Constitutional Justice and Democracy by Referendum

Strasbourg, 23-24 June 1995 CDL-STD(1995)014 Or. Engl. Science and technique of democracy No. 14 EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW (VENICE COMMISSION) CONSTITUTIONAL JUSTICE AND DEMOCRACY BY REFERENDUM Strasbourg, 23-24 June 1995 TABLE OF CONTENTS I. Introductory statement by Mr Antonio LA PERGOLA, - President of the European Commission for Democracy through Law ......................................... 3 II. Constitutional Justice And Democracy By Referendum - Opening speech by Mr Norbert OLSZAK, Dean of the Faculty of Law, Robert Schuman University, Strasbourg ..................................................................................................... 7 III Constitutional justice and democracy by referendum - Introductory address by Mr Jean-François FLAUSS, Director of the "Institut des Hautes Etudes Européennes" (IHEE), Robert Schuman University, Strasbourg ......................... 9 IV. Constitutional justice and democracy by referendum in France - Report by Prof. Jacques ROBERT, Member of the European Commission for Democracy through Law, Member of the Constitutional Council ....................................... 34 V. Referendums and the Constitutional Court in Italy - Report by Mr Sergio BARTOLE, Professor, University of Trieste .................................................... 43 VI. The referendum and its control in Switzerland - Report by Mr Ulrich HÄFELIN, Professor, Zurich ......................................................................... 53 VII. Constitutional justice and consultative democracy in the United States - Report by Mr Julian N. EULE, Associate Dean, UCLA School of Law .............. 66 VIII. Referendums in Canada (federal level) and in Quebec - Contribution by Mr José WOEHRLING, Professor, University of Montreal .................................... 84 IX. Some remarks on referendums in Finland - Contribution by Mr Matti NIEMIVUO, Director of the Department of Legislation, Ministry of Justice, Helsinki ....................................................................................................... 88 X. Constitutional justice and democracy by referendum in Hungary - Contribution by Prof. János ZLINSZKY, Member of the European Commission for Democracy through Law, Member of the Hungarian Constitutional Court and by Mrs Magdolna SIK, LLD. ......................................................................... 92 XI. Constitutional justice and democracy by referendum in Ireland - Contribution by Mr James CASEY, Professor, University College, Dublin ............................ 97 XII. Constitutional justice and democracy by referendum in Japan - Contribution by Mr Yoichi HIGUCHI, Professor .............................................................. 103 XIII. Referendum in Lithuanian constitutional practice - Contribution by Dr Kestutis LAPINSKAS, Member of the European Commission for Democracy through Law, Judge at the Constitutional Court of Vilnius ............................. 105 XVI. Referendum in the constitution of the Slovak Republic and the powers of the Constitutional Court of the Slovak Republic - Contribution by Mr Ján KLU_KA, Member of the European Commission for Democracy through Law, Judge at the Constitutional Court of Košice..................................................................... 118 XVII. A priori judicial review of the validity of a referendum - Contribution by Mr Franc GRAD, Professor, University of Ljubljana .......................................... 122 XVIII. Constitutional justice and democracy by referendum in Spain.Contribution by Mr Luis AGUIAR DE LUQUE, Member of the European Commission for Democracy through Law, Director of the Centre of Constitutional Studies, Madrid ................................................................................................................. 126 XIX. Constitutionality of referendums in Ukraine Contribution by Mr Petro MARTINENKO, Professor, Ukrainian Institute for International Relations ..... 135 XX. Constitutional justice direct democracy - Consolidated report by Mr Andreas AUER, Professor of Law, University of Geneva, Director of the Research and Documentation Centre on Direct Democracy (C2D) ............................... 139 CONSTITUTIONAL JUSTICE AND DEMOCRACY BY REFERENDUM I. Introductory statement by Mr Antonio LA PERGOLA, - President of the European Commission for Democracy through Law Mr President (of the Robert Schuman University), distinguished guests, Ladies and Gentlemen. We shall devote these two days to the study of the link between two very topical themes: direct democracy and constitutional justice. Of course, they are not new questions. They have been raised and explored by scholars. They have been debated in many meetings before ours. However, we shall see that these subjects, and especially the links between them, are now more topical and, above all, more universal than ever. On the one hand, greater interest in the subject arises from the increasing complexity of the legal order, or of legal orders generally. On the other hand, the democratisation of many countries whose representatives I would like to greet here extends the territorial scope of direct democracy as well as of constitutional justice. What do we mean by the increasing complexity of the legal order? At first sight, our themes for discussion appear neat and tidy: the first topic is concerned only with the referendum as a law-making or a decision-making procedure, one whereby the electorate legislates or decides in place of representative organs. The second topic relates to the constitutionality of laws or of whatever other enactments may fall within the purview of judicial control. In reality, however the picture is complicated by the hierarchy of sources that must be established by positive law to determine whether and to what extent constitutional controls can be exercised over requests and petitions for a referendum, or over such results as are produced in the domestic legal system once the referendum is held. Here is a variety of issues that need to be settled. Is the referendum still seen as a manifestation of popular sovereignty, the validity of which cannot be questioned? This view seems hardly tenable and, at any rate, it is not commonly recognised by rigid constitutions. Basic charters will generally lay down an appropriate procedure for the referendum and define the possible scope of this instrument of direct democracy. The observance of such provisions can be secured by judicial controls, as is the case with any other constitutional rule. Yet the problem remains whether judicial controls should be prior to the popular vote or rather subsequent to it and so have a bearing only on questions of procedure. If this solution is adopted, the substantive outcome of a regularly held referendum cannot be contradicted by the law-giver or any other political body. The need for an a posteriori substantive control thus vanishes from sight. Of course, the answers given by positive law to this question and many more that concern us may vastly differ, and they do. The point of the present seminar, I should think, is to view the whole matter in a comparative perspective, and begin discerning the ways in which referendums fit into the pigeon-holes of constitutional justice. It stands to reason that there is more than one possible approach to the field of interest covered by the Seminar. A Constitutional Court may be the judge of the regularity of elections, or, at least, of certain elections like, say, that of the Head of State, or of controversies regarding anyone's basic right to vote and stand as a candidate in the arena of political competition. The role reserved to the Court in respect of referendums may then be viewed as a corollory of this series of attributions, for the people's choice through direct democracy is after all an election, though one of a special kind. But our case can also be approached from an alternative angle, by assuming that while elections do not necessarily fall within the hard core of matters subject to judicial review a Constitutional Court may well be described as the natural judge of the hierarchy of the sources of law. Now, when a referendum affects legislation when the people's choice is designed to create new law or remove existing law the Court's staple task of seeing if legal rules conform to the Constitution should be held to extend to all the normative effects of such use of direct democracy as long, that is, as the will expressed by the people ranks on an even keel with ordinary legislation, and not on a higher plane. The fact is that, however we explain this phenomenon and attempt to systematise it, the referendum has found its way into the workings of judicial review. Kelsen's admission that the Court he had invented, way back in the 1920's, was a striking novelty, a daring departure from the dogma of Parliament's sovereignty, should be reappraised: constitutional justice seems to have progressed further than its own famous inventor had foreseen, since it is making significant inroads even into popular sovereignty. Should we believe, therefore, that the only legal imperative over which a constitutional Court spreads its protective wings is the absence of a sovereign in a legal sense? Whatever the answer, there is a trend worth noticing in Europe towards the parallel growth of constitutional justice and referendums, attributable to what we commonly understand as the integration process. As is well known, the accession of more than one country to the Community

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