Last updated on 28th July 2019
In the absence of an official announcement, we now know how the President and his government took into account the demand of the Yellow Vests for citizens’ initiative referendum. Unsurprisingly, the proposals that have been made do not fulfil – far from it – the two basic requirements of this demand.
The citizens’ initiative referendum (RIC) gave rise to several concrete and serious proposals. They have two common properties. Firstly, they allow the majority of voters – in case of disagreements between elected officials and a portion of the population – to settle the dispute through a referendum. Secondly, they allow citizens, and not elected officials, to set the terms and conditions of this procedure.
The first requirement implies that a portion of the citizens, the scope of which can be discussed, has the opportunity to trigger a referendum, for example, to cancel the fuel tax. The proposal or challenge of a policy must be able to lead to a vote, capable of settling any disagreement. This, in particular, allows to avoid having months of disputes in the street, unnecessary conflicts, exhausting and painful for all.
The second requirement allows those who do not have power – the non-elected – to better control the rules of the game. Any RIC proposal must contain the possibility of being modified by the same RIC and, in any case, approved only by referendum. This requirement is very important because it opens the possibility for citizens to adjust the formula to make it better. For example, as early as 1914, voters in Arizona deprived their representatives of the right to amend or remove decisions made by RIC and to do this through RIC.
According to the press, the President, in his aborted announcement, would’ve proposed a simplification of Article 11 of the Constitution relating to the shared initiative referendum (RIP), as well as the introduction of a local RIC.
Let’s start with Article 11. The two requirements are clearly not fulfilled since (1) Members of parliament are necessary for the procedure to succeed and (2) a referendum can be triggered on a limited number of topics, among which amending Article 11 itself is absent. In addition, this article has other important limitations. It cannot aim to repeal a law passed less than a year ago (so it would not have been useful in peacefully resolving the dispute over rising fuel prices). Among other things, in its terms of application, a petition cannot be formally launched by citizens, but only by parliamentarians. The initiative itself, therefore, belongs to the elected representatives. Finally, the parliament has a say on the proposal before it is submitted for a referendum, which does not guarantee that the proposal will lead to a referendum as it is.
Let’s move on to the local RIC. Here too, neither of the two requirements is fulfilled. Regarding the first one, the powers of territorial authorities are very limited, as are their budgets. The number of topics that can give rise to a procedure is very limited and, again, this tool could not have solved the socio-political crisis we have been experiencing since November 17th. Secondly, local decision-making procedures in France are decided at the national level. In other words, a commune or a department cannot self-administer as it wants, but only by the means that the national law makes available to them. If a community wanted a different RIC than the one proposed by the President, it would have no opportunity to modify it.
In order to compare these propositions with what could fulfil the requirements of a satisfactory RIC, I will now explain the simplest variant, which requires only a partial modification of a single article of the constitution and which can be found on the facebook page “RIC article 89”.
Constitutions generally end with the statement of the method by which they may be revised. The French Constitution is no exception: Article 89 – the last one – sets out the rules necessary for its modification. This article, as it stands, says that the changes to the Constitution must be:
- proposed by either the President of the Republic or by parliamentarians and;
- approved either by referendum or by 3/5ths of parliamentarians.
The proposed revision of Article 89 requires that constitutional changes be:
- proposed by the President of the Republic, by parliamentarians or by 700,000 citizens and;
- approved only by referendum.
This modification – although much more economical than those proposed by the president and his government – allows a portion of the population to introduce a public debate and a referendum on all sorts of topics. For example, this could have led to the proposal to ban the introduction of taxes on primary goods such as fuels without a referendum. Whatever the opinion of the majority of the voters, it would have made it possible to avoid the socio-political crisis that we have experienced. The first requirement is therefore fulfilled.
In addition, with respect to constitutional changes, other forms of RIC could be introduced into the constitution at the initiative of a portion of citizens, including to change Article 89 itself. Let’s suppose, for example, that some want to increase the signature threshold to one million or reduce it to 500,000. This is possible by virtue of this same amended article. Similarly, a RIC capable of repealing laws that displease may be introduced with this procedure.
In comparing the two proposals, it must be clear that one can call extremely different procedures “RIC”. In Russia there is a RIC of the same family as those proposed by Emmanuel Macron. Since its establishment in the 1990’s, no referendum has been launched and its existence is purely formal. It would not have allowed to democratise the Russian system. In Switzerland, on the other hand, there is a RIC close to the one resulting from the modification of Article 89. Since 1995, more than 200 citizens’ initiative referendums have been launched at the national level. The work of elected representatives and the involvement of citizens are strongly shaped by this tool.
When demanding the Swiss tool and receiving the Russian tool, it is impossible to conclude that the proposal that was made has any connection whatsoever with the claimed demand. Far from being a whim, dissatisfaction with the government’s proposals will therefore remain perfectly legitimate.
Raul Magni Berton, Mediapart