Referendum and the right to decide

By Joan Ridao

In the current context of political and social changes, the demand for greater citizenship rights is heading in the direction of the articulation of what is called “active citizenship,” which is a provision of rights goes beyond that of electoral democracy, and the demand for participatory democracy mechanisms such as referendums is a clear example of this. Today however, the reality is that the possibility of using these mechanisms is still met with strong reservations on behalf of a large part of constitutionalism, due to the ill-fated historical experience of referendums in authoritarian contexts such as that of tardofranquismo [in the final years of Franco’s dictatorship]. Nonetheless, in addition to the undeniable democratic value of such instruments, empirical experiences such as those from the U.S. and Switzerland demonstrate the “complementary and counterweight” role of referendums in any decent representative democracy, which can often be bureaucratic, or when there is deadlock between political bodies.

In this sense, many systems have adopted the figure of a deliberative referendum, connected to an act whose validity requires ratification or majority decision of the electoral body in a direct manner, without this preventing the proliferation of purely consultative referendums, as is the case of the referendum on political decisions of Article 92 of the Spanish Constitution (CE). This is because the constituent of 1978, focused on the Left, with the aim of consolidating democracy, and with a recent memory of the plebiscite legitimation practices of Franco’s dictatorship, opted to strengthen the representative system and the omnipotent role of political parties. This referendum, aside from not being decisive, is a government initiative with statewide reach, despite the fact that the constitutional and legal uncertainty on this point can allow us to think about its application in infra-state contexts. In addition, its legislative development, through an organic law in 1980 (LOMR), did not lead to a full regulation of this institution but rather it was merely an outlet for the outrage that was sparked when Andalusia gained access to autonomy, despite the failure in Almería. Furthermore, the praxis of this type of referendum (in 1986, with the controversial entry of Spain into NATO in the background, and in 2005 with the equally controversial ratification of the Treaty for establishing a European Constitution) has not even met the expectations of the constituent.

Moreover, its normative configuration is considerably flawed. The monopoly of the initiative on behalf of the president of the [Spanish] Government puts this instrument in the service of the Government’s private interests, without taking into account the initiative of significant social sectors. The vagueness of the constitutional phrase “political decisions of special importance,” which excludes the referendum that is legislative or abrogative as in Italy or other countries, comes up against the reality that the result should be articulated in a legislative text. In addition, the term “consultative” imagines a referendum as an enormous survey. As strange as it may seem, this would lead to a disregard of popular opinion and would enable public authorities to do the exact opposite of what the majority has called for.


With regard to the territorial scope of referendums and the possibility of holding them at the autonomous level, the lack of precision when specifying their scope should not exclude the possibility of calling referendums at levels other than that of the State. Both Article 92.3 and 62.c) of the Spanish Constitution (CE) have the character of referable regulations and are open to other types of referendums that are not mentioned in the Constitution. This would legitimize the LORMR reform, in order to set up a consultative referendum at an autonomous level. Any other restrictive interpretation would contravene the principle of democracy and the rule of law. Needless to say, as Professor Viver i Pi-Sunyer recalled recently, when it has agreed to do so, the State has made ​​flexible interpretations of the Constitution, interpretations that clearly favored the right of political participation, such as the aforementioned reform of the LORMR to replace the failed Almería initiative. In addition, the LORMR already contemplates the possibility of local consultations, and different statutes of autonomy provide for territorial referendums for aggregating municipalities within their respective autonomous communities (The Basque Country and Castilla y León). It is therefore paradoxical that the exclusive jurisdiction of the state to authorize referendums (Article 149.1.32 CE) is tacitly related to local referendums and not others, especially since the Constitution does not expressly provide for this possibility. In summary, as Rubio Llorente and Ruiz Soroa have argued in these same pages, nothing should prevent an autonomous community from asking the State for a referendum, and even from assisting in the holding of said referendum.

In this context, the Catalan Statute (Article 122), by identifying a “referendum” with the “popular consultations that require authorization of the State” (Article 149.1.32 CE), allows the Government to regulate the initiative and procedure prior to the calling of the referendum, while constitutional jurisprudence contained in the SSTC 103/2008 (plan Ibarretxe) and 31/2010 (on the Catalan Statute itself, which despite endorsing the constitutionality of Article 122 EAC deactivates its operability) appears to close the door to this possibility. It is true that the TC even extends State power of authorization of referendums by conferring to the State not only the complete regulation of these referendums, but also to subject the statutes to conditions such as the prior existence of a State regulation. And later on, going into hypothetical judgments on the use of a possible consultation (STC 103/2008), the Supreme Court prohibits any consultation based on the “right to decide,” giving preference to the procedure of reform provided for in the Constitution.

In contrast, based on the democratic principle (Article 1 CE), and in the absence of limits on constitutional reform, there are ways to allow a referendum to be held on “the right to decide.” Specifically, there are two avenues that could make it legally viable: the consultative referendum cited in Article 92 CE (developed by the LORMR), and the referendum established by the Catalan law 4/2010, on popular consultations by referendum, approved within the Catalan Statute and then appealed against in the TC. In both cases we are talking about purely consultative referendums. In the first example, it would be the central State’s job to call the referendum, and in the second, it would be up to the Government of the Generalitat of Catalonia to do so, with the prior authorization of the State. As many well known jurists argue, these are ideal ways to test the prior existence of a serious and established majority secessionist demand, before undertaking further review of the Constitution.

All of this could be implemented by a State law that regulates this possibility, as an initial step prior to the constitutional reform, foreseeing the circumstances and procedures of the initiation of an eventual constitutional reform process to exclude (or not) a part of Spain’s territory from Spain, applying the doctrine of Canada’s Supreme Court on the legitimacy of a referendum of this nature. In this sense, neither from the unity of the Spanish nation (Article 2 CE), or from the principle of Spanish popular sovereignty (Article 1.2 CE), can it be inferred that it is not possible to hold a referendum directed at a part of the citizenry prior to initiating the reform. For the simple reason that the existing constitutional order would not be altered, as some claim, by the mere fact of holding a consultation of this kind. Therefore it all comes down to a question of political will.

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