Referendums: an institutional mechanism for direct democracy?

29/03/2016 15:33
Shokirjon Hakimov, Doctor of Legal Sciences
Views: 5869

A referendum is never just an important legal and political component of direct democracy. It also involves a cumbersome and, above all, expensive campaign. This institutional mechanism thus needs to be analysed with regards to a particular political situation and to the specificities of a particular country. On one hand, there are cases of consolidated democracies where the decisionamakers either never resorted to such a procedural measure (the case of the Netherlands), or just on particularly singular occasions (the case of Belgium). On the other hand, there is a recurring trend in select post-Soviet states and other authoritarian regimes worldwide of refendums getting instrumentalized with the goal of political manipulation or extending the number of presidential terms

From a legal point of view, decisions made via nationwide voting gain a legal weight that does not require any additional confirmation from an institutional body. The legal weight of these decisions is superior to that of laws adopted by the Parliament, they enter into force and apply to the entire territory of a given country and generally cannot be abrogated or modified, unless the outcome of a yet another referendum does so.

With the institutional mechanism of a referendum, one can clearly assess the stance of citizens on a given set of topics and verify that citizens trust the policies put in place and the official “government line”. For the aforementioned reasons it would be useful to identify three aspects assuring the legitimacy of a national referendum. First, give all citizens the same chance to express their view on a treated topic via popular vote. Second, allow citizens to make a qualified decision, not basing the latter on the interests of a political party, but rather on the interests of society as a whole. Third, reconcile the interests of the nation with those of the government, as referendums give citizens the chance to feel responsibility for what is happening in their country. In any case, the stances that the media take on a relevant issue can hugely affect the results of a referendum organized through democratically functioning institutions.

The issue tackled by a referendum should be rendered understandable and accessible to the ordinary voter as the ultimate decision made in such a manner is usually a political one, albeit covered by a layer of legal formalness. In addition, any referendum should be preceded by exhaustive explanations by the media, which should include an assessment of both the desirable and the undesirable potential consequences. The media, public state-owned media in particular, should be obliged to offer prime slots to political parties, free of charge, during the election campaign. Promotional campaign materials should be distributed by post at preferential rates and via preferential proceedings. Complex political questions, like amending the Constitution, should be decided upon only once all of the aforementioned criteria are met.

Since we already tackled the theoretical aspects of the issue, we may now treat the very concrete procedural issues related to the referendum planned this year for May 22nd in Tajikistan.

Particular preliminary measures are required to enable the citizens to cast a qualified vote on the constitution-amending proposal. One also needs to point out that a particularly complicated procedure for modifying the Constitution has been introduced with the adoption of the present 1994-one, with institutional durability in mind. The latter built on the experience of constitutional developments of the Soviet period.

Quite obviously, the more complicated the constitution-amending procedures get, the more difficult it becomes to modify the Constitution itself. It would be, however, wrong to assume that either invariance or dynamism of any given constitution can be explained entirely by procedural constraints.

The case of Tajikistan showed that even a fairly rigid Constitution can undergo almost incessant changes. One set of explicative variables of the latter are the idiosyncrasies of the political system. For a long time period, one single political party has dominated the political system, through absolute majorities in both the Parliament and local representative bodies of state power. A constitution existing in such a system is marked by an unusual lack of stability, subject to numerous modifications and amendments. No formal procedural arrangements can limit such activities in an absence of a true multiparty system and under the personalized rule of the head of state.

Even an institutionally malleable constitution can remain comparatively more stable in a true multiparty system, where varied configurations of political power are allowed to exist both in Parliament and in society.

Some proposed changes or amendments do deserve support. For instance, one should section 1 of article 5 addressing the supreme value of the human being, his or her rights and liberties; section 6 of article 8 prohibiting the local transposition of foreign political parties, the creation of political parties exhibiting an ethnic or a religious nature, or the financing of political parties by foreign citizens, governments, organizations and legal persons; section 2 of article 34 stating, that parents are responsible for the upbringing and education of their children, while able-bodied adults are responsible for the care and social welfare of their parents.

Concurrently, a considerable portion of the proposed constitutional changes that are to be decided upon during the planned referendum leave much to be desired. It is the most flagrant case of proposed alteration of section 2 of article 1 of the Constitution, which defines the form of government as a presidential one. However, the actual institutional functioning, namely the interaction of the supreme bodies of the state – the President, the Parliament and the Government, exhibit only fragmentary characteristics of a presidential system and cannot thus be clearly defined as a presidential one. For once, the President lacks the right to dissolve the Parliament, to freely appoint and discharge the Prime Minister and other members of the government and to set the political line of the government and its structure. All of the mentioned are rather odd for a purely presidential system.

It is far from clear to what extent is an independent government, in its capacity of a supreme executive governing body of the state, responsible for the affairs of the Republic, what is the scope of the more important of its functional powers and in what cases can it become subject to a motion of non-confidence.

There is one additional feature unusual for a presidential system, namely the very existence of the position of a Prime Minister. As his or her prerogatives are left unaddressed by the Constitution, the Prime Minister ends up being a merely nominal figure.

In accordance with the proposed modification of section 3 of article 61, both chambers of Parliament would have the authority of “interpretation of the Constitution”. Such a wording raises objections on multiple levels. Above all, it runs counter to the principle of the separation of powers and fails to comply with established legislative procedures. The interpretation of the Constitution by the Constitutional Court constitutes the basic set of checks and balances that the judicial power disposes of, above all in regards to the legislative power. The provisions of laws declared unconstitutional, for instance, cease to apply. Furthermore, the aforementioned legal norm runs contrary to section 1 of article 98 of the Constitution, which stipulates, that any change to the Constitution has to be approved via national referendum. The authority of the supreme legislative body to officially interpret constitutional legal norms would be, in practice, on par with the actual right to introduce changes to the Constitution, albeit less explicitly. Concurrently, the interpretative authority given to the very same supreme legislative body that had earlier adopted the very same legal norm would be just a more hidden additional legislative competence, as official interpretations would have the same weight as legal norms.

The core of the new wording for section 5 of article 65 of the Constitution aims to create favorable conditions for unrestrained and indefinite re-elections of the incumbent President. In addition, the same new wording would undermine the creation of a genuine multiparty system, restrict political competition and reduce the space for ordinary citizens taking part in the political life of the country and managing their country.

This shows that, even though the 1994-Constitution has already undergone changes on two separate occasions, in 1999 and 2003 respectively, and additional modifications are to be decided upon on May 22nd, it is still remains and will remain a flawed “work in progress”. It would thus be preferable and more logical to adopt a whole new Constitution as a pre-requisite for a new stage of Tajik statehood.

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