turnout was at least 40%, the idea being that all the crackpot referendums such as the one on the law on returning monies people invested themselves into building telecommunication infrastructure (don’t ask). Again, this looks very appealing at first sight. But the idea is inherently wrong and could even in the short term do more harm than good. And for four reasons:

One: in a democracy, you’re allowed to vote. In fact, you’re encouraged to do so. Be an active citizen (at least every now and then). But you don’t have to. Your decision not to cast a vote and therefore leave the decision to others is perfectly legitimate. Sure, there are consequences one way or another and it is always better to vote than not to, but you don’t have to. However, by setting up a quorum, people who don’t vote are in a position to passively deny people who do to have their vote count. They are the ones who went to the trouble of casting the vote and if only thirty percent do so. Why should those who choose to remain passive be allowed to decide the fate of the law in question. Why should, in fact, their non-vote count more than the vote of those who actually cast it?

Two: quorum is thought to ensure the legitimacy of the vote. I.e.: if enough people cast their vote, than the legitimacy of the decision is ensured. But why forty percent? Why should a referendum with a 40% turnout be any more legitimate than a referendum with, say 39% turnout? Even more: what if (and this is not an impossible scenario) in a 40% turnout the yes/no vote is split 55/45 and in a 39% turnout the split is 80/20? In the first case, about 375,000 people (the 55%) voted in favour, whereas in the second case as much as 530,000 voted in favour. But under the “quorum rule” the first result is valid while the second is not, although in terms of absolute numbers, many more people voted in favour in the second referendum. OK, so these are hypothetical borderline scenarios, but it is exactly these kinds of situation which test the functionality of any given system.

Three: quorum is suppose to prevent abuse of referendums for political reasons. In fact, it would encourage those very abuses. Namely, more often than not a referendum bid became the tool of last resort aimed at disrupting government policies. Sometimes is enough just to call a referendum to derail or at least severely impede policy making and execution. With a quorum, referendums could be called en masse just to derail a law in question while the petitioners need not really care about the result itself. Enacting a quorum is akin to giving various attention seekers and miscretants a sandbox, inviting them to fool around with the very basics of popular democracy and at the same time insulating them from political, legal or public-opinion consequences, because, hey!, the turnout just wasn’t there. Since the average cost of a referendum held is about four million euro, that’s a pretty expensive sandbox. And who wouldn’t want to play in such a sandbox?

And, finally, four: proponents of the quorum idea say that even the parliament needs a quorum for its vote to be valid. Which is true. Before casting the vote, MPs check in and only then are they able to vote and the vote is only held if more than half of the MPs are present. They can also abstain and still maintain the quorum. But if you want to draw the comparison with popular vote, you soon realise, that the voters are always present, therefore the quorum of the people is always achieved. the moment an inviation to the polling station is sent out the state electoral commission, this the equivalent of the voters checking in and it is for them to decide whether they vote yes or no or whether they’ll abstain.

Get rid of it. Expeditiously.

Thus, setting up a quorum for validity of a referendum instead of clearing it, muddles the picture even more than it already is. With all of this in mind, one comes to a conclusion that it would be better if this idea were scrapped altogether, since the only sensible proposal this particular “reform package” is the one on raising the bar for the number of signatures needed to call a referendum. Everything else will do more harm than good.


Enhanced by Zemanta

Published by


Agent provocateur and an occasional scribe.

2 thoughts on “Administrative Reform Packages, pt. 4: On Referendum”

  1. Merry Christmas to penguins and to all observers of the Slovenian predominant religion.

Comments are closed.