Memorandum by Caroline Morris, Senior
Research Fellow, Centre of British Constitutional Law and History,
Department of Law, King's College London
1.1. Member of the International Advisory
Committee, IRI-Asia (Initiative and Referendum Institute).
1.2 I make this submission in my personal
capacity. My views should not be taken to have the endorsement
of IRI-Asia or of King's College London.
2. SUMMARY OF
2.1 In a democracy, referendums are primarily
employed to legitimate or substitute for government decisions.
2.2 Referendums should therefore be binding
on the government.
2.3 If binding, the question to go forward
must be carefully worded and of an appropriate nature for public
decision of this sort.
2.4 In particular, referendums should be
held only on fundamental constitutional issues, with appropriate
protections for fundamental human rights and those of minorities.
3.1 The role of the referendum
3.1.1 The role of the referendum in a constitution
is not always easy to pin down. Referendums may serve different
purposes at different times. However, it is generally agreed in
the academic literature that referendums are a "first-best"
form of democracy for which representative democracy (the "second-best"
form) attempts to substitute. This view is mostly premised on
the importance of popular sovereignty and the consequent higher
legitimacy that can be attached to decisions made by, or subsequent
to, a referendum. Other goals served by referendums include the
greater opportunities for participating in government by the people
(and thus a possible decrease in political alienation and malaise)
and providing a restraint on the powers of government.
3.1.2 Despite these goals, referendums are
not widely employed as a form of government. This is because,
in my opinion, referendums are not well suited for determining
complex questions of law and/or policy. This conclusion is borne
out by the New Zealand experience of citizens' initiated referendums,
to which I will return later. Referendums also carry with them
the potential for manipulation of a government's popular standing,
the abdication of government decision-making on controversial
or difficult issues, and the danger that minority rights may be
overridden by populist sentiment.
3.1.3 They also suffer from logistical difficulties;
the practicalities of holding a referendum, the cost, the appropriate
timing (separately or with a local or parliamentary election)
and the issue of how to respond to and/or implement the decision
can steer governments away from their use.
3.2 Whether referendums should be indicative
3.2.1 New Zealand has legislated for indicative
referendums, to be held on any topic (with a few restrictions)
proposed by any individual and supported to go forward to a referendum
by at least 10% of eligible electors.
3.2.2 I do not support this approach. It
has essentially led to the referendum becoming an expensive form
of opinion poll, and the indicative nature of the result has led
to frustrations with the government response. This increases the
likelihood of political disengagement. The open-ended nature of
the questions which may go forward has created a further set of
interpretation difficulties, perpetuating the problem of arriving
at a suitable response.
3.2.3 However, where referendums are made
binding on government, much more care needs to be taken with the
wording of the question to be put, and the appropriate sort of
question that may be put.
3.3 The appropriate subject for a referendum
3.3.1 In a Westminster parliamentary democracy
based on parliamentary sovereignty, a referendum may be held on
any topic for which the empowering legislation provides. If the
empowering legislation is general in form, there may be no restrictions,
limited restrictions, or the holding of a referendum may be restricted
to certain clearly delineated topics. I am of the opinion that
this latter option is to be preferred.
3.3.2 The New Zealand Citizens' Initiated
Referenda Act 1993 chose the middle option: referendums may
be held on any topic, other than:
(i) calls for an inquiry into the way a previous
CIR Act referendum was conducted or an electoral petition under
the Electoral Act 1993; and
(ii) those questions which have already been
the subject of a referendum "of like effect" under the
3.3.3 This open-ended approach has led to
a wide variety of questions being proposed for referendum, of
which four have gathered the required number of signatures for
a referendum to be held under the CIR Act. The questions are:
Should the number of professional fire-fighters
employed full-time in the New Zealand Fire Service be reduced
below the number employed in 1 January 1995? (1995)
Result: 12% Yes 88% No
Should there be a reform of our Justice
system placing greater emphasis on the needs of victims, providing
restitution and compensation for them and imposing minimum sentences
and hard labour for all serious violent offences? (1999)
Result: 92% Yes 8% No
Should a smack as part of good parental
correction be a criminal offence in New Zealand? (2009)
Result: 12% Yes 87% No
3.3.4 The first question came out of an
industrial dispute, the second was a response to the recent increase
in MPs following New Zealand's adoption of the Mixed Member Proportional
Representation electoral system, the third followed a brutal attack
on the proposer's elderly mother, and the most recent question
followed the abolition of the defence of parental reasonable force
in the Crimes Act.
3.3.5 These sorts of questions (other than
the question relating to the size of the legislature) are unsuitable
as the subject of a referendum. Behind each question lies either
an array of complex and involved policy decisions involving the
careful weighing of different values and social priorities or
a private matter rather than national public debate, which the
public was not best placed to decide. These matters are not suitable
for resolution with a simple "yes" or "no".
3.3.6 To avoid this sort of scenario, consideration
should be given to adopting one of two options for circumscribing
the subject of a referendum. Obviously where legislation is drafted
to provide for a single referendum question this would not be
necessary, but if general legislation is adopted, some topic restrictions
should be adopted.
The negative model
3.3.7 Following the model of certain US
jurisdictions, certain subjects may be made off-limits e.g. matters
of taxation, defence, foreign affairs, the independence of the
judiciary and constitutional rights. Likewise, the Venice Commission,
in its Guidelines for Constitutional Referendums at National
Level suggests that fundamental human rights, most notably
"freedom of expression, freedom of assembly, and freedom
of association" should not be vulnerable to the referendum
process. There should also be a prohibition on questions that
are of dubious value, such as vexatious, frivolous, scandalous,
defamatory or indecent questions.
The positive model
3.3.8 The alternative is to adopt a positive
model, specifying in advance which subjects may be the subject
of a referendum. In my opinion, the most appropriate topics are
those which directly affect the constitutional make-up and powers
of a state, ie the "constitutional issues" of the terms
of reference. The 1975 EC membership referendum is an excellent
example of the proper use of a referendum. Other appropriate topics
would be a change to the electoral system or government (eg the
adoption of a new voting system or the abolition of the House
of Lords), devolved government, or changes to the sovereign powers
of a state. Any alteration to the democratic fundamentals of a
state should have the endorsement of its people. This aligns with
the foremost rationale for the holding of referendums. This is
something I believe was lost sight of when the NZ CIR Act was
3.3.9 The protection of rights such as those
contained in the Human Rights Act 1998 is somewhat more controversial
but still possible.
3.4 The wording of the referendum question
3.4.1 The New Zealand experience has shown
this to be an interpretative minefield. Referendum questions should
be clear, open to only one interpretation (e.g. what is a "smack"?
what is "hard labour"?) and not be leading. To achieve
this goal, questions should be carefully scrutinized before the
enabling legislation is drafted. In New Zealand this function
is performed by the Clerk of the House of Representatives. However,
experience shows that the Clerk has been somewhat shy to engage
with the proposed question wording. This may well stem from early
litigation over the Clerk's actions over the re-wording of a question
about battery hen egg production.
3.4.2 There should also be a requirement
that questions should address only one subject. The New Zealand
legislation does contain a provision that questions should be
capable of only one answer, but it does not seem to have been
interpreted as allowing for the imposition of a "single subject"
3.4.3 For example, the 1999 criminal
justice question can be broken down into five possible single
questions. A "yes" vote for this sort of question is
impossible to interpret: does the voter agree with the entire
proposition, or only one aspect of it?
3.4.4 I do not believe that voters are unable
to follow and vote on a series of questions. For example, in the
1992 binding referendum on electoral reform, New Zealand
voters were faced with a two-part question. In Part A they were
asked whether they wished to change the electoral system. In Part
B (regardless of their answer in Part A) voters were then asked
to indicate their preference for one of four alternatives to the
then First-Past-the-Post system. There does not appear to be any
evidence that voters were confused by this format nor that it
prevented them from expressing their views. In Part A, 1,271,284
people voted, and 92% of those voters then went on to vote in
Part B (1 121 261 people).
3.5.1 Referendums should be employed as
a form of decision-making only where the usual channels of representative
government are seen to be inappropriate.
3.5.2 Because of this, referendums should
be held infrequently, and when they are held, the result should
be binding on the government. Frequent resort to referendums,
or the use of indicative referendums, should be avoided.
3.5.3 The binding nature of any referendum
held necessitates careful attention being paid to the wording
of the question which is to be put.
31 December 2009