Participatory Constitutional Change

The People as Amenders of the Constitution

Xenophon Contiades, Alkmene Fotiadou, Xenophon Contiades, Alkmene Fotiadou

• Publisher: Routledge
• Year: 2016
• eBook ISBN: 9781317083887
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This book explores the recent trend of enhancing the role of the people in constitutional change. It traces the reasons underlying this tendency, the new ways in which it takes form, the possibilities of success and failure of such ventures as well as the risks and benefits it carries. To do so, it examines the theoretical aspects of public participation in constitutional decision-making, offers an analysis of the benefits gained and the problems encountered in countries with long-standing experience in the practice of constitutional referendums, discusses the recent innovative constitution-making processes employed in Iceland and Ireland in the post financial crisis context and probes the use of public participation in the EU context. New modes of deliberation are juxtaposed to traditional direct-democratic processes, while the reasons behind this re-emergence of public involvement narratives are discussed from the aspect of comparative constitutional design. The synthetic chapter offers an overview of the emerging normative and comparative issues and provides a holistic approach of the role of the people in constitutional change in an attempt to answer when, where and how this role may be successfully enhanced. The work consists of material specifically written for this volume, and authored by prominent constitutional scholars and experts in public participation and deliberative processes.

Part I
A synthetic approach

1
The people as amenders of the constitution

Xenophon Contiades and Alkmene Fotiadou

Introduction

In the context of constitutional democracies it is difficult to support that constitutional change does not belong to the people. Yet, it is far from clear how the people can effect constitutional change through the exercise of constituted power and whether the people are the drivers of informal constitutional change. Conceptualizations of the constituent power often coincide with conceptualizations of the people.¹ Constituent power can be viewed as ‘the body of people from whom the constitution’s authority emanates’.² The study of constituted power, however, often revolves around its limits and the way it is exercised.

This chapter aims to explore the role of the people as amenders of the constitution. Distinguishing between narratives and reality, theory and practice, it attempts to offer an overview of the current tendency towards popular involvement not only in constitution-making, but also in constitutional amendment. The crucial question is what makes the difference between success and failure in attempts to directly involve the people in constitutional change.

A conspicuous recent trend in constitutional design and political practice is the enhancement of the role of the people in constitutional change. Referendums, including constitutional referendums, are currently making a comeback in constitutional theory and practice.³ Although public participation in constitution-making appears to be a given, the same does not apply to constitutional amendment. Still, the emergence of novel participatory constitutional amendment procedures dictates the reconceptualization of the boundaries between constituent and constituted power. More than that, placing the focus on participatory constitutional change seems to represent a shift from the era of rights-centered constitutional discourse towards participatory democracy, which in turn could signal a shift in the balance between constitutionalism and democracy.

The reasons underlying this tendency vary. Accordingly vary the new ways in which it takes form, the possibilities of success and failure of such ventures, as well as the risks and benefits they carry. Understanding the current landscape entails revisiting the theoretical aspects of public participation in constitutional decision-making, understanding the benefits gained and the problems encountered in countries with long-standing experience in the practice of constitutional referendums, assessing the recent innovative constitution-making processes employed in Iceland and Ireland in the post-financial crisis context, and mapping out the use of public participation in the EU context. New modes of deliberation are juxtaposed to traditional direct-democratic processes, while the reasons behind this re-emergence of public involvement narratives must be linked to constitutional design.

What are the contemporary reasons for adopting direct-democratic modes of constitutional amendment? Do novel ways of building participatory constitutional change mechanisms exist? What are the features that account for success or failure in such ventures? Can all constitutional cultures effectively absorb direct-democratic procedures? Can the problems with the use of referendums, such as avoiding elite manipulation and framing the question, be similarly addressed in different countries? Is there a chance that the attempt to ensure more popular participation by adding a constitutional referendum to the prerequisites of the amending formula may backfire? Does this tendency towards more popular involvement mark a shift in constitutionalism, putting less emphasis on the constitutional protection of fundamental rights? Is it possible to put together a concise guide to popular participation in constitutional change?

The issues are multi-faceted. To begin with, every new political and constitutional proposal entailing a move towards a direct-democratic direction must be placed within its environment. The first question posed, requiring an answer, is whether such proposals qualify as a true move towards a more deliberative model, or are they merely a political narrative? The reasons behind this new trend vary: it may be a reaction to the financial crisis experience, or it may be rooted in the growing concern about the sovereignty loss due to European integration, or perhaps it signifies a new form of constitutional faith deepening the bond between the people and the constitution. Nonetheless, there is a distance between the theoretical conceptualizations of public participation and the reality of their practice.

Why? Sovereignty, democracy and constitutional change

The augmenting deliberative turn in established democracies can be attributed to distinct reasons.⁴ The enhancement of deliberative citizen-driven constitutional change can be viewed as a democracy – perfecting choice, or as a response to dis-enchantment with representative democracy, which in many cases was triggered by the financial crisis or policy failures, or as an attempt to counterbalance sovereignty loss through the participation to international entities such as the EU. From a different perspective, calls for enhancing civic participation may express a response to judge-made constitutional change, in jurisdictions where judicially induced informal constitutional change is perceived as a symptom of juristocracy.⁵

Innovative constitution-writing endeavours aimed at citizen-led constitutional change, which came as a response to the financial crisis, had a therapeutic function empowering the citizens. As such, experimental constitution-writing methods cannot be assessed only with regard to their success in producing constitutional text. Enhancing recovery efforts by reinforcing the people and restoring constitutional faith and trust in the institutions are aspects that need to be taken into consideration.

Responding to political and institutional disappointments is a corrective function aimed at filling the holes of representative democracy. Culture matters in such attempts not only with regard to their potential success or failure, but also with regard to the choice of remedy. Stephen Griffin considers direct-democratic infusions as an answer to political dysfunctions that have become apparent in recent policy disasters.⁶ Furthermore, he discusses the relationship between Americans and their constitution, stating that they ‘typically revere’ the constitution, stressing that, as Sanford Levinson points out, Americans are more likely to attribute to the constitution good policy results than policy disasters.⁷ The object of frustration is thus culturally defined and depends on the popular perception of the constitution.

Direct-democratic devices used as a response to the financial crisis provide a test area for the pitfalls of holding referendums to address unspoken sovereignty issues. The financial crisis triggered two debt referendums. Iceland and Greece subjected sovereign debt settlements to a referendum. Both referendums had underlying sovereignty issues, not in the straightforward way the issue appears in EU membership referendums, but in a more implicit and subtle way. Still, there is an important difference between the two debt referendums: in Iceland the question was clear and so were the consequences,⁸ whereas in Greece the question was ambiguous, and incapable of leading to predictable consequences. Furthermore, in Iceland the referendum must be placed in the wider context of constitutional participatory and quite experimental procedures that expressed an overall tendency.

An additional parameter is the fiscal content of such referendums. Debt deals are fraught with fiscal consequences, therefore the pros and cons of fiscal referendums also come into play.⁹ Should the people decide on taxation through referendums and how does this relate to the tax state? Fiscal referendums follow a different logic than sovereignty referendums and they are designed to impact fiscal policy directly. On the whole, there is a choice of constitutional politics to be made and it is highly questionable whether this can be a one-off choice. Nonetheless, in Icesave and the Greferendum issues were blended into a whole, which was neither about sovereignty nor about fiscal matters, but an amalgam, a fusion of notions and feelings.¹⁰

In the crisis-related fiscal referendums it is also possible to add the Irish 2012 referendum, where the Irish people voted ‘yes’ to the European fiscal stability treaty. The possibility of future bailouts was one of the important stakes of this referendum, which was however very straight-forward with regard to its result. Furthermore, from a comparative aspect, in Ireland there is a longstanding referendum culture, while there has been no sense of sovereignty loss in defiance of the people’s will, since the Irish constitution provides that every concession of sovereignty must be done by way of popular referendum.¹¹ Thus, in Ireland holding a referendum on the fiscal stability treaty is part of the constitutional culture, in Iceland it was part of a general turn toward citizen involvement, and in Greece it was an unexpected episode since referendums are not part of the constitutional culture.

Citizen involvement in fiscal matters through referendums is a constitutional choice with multiple repercussions. The dilemma in fiscal referendums can be simplified as ‘more or less state’, that is, referendums may operate either as a break on tax interventionism or adversely trigger a Robin Hood¹² effect leading to redistributive policies. This dilemma does not apply when the taxation is related to debt and to external obligations. Then the stakes are more complex but, contrarily, the narratives are simpler. The predisposition of citizens does not relate to their beliefs about the role of the state, interventionism and redistribution, but has to do with their stance towards the EU, nationalist sentiments and euroscepticism. The fiscal measures put to referendum are imposed so that international lenders can be repaid, which renders debt referendums a unique category of fiscal referendums.

Furthermore, the supra-national character of the subject matter also renders these referendums (especially the Greek one) a unique form of sovereignty-related referendum. One of the side effects of the financial crisis has been that it became obvious to all that constitutional control had slipped away from the hands of national governments. The darker side of European integration emerged. Nonetheless, there exist different ways to perceive things. If we view the financial crisis as a disaster, that is, a sudden event that seriously disrupts the functioning of a community or society and causes losses that exceed the community’s or society’s ability to cope using its own resources,¹³ we may view bailout agreements and the grouping of international lenders (such as the European Commission, the International Monetary Fund and the European Central Bank) as a response to the inability of countries to cope using their own resources.

Debt referendums were caught in between patterns of diminishing state sovereignty. The question is: were they ‘sovereign acts, self contained within the state’, or a delayed chimerical cry for self-determination? It must be noted that although Icesave did not have to do with EU membership, it enhanced isolationist and anti-EU feelings and subsequently Iceland dropped its bid to join the European Union. In Greece the outcome of the referendum was equally nebulous with its question. Although the question in debt referendums is about more or less taxes, it reads more or less sovereignty. The reaction of the people thus corresponds to what Tierney describes as the people ‘long excluded from what they envisage as an undemocratic process of elite bargaining’ instead of voting on the substance of the issue, vote against the process ‘which has preceded it’.¹⁴

Viewing debt referendums as a hybrid of fiscal and sovereignty referendums raises the question of their role not only within the state but also beyond it: within the context of multi-level constitutionalism.¹⁵ Furthermore, given that a stated purpose and an applied use of their outcome (with better or worse results) was that of a negotiation tool employed deliberatively toward attaining a better debt deal, a different question is also raised. What does it mean for referendums to be used for purposes other than the traditional deliberative and participatory function attributed to them?¹⁶

Pinning down the reason behind the turn towards referendums as a means of inducing formal or informal constitutional change is crucial for understanding the role of the people, that is, the role they are expected to perform and the role they actually perform. A unique antagonism between the EU and member states with regard to the pursuance of more democracy seems to be developing. The EU appears to seek more democratic legitimacy, whereas member states appear to seek through domestic processes a re-affirmation of sovereignty. This competition could result in more civic involvement at both levels, but it could also prove to be an empty shell, more symbolic than real.¹⁷ Much depends on cultural factors since constitutional cultures vary, even within the EU context, and so does the people’s familiarity with direct democratic processes.

How? Channels of people-driven constitutional change

Popular involvement in constitutional change can take many forms. The role of the people can be constitutionally prescribed either in the amendment formula or through the constitutional enshrinement of referendums that may induce informal constitutional change. Other channels of people-driven constitutional change exist.¹⁸ The people are often considered the driving force behind constitutional moments.^1...

Table of contents

• Cover
• Title
• Copyright
• Contents
• Notes on contributors
• Acknowledgments
• Introduction: Participatory constitutional change
• PART I A synthetic approach
• PART II Popular participation in constitutional change: Theoretical and historical aspects
• PART III Lessons from long direct-democratic experience: The equilibrium between democracy and constitutionalism in Switzerland and California
• PART IV New trends in popular involvement: Best practices and fatal mistakes in the Icelandic and Irish cases
• PART V The dilemma of introducing constitutional referendums: Luxembourg and Greece
• PART VI EU aspects of popular participation: European integration, national sovereignty and direct-democratic procedures
• Index