World Congress of Constitutional Law 2014
Workshop 16 Direct democracy
Ramona Delia POPESCU
Lecturer, Faculty of Law, University of Bucharest, Romania
[email protected]
THE FORMS OF DIRECT DEMOCRACY AND THEIR ROLE IN ENSURING GOOD
GOVERNANCE
ABSTRACT
Over the last decade, democracy has become an issue for politicians, policy makers and
ordinary citizens, following the rapid spread of democratization around the world, based on the
principle of separation and balance of powers. The new nation states try to discover the line that
describes democracy as the best available political system. On the other hand, the old democracies
experience a crisis which has revealed the limits of democracy and has augmented public distrust of
citizens in their political institutions.
The representation is the key element of any democracy, the indirect participation of people
being undertaken through competitive and regular elections. Representation is the relationship between
the people or the nation and an individual or a group that stands for or acts on behalf of it. But
representation cannot be the only expression of democracy, popular sovereignty implying the
participation of people in making crucial decisions for the administration of public affairs. Following
this approach, many constitutions stipulate that national sovereignty shall reside within the
people/nation, that it shall be exercised by means of their representative bodies as well as by
referendum.
My presentation tries to grasp the value of participatory democracy and the advantages it can
bring in boosting the image democracy has nowadays.
Participatory democracy shall allow the citizens to be involved in conducting the public affairs
at local, regional and national level by institutionalized ways, such as referendum or the citizens’
initiatives and/or by non-institutionalized ones, as demonstrations, online petitions.
Direct democracy could also amend the way the public authorities administrate public affairs
and enforce them in order to legitimate the governance on the will of the people. Consequently, direct
democracy is the framework for representatives’ accountability. In some political systems, the people
is demanded to intervene in order to balance the power between representatives bodies, as it happened
recently in Romania in the process of suspension of the President.
Within a system of multilevel governance, direct democracy may represent a solution for
reducing the democracy deficit that characterized the European construction.
CONTENT
1. General considerations regarding democracy and its forms
2. The exercise of sovereignty through means of direct democracy
2.1. Referendum
2.2. Recall
2.3. Popular initiatives
2.4. Control of constitutionality through actio popularis
2.5. Transparency
2.6. Free media
2.7. Non institutionalized participation
3. The role of direct democracy on the accountability of public authorities
4. Direct democracy and the system of multilevel governance
4.1. Popular legislative initiative
4.2. European referendum
4.3. Participation an expertise
1. General consideration regarding democracy and its forms
When speaking on democracy we are thinking perhaps at the best-known definition of it given
by President Lincoln in its discourse from 1863. By "government of the people, by the people, and for
the people," he meant, the essentials of democratic government he so well described are applicable to
all nations that aspire to a democratic society. Democracy, perhaps the most complex and difficult of
all forms of government, filled with tensions and contradictions is designed for the accountability of
government, being in a continuous evolution. Usually, the basic principles of a democracy are included
into the Constitution1, as the fundamental law of the state or they derive from the case law of
Constitutional or Supreme Courts. But any democratic society must obey the root principles2 according
to which the ultimate source of all authority is the nation/the people who is involved in the process of
enacting the laws and feels the ownership of those laws.
A lot of shortcomings appears in the system, given any democracy is an evolving system, but is
important how every nation tries to address those problems. There is no model, irrespective of how
successful it is, that all democracies should follow. Each nation/people must fashion a government out
of its own culture and history. The main feature of a democratic society is the fact all powers in
government must come from the people, and must be accepted by them as legitimate. This validation
takes place through a variety of means, such as law making process, free and fair elections, a free press
examining the workings of government, the right to know what the government is doing, the
limitations imposed upon the government, the protection of individual rights 3.
The spread of democracy around the world has not always been accompanied by a
corresponding spread of constitutional liberty. A number of democratically elected leaders have used
their authority to justify restricting freedoms. A living tradition of political liberty contributes
something even more than free and fair elections, or additional opportunities for political expression.
Liberal democracy also provides a legal foundation for the separation of governmental powers so as to
uphold basic freedoms of speech, assembly, religion, and property. But the future of liberal democracy
depends on performance, not on some inherited sense of moral entitlement. Its emergence as the
dominant normative paradigm in the 20th century owed much to the fact and perception that it was
instrumental in the rise of prosperity in Europe and the US. It is a fact that liberal democracies face a
constant tension between allegiance to universal norms and the pursuit of national interests. China, for
example, in the last few years demonstrates that it discovers the authoritarian efficiency to provide
public goods.
Over the last decade, democracy has become an issue for politicians, policy makers and
ordinary citizens, following the rapid spread of democratization around the world, based on the
principle of separation and balance of powers. The new nation states 4 try to discover the line that
describes democracy as the best available political system5. On the other hand, the old democracies
experience a crisis which has revealed the limits of democracy and has augmented public distrust of
citizens in their political institutions.
The Arab Spring revolutions have ushered in an historic wave of constitutional reform across
the Middle East and North Africa. This wave is unprecedented in Middle Eastern history,
encompassing not only those countries in which the previous governments were overthrown entirely,
but also those where embattled regimes, e.g. Jordan and Yemen, conceded constitutional changes in
order to ensure their survival.
1
It lays out the powers of the different branches as well as the limits on governmental authority. A key feature of constitutionalism is that
this basic framework cannot easily be changed because of the wishes of a transient majority. It requires the consent of the governed
expressed in a clear and unambiguous manner.
2
The roots principles are: constitutionalism, democratic elections, democracies ought to decentralize power and responsibility, the
principle of accountability to people in the process of law making, an independent judiciary, the separation of powers principle, the role
of a free media, the role of interest groups, the principle of transparency, protecting minority rights, the control of civilian authorities on
the military.
3
Melvin I. Urofsky, Introduction: The Root Principles of Democracy, in George Clack, Democracy Papers, p.6. The most important
forms of protection of human right is the constitutional review of legislation, whose principal purpose is to defend the fundamental rights
against violation from the legislation enacted by the elected representatives of the people.
4
See the Arab spring and constitutionalism in Tunisia, Egypt, Morocco, Iraq, Libya, Yemen.
5
In 1989 Francis Fukuyama said that democracy would eventually emerge as the universal form of human government.
Nearly all of these reforming6 countries have set strict timelines for the process, after which
they will submit the new constitutions to popular vote.7
Problems of constitutional governance in the 21st century will likely be problems within
governments recognized as democratic, the so called illiberal democracy. Democratically elected
regimes, often ones that have been re-elected or reaffirmed through referenda, are routinely ignoring
constitutional limits on their power and depriving their citizens of basic rights and freedoms.
Since democracy has meant rule by the people, vision shared by Plato, Aristotle, Alexis de
Tocqueville, Robert Dahl, for at least a century, in the West, the democracy has coincide with liberal
democracy8. But the mix of freedoms associated with constitutional liberalism is theoretically distinct
from democracy. Yet governments produced by elections may be inefficient, corrupt, short-sighted,
irresponsible, dominated by special interests, and incapable of adopting policies demanded by the
public good. While these qualities make such governments undesirable, they do not make them
undemocratic. Naturally there is a spectrum of illiberal democracy, ranging from modest offenders to
near-tyrannies. In Latin America, many democracies have survived through harsh economic
conditions, with no explicit challenges from the military or anti-system parties. Certain countries have
persisted in the face of weak institutionalization of formal democratic structures. Yet democratic
consolidation is incomplete without the support of constitutional liberalism. In addition to agreement
on rules for the competition of power, there must be fundamental and self-enforcing restraints on the
exercise of power. One effect of overemphasizing pure democracy as the ultimate test for freedom is
that little effort is given to creating imaginative constitutions for transitional countries. This is done not
simply by scheduling frequent elections or writing up a list of rights, but by constructing a system
which will not violate those rights. Constitutional government looks beyond the procedures for
selecting a government to the kind of deliberative arrangements, insulated from public passions that
defend individual liberty and the rule of law. The goal is to enforce limits on state authority, no matter
which party or faction may control the state at any given time.
The old democracies, the so called liberal democracies, are experienced lately the problems
issued by the economic crisis which determines politicians to take populist and anti-democratic
measures. In this period there is increasing evidence of citizen anger against politicians and bankers
who appear to conduct their affairs on the basis of pure greed and selfishness without any apparent
consideration for society as a whole. Economic inequality and government corruption tend to become
more evident in the public eye during recessions. The increased popular dissatisfaction with
democracy in Eastern Europe (Ukraine, Hungary, and Bulgaria) is an example of the long-term trouble
the recession may exacerbate.
The crisis is also testing the commitment to European integration. Elected heads of government
have been resigning to be replaced by technocratic prime ministers. When the elected prime minister
of Greece declared that he would hold a referendum on a necessary package of austerity measures, he
was warned by France and Germany the following day to withdraw his referendum decision. What
happened in Greece demonstrates the dilemma of popular democracy9. The European crisis has long
term structural and political implications. The policy makers set up new crisis mechanisms (ECB,
EFSF, and ESM)10 and embarked on new forms of economic governance giving the EU institutions
major new powers to oversee national budgets.
6
According to the constitutional architects a constitution should serve three major purposes: to establish governmental institutions,
standardize relationships among those institutions, and set up intra-governmental checks; to establish citizen rights; and to enshrine
common values, setting a raison d'état for the country.
7
In Tunisia, for example, when the whole Constitution is finally approved, it will need to be ratified by a two thirds majority of NCA
(Tunisian Parliament) members, or be subject to a referendum. In Egypt the 2012 Constitution (http://niviensaleh.info/constitution-egypt2012-translation/ ) will be revised, a referenda was organized on 14th and 15th of January 2014 (the results are not known yet).
8
There is no definition of liberal democracy, but there are some features which characterize it: universal suffrage, a constitution,
separation of powers, the rule of law, a strong middle class and a flourishing civil society, the existence of an opposition, the efficient
management of resources and public goods, the existence of interest groups, the protection of human rights, the pluralism. See Fraser
Cameron, Is Liberal Democracy the best form of Government to produce Public Goods?, http://lkyspp.nus.edu.sg/cag/wpcontent/uploads/sites/5/2013/07/Is-Liberal-Democracy-the-best-form-of-Government-to-produce-Public-Goods-by-Fraser-Cameron.pdf ;
Sebastian Raduletu, Is the Constitutional Democracy a necessary condition for implementing human rights?, Revista de drept public no.
2/2013, p. 68-73.
9
Could one really expect the Greek population to vote for stringent austerity in a referendum?
10
ECB is European Central Bank, EFSF is European Financial Stability Facility, ESM is European Stability Mechanism.
The two forms of democracy, representative democracy and direct democracy, has encountered
huge challenges in the last few years. The representative11 democracy has its origin in national
sovereignty according to which the whole power comes from the nation and the mandate is the
empowerment which the elected receives from the whole nation. The mandate received is general,
collective and irrevocable. According to direct democracy which has its origin in popular sovereignty,
the mandate is revocable, imperative12, the electors from a given constituency entrusting the elected to
follow entirely their instructions. Nowadays almost all constitutions consecrate representative mandate
and prohibit the imperative one.
In my opinion, the greatest challenge is the EU13 design, the lack of European demos not allowing the transfer of competencies at EU level through the theory of national sovereignty.
2. The exercise of sovereignty through means of direct democracy
Rule of law has a decisive role in democratization and we all must understand that good
governance is not possible to achieve without democracy and public participation. This is way I
believe the place of law in a political system must be clearly provided for in the Constitution and all
positive laws. In the followings I will mainly explain the role of direct democracy in Romanian
constitutional system. Pluralism, as a democracy feature, infers, on the one hand, the
institutionalization of the popular power and its realization through popular legislative or constitutional
initiative, free suffrage, recall or dissolution of elective bodies, popular veto, referendum, and, on the
other hand, the institutionalization of legislative power (the Parliament), executive power (the
government, the President) and judiciary (the courts).
2.1. Referendum
Referendum has its origin in Roman law where it designated a procedure of direct consultation
of the whole electoral body (represented only by the citizens, and not by the plebeians) regarding a
peculiar issue in order to legitimate it.
At our times, referendum, as a type of ballot, is seen by the majority of the constitutions as an
instrument of realization of state power. Referendum and elections are modalities the people expresses
its will, as the owner of the national sovereignty. Elections are linked with representative democracy
while referendum is the act whereby the citizens with the right to vote are demanded to respond by
“Yes”or ”No” in conjunction with the adoption of a political or legal document having fundamental
significance for the people or for the state, or to an answer regarding an issue of national interest or the
approval of a decision of capital importance for the governance.14
The referendum constitutes, aside the popular initiative and the right of removal from office, a
direct form for exercise of political power15 through which the legitimacy of government is verified
and the citizens’ control over the mechanisms of exercise of the power is realized. The referendum
doesn’t represent a form of dismissal of representative democracy whereas without that the Parliament
and the Government would be null. Moreover, the referendum represents the possibility of the people
to mediate political issues of great importance, such as the removal of the President. Consequently, the
referendum became a complex phenomenon with consequences and implications not only legal, but
also political or social, being used as well at European level.
At European level the legal basis for the referendum is represented by the Constitution, the
laws for the organization of the referendums and the Code of good practice on referendum, adopted by
the Venice Commission.
11
C. Leclercq, Droit constitutionnel et institutions politiques, 9 e édition, Litec, Paris, 1995, p. 48-49; L. Favoreu, Droit constitutionnel,
4e édition, Dalloz, Paris, 2001, p. 613; M. Duverger, Institutions politiques, Paris, PUF, 1970, p.103-104; Ch. Debbasch, J. Bourdon, J.M.
Pontier, J.C. Ricci, Droit constitutionnel et institutions politiques, 4 e édition, Economica, Paris, 2001, p. 50; T. Drăganu, I. Deleanu,
Studii de drept constituţional, Editura Dacia, Cluj-Napoca, 1975, p. 7-47.
12
M. Constantinescu, I. Deleanu, A. Iorgovan, I. Muraru, Fl. Vasilescu, I. Vida, Constituţia României comentată şi adnotată, Editura
Monitorul Oficial, Bucureşti, 1992, p. 155; V. Duculescu, C. Călinoiu, G. Duculescu, Tratat de teorie şi practică parlamentară, vol. I,
Editura Lumina Lex, Bucureşti, 2001, p. 255; I. Deleanu, Teoria şi practica regimului parlamentar burghez, Editura Dacia, Cluj-Napoca,
1978, p. 133-138; J. Barthelemy, P. Duez, Traite de droit constitutionnel, Editions Pantheon-Assas, Paris, 2004, p. 91-102.
13
A. Albi, P. Van Elsuwege, The EU Constitution, national constitutions and sovereignty: an assessment of a European constitutional
order, European Law Review no. 6/2004, p. 756-761, N. MacCormick, Questioning post-sovereignty, European Law Review no.
29(6)/2004, p. 852-863.
14
Cristian Ionescu, Raporturile Parlamentului cu Guvernul şi Preşedintele României, Universul Juridic, Bucuresti, 2013, p. 473.
15
See Decision of Constitutional Court no. 736/2012 (for now one Decision).
In Romania the referendum shall be understand taking into consideration the institutional
setting for the Romanian state by the drafters of the 1991 Constitution16, according to which the
President and Parliament have equal legitimacy17. Romania is defined as a “national, sovereign,
independent, unitary and indivisible state”18.
The main cause for the ambiguity of the Romanian system may very well lie in the ambivalent
constitutional relationships that the President must develop with other State authorities, particularly
with Parliament and the Government. In fact, after the adoption of the Constitution of 1991, it seems
difficult to clearly qualify the political system in Romania: is it a semi-presidential, or even a semiparliamentary one, as had been the design of its founding fathers, or is it a semi-presidential system
with presidential tendencies, which seems to be the path it has followed recently?19 In the words of one
of the drafters of the Constitution, the so-called ‘semi-presidential’ political system was not chosen ‘to
facilitate totalitarianism, but rather quite the contrary.’20
This ambiguity of the political system allows the state powers to use the referendum as an
instrument to justify their decisions regarding the governance of the state. The concept of good
governance of a state supposes a new social contract between the citizens and the elected officials,
contract which becomes a path to the political reconstruction within the power would be an issue of
social dialogue between social partners, allowing the civil society to participate to the decisional
process21. But the condition to valorise its role of a real factor of political and social equilibrium is to
be wisely used in order to succeed to maximize its effects: censoring the activity of the governants,
deterring the tendency of political parties to confiscate the people’s will 22. It may settle a hierarchy of
powers, placing the people in the position of the supreme body, which shall equalize the
representative’s statute, either is involving the legislative, the executive or the judiciary.
The types of the referendum provided by the Romanian Constitution and the context they are
used by the state powers over the time demonstrate the importance of participative democracy.
Article 2 of the Romanian Constitution provides that national sovereignty shall reside within
the Romanian people that shall exercise it by means of their representative bodies resulting from free,
periodical and fair elections as well as by referendum. It can be noted that the people can express
himself within the democracy by direct means as elections and referendum as well as by indirect
means such as representative bodies of a state: the Parliament, the President, the mayors, local
councils. The Romanian Constitution provides the followings types of referendum: the consultative
and facultative national referendum (article 90 - referendum regarding the issues of national interests),
the decisional and mandatory national referendum article 95 - the referendum for the removal from
office of the President and article 151 - the referendum for the revision of the Constitution.
The referendum organized according to article 90 is a modality of consultation of the whole
people on different issues of general interest of the country and of exercise by the people of the state
sovereignty23. It is a reminiscence of direct democracy, where the citizens have the option to directly
express and to contribute on the decision making process within the state. The issues of general
16
The Constitution is in force since 8 December 1991. The Constitution of Romania of 1991 was amended and completed by the Law
No. 429/2003 on the revision of the Constitution of Romania, published in the Official Journal no.758/29 October 2003. The Constitution
was approved by referendum on 18 and 19 October 2003 and it was republished by Legislative Council according to article 152, in the
Official Journal no.767/31 October 2003.
17
The direct legitimacy of the Head of State, however, was perceived by the members of Parliament, who also formed the Constitutional
Assembly, as an imminent threat to their own authority, even to their own legitimacy.
18
See also for a detailed description of these characteristics: I.Muraru, E.S. Tanasescu, Drept constitutional si institutii politice, editia 12,
vol.2, Ed. All Beck, Bucuresti, 2008; C.L.Popescu, Constitutionalizarea formala, prin revizuirea constitutionala, a normelor care
consacra valorile revolutiei romane din decembrie 1989, Revista Dreptul nr. 1/2005, p.12-24.
19
E.S. Tănăsescu, Who is defending the Romanian Constitution? Between Presidential obligation and Constitutional Adjudication, AUB
no.3/2007, p.23-37.
20
F.B. Vasilescu, in Geneza Constituţiei României, Monitorul Oficial, 1998, p. 511 et seq..
21
Ioan Alexandru, Reflectii privind evolutiile contemporane ale democratiei constitutionale, Revista de drept public no.3/2006, p. 1-7.
22
Laviniu Florin Usvat, Pro sau contra referendumului, Revista de drept public no.3/2008, p. 64-72.
23
The steps for organizing this referendum are: 1. The public announcement made by the President for the intention to organize a
national referendum, 2. The consultation of the Parliament by the President regarding the issues and the date of the referendum, 3. The
issuance by the Parliament of the decision containing the point of view on the opportunity of the referendum, 4. The establishment by the
President by decree of the object and date of referendum, 5. The publication of the decree and the announcement of the public about the
referendum by media, radio and TV, 6. Consultation of the people, 7. The confirmation of the results an the publication of them by the
Constitutional Court.
interest are defined neither by the Constitution, neither by the organic law regarding referendum24.
These issues are established discretionary25 by the President, the referendum may concern one or more
issues and the people have the possibility to express on YES or NO on these issues. The only
constitutional obligation for the President is to consult the Parliament before the organization of the
referendum. The ambiguity of the term “issues of national interest”, for lack of procedural limits
compatible with constitutional provisions peculiar to rule of law, may have significant consequences
over the guarantees of fundamental rights. If the definition of this term is dependent of the changes
within society, the referendum will be transformed into an instrument of controversial conflict
resolutions.
Given the large comprehension of this term, either normative or in case law, the President is
allowed to organize referendum even on criminal policy. In the legal doctrine26 it is argued that within
a democratic decision making process in criminal matters, the referendum shall be doubled by the
analysis of the necessity of the amendments of criminal law and by criminal policy studies.
Referendum on criminal policy is inappropriate taking into account the lack of education and
expertise, the interest of media and the probability of manipulation.
Through this procedure the President is permanently in contact with the citizens who vote him.
It is one of the direct modalities to find out if the President has or not the support of the electorate. But,
the right of the President to organize the referendum does not confer him the enactment procedure,
whereas the constituent power does not provide for him the possibility to organize a legislative27
referendum. The Constitutional Court in its Decision no. 799/2011 assessed that article 90 should be
modified to the extent of exemption from the referendum of the issues of national interest established
by the President and, that are approved by the people on referendum, shall impose the revision of the
Constitution.
The President used this procedure two times, once in 200728 when the question for the people
was “Are you agree that at the following parliamentary elections, all the deputies and senators shall
be elected in uninominal constituencies on a majority electoral system on two rounds?”. The second
one was in 2009, simultaneously with the presidential elections, when he demanded the people to
respond at two questions: “Do you agree to Romania's adoption of a unicameral Parliament?, Do you
agree to the reduction of the number of parliamentarians to a maximum of 300 persons?”.
Pursuant to the first referendum29, the Romanian electoral system was reformed in 2008, but
not as the President would like; the Parliament adopted the Law no. 35/2008 which consecrated the
uninominal system in a single round with the proportional distribution of the mandates. This electoral
system causes a mismatch between the expressed will of the electorate to the polls and the distribution
of mandates to the representatives. It creates a distortion of the representation through the way the
mandates are distributed. The distribution of mandates may create the premises of unconstitutionality
by reference to equal character of vote, because the norm of representation is modified and the weight
of vote of a citizen is different from another one. The d’Hond method favored the parties/political
alliances situated on second or third places within electorate options and not the first one.
Pursuant to the second referendum, the public authorities with legislative competencies (the
Parliament and the government), even the Constitutional Court validated it and the people answered
“Yes” in proportion over 80%, did not enforce any measures to accomplish the expressed will of the
electorate to the polls until present day30. A poor attempt was made in 2011 when the government
24
Law no.3/2000 regarding the organization and deployment of the referendum, published in Official Gazette no. 84/2000.
Decisions of Constitutional Court no. 70/1999, no. 567/2006, no. 355/2007.
26
Madalina Cristina Putinei Mihai, Referendumul utilizat ca instrument de politica penala, Revista Pandectele Romane no.7/2010.
27
Decision of Constitutional Court no.70/1999.
28
Decree no. 909/2007 issued by the President regarding the electoral system in Romania.
29
According to the Romanian law, in order for the referendum to be validated, 50% plus one of the total number of eligible voters (i.e. of
the number of people that appear on the official electoral list) had to cast their vote. In order that referendum may produce effect is
necessary the majority of the vote casted. The referendum is validated by the Constitutional Court.
30
On the contrary, the Government tried to amend the electoral law in a way that would raise the number of the parliamentary. But the
Constitutional Court in a controversial decision (no. 682/2012) decided the law is unconstitutional whereas it contravenes the will of the
people expressed on the 2009 presidential referendum. On the one hand, the Court recognizes the consultative effects of this type of
referendum, which means that its results do not create legal obligations for any subject of law, including the obligation for the Parliament
to legislate. On the other hand, the Court discerns between the direct effects of referendum and the indirect effects. In the case of
referendum regulated by article 90 of the Constitution, the effects are indirect which brings the Court to the conclusion that it imposes the
25
proposed the President the revision of the Constitution which included the issues of unicameral
Parliament and the reducing the number of MPs. The Constitutional Court decided the initiative of
revision is unconstitutional regarding some articles and, as a consequence, the procedure of revision
was stopped. But the referendum helped the President in office to win a new mandate, using in his
favor the anger of the people against the parliamentary and determining the people to come in huge
number to express the will, even that until nowadays the results of this referendum were not taken into
consideration. It was a conjectural moment fructified at maximum by the President in office who won
the sympathy of the people and, as a consequence, a new mandate. Thus, this referendum was used
more like an instrument of manipulation and a weapon against Parliament in order to delegitimize31 it,
than an instrument of direct democracy.
Concerning the effects of this type of referendum, the majority of scholars 32 agree that they are
consultative33. As a consequence, the result of the referendum cannot oblige the authorities to adopt
decisions in accordance with the will of the people expressed pursuant to the referendum. This does
not mean that authorities shall be passive to the wishes of the people. If they proceed on the contrary,
the authorities will shift off from the will of the citizens. If the result had not been consultative, the
people would be able to intervene into the area of competences established through the Constitution
for the public authorities.34 This procedure has an informative significance, but it can be used as a
weapon within electoral battles, with relevant political costs for the Parliament or for the President.
This is why is necessarily imperious to establish in the Constitution the character of this type of
referendum, the issues of national interests, even the conditions for the validity of referendum.
It results from the aforementioned hypothesis the most important contribution of citizens’
participation to the decision making process is not the realization of the democracy itself, but rather
granting the legitimacy that any political decision needed in order to be accepted as just and necessary.
Regarding the possibility to organize at the same time both election for an office (presidential,
parliamentary) and referendum, the Constitutional Court in its Decision no. 355/2007, regarding the
consultative and facultative referendum, decided that there are not any constitutional provisions to ban
the simultaneous organization of the referendum and elections (presidential, parliamentary, European
or local). As a consequence the principle ubi lex non distinguit, nec nos distinguere debemus is
applicable35.
On the contrary, The Venice Commission stated that national constitutional referendums shall
not be organized simultaneously with other types of suffrages especially for the states that want to be
recognized as rule of law states and with a functional democracy.
Lately, the Romanian Constitutional Court36 also stated that the simultaneously organization of
the parliamentary and local elections breaches the rules of Code of good practice in electoral matters
according to which the voting procedure must be kept simple, in order to keep the free expression of
electors and to assure the efficiency of the right to vote and free elections.
At the beginning of January 2014 the prime minister of Romania, the leader of the
governmental party, has publicly announced that the government intends to organize simultaneously
the elections for European Parliament and the referendum for the revision of the Constitution. In this
respect, the government tried to modify the appropriate legislation in order to organize the two types of
elections in two successive days. In order to surpass the solution of the Constitutional Court in
Decision no. 334/2013, according to which the modified legislation in referendum matters is not
applicable to the referendum organized less than a year after the amendment is done, the government
Parliament the obligation to legislate according to the will expressed by the people and not on the contrary. Moreover, the Court says that
the Parliament is obliged to legislate the results of the consultative referendum, according to the principle of constitutional loyalty
resulted from art. 2 and 61 of the Constitution. For the Court, the will of the people expressed at referendum becomes a reference norm
on which it refers within constitutional review.
31
Ramona Duminica, Criza legii contemporane, Editura C.H. Beck, Bucuresti, 2014, p.70-71.
32
See for example, Stefan Deaconu, Cateva consideratii privind referendumul national consultativ in Romania, Revista Dreptul
no.11/2007, p.38-49, Cristian Ionescu, Reflectii pe marginea art. 90 din Constitutia revizuita, Pandectele Romane no.3/2013.
33
For a different point of view: Genoveva Vrabie, Referendumul constitutional in Romania, Revista de drept public no. 1/2006, p. 19-28.
34
For example, if the people solve the constitutional conflict between different public authorities through referendum, the attribution of
Constitutional Court from article 146 letter e) will not be applicable.
35
In an opinion, the organization of a referendum from the President in office initiative, as well as candidate for a new mandate, favors
the President in relation with others candidates. (Cristian Ionescu, Raporturile Parlamentului, op.cit., p. 480)
36
Decision no. 51/2002.
was obliged to find alternative solutions for the accomplishment of the quorum and majority needed
for the validation of the referendum. Thus, it hoped that the organization of the two types of elections
in two successive days will mobilize the electorate to participate in growth number to express its will.
In my opinion, considering the different stake of the two types of elections, the national one for the
revision of the Constitution and the European one for the euro parliamentary election, a confusion
within the electorate may arise, who is put in situation to not figure out the difference between the two
types of elections and their effects and who is needed to express its will without a precisely goal
known. Finally, the government dropped off the Emergency ordinance.
Trying to proceed likewise the government was aware of the extent of participation to the euro
parliamentary elections. In my view, the expression of the political opinion may be realized not only
through the participation but even through absenteeism, especially when the legislation in force
imposes a participation quorum. Thus, a blockage majority is created by the citizens who choose to not
exercise the right to vote and who consider that their political will is imposed through a passive
behaviour. These citizens, choosing to not exercise a fundamental right, behold their own convictions
through the unacceptance, indirectly, of the contrary. This is why the failure to vote is still a form of
expression of political will and of participation to the political life37.
The referendum for the removal of the President, provided by article 95 of the Constitution
shall be held within 30 days from the approval by the Parliament of the proposal of suspension from
office of the President38. The suspension is decided by the Parliament, as the supreme representative
body of the Romanian people, in case the President committed serious facts that infringe the
constitutional provisions39, but the removal is realized by referendum. Thus, the Constitution regulates
the political accountability of the President in front of the people who elected him.
The assessment of the serious facts committed by the President, of their gravity and how they
breached the Constitution is at discretion of the Parliament. The party interests’ take prevalence when
MPs vote for the suspension40, which may influence the objective judgment of the people at
referendum. It seems convenient to state in the Constitution what is the significance of ”the serious
facts that infringe the constitutional provisions” or to introduce a provision that the President is
suspended just in case of breach of the liabilities obviously incompatible with the exercise of his
mandate, as French Constitution states.
The suspension of the President is without term, it lasts until the results of the referendum are
confirmed by the Constitutional Court. Within 30 days from the suspension, the Government is obliged
to organize the referendum for the removal of the President. The maintenance of the presidential office
depends on the result of referendum, which is decisional and mandatory. If the President is not
removed, he will resume the mandate. If the President is removed, the Government will organize
elections within 3 months from the vacancy of office. In the last case the imperative mandate is
consecrated, the President being in the situation to account in front of the people who elected him.
In an opinion41, if at referendum the citizens decide to not remove the President, the Parliament
shall be dissolved, whereas between the representative body and the people does not exist anymore a
representation ratio, the interests of citizens contradicting the Parliament’s action. The critics of this
opinion advance the idea that the political representation does not suppose the very correspondence in
every moment between the actions of the representatives and of the people. The mandate given to the
representatives is a general one, irrevocable and it supposes a decision taken by the majority. The
political representation cannot be invalidated by a punctual expression of the will of the people in a
given context and regarding an issue that did not make the object of the consultation at the moment the
mandate was given. As a result, the popular arbitrage regarding the removal of the President versus the
dissolution ex officio of the Parliament should be regarded as an “arbitrage of present popularity”42
37
See Judgment of Constitutional Court no.3/2012.
The procedure of suspension was realized for three times, in 1994, 2007, 2012.
39
The Constitutional Court is the competent authority which shall define these acts, but its notice has consultative value (art.95 par.1, art.
146 letter h) from Constitution, article 43 from Law no. 47/1992): see the Notice no. 1/1994, no. 1/2007, no. 1/2012.
40
Tudor Draganu, Drept constitutional si institutii politice, vol 2, Editura Lumina Lex, Bucuresti, 1998, p, 161.
41
See Raportul Comisiei Prezidenţiale de Analiză a Regimului Politic şi Constituţional din România-pentru consolidarea statului de
drept, Editura C.H. Beck, Bucureşti, 2009, http://www.presidency.ro/static/ordine/CPARPCR/Raport_CPARPCR.pdf.
42
Bogdan Dima, Elena Simina Tanasescu, Reforma constitutionala: analiza si proiectii, Raportul Comisiei pentru o noua Constitutie,
Universul Juridic, Bucuresti, 2012, p. 83.
38
and not as an instrument of verifying the political reliance accorded through the representative
mandate.
The constitutional43 referendum, provided by art.151 of the Constitution, is the referendum for
the adoption of a new constitution or for the revision of the constitution. The constitution establishes
the compulsoriness of the endorsement of the revision law, adopted by the Parliament, according to art.
151 par. (1) and (2) of the Constitution, through a referendum. The referendum is decisional, meaning
that public authorities are obliged to take into consideration the results of the popular will, and
mandatory, meaning that the authorities are obliged to organize it. The initiative of revision is censured
by the constitutional review either after the law is adopted by the Parliament44, either before the
initiative is sent to the Parliament45.
The revision is final only after the referendum. Due to the effects of this type of referendum
and for a democratic exercise of the right to vote, public authorities shall make efforts for the political
education of citizens and for the enhancement of the level of their engagement into political life. These
actions will help the people to decide in an informed manner and not conducted by the political option
of the leaders of political parties at a present time.
Over the past few decades we can see a proliferation in using the referendum for constitutional
decision making across the globe. For example, the referendum was used in the 90’s in the break-up of
Union of Soviet Socialist Republics and the Socialist Federal Republic of Yugoslavia and in the
emergence of new states as Montenegro (2006), South Sudan (2011). The referendum was used in
some states in order to create or amend the existing constitution, such was in Eastern Europe and Iraq
(2005) or Egypt (2011, 2014). As well, referendums have been used to establish complex new models
of sub-state autonomy, in the UK and Spain. In this respect it is foreseen that a referendum shall take
place on 18th September 2014 on whether Scotland should be an independent country.46 But this
referendum has only an advisory value, depending on the authorities from Scotland to finally decide
the independence.
The referendum was also used by the countries that joined the European Union such as Ireland,
Denmark, Croatia. The post 1989 world is one in which citizen-centered or civic republican authorship
in state-creation and constitution-framing has been, and in certain contexts, such as EU enlargement
and integration, continues to be, a significant factor47. The author explains there are three approaches
in which the proliferation of constitutional referendums is occurring: 1. the increased application of ad
hoc or discretionary referendums in states where the constitution does not require their use. For
example, UK hosted two referendums in 2011 for the voting system and devolution of further powers
to the National Assembly in Wales; 2. the growth in the number of constitutions that now mandate
referendum use, for example in Central and Eastern Europe after 1989; 3. the promotion of the
referendum by international institutions as they intervene in post- conflict processes around the globe.
We can conclude that the decision to organize a referendum shall be balanced with the
necessity to ensure equilibrium between the state powers, the effects of the referendums creating some
doubts regarding the democracy, even a consolidated one. In addition, the referendums may contribute
to the division of the society, because the right of the minority is not protected and the intermediary
opinions cannot be expressed.
43
The steps for the referendum are: 1. the initiative for the revision of the Constitution, 2. the constitutional review of the initiative by the
Constitutional Court, 3. the debate and the adoption of the law of revision, 4. the publication of the law in Official Gazette, 5. the
organization of the referendum within 30 days from the adoption of the law, 6. the observance of the procedure for the organization and
holding of a referendum and the confirmation of the results, 7. the entry into force of the law of revision.
44
Art. 146 letter l) of the Constitution – to carry out also other duties stipulated by the organic law of the Court. Article 23 of the Law no.
47/1992 regarding the organization and the functioning of the Constitutional Court provides: Within 5 days from the adoption of revision
law, Constitutional Court pronounces ex officio on this law.
45
Art. 146 letter a) of the Constitution – ex officio on initiatives to revise the Constitution. Article 19 of the Law no. 47/1992 provides:
Before the appraisal of the Parliament for the initiative of the revision, the draft of the law or the legislative proposal is send to the
Constitutional Court for control.
46
http://en.wikipedia.org/wiki/Scottish_independence_referendum,_2014. Following an agreement between the Scottish Government
and United Kingdom Government the Scottish Independence Referendum Bill set out the arrangements for this referendum, the question
to be asked being "Should Scotland be an independent country?". The principal issues in the referendum are the economic strength of
Scotland, defence arrangements, continued relations with the rest of the UK, and membership of supranational organizations, particularly
the European Union (EU) and NATO. http://www.legislation.gov.uk/asp/2013/14/pdfs/asp_20130014_en.pdf.
47
Stephen Tierney, Whose Political Constitution? Citizens and Referendums, German Law Journal vol.14, no.12/2013, p. 2185-2196,
http://www.germanlawjournal.com/pdfs/Vol14-No12/Vol_14_No_12_06.TIERNEY.pdf .
The Romanian Law on referendum had changed several times in the last few years, in order to
satisfy the needs of the political forces in charge at a given moment. The most often modified articles
were those referring to the quorum and majority (article 5 and article 10 from the Law. no.3/2000), the
political forces trying to ease or to harden the conditions for the validity of the referendum, taking into
consideration their immediate interests and not the general interests of the society. They decided to
change the legislation, considering the popularity within the electorate, around the moment they should
had taken decisions of the great importance, such as for example the removal of the President. The
referendum was seen as an instrument for the governmental party to curdle a majority in favor of its
policy of governance.48
The Constitutional Court,49 irrespective which political party has the power, in several
decisions, censured these actions by declaring them unconstitutional whereas they are unpredictable
and instable, being absonant to the Venice Commission Code of good practice.
In its decisions, the Court reasoned that quorum and majority are for the essence of the
referendum, being considered fundamental aspects of referendum law that should not be open to
amendments less than one year before a referendum. The Court cited from the Code of good practice
saying that the stability of referendum law cannot be invoked to maintain a situation contrary to the
norms of Europe’s electoral heritage in the area of direct democracy or to prevent the implementation
of recommendations by international organisations. Furthermore, given that it is unusual for the date of
a referendum to be known a year or more in advance (whereas elections normally take place at set
intervals), it is a matter not so much of prohibiting legislative amendments during the year preceding
the vote as of prohibiting the application of such amendments during the year following their
enactment, in case there are suspicions of manipulation.
As a consequence, the Court must assure the observance of the principles of stability of the
legislation on referendum and of the loyal consultation of the citizens with the right to vote according
to which the electors must know the issues making the object of referendum, the legal effects of the
referendum. Even the Parliament, as the supreme legislative body, must observe the principle of
constitutional loyalty, without the possibility to use disproportionate or abusive means for achieving
political goals. Thus, the Court shall oversee the gusty amendments of the law on referendum and
ensure the observance of the principles of legal stability (clarity, accessibility, and predictability), of
loyal consultation of the electors, of free elections and of good faith interpretation of the Constitution.
Legislative referendum, which is not provided by the Romanian Constitution (except the
referendum for the revision of the Constitution), arose a lots of discussion concerning the ability of the
voters to critically express on a normative act. Legal doctrine50 discloses that this type of referendum
needs a good civic and political education in order to achieve the goal of it: the topic of referendum, its
significance, the consequences of approval or dismissal of the issue of referendum, the legal procedure
of organizing it.
Legislative referendum may be organized as a mandatory step for the approval of the law, as in
Switzerland according to article 140 of the Constitution – when some urgent federal laws must be
adopted by referendum within a year from their adoption by the Federal Parliament – at the initiative
of the people (popular veto), according to article 141 of the Swiss Constitution – a certain number of
citizens may ask for the organization of a referendum for the approval or the rejection of a law already
voted by the Parliament or at the initiative of the MPs51. This system implies the cooperation between
the people and its representatives, either directly in case of mandatory referendum or indirectly in case
of tacit approval of the law due to the un-organization of the referendum. Due to this system, the MPs
are aware of the control exercised by the people when they are voting laws, their goal being not to
allow the organization of a referendum for the rejection of the law they have already adopted.
Article 75 of the Italian Constitution provides that a legislative referendum can be called in
order to abrogate some law totally or partially, if requested by 500,000 electors or five regional
48
It is worth to add that in Romania a one party system of government didn’t exist. See Victor Duculescu, Practici institutionale, Revista
de drept public nr. 2/2009, p. 49-61.
49
Decision no. 147/2007, Decision no. 731/2012, Decision no. 51/2012, Decision no. 334/2013.
50
Maurice Hauriou, Precis de droit constitutionnel, Paris, 1929, p. 550.
51
Denmark , Bulgaria, Hungary, Poland, Slovenia, France.
councils. This kind of referendum is valid only if at least a majority of electors goes to the polling
station and the Constitutional Court is obliged to verify a priori the constitutionality of the issues.
The legislative referendums may have either a restricted effects when their goal is to resolve a
political conflict or an extended one when the issue is very important. This type of referendum may
constitute an instrument for the political conflict resolution between state institutions, for example it
may signify the withdrawal of the trust granted to the Parliament pursuant to the rejection of the law by
the people or the withdrawal of the trust granted to the President who demanded the people to reject
the law adopted by the Parliament.
Referendums are also organized in order to legitimate the dissolution of states and the
independence of the new states, resulting from the secession, which found grounds on the
constitutional order of an undemocratic communist state as the ex-Yugoslavia. For example,
Montenegro’s independence still found grounds in the legal system of the state of ex-Yugoslavia,
according to which the right to secede belonged only to the Republics. Montenegro, inevitable
nourishes independence aspirations of other territorial entities across Europe and the World. The
representatives of the Basque and Catalan territorial autonomies closely followed the Montenegrin
referendum and the political climate evolving around this important event. Kosovo Albanians are
hopeful that the independence of Montenegro will facilitate their speedy separation from Serbia and
the Bosnian Serbs claim that they have right to vote on the future of the state of Bosnia and
Herzegovina52, regarding the Serbian entity in Bosnia-Republic of Srpska53.
2.2. Recall
The procedures involving popular intervention54 are classified in two categories: some grant the
people a right of participation less or more extended regarding law making process, while others allow
him to exercise the control over the elected officials. Within first category are encapsulated: popular
veto, referendum and popular initiative and within the second one: collective recall – aberrufungsrecht
and personal recall. The Romanian constitution consecrates only the referendum and popular initiative.
Personal recall of MPs is the consequence of their imperative mandate; the electors may
remove the delegacies without motivation, when they consider the MPs do not represent anymore their
interests. Recall is the procedural democracy device that allows voters to discharge and replace a
public official, a state, city, and county legislative and executive officials, typically a mayor or city
council member, including a judge.
The recall assumes that voters should have a degree of control over how government officials
act in office, the voters arguing for the organization of new elections in order to confirm or quash the
existing mandate. Candidates may be elected for a wide variety of reasons, including some that bear
little relation to their ability to perform their public duties effectively. The premise of the recall is that
if people can be elected for non-job related persons, they can also be removed for a variety of reasons.
The recall is a species of imperative mandate, being consecrated in the United States at state or
local level by Constitutional and statutory provisions or by special charters. A removal right similar
with the recall is met in some cantons of Switzerland, like Berne, Lucerne and Bale, the cantonal
parliament being dissolved for the calling of a vote to discharge canton officials.
The adoption of the recall in USA on either the state or local level since 1900 has been slow 55;
but no state which adopted the recall has later dropped the device. The recall was a successful
progressive reform, because the recall gave hundreds of thousands of citizens greater influence,
52
Referendum for the independence of Bosnia and Herzegovina was held on 29 February and 1 st of March 1992.
Annex 4 of The General Framework Agreement for Peace in Bosnia and Herzegovina, also known as the Dayton Agreements is
the current Constitution of Bosnia and Herzegovina and recognizes Republika Srpska as one of its two main political-territorial divisions
and defining the governmental functions and powers of the both entities.
54
P. Lauvaux, Les grandes démocraties contemporaines, 2e édition, PUF, Paris, 1998, p. 80-81; L. Boia, Mitul democraţiei, Editura
Humanitas, Bucureşti, 2003, p. 20-30; J. Cadart, Institutions politiques et droit constitutionnel, 3 e édition, vol. I, Economica, Paris, 1990,
p. 197-198; L. Favoreu, P. Gaia, R. Ghevontian, J.L. Mestre, O. Pfersmann, A. Roux, G. Scoffoni, Droit constitutionnel, Dalloz, 11e
édition, Paris, 2008, p. 573-575; M. Prelot, J. Boulouis, Institutions politiques et droit constitutionnel, 10 e édition, Dalloz, Paris, 1987, p.
85; L. le Fur, L’équivoque démocratique, p. 29-30 apud. T. Drăganu, Drept constitutional si institutii politice., vol. I, Editura Lumina
Lex, Bucuresti, 1996, p. 235-236; J. Barthelemy, P. Duez, Traite de droit constitutionnel, Editions Pantheon-Assas, Paris, 2004, p. 84-85.
55
For local level see: Los Angeles (1903), San Diego (1905), Seattle, Washington (1906). For state level see: Oregon (1908), California
(1911), Arizona (1912), Colorado (1912), Nevada (1912), Washington (1912), Michigan (1913), Kansas (1914), Louisiana (1914) and
South Dakota (1920). Montana (1976), Georgia (1978). Recall-ul is used for the removal of the members of all state powers in 11 states:
Arizona, Colorado, Georgia, Minnesota, Montana, Nevada, New Jersey, North Dakota, Oregon, Wisconsin, California.
53
directly or indirectly, over their government officials. The campaign for the recall was one additional
step in the evolution of American democracy.56
Initiation of the recall election supposes the completion of a petition signed by voters equal to
twenty-five percent of the entire vote for all candidates for that office in the most recent election. The
petition had to include a general statement on why the petitioners thought a particular elected official
should be removed from office. The city clerk had ten days to check the authenticity of the petition’s
signatures. Then the city council set an election date that was not less than thirty days nor more than
forty days from the date of the clerk’s certification of the petition. The incumbent’s name was
automatically placed on the ballot, unless the incumbent declined. Other candidates were placed on the
ballot by petition, with signatures equalling five percent of the total vote cast for the incumbent against
whom the recall was directed. Early experience with the recall revealed that an officer could be
removed from office by a majority vote, but is re-elected by a plurality vote if three or more candidates
split the votes. To prevent this occurrence, constitutional and statutory provisions and local
government charters stipulate that an officer may not be a candidate for re-election if the recall is
successful. Furthermore, these provisions stipulate that a targeted officer who resigns may not be
appointed to the same or similar office for a period of two years. Officers subject to the recall are not
limited in spending their own funds to retain office by state corrupt practices (campaign finance) acts
as the result of the United States Supreme Court's ruling in Buckley v. Valeo.57
The grounds for recall of an elected official are nowadays serious malfeasance or nonfeasance
during the term of office, or for not carried out their campaign promises, or for condemnation for some
offences, or for the simple fact of enough signatures being collected.
One feature of the recall mechanism which varies in different places is whether once a
recall petition has collected enough valid signatures, the recall ballot is combined with the vote for a
replacement officer if the recall is successful. In some places, the votes are combined, meaning that
voters have to vote on two issues: firstly, whether or not the officer in question should be removed
from office, and secondly, who should replace the officer if the recall is successful. In such cases, if
the recall vote is defeated, the vote on a successor is irrelevant and is ignored. However, if the recall
vote passes, the candidate who achieves the most support on the second vote is elected as a successor
to the recalled officer. Alternatively, an initial ballot on whether or not to recall the officer is held, and
only if the recall vote is passed is a second vote on a successor held.
It is important to state that the recall procedure followed the observance of the principle of
checks and balances, the control over the national or local elected officials in order to enforce their
incompetence, but popular participation was poor and the resulting majorities were conservative.58
2.3. Popular initiatives
The legislative function usually exercised by the Parliament has limits imposed either by the
people as titular of national sovereignty through electoral body under the form of referendum and
popular legislative/constitutional initiative or by other public authorities under the form of judicial
review, procedure of assumption of responsibility of the government before the Parliament, legislative
veto, legislative delegation.
The popular legislative initiative, as a form of direct democracy, allows a certain number of
citizens to propose draft bills in certain areas, whereas the constitutional initiative allows them to make
a proposal for the revision of the constitution. The referendum allows the citizens to approve or to
abrogate laws adopted by the legislative authority. In case of the legislative initiative the final decision
is taken by the Parliament after the vote expressed according with the legislative procedure, whereas in
case of the constitutional one it becomes law only after the people expresses its will on referendum.
Differences between popular legislative and constitutional initiatives regard the number of citizens
who initiate the proposal, the procedure, the effects and the content. Popular initiative may be useless
if the Parliament refuses to adopt the draft proposal or it modifies the initial drafting.
56
R. Farmer, Power to the People: The Progressive Movement for the Recall, 1890s-1920, The New England Journal of History no.
2/2001, Vol. 57, p. 59-83.
57
http://aceproject.org/main/english/es/esc01c.htm/?searchterm=recall.
58
Y. Meny, Initiative populaire, referendum et recall dans les Etats américains, Pouvoirs nr. 7/1978, p. 107-113, http://www.revuepouvoirs.fr/Initiative-populaire-referendum-et.html
In Romania there are a peculiarity regarding the possibility of the President to legislate
pursuant to the results of a consultative referendum (art. 90 of the Constitution). The constitution does
not recognize the right for President to legislate, but, although the effects of referendum are
consultative, the results cannot be ignored by the public authorities. They do not have any legal
obligations, but moral and political one, which can be accomplished willingly pursuant to their
internalization by the representative bodies. The people’s power cannot be limited, unless the results of
its prior decisions were already institutionalized. The lack of implementation is politically sanctioned
to the future elections by the refusal to re-elect the representatives.
2.4. Judicial review through actio popularis
Judicial review, exercised a priori or a posteriori, was seen as a guarantee for the supremacy of
the Constitution, which controls the legislator for overpassing the prescriptions of constituent power
and reminds it to observe the will of the people. In some countries, for example, Estonia and Lithuania,
one of the titular who can seize the Constitutional Court, with an a priori control is the ordinary citizen
even without having a legitimate interest in a given case.
This procedure is used very often in Hungary to invalidate laws, for example the laws regarding
death penalty, the use of identification numbers for official goals. Through actio popularis the Court
has developed constitutional principles, such as protection of personal data, freedom of expression,
right to property;59 an ex president of the Court argues actio popularis is an alternate for direct
democracy.
In case of actio popularis, the act under scrutiny is not necessary to be entered into force and
citizen is not bind to justify an interest, acting as a trustee of the public good.
In Estonian legal order the Supreme Court has the competence to review the constitutionality of
failure to issue legislation of general application and to declare the failure to issue legislation of
general application unconstitutional when is seized by a citizen60. The Supreme Court has no
obligation to examine legislative omissions ex officio, but in the Brusilov case, it did so, because the
applicant had no other effective remedy for the protection of his fundamental rights.
In law literature it was pointed out that a judgment concerning legislative omission should not
be more than merely declarative, because the court cannot furnish a provision which the legislator has
failed to establish. The Constitutional Court cannot substitute for the legislator by prescribing the
solutions, because this would amount to an impermissible violation of the principle of separation of
powers, which must be avoided by the duty of judicial restraint, arising from the same principle.
In Portugal the dominant conception of the Constitutional Court’s mission regarding the
legislative omission is that it performs a control function with an essentially negative nature, and can
neither replace the ordinary legislative authorities, nor bind their actions in any way, the citizens being
protected by the notifications to the Court made by the subjects prescribed by law.61 In Armenia, under
the Law on the Constitutional Court, the Constitutional Court may look into all circumstances of the
case ex officio without limitations.
As a rule, the citizens have no direct access to the constitutional control, but through the bias of
other public authorities, with the exception when the Court actions ex officio.
The access of citizens is also ensured indirectly on the preliminary ruling way (control a
posteriori), as in Romania for example, representing an effective instrument for the citizen to control
the Parliament when it breaches his fundamental rights adopting a law contrary to the Constitution.
The Court becomes both a guarantor of the supremacy of the constitution and a guardian of
fundamental rights and liberties.
A different situation is in Venezuela when the Supreme Court of Justice has the power to
declare unconstitutional the laws and other normative acts by the bias of actio popularis exercised by
any human being or a legal person. It is a control exercised on the action way a posteriori and the
effects of the decisions are erga omnes.
59
L. Solyom, G. Brunner, Constitutional judiciary in a new democracy, The University of Michigan Press, Michigan, 2003, p. 20-24
http://books.google.ro/books?id=XLGWeABSor8C&printsec=frontcover&dq=actio+popularis&source=gbs_similarbooks_s&cad=1#v=o
nepage&q=actio%20popularis&f=false.
60
http://www.riigikohus.ee/vfs/1043/Legislative_Ommission_Estonia.pdf.
61
http://www.confeuconstco.org/reports/rep-xiv/report_Portuguese%20_en.pdf,
http://www.venice.coe.int/files/Bulletin/SpecBulllegislative-omission-e.pdf.
We can conclude each constitution establishes less or more the way the citizens may participate
directly or indirectly to the control of legislative activity. But, in order to avoid the obstruction of the
activity of constitutional justice, the Constitution should establish a clear mechanism of verification of
the admissibility of the complaints.
2.5.
Transparency
Taking into consideration the contemporary society is more and more governed by
informatization, formalization, globalization, the decision making process should be put in accordance
with these developments. In this respect, J. Habermas62 proposed the passing from a simple decision
within the enactment process to a complex decisional process. As a consequence, the law must be
defined through a communicational model, meaning the substitution of the monologue by the dialogue
within the law making process in order to ensure the congruency between social reality and the legal
reality expressed by normative acts. Some scholars63 emphasize that is difficult to achieve this goal
given that the government decisions are not taken by a single ruler, but instead represent a complex
aggregation of preferences advocated by specific interest groups and often mediated through
contending institutions.
Every government should, as much as possible, be transparent - its deliberations and decisions
should be open to public scrutiny. Clearly, not all government actions should be public, but the
citizenry have a right to know how their taxes are spent, whether the administration of justice is
efficient and effective, and whether their elected representatives are acting responsibly. How this
information is made available will vary from government to government, but no democratic
government can operate in total secrecy.
Unfortunately, the normative acts enacted in the last few years demonstrate that the Romanian
legislator (the Parliament and the government) did not succeed to accommodate the social reality and
the normative one and, as a consequence, their acts were declared unconstitutional by the
Constitutional Court64 and the principle of stability, with the predictability component, was affected65.
As well, the principle of transparency fail to be observed by the executive branch of government, the
judiciary making void the decisions of government for lacking the transparency procedure.66
One of the solutions might be the raise of the efficiency of public policies in order to establish a
concordance between social and legal reality. This awareness must be doubled by the provision of a
high level of predictability of the norms, which may be given by the scientific foundations67, as well
by enhancing accountability of the legislator for the opportunity of promoting the normative acts in a
peculiar area at a given moment. The expertise of the regulatory oversight bodies68 can be an antidote
62
J. Habermas, Droit et Democratie. Entre faits et norms, Cerf, Paris, 1997
Jonathan Wiener, Alberto Alemanno, Comparing regulatory oversight bodies across the Atlantic: the Office of Information and
Regulatory Affairs in the US and the Impact Assessment Board in EU, in Susan Rose Ackerman and Peter L. Lindseth, Comparative
Administrative Law, Edward Elgar, 2010, p. 310.
64
See for example Decision no. 447/2013, no. 494/2013, no. 528/2013.
65
See for example the gusty amendments made to the legislation in electoral and referendum matters, especially in 2012. As a
consequence, the Constitutional Court declared unconstitutional these acts by Decision no. 51/2012, 682/2012, 731/2012, 334/2013. As
well, the Venice Commission in Avis no. 685/2012 declared the procedures to amend legislation by the government is not consistent with
the democracy and the rule of law, as fundamental values of European heritage. Thus, in Romania we can remark attempts from the
political parties in their way for conquering the power and from the legislative authority to endanger the democratic principle of a
society. As an example, some slippages happened: the legislative proposals to organise both local and national elections at the same date,
to introduce a pecuniary condition in order to be elected, the amendment to the law of referenda to change the majority necessary for the
removal of the Romanian president, the lack of the debate for the adoption of a new electoral system in Romania – majority system, the
lack of predictability and accessibility for the electoral law regarding the national minorities. It was the role of the Romanian
Constitutional Court (see the recent decision no.51/2012), Venice Commission (Council of Europe) and the European Court of Human
Rights (Grosaru case) to cast away these attempts to democracy.
66
See for example the annulation of Governmental Decision no. 38/2012 by the Bucharest Court of Appeal regarding the privatization of
Hidroelectrica
for
lacking
the
procedure
of
transparency
provided
by
Law
no.
52/2003,
http://portal.just.ro/2/SitePages/dosar.aspx?id_inst=2&id_dosar=200000000286830.
67
Economic, sociological, psychological, criminological studies, expertise of renowned specialists in various fields, institutions with
competencies in analysis and investigations, comparative legislative studies, consultation procedures on drafting proposals.
68
These bodies could in principle be located in any branch of government: within the executive/administrative branch, for example as an
interagency working group, as an independent government watchdog such as an auditor or ombudsman or inspector general; within the
legislative branch, for example as a legislative committee or a technical body attached to the legislature; within the judicial branch as
judicial review function; the function may be carried out by external advisory groups, think tanks, academic researchers and the news
media. Within a multi-level governance system such as a federal republic or supranational union, the tasks of regulatory oversight bodies
may also be exercised by the member states of the Union or federation.
63
to politicized distortions of regulation or at least a means to reveal and make transparent the significant
impacts, tradeoffs and alternatives of regulatory choices and to inform decision makers and the public
of the promises and pitfalls of regulation. In case the expert technocratic criteria for regulation may not
coincide with political democratic criteria, the expert shall explain the political leader his technical
analysis and convince to change the intention of regulation or to make the impacts and tradeoffs of
regulation transparent.
In Romania, the body with competencies for systematization, unification and coordination of the
entire legislation is the Legislative Council, a consultative specialized body of the Parliament, which
endorses drafting proposals and keeps the official evidence of the Romanian legislation. This body,
through its annual report given to the Parliament, draws attention on the phenomenon of legislative
inflation, which brings legislative instability and generates legal insecurity. This phenomenon is not
peculiar to Romania, all European countries confronting with the massive spreading of normative acts
more and more specialized, especially in the economic and financial area69.
However, in my opinion, the phenomenon of multiplication of norms is a natural one generated
by the spread of the social relations which need to be regulated, but depends on the ability of the
legislator to overpass the excessive restraints imposed to the law by the social reality. Finally, the
quality of law, necessary in a democratic society, depends on this ability. Moreover, the enactment of
laws is the lever for politicians to achieve their interests and to gain political sympathy from the
electorate. Although the necessity of enactment is justified, the legitimacy of the decisional process is
paralyzed by the media’s influence.
The predictability of the law, as a guarantee of the protection of the individual, allows the rule
of law state to carry out the arbitrary from the enactment and enforcement of the law. This is way the
European Court of Human Rights in its case law developed the concept of the quality70 of law which
comprises the predictability and the accessibility of law. The components of predictability are the
public character of the law, the conviction that the norms will not be modified a certain period of time
and the clear, precise and uninterpretable content of it. The accessibility signifies the possibility of a
medium human being to understand the content of the norm and to identify the applicable norm at his
case from the positive law71.
In its case law, the Romanian Constitutional Court drew attention on the frequent and untimely
amendments brought to the laws either before or after entry into force, which generated the public
distrust regarding the consistency of the state. In the last few years we assisted at an inflation72 of laws
which brought into question the limits of the rule of law state regarding the principle of legal certainty.
For example, the untimely amendment of the Law 571/2003 regarding Fiscal Code, which was
modified no more than 85 times from its adoption is, in my opinion contrary to the rule of law; see as
well those at least 27 times amendments of Law 161/2003 between 2005-2011. The growth of
legislation seems to lack of effects the principle nemo censetur ignorare legem, even for a
professional, for whom the knowledge of the entire legislation becoming a chimera. This is the motive
the policy makers of the Romanian Civil Code73 regulate the error of law as a vice of consent at the
accomplishment of some conditions.
In the Romanian legal system, the legislator regulated by Law no. 52/2003 the procedures
regarding the participation of citizens and associations legally constituted to the enactment of
normative acts and to the decision making process. Within the enactment procedures, the initiator of a
draft proposal has the obligation to publicly announce the intention of regulation (on websites, on the
headquarters, on national or local media) with at least 30 days before the act be submitted to the
endorsement procedure. Within the deadline the interested people may send, in written, proposals,
suggestions, opinions having a recommendation value regarding the normative act. After 10 days from
the publication of the draft, the initiator is obliged to organize a public debate on the normative act; we
can observe that there are no limits regarding the subject of the discussions (contents, participants),
69
For the legislative inflation, see Ramona Duminica, Criza legii contemporane, Editura C.H.Beck, București, 2014, p. 42-45.
See ECHR, Decision of 29 March 2000, case Rotaru v. Romania, ECHR, Decision of 9 December 2008, case Viasu v. Romania.
71
Ramona Delia Popescu, Accesibilitatea si previzibilitatea legii analizate prin prisma jurisprudentei CEDO si a jurisprudentei Curtii
Constitutionale, AUB nr. 3-4/2012, p. 343-356.
72
Montesquieu said the needless laws weaken the necessary laws.
73
See article 1207 par. 1 of Romanian Civil Code.
70
except the consultative value for the initiator of the arguments brought by the public. Instead, in case
the draft proposal brings major reforms in diverse areas, the pressure exercised continuously and
through different means by the public opinion may determine the initiator to modify, withdraw74 or
relinquish to the project and the legislator to reject it.75 It is one of the few situations when Romanian
citizens participate to the governance of the state.
When the pressure of people76 is not powerful enough to determinate the legislator to not adopt
the law, it is the role of other authorities to intervene. According to article 146 letter d) of the
Constitution, the Ombudsman, ex officio or seized by the people, may apprise the Constitutional Court
with the unconstitutionality of a governmental ordinance77. For example, last year, given the pressure
of public opinion, especially of the media78, the Ombudsman seized the Constitutional Court with the
unconstitutionality of the emergency ordinance79 regarding the insolvency Code, adopted by the
government untimely. This constitutional competence of the Ombudsman is one of the most important
limits of the government within the system of checks and balances peculiar to the principle of
separation of powers.
In case of parliamentary laws, the situation is simpler; amongst the subjects of appraisal of
Constitutional Court are the members of the opposition from Parliament80. The opposition expresses
itself and it sanctions the abuses of the party in charge of the governance. The Ombudsman also may
seize the Constitutional Court with the unconstitutionality of a law adopted by the Parliament, but its
actions are more often in case of governmental acts.
Another approach for the public involvement to the governance of a country is the decision
making process regarding public administration. The Law no. 52/2003 provides that the adoption of
the administrative decisions is the exclusive competence of public authorities, the points of view
expressed by the persons who participate to the public séances having a recommendation character.
2.6.
Free media
The right of expression is one of the essential foundations of a democratic society and one of
the basic conditions for its progress. After world war two, the doctrine considered that mass media are
the instruments for crowds’ alienation and a vector of social conformism. Democratic referendums are
unlikely to be organized in a society where fundamental rights, such as right of expression, free media,
free circulation and the right of association are not observed. Although the exercise of the rights may
be limited, it is done only on a legal basis, for public interest and with the observance of principle of
proportionality.
A free media, irrespective the medium is represented by newspapers, magazines, books,
pamphlets, motion pictures, television or, most recently, the Internet, can investigate the workings of
government and report on them without fear of prosecution. In a democracy, the people rely on the
press to ferret out corruption, to expose the maladministration of justice or the inefficient and
ineffective workings of a government body. Giving the expanded role of the government in the 21st
century81 the citizens use more complex methods to make their voices heard on specific matters, such
as lobby groups, groups advocating public and private interests, and non-governmental organizations
(NGOs) devoted to single issues.
These forms of citizens’ participation may help to educate the public and lawmakers about
particular matters, to get their views known to their lawmakers, to refine and focus citizen interest in
74
See for example the withdrawal in January 2012 by the initiator of the Law regarding the reform of health system. In this case the
President of Romania demanded the prime minister to withdraw the project from public consultation, because the law is not wanted
either by the doctors or the people http://www.hotnews.ro/stiri-esential-11183460-traian-basescu-sustine-declaratie-presa-ora-17-15tema-legii-sanatatii.htm , http://www.capital.ro/basescu-cere-retragerea-proiectului-noii-legi-a-sanatatii-159551.html.
75
See, for example, the rejection of the draft proposal regarding Rosia Montana by the Senate as the first seized Chamber
http://www.cdep.ro/pls/proiecte/upl_pck.proiect?cam=2&idp=13777 . According to article 75 and 76 of the Constitution, the Chamber of
Deputies has the final decision in adoption of this law. The Chamber has not pronounced yet.
76
The advocacy groups, nongovernmental organizations, researchers.
77
According to article 108 and 115 of the Constitution, the Government may adopt simple ordinance or emergency ordinance, both of
them being under the judicial review of the Constitutional Court.
78
The contested article regarded the insolvency of the trusts of media, the consequence of the insolvency being the loosing of the licence
by the broadcast receiver.
79
Emergency ordinance no. 91/2013 was declared entirely unconstitutional by the Constitutional Court; see Decision no. 447/2013.
80
According to article 146 letter a) of the Constitution at least 50 of deputies or 25 of senators may seize the Constitutional Court.
81
For an evolution of the concept of free media, John W. Johnson, The Role of a Free Media, in George Clack, Democracy Papers, p. 66.
an effective manner. In some countries, like USA, the people have access to the confirmation process
of the appointment of the administrator of the administrative agency, process often televised and
subject of media attention. In Romania, for example, the séances of the Parliament are public, being
recorded and published in Official Journal.
But the right of expression of the press shall be balanced by the right of the people to be
informed. According to article 31 par. 4 of the Romanian constitution public or private mass media
shall be bound to ensure correct information of public opinion. In my view, a free media is at utmost
importance in a democratic society, given the force of influence of public opinion. The media
influence is manifested both for facilitate access to the power through the electoral campaigns and for
the pressure exercised over the elected during their mandates through the mediatisation of their
activities. In the last few years, in Romania, the role of audio-video media was decisive for the
determination of the winners of the presidential or parliamentary elections. But, the international
institutions, such as European Commission within the Mechanism of Cooperation and Verification
from 201382 drew attention on the media pressure on the judiciary, for example. In the same report, the
Commission highlighted the need for a review of existing rules, to ensure that freedom of the press is
accompanied by a proper protection of institutions and of individuals' fundamental rights as well as to
provide for effective redress.
In Romania, an indirect attempt of the government to affect the broadcasters’ emission and to
expel some of them from the media business was untimely adoption of the insolvency Code by
emergency ordinance, which was declared unconstitutional entirely as we have mentioned earlier.
2.7. Non institutionalized participation
The non institutionalized forms of citizens’ participation are demonstrations, public meetings,
processions, petitions signed by numerous citizens as a form of protest to some governmental or
parliamentary measures taken or not taken by the public authorities. The demonstrations, public
meetings and processions are organized on the basis of freedom of assembly guaranteed by article 39
of the Romanian Constitution, while petitions are the result of the exercise of the right of petition
guaranteed by article 51 of the Constitution.
Lately, both forms of manifestations had a great impact on the governance of Romania
determining the legislator to adopt or to reject some bills. Despite of the positive effects, the
demonstrations brought to the division of society between those who support the governmental
measures and those who reject them and to a situation of conflict within all layers of society hardly to
manage. These tensions have evolved to a permanent conflict at the level of political scene between
president and prime minister, between president and Parliament and within the coalition of government
between the leaders of political parties which compose it. These convulsions have determined
incoherent public policies with long term consequences on economic, political even legal levels which
drew attention of the international community, like European Commission, Venice Commission,
Department of State from USA or foreign embassies in Romania83 which advertise Romania that a
behaviour against rule of law, independence of justice, transparency and other fundamental principles
of democracy will not be tolerated.
A lot of demonstrations have taken place in the last two years less or more organized with a
specific or no goal. Some of them determined the governants to enact or to reject bills. For example,
the Parliament was obliged to quickly legislate in the case of stray dogs when a child was killed in a
park, adopting the law which permits the euthanasia for dogs captured and unclaimed for more than
two weeks. But this measure divided the society between those who ask for justice in the name of the
child killed (the right to life of a human being) and those who militate for the right to life of animals.
The adopted legislation has stirred vehement protests throughout Europe and the United States.84 The
critics of the law argue that it does not tackle the breeding control, the shelters issues and adoption.
Another bill which has emerged a protest movement was the dispute over Rosia Montana
mining project. This protest has the potential to reform the Romanian political class by placing
82
http://ec.europa.eu/cvm/docs/com_2013_47_en.pdf.
See for example the ample political crises from 2012.
84
http://www.nydailynews.com/news/world/animals-romania-attacked-boy-mauled-dog-article-1.1534705,
http://www.bbc.co.uk/news/world-europe-24489505.
83
pressure on state institutions and promoting democratic participation. Following these protests, the
Romanian Senate rejected the law on November 19, 2013. At the time of writing, the Chamber of
Deputies has yet to vote it85. The rejection of the law represents a welcome outcome for the tens of
thousands of Romanians who have publicly voiced opposition to this project86. Even the law was not
rejected definitively by the decisional Chamber, the movement using social media and alternative news
outlets, the loosely networked ‘Save Rosia Montana’ movement has already neutralised one of the
most extensive and expensive campaigns in the country. The protest movement should remain focused
on sustainable development policies and look for positive and concrete initiatives; it can also be a
successful exercise for those who seek the reform of the political class.
Another example of successful civic participation to the governance was the persistent lobbying
of the government by environmental organisations from which resulted the approval of a Forestry
Code, which, although not perfect, promotes more responsible management of forests.
But civic participation should not determine behaviors contrary to the Constitution regarding
the legislative initiative, like happened lately in Romania, when a MP has made a draft bill with one
article “all human beings are equal, but some are more equal than others.87” In my opinion, though this
proposal is a form of protest for governmental measures adopted in conjunction with the exploitation
of shale gas thorough hydraulic fracturing, it constitutes a satire which is not appropriate with
legislative activity of the Parliament according to the Constitution.
Moreover, it seems that technology has been, and is likely increasingly to be, a factor in
demands for more direct democracy. Certainly, with people taking part more and more in informal
online polls, engaging more directly in politics, for example through social networking, blogging and
micro-blogging, the notion that their only engagement in constitutional politics should come indirectly
through periodic representative elections could appear increasingly incongruous. And it seems that the
revival of the referendum is itself part of a broader confluence of demand and opportunity, leading to
experiments that engage citizens through innovative constitutional processes such as citizens juries and
citizens assemblies.
3. The role of direct democracy on the accountability of public authorities
As we have already pointed out the Parliaments are nowadays the largest democratic forums
and they constitute the labs for enacting legislation, factors of public responsibility and a real
counterweight for any attempt to diminish human rights or the value of the rule of law institutions. The
power of the representative government resides in the principle of national sovereignty, the Parliament
representing the nation itself. The ratio of representation is in a continuous evolution as the political
parties and the principle of separation of power arose. Thus, this ratio was perverted, the discipline of
the party, different methods and techniques of falsification of electoral rules (frauds and corruption),
the absence of electoral participation, as well as the deficiencies of legal and administrative framework
for the organisation of elections were interposed between the electoral body and the representatives.
The representatives should exercise the delegate competences within the conditions and limits
established by the constituent power. Overrunning these limits equates with the noncompliance of
constitutional provisions and entails the legal liability of the Parliament: 1. the accountability in front
of the people - accountability dependent on the type of mandate and accountability dependent on the
type of competences of the Parliament; 2. the accountability towards other public authorities –
accountability towards executive bodies, accountability towards jurisdictional authorities.
Aside from legal accountability, the political and moral accountability is entailed during the
exercise of the mandate of the Parliament, but the effects happened at the end of the mandate when the
representative is not elected anymore for a new mandate. The critics of the electoral sanction assert
that it does not represent anymore the systematic recalling sanction, whereas a lots of politician
accused of corruption were re-elected for a new mandate. The political action of the Parliament may
determine, even during the exercise of mandate, the opprobrium of the people under the form of
demonstrations, protests; the representatives are permanently under control of the people, they are
obliged to anticipate the judgment of the electors on the politics they are carry out. For example, in
85
http://www.cdep.ro/pls/proiecte/upl_pck.proiect?cam=2&idp=13777.
http://www.rosiamontana.org/en/stiri/alert-the-government-puts-cyanide-back-into-the-romanian-parliament.
87
http://www.senat.ro/legis/lista.aspx.
86
Romania, the control over the MPs who voted for the bills on austerity measures, even the trade unions
and associations of pensioners publicly disapproved these measures within large protests88.
We can also add that the Parliament is not anymore the main factor of the establishment of the
estate politics, legislative initiatives being the privilege of the government lately. The instruments of
the parliamentary control are limited, especially when the government is sustained by a stabile political
majority. Some limitations can be made by the governmental political party and by the direct
participation of the electors to the establishment of the governmental politics – referendum. We can
assert that in the contemporary democracy the main issue is not to establish who owns the power but,
on the contrary, to establish the means through which the bodies which exercised it are controlled and
limited.
The referendum is attractive to executive bodies particularly because they are able to achieve
their political goals by manipulating an unreflective and ill-informed electorate into voting for a
particular proposition. When referendums are used to make or re-create constitutions they can
themselves take on a vital nation-building role. The task then becomes one of framing the referendum
process in such a way that it facilitates the active and deliberative engagement of citizens, so far as
possible.
Although the referendum highly legitimates a decision taken by the government generally
speaking, it can alleviate the people from the real decision and pervert the results of the consultation.
Moreover, the referendums concerning the independence of some province or entities of a state, like in
UK, Spain and recently in Ukraine may go to the dissolution of the state.
Another possibility of the citizens to control the strategy of governance of the parliamentary
majority is the opposition who has its legitimacy conferred by the votes given at elections and who
represents an alternative for the future governance. At the initiative of the opposition may be organized
referendums, like in France or demonstrations, like in Romania, all of that being modalities of
democratic participation to the control of the representatives. Ideally speaking, the parliamentary
proposal to organize a referendum should be the result of a compromise, political parties trying to
anticipate and minimize a possible conflict between the opinion of the parliament and the opinion of
the people so as to minimize the risk of failure of that proposal. Policy vote is often characterized
through the transfer of political accountability of the representatives for the resolution of a certain
issue to the people who may decide on the conflict or, on the contrary, may determine the assumption
of the accountability by the governants.
The debate within the Parliament of the nation issues ensures the critical dimension of the
governance, especially through the role of opposition, the avoidance in a great stance of the errors and
the adoption of the measures which enjoy a large adhesion within the society due to the support of a
great number of MPs.
We can infer the referendum, in some countries and within certain periods of time, may be an
effective instrument for the control of the representatives although the initiative for that procedure
resides in the competence of other authorities: the president of the country or the prime minister. But
the referendum must not be seen as a general benchmark for an ideal democratic system, as an a priori
instrument of the will of the people, whereas the question if that expression is the criterion on which a
political regime or a decision may be qualified as democratic, will arise; for example, if a law adopted
by the Parliament is declared unconstitutional for the breaching of the principle of equality is
constitutional because is the result of a popular vote?
4. Direct democracy and the system of multilevel governance
4.1. Popular legislative initiative
Article 17 par. 2 TEU formalized the right of legislative initiative of the Commission: Union
legislative acts may only be adopted on the basis of a Commission proposal, except where the Treaties
provide otherwise. The European Parliament can under article 225 TFEU request the Commission to
submit any appropriate proposal on matters on which it considers that a Union act is required for the
88
Legea nr. 118/2010 privind unele măsuri necesare în vederea restabilirii echilibrului bugetar, publicată în M. Of. nr. 441 din 30 iunie
2010, respectiv Legea nr. 119/2010 privind stabilirea unor măsuri în domeniul pensiilor, publicată în M. Of. nr. 441 din 30 iunie 2010.
http://www.a1.ro/news/social/mai-2010-luna-protestelor-vezi-calendarul-grevelor-105851.html, http://www.realitatea.net/luna-mai-vinecu-un-val-de-proteste-la-adresa-legii-pensiilor-si-legii-educatiei_711685.html, http://www.ziare.com/stiri/proteste/o-noua-zi-de-protestein-bucuresti-fata-de-masurile-de-austeritate-video-1016326.
purpose of implementing the Treaties. If the Commission does not submit a proposal, it must inform
the European Parliament of the reasons, giving a prompt and sufficiently detailed response to such
requests.
An innovation introduced by the Lisbon Treaty which situates the EU citizenship in the context
of a new emphasis on representative and participatory democracy, was the citizens’ initiative89. Article
11 par. 4 TEU provides that no fewer than one million citizens who are nationals of a significant
number of Member States may take the initiative of inviting the European Commission, within the
framework of its powers, to submit any appropriate proposal on matters where citizens consider that a
legal act of the Union is required for the purpose of implementing the Treaties. The procedures and
conditions required for such a citizens’ initiative are to be determined in accordance with article 24
TFEU.
The Commission will not be under a legal obligation to follow up on any such initiative, but it
seems likely that the political pressure on the Commission to be responsive will be strong. There are
much debate on this issues during the process of revision of the treaties and on its role of democratic
potential, but it remains to be seen whether it becomes an effective means of democratic mobilization
and engagement within the EU. The Commission may continue or reject the initiative, the
consequences of the attitude of the Commission not being provided by the Treaty; the bon binding
character of the initiative for the Commission might be seen as a protection of European interests,
which may bring into discussion the democratic deficit issue.
Article 24 TFEU also confirms two previously existing rights under the EU law, namely the
rights of EU citizens to petition the European Parliament and to apply to the Ombudsman. Article 24
also provides that EU citizens who write to any of the EU institutions in one of the official languages
have the right to an answer in that language.
Either the right to petition or the right to apply to European Ombudsman are genuine guarantee
–rights for the efficacy and correct exercise of the other rights of European citizens 90, but also
modalities through which the citizens pursue their interests at European level.
Another way of participation of citizens at decision making at European level is the access to
the documents of the institutions of the Union (art.15 TFEU), as a concretization of the transparency of
the EU and its democratic character91. This right ensures a better participation of citizens to the
decision making, it guarantees an enhanced legitimacy, a great efficacy and an enhanced
accountability of the administration in front of the citizens within a democratic system, as well as it
enforces the principle of democracy and the observance of fundamental rights.
Thus, Treaty of Lisbon regarding the citizenship provides a broader perspective on how the EU
citizens are constituted as members having a stake on the EU as a political entity.92
All these rights represent a modality of European people’s participation to the decision making
at EU level and of a collective European conscience.
4.2. European referendum
The need to provide a democratic legitimacy to the European Union in order to surpass the
deficit of democracy, the Union tried to reconsider the individual role within the decisional process
through the co-participation to the most important political decisions and the improvement of his
political representation. The referenda solution adopted by some states starting with the 90’s alongside
with the polls regarding the enlargement of the EU and European Constitutions seem to confirm the
will to strengthen the link between citizens and political power. The opinions are not unitary regarding
the role of referendum, some arguing its accelerating role in integration process, while others show its
blocking role, like referendum in United Kingdom.
89
The first European citizens’ initiative having gathered the required number of signatories has been submitted to the Commission on
20.12.2013 according to ec.europa.eu/citizens_initiative/public/welcome. The topic of the initiative is “Water and sanitation are a human
right! Water is a public good not a commodity!”. The procedures and conditions for the citizens’ initiative are set out in Regulation (EU)
No.211/2011 of the European Parliament and of the Council of 16 February 2011 on the citizens’ initiative.
90
E.S. Tănăsescu, Prefaţă la Cetăţenia europeană, în I. Muraru, E.S. Tănăsescu, Ş. Deaconu, M. H. Cuc, Cetăţenia europeană, Editura All
Beck, Bucureşti, 2003.
91
CJEU, 6 March 2003, cause Interpoc v. Comisia C-41/00; CJEU, 12 September 2007, cause API v. Comisia, T-36/04; CJEU, 9
September 2008, cause Mytravel v. Comisia, T-403/05.
92
J. Shaw, European Union Citizenship: the IGC and Beyond, EPL no. 3/1997, p. 413, 417.
The peculiarity of the European referendums is represented by the fact they can be organized
only on the basis and within national laws of the member states or acceding states. The treaties do not
consecrate the referendum as an instrument of the decisional process at European level. Thus, it can be
ascertained a dissociation between the objects of these referendums which carry over European issues
and their exclusive national nature and origin. The legal doctrine93 identifies three types of European
referendums: adhesion, integration and enlargement referendums.
The adhesion referendum supposes that the people of a state is demanded to decide whether it
wants its own state to join the EU and EES. The adhesion implies a transfer of sovereignty to the
European Union institutions and the common exercise of some elements peculiar to state sovereignty
by the member states. In this respect, this process requires a high level of legitimacy ensured by the
instrument of direct democracy (Ireland, Denmark -1972, Sweden, Austria -1994, Croatia - 2012).
The issue posed by the integration referendum is the thoroughness of the integration of a
member state or the maintenance of the status quo by the revision of the treaties.94 The democratic
value of this type of referendum is vitiated because the citizens of a MS take a national decision that
affects the entire process of integration and the whole Union. If the results are affirmative the revision
of treaties will continue, if not, the entire process of integration will be stopped95.
A referendum regarding the status quo in the European Union, taking into considerations the
scepticism manifested lately in some Member States will be organized in UK concerning its
membership to the European Union96 before 31 December 2017 when the people will be asked the
question ”Do you think that the United Kingdom should be a member of the European Union?”
The enlargement referendum supposes that the people of a MS decide in respect of the
adhesion of a new state. The legal doctrine97 said this type of referendum lacks the legitimacy whereas
the people of a MS decides regarding the adhesion of a new state, without the people of the latter
expressed its will. This referendum tends to ban any attempt of enlargement98.
The referendum organized in a third country to the EU, like Switzerland99, may put the national
authorities in a difficult position: to address the results expressed in a democratic way regarding the
introduction of quotas or thresholds on the application of EU law and fundamental EU principles, such
as the inviolable right to free movement as a core component of the single market or to abandon the
treaty with EU on the free movement of people which has been in force since 2002. Apart from the
impact this may have on the Swiss economy, it also risks other bilateral trade agreements Switzerland
has signed with the EU, as the “guillotine clause” gives the EU the power to terminate all other
bilateral treaties if one agreement is not applied. On the other hand, the free movement of the people
is a key pillar of the EU’s Single Market and the EU would not accept to be diminished, so the reaction
of the EU Member States will be harsh and maybe Switzerland are going to lose access to the Single
Market100. Moreover, another effect of this referendum might be the encouragement of the UK and
others to follow suit.
In this respect, the outcome of the referendum might pervert the real will of the people and
might bring to the dissolution of the supranational organization or at least slow down the integration
process due to the opposition of some third or Member States.
4.3. Participation and expertise
At EU level, the Commission has heralded the participation as one of the principle of European
governance, building on demands in the European treaties that decisions be taken as openly as possible
and as closely as possible to the citizen101. The decision making process is very complex both
horizontally and vertically. Horizontally, at EU level, the participation of the European Parliament to
93
A. Auer, La democratie directe comme piege et comme chance pour l’Union Europeenne, in La position de le Suisse en Europe, Ed.
Forum Helveticum, Lenzburg, 2007, p. 76.
94
See the 15 referendums of integration already organized.
95
For example, the rejection of the Treaty for an European Constitution by French and the Netherlands people.
96
See the European Union Referendum Act 2013 http://www.publications.parliament.uk/pa/bills/lbill/2013-2014/0063/14063.pdf .
97
A.Auer, op.cit.,
98
Guillame-Hofnung, Le role du referendum dans la construction de l’Europe in “Le referendum en Europe. Bilan et perspectives. Actes
du colloque organize les 28-29 janvier 2000 a la Maison de l’Europe de Paris”, Ed. Harm, Paris 2001, p. 175-199.
99
On 9tf of February 50.3% of the Swiss population voted in favour of a cap on “mass immigration” in a country-wide referendum.
100
On 10th of February 2014, the EU suspended the negotiations with Switzerland on the programs Horizon 2020 and Erasmus.
101
Article 1 of the Treaty on European Union.
the law making assures the participation of the people to the decision at EU level. Vertically, the
Commission and national administrations share the management in order to implement EU policy
successfully.
Horizontally the Commission’s engagement with civil society and expert groups promotes
participation, especially through treaty –mandated advisory bodies, such as the Economic and Social
Committee and the Committee of the Regions – which Commission consults in the social dialogue
process that applies in those social policy areas where the EU’s competences are generally limited.
Participation of other groups and organizations has tended to be informal and unstructured, the
standards set by the Commission for consultation of organizations being the demonstration of the
qualities of independence and transparency. The role of groups of national experts, civil servants and
interest groups in this process of policy-formation imply close collaboration before the proposal begins
its formal legislative journey. Successful lobbying is dependent on developing good advance
intelligence, watching the national agenda, maintaining good links with national administrations,
maintaining close contacts with Commission officials, presenting rational arguments, being
cooperative, developing an European perspective, not gloating when successful, and not ignoring the
implementation process.102
Vertically, the primary mechanism is the comitology103 process, which emerged as a
consequence of practical needs. On the one hand, Comitology has facilitated speed and the
incorporation of scientific and technical considerations into EU law making; on the other hand, it has
ensured that Member States remained involved in the Commission’s exercise of delegated normative
power104.
Therefore, the model of participation adopted by the EU is closer to a neo-corporatist105 model
which exhibits concern about unregulated access to decision making process.
The issue of democratic deficit at EU level is differently explained by the scholars, some using
the input aspects of democracy, others arguing that the deficit is premised on democracy in terms of
checks and balances, since others use the output legitimacy of democracy. Yet, the most important idea
that emerges from Lisbon Treaty is that institutional balance between the Commission, Council and
the European Parliament has always characterized decision-making within the EU. The Treaty
embodied a regime in which executive and legislative powers were shared between the European
Council, Council, European Parliament and Commission. The sharing of such power has been a
principal topic of the Community, and in this respect the Lisbon Treaty represented continuity with the
past, even if the power sharing differed in its points of detail.106
Instead of the conclusions, we can ascertain that the means of direct democracy coexist with
representative democracy and they are seen as a stimulus for the democratization of both national and
European legal order if they are used carefully and in conditions established by the Constitution or the
laws.
102
Grainne de Burca, Paul Craig, EU Law, Text, cases and materials, fifth edition, Oxford University Press, 2011, p. 148
The Comitology Decision no. 87/373 amended in 1999, 2006 embodied a regime of committee oversight, the nature of which depends
on the type of committee procedure that was chosen for a particular idea.
104
Catherine Donnelly, Participation and expertise: judicial attitudes in comparative perspective, in Susan Rose Ackerman and Peter L.
Lindseth, Comparative Administrative Law, Edward Elgar, 2010, p. 362.
105
Smismans, Stijn, New Governance –The Solution for Active European Citizenship or the End of Citizenship?, Columbia Journal of
European Law, no.13/2007, p. 595-622.
106
Graine de Burca, Paul Craig, op.cit, p. 155.
103