Referendum and Human Rights (Phan Nhat Thanh, журнал "Kutafin University Law Review", N 1 (Volume 4), April 2017)

Referendum and Human Rights

Phan Nhat Thanh,

Doctor, Vice Dean of Administrative Law Faculty,

Ho Chi Minh City University of Law,

Ho Chi Minh City University of Law, Ho Chi Minh, Vietnam

Журнал "Kutafin University Law Review", N 1 (Volume 4), April 2017, р. 76-90.

By studying the relation between human rights and a referendum, the author of this paper comes to the conclusion that a referendum may have both negative and positive impacts on human rights. The referendum offers, on the one hand, direct democracy. On the other hand, the referendum may increase the number of issues in relation to discrimination against minority groups or minority democracy (Referendum are dominated by elite groups). It also risks consequences including potential unconstitutional impact and its affect to constitutional rights of citizens and limits the right of the Representative Government.

Nevertheless, the paper argues that the referendum is, on balance, a net contributor to the human rights development extending democracy for citizens in terms of political and civil rights. This support is based on democratic arguments, as well as obligations incurred by governments that are member states to international human rights conventions and, thereby, committed to implementing relevant provisions.

Table of contents

I. Introduction

II. Positive impacts of a referendum on Human Rights

1. Holding referendum is the way to implement international human rights treaties

2. Holding a referendum is the way to implement constitution and law in the referendum

III. Referendums and unexpected potential impacts on Human Rights

1. Discrimination: Majority or Minority Democracy

2. Unconstitutional potential and its affect for the constitutional rights of citizens

3. Limit the right of a Representative Government

IV. Conclusion

References

I. Introduction

A referendum is considered to be one kind of direct democracy because referendums enhanced democracy by giving voters greater opportunities for involvement. One of the scholars defines a "referendum [as a] legally binding verdict of the people which must be acted upon by the government in the form of a law"*(1). Another scholar argues that a referendum is a process that allows the electorate to approve or reject a proposal by the legislature*(2). The history of referendums originated in Ancient Rome (the Latin termfor a referendum isplebiscitum) but since 1948, when it for the first time appeared in the Swiss Constitution, it has become more popular and its popularity has intensified dramatically in modern time.

Referendums or plebiscites held for deciding a certain political issue are considered as an effective method to decide a matter. Therefore, a huge number of countries in the world today (such as Switzerland, the United States, Australia, Thailand, Myanmar and European countries) frequently hold referendums. All over the world, it has been estimated that of the 58 functioning electoral democracies with a population of more than three million, 39 had held at least one national referendum between 1975 and 2000*(3). The result of the referendum is binding or non-binding depending on legal regulation functioning in a certain state.

Referendums can be considered as legal mechanisms for voters to repeal or accept an important national matter. Normally, referendums are related to making a constitution or law passed by the state legislature. However, depending on forms of a referendum, many states also have referendums on such matters as independence, political regime, participation or non-participation in international conventions or other matters relating to social and economic national policies.

II. Positive impacts of a referendum on Human Rights

A human rights ideology has a long history in the West. According to this ideology, human rights are equal rights, inalienable rights, and universal rights*(4). In the East, these concepts have developed more recently, as the result of the influence of the notion of human rights from the West.

Benchmarks against which human rights can be measured are shown by national legal activities such as implementation of bilateral or multilateral international agreements, regional instruments (such as the African Charter and Declarations), case law before regional courts (like the European Court of Human Rights and the Inter-American Court), or judicial processes of the state*(5). In other words, human rights are implemented by different legal instruments in the domestic, regional and international legal fora.

1. Holding referendum is the way to implement international human rights treaties

In the international and national contexts, the rights citizens have attracted significant attention from states, international and domestic human rights organizations and people generally. Since 1945, the Charter of the United Nations has stated that one of its purposes is "promoting and encouraging respect for human rights and for fundamental freedoms for all"*(6). In 1948, the United Nations proclaimed the Universal Declaration of Human Rights. It provides freedom and equal rights for the individuals and states obligations of individuals to the community*(7).

Basically, international human rights law provides and encourages individuals to engage in deciding national matters. Article 21 (3) of the Universal Declaration of Human Rights (UDHR) provides that: "(1) Everyone has the right to take part in the government of his country, directly or through freely chosen representatives ... (3) The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures." Besides that, the Article 25 of the International Covenant on Civil and Political Rights (ICCPR) also provides regulations relating to political rights of citizens, directly or indirectly; and the right to vote and to be elected at genuine and periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot guaranteeing the free expression of the will of the electors.

It can be seen that Article 21 of the Universal Declaration of Human Rights and Article 25 of the International Covenant on Civil and Political Rights amount to an important legal basis that recognizes the political right of citizens to participate in deciding their will through referendums. They also permit individuals to engage in direct democracy to ensure their political rights. Democracy should express the purpose of human rights and for human rights.

Moreover, other international conventions such as the United Nations Charter, the International Covenant on Economic, Social and Cultural Rights (ICESCR) also define the political right of citizens. A Nation, being a member of an international treaty, must comply with regulations of that treaty as well as be responsible for implementing its regulations into national laws.

2. Holding a referendum is the way to implement constitution and law in the referendum

As to a nation, regarding the relationship between a political right and referendum, both state's constitution and other laws provide fundamental rights of citizens and one of these rights is the direct democratic right and the right to participate in deciding national important matters.

However, the relationship between the referendum and the political right controlled by legal rulers is sometimes controversial. It happens because the referendum is related to law making and political and

legal issues not only in the field of democracy in almost all countries in the world, but also within the scope of international human rights law and relations. Legal decision-making processes have impacts on human rights*(8). Conversely, human rights obviously influence and are expressed in legal forms created by nations. In reality, when drafting and then promulgating a constitution - the basic Act of the nation - and other laws, the states frequently provide human rights standards and take into consideration various cultural and religious inclinations of the people. For this reason, Asian countries argue that human rights in their countries are not treated poorly or neglected (as some writers maintain), but rather that human rights have already been expressed in their legal systems*(9).

To some extent, legislative processes of the state are under the influence of international treaties. Such criteria as 'a common standard of achievement for all peoples and all nations'*(10) or human rights are expressed in one-way or another in the national legal instruments. However, the recognition and application of human rights legislation in domestic law is cautiously approached because the state must consider whether such recognition and application would contribute to or prevent from respecting human rights. The answer is that it may do both, and attempting to comply with various international regulations reveals complex interactions and even contradictions.

Despite some controversies, the majority of countries in the world have regulations with regard to referendums in their constitutions (Russia, Denmark, and Spain) or in laws on referendums (Canada, Philippines, Finland, and Norway). These regulations are essential for citizens to exercise their democratic rights, particularly their political right.

It can be seen that the relationship between human rights and the referendum can be defined only if they are entrenched in the constitution - the basic law of the state and society. The recognition of human rights and referendum in the constitution is a very important political premise because it expresses basic values and social goals that are pursued by the state. It is also considered an undertaking honored by the state in favour of the People and international community, as well as the benchmark of democracy and human rights of the state society*(11).

Although the referendum is used to express citizen's political right in making decisions on national important matters, it is noted that it can become a tool for rulers to consolidate and expand their rights. Therefore, the referendum must be a democratic mechanism, clearly defining its forms and procedures, as well as creating good conditions for citizens participating and voting. That should be a political environment combined with sharing and respecting and, at the same time, preventing or striking out any majoritarian referendum that deprives a minority group of a particular human right and restructures a political process to that group, or that right, disadvantage*(12).

III. Referendums and unexpected potential impacts on Human Rights

1. Discrimination: Majority or Minority Democracy

Theoretically, the referendum, whether it is held at the local or central level, manifests people's decision and that is direct democracy. However, it does not mean that every citizen or a group of citizens are satisfied with the referendum's result*(13). Sometimes, the referendum is only о political tool in which people just play a role of performers*(14).

Majority democracy, discrimination against minority groups

In a referendum, the right to decide belongs to the majority group. This result seems to be rational. To decide general and national matters that affect all citizens in the country, a majoritarian system can be acceptable. Nevertheless, if the matters relating to race, vulnerable groups, ethnic minority groups or other minority groups, the voice of these groups will be sunk deep into majority group. It takes place because the majority group abuses its "legitimate right." Many scholars argue that discrimination against minority groups causes violations of their rights and interests (for instance, right of fair housing in some states in America)*(15). In addition, in some cases, a prohibition for a certain minority group to vote is also serious discrimination. For example, Switzerland, one of the countries having the longest history of referendums, still discriminates in referendums. In 1847, Switzerland promulgated the Law on Referendum. In 1948, the Federal Constitution was passed by the People of fifteen states. However, from 1951 till 1970, women were deprived of the right to vote. In 1971 this right was restored for women. In Norway, since 1905 only men who reached the age of 25 and older had the right to vote. That law was abolished in 1907*(16).

Practically, the referendum is close to giving the right to decide to the majority group because the result of the referendum is normally based on majoritarian interests and, accordingly, minority rights may be overridden by populist sentiment. Hence, many countries worry and try to protect minority groups. Finland and Switzerland have the Commission of Jurists and the Commission of Rapporteurs to examine whether referenda cause any damaging effects to minority groups and there might be cases where minority protection might not be regarded as sufficient. "When the State at issue manifestly abused its authority to the detriment of the minority, by oppressing or persecuting its members, or else proved to be utterly powerless to implement the safeguards protecting the minority"*(17). Even elections of representatives not only concern voters but also care about the interests of minority groups.

Minority democracy: Referendums are dominated by elite groups

Many scholars argue that not people, but elite groups control the result of the referendum*(18). Interests are determined before referendum occurs and a wealthy, very powerful group clearly knows what they should do. This is a discrimination of minority to the detriment of majority. It seems to be paradoxical but it is reasonable. Money and power will play a decisive role when the users want to use them for their purposes*(19). "The arsenal of direct democracy is an institutional weapon for organized interests (political parties, interest groups, employer's and employee's associations) and not for the people as such"*(20). It is because the elite group has enough money and power to organize campaigns in order to change the nature and significance of an objective according to their will. Interest groups can be politicians, the media, and wealthy individuals depending on the nature and purpose of a referendum. In many countries, the media, and wealthy individuals always put their hands into advertisement campaigns, election or people's opinion collection in referendums or plebiscites to gain advantages. According to the research of Stuart Wiljs-Heeg, the referenda are often affected by interest groups, particularly, groups with strong finance (such as cooperation, political parties and campaign organizations)*(21). As a result, if the purpose of the referendum is determined by an interest group, such a referendum is a sham referendum. It not only abuses people's will but also wastes money and time of the society*(22).

However, some scholars (such as David Lowery) argue that an interest group wants to make effect on political process (as referendum or plebiscite) because of its existence rather than self-interested purpose*(23). But, to us, with any reason, it can change the true purpose of direct democracy, and, to some extent, the true meaning of referendum diminishes.

Additionally, depending on the scope of the referendum (at a central or local level, in a federal state or in federation nation), the interest conflict may also occur between a local authority and central government. The local interests should be considered as an unexpected potential impact on human rights when having referendums.

2. Unconstitutional potential and its affect for the constitutional rights of citizens

Basically, the referendum can take the form of a mandatory referendum, extraordinary referendum or referendum at the request of an authority, referendums at the request of part of the electorate.

"A mandatory referendum is a referendum that must be held in certain circumstances, or in relation to certain issues. The outcome of a mandatory referendum is usually binding"*(24). A mandatory referendum will be applied when a petition for referendum is approved by the parliament. This form is usually used for the referendum in constitutional, matters (such as Switzerland, Ireland, Denmark, Austria, and Spain), and the people become a constitution-making body. An extraordinary referendum or referendum at the request of an authority is a form that the executive (particularly the President) calls for a referendum (Turkey and France) or the agreement between parliament and the president (Portugal). A Referendum at the request of a part of the electorate is based on a petition of electorate and this form is less common than mandatory referendums and referendums at the request of an authority. There are two kinds of Referendum at the request of a part of the electorate, including an ordinary optional referendum and the popular initiative (Switzerland and Italy)

From the legal point of view, a referendum is normally regulated by the constitution (Russia, Denmark, Spain), or by the law on the referendum (Canada, Philippines, Finland, Norway). However, in some countries, referendums are not entrenched in the constitution or any law. Therefore, organizing a referendum in those countries is unconstitutional. For instance, in the Belgian legal system, there is no any regulation for the referendum. Any decision of the referendum is unconstitutional*(25).

The countries where there is law on the referendum, the referenda shall comply with the constitution (Estonia, Spain, Russia and Switzerland) or the constitution and international law (Denmark, Greece, and Italy)*(26).

Nevertheless, if a referendum is not manifested in the constitution (in particular, extraordinary referendums or referendums at the request of an authority and referendums at the request of a part of the electorate), a judicial review is required to prevent unconstitutional cases. Many countries use a judicial review mechanism to examine whether the referendum is constitutional or not (judicial review is executed by the constitutional court or Supreme Court). By this procedure, the court will examine all the process or just a part of process implemented at the referendum.

If the court examines all process of the referendum, the court will review any issues, including the matters of referendums, the procedure, voting right, binding or not binding results and implementation of referendum outcomes.

Is the court considered only a part of the referendum process and this procedure must be clearly stipulated by laws? In some countries such as Hungary, Italy, Switzerland, Poland and Russia, the court only reviews whether the matters for the referendum are constitutional or not. In some other countries (such as Lithuania) the matters of referendum are not only a constitutional issue, but also compliance with the law in general. In Australia, France and Greece, the Supreme Court strongly focuses on the procedure of referendum (rather than not review the referendum petition). For Spain, Sweden, Turkey and Ireland, the national Election Commission will take care of this issue. The conclusion of the above authorities may lead to the referendum invalidity*(27).

3. Limit the right of a Representative Government

A representative government is elected by the people. Representative democracy is essentially connected with, freedom because people have their right to give their freedom over to elected representatives and the bureaucracies they create*(28). However, in the interaction between direct democracy and representative democracy, many people argue that representative democracy is thin democracy and it is similar to monarchy rather than democracy because it exterminates the right to participate in national matters directly as well as it lacks experience of making public decisions*(29).

Nevertheless, there are a number of objections with the idea that representative democracy is thin democracy because, as they argue, not everyone is professional and people are not persons who can make a decision professionally*(30). More important situations may take place, if someone does not support representative democracy; they just rely on the countries that do not have a good and active government representative or corruption worsens everything. The simple way to solve this problem is to enhance responsibility and the role of representative democracy*(31).

IV. Conclusion

Referendums can be seen as legal mechanisms for voters to repeal or accept a law passed by the state legislature. The research concerning the relationship between a referendum and human rights is focused on answers to a number of questions: whether a referendum can be considered a part of the human rights to political participation. It further considerers what the drawbacks of referendums might be; and how implementation could benefit people and citizens. It can be seen that referendums may also have both positive and negative impacts on human rights. It may be the best instrument for protecting and developing human rights in terms of political and civil rights because it is "a general vote by the electorate on a single political question that has been referred to them for a direct decision." Moreover, it may also cause violations of human rights because it may favor majority groups, citizens with higher education and people who have access to information.

References

Beigbeder, Y (2015). Referendum. Oxford Public International. Available at: http://opil.ouplaw.cоm/view/10.1093/ Iaw:epil/9780i9923i690/law-9780i9923i690-ei088 (accessed 20.04.2015).

Council for Democratic Elections. Venice Commission. Referendum in Europe - An Analysis of the Legal Rules in European States (2005). Pp. 5, 15, 24-25.

Do Minh Khoi (2015). The Relationship between the Law on Referendum and the Institutions of Human Rights and Citizen Rights, in Conference on "The Draft Law on Referendum of Vietnam", Ho Chi Minh City University of Law (15 May 2015). P. 348.

Donnelly J. (2003). Universal Human Rights in Theory and Practice. Cornell University Press. P. 10.

Dunsmuir M. (1992). Referendums: The Canadian Experience in an International Context. Available at: http://www.parl.gc.ca/Content/LOP/researchpublications/bp27i-e.htm#OVERVI EWtxt.

Haskell J. (2001). Direct Democracy or Representative Government? Dispelling the Populist Myth. Westview Press. Pp. 88, 98.

Hug S. (2007). Some Thoughts about Referendums, Representative Democracy, and Separation of Power. Available at: http://weblaw. haifa.ac.il/he/Events/eveFile/hug.pdf.

Ibhawoh B. (2001). Cultural Tradition and National Human Rights Standards in Conflict, in Hastrup, K. (ed). Legal Cultures and Human Rights: The Challenge of Diversity. Kluwer Law International. Pp. 85-86.

International Council on Human Rights Policy (ICHRP). When Legal Worlds Overlap: Human Rights, State and Non-State Law. Geneva: ICHRP. 2009. P. 27.

LeDuc L. (2003). The politics of direct democracy: Referendum in global perspective. Broadview Press.

Lowry D. (2007). Why Do Organized Interests Lobby? A Multi-Gold, Multi-Context Theory of Lobbying. Polity. Volume 39. No. 1. P. 30.

Matsusaka J.G. (2004). Imitative and Referendum, in Encyclopedia of Public Choice, Kluwer Academic Publishers. P. 1.

McNamara L. (2007). Human Rights Controversies: The Impact of Legal Form. Routledge-Cavendish.

Nguyen Tat Thinh. Ve trung can у dan. Available at: http://tamnhin. net/ve-trung-cau-dan-y.html (accessed 20.04.2015).

Qvortrup M. (2002). A Comparative study of referendums: Government by the people. Manchester University Press.

Schwinn S.D. (2015). Judicial Review of Referendums: The Political Process Doctrine and the Protection of Human Rights, in Conference on "The Draft Law on Referendum of Vietnam", Ho Chi Minh City University of Law (15 May 2015). P. 196.

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*(1) Mollie Dunsmuir, Referendums: The Canadian Experience in an International Context, available at: http://www.parl.gc.ca/Content/LOP/researchpublications/ bp27l-e.htm#OVERVIEWtxt/

*(2) John G. Matsusaka, Imitative and Referendum, in Encyclopedia of Public Choice, Kluwer Academic Publishers, p.i.

*(3) LeDuc L. (2003). The politics of direct democracy: Referendum in global perspective. Broadview Press (cited in Narin Jareonsubphayanont, The Referendum in Thailand: Good Principle that is Hard to Practice, paper presented at the Conference on "The Draft Law on Referendum of Vietnam", Ho Chi Minh City University of Law (the 15th of May 2015), 92).

*(4) Jack Donnelly, Universal Human Rights in Theory and Practice (Cornell University Press, 2003). P. 10.

*(5) International Council on Human Rights Policy (ICHRP). When Legal Worlds Overlap: Human Rights, State and Non-State Law (2009). P. 27.

*(6) Charter of the United Nations art 3(1); see also: arts 13(l)(b); 55 (c); 62(2); 68; 76(c); Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, opened for signature 18 December 1992, 47 UNTS 135 (entered into forcel 8 December 1992) art 4(1).

*(7) Universal Declaration of Human Rights, opened for signature 10 December 1948, UNTS (entered into force 10 December 1948).

*(8) Luke McNamara, Human Rights Controversies: The Impact of Legal Form (Routledge-Cavendish, 2007).

*(9) Bonny Ibhawoh. Cultural Tradition and National Human Rights Standards in Conflict, in Kirsten Hastrup (ed), Legal Cultures and Human Rights: The Challenge of Diversity (Kluwer Law International, 2001), Pp. 85-6.

*(10) Universal Declaration of Human Rights, Proclaims of the United Nations on Human Rights.

*(11) Do Minh Klioi, Moi quan he giua Luat Trung cau у dan voi che dinh quyen con nguoi, quyen cong dan, Tham luan hoi thao "Du thao Luat Trung cau у dan Viet Nam", Dai hoc Luat TP. Ho Chi Minh (15.05.2015) [trans: Do Minh Klioi, The Relationship between the Law on Referendum and the Institutions of Human Rights and Citizen Rights, Conference on "The Draft Law on Referendum of Vietnam", Ho Chi Minh City University of Law (May 15, 2015). P. 348.

*(12) Steven d. Schwinn, Judicial Review of Referendums: The Political Process Doctrine and the Protection of Human Rights, paper presented in the Conference on "The Draft Law on Referendum of Vietnam", Ho Chi Minh City University of Law (15 May 2015). P. 196.

*(13) Mads Qvortrup, A Comparative study of referendums: Government by the people (2002), (Cited from The Origin of Inequality by Jean Jacques Rousseau), Manchester University Press. P. 154.

*(14) Constitution Committee, Referendums in the United Kingdom (2015), available at: http://www.publications.parliament.uk/pa/ld2009i0/ldselect/ldc0nst/99/990 4. htm#al5 (accessed 20.04.2015).

*(15) Priscilla F. Gunn, Initiatives and Referendums: Direct Democracy and Minority Interests, Urban Law Annual, Journal of Urban and Contemporary Law, Issue 22,137. Priscilla noted that direct democracy discrimination has been prominent principally in the area of open and fair housing. He has done research on cases: James v. Valtierra, 402 U.S. 137 (1971) (exclusion of low income housing projects from middle class areas); Hunter v. Erickson, 393 U.S. 383 (1969) (frustration of minority efforts to obtain fair housing); Reitman v. Mulkey, 387 U.S. 369 (1967) (prohibition to all fair housing statutes without voter approval).

*(16) Constitution Committee, Referendums in the United Kingdom (2015), available at: http://www.publications.parliament.uk/pa/ld2009i0/ldselect/ldconst/99/990 4. htm#al5 (accessed 20.04.2015).

*(17) Yves Beigheder, Oxford Public International, Referendum, (2015), available at: http://opil.ouplaw.com/view/l0.l093/law:epil/978oi9923l690/law-9780199231 690-61088 (accessed 20.04.2015).

*(18) Constitution Committee, Referendums in the United Kingdom (2015), available at: http://www.publications.parliament.uk/pa/ld2009i0/ldselect/ldc0nst/99/990 4.htm#al5 (truy cap 20.04.2015).

*(19) Simon Hug, Some Thoughts about Referendums, Representative Democracy, and Seperation of Power, Paper for presentation at the conference "Separation of Powers: New Doctrinal Perspectives and Empirical Findings" Haifa, December 19-21, 2007, p 6.

*(20) United Kingdom, Constitution Committee, Claimed negative features of referendums, Referendums in the United Kingdom (2015), available at: http://www.publications.parliament.uk/pa/ld2009i0/ldselect/ldconst/99/990 4.htm#al5 (accessed 20.04.2015).

*(21) ConstitutionCommittee, Referendums in the United Kingdom (2015), available at: http://www.publications.parliament.uk/pa/ld2009i0/ldselect/ldconst/99/990 4. htm#al5 (accessed 20.04.2015).

*(22) Nguyen Tat Thinh, Ve trung cau у dan, Available at: http://tanmhin.net/ve-trung-cau-dan-y.html, (accessed 20.04.2015) [trans: Nguyen Tat Thinh, About Referendums, available at: http://tanmhin.net/ve-trung-cau-dan-y.html, (accessed 20.04.2015).

*(23) David Lowry, Why Do Organized Interests Lobby? A Multi-Gold, Multi-Context Theoiy of Lobbying (2007), Polity, Volume 39, No. 1. P. 30.

*(24) Ace, Direct Democracy, available at: http://aceproject.org/ace-en/focus/direct-democracy/referendums (accessed 30.06.2015).

*(25) Council for Democratic Elections, Venice Commission, Referendum in Europe - An Analysis of the Legal Rules in European States (2005). P. 5.

*(26) Council for Democratic Elections, Venice Commission, Referendum in Europe - An Analysis of the Legal Rules in European States (2005). P. 15.

*(27) Council for Democratic Elections, Venice Commission, Referendum in Europe - An Analysis of the Legal Rules in European States (2005). Pp. 24-25.

*(28) John Haskell, Direct Democracy or Representative Government? Dispelling the Populist Myth (2001), Westview Press. P. 88.

*(29) John Haskell, Direct Democracy or Representative Government? P. 88.

*(30) Simon Hug, Some Thoughts about Referendums, Representative Democracy, and Separation of Power, Paper for presentation at the conference "Separation of Powers: New Doctrinal Perspectives and Empirical Findings" Haifa, December 19-21, 2007, p. 9.

*(31) John I Iaskell, Direct Democracy or Representative Government? Dispelling the Populist Myth (2001), Westview Press, p. 98.