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Max Planck Encyclopedia of Comparative Constitutional Law [MPECCoL]


Francesco Biagi

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 18 June 2019

Legislative initiatives by citizens — Direct democracy

Published under the direction of the Max Planck Foundation for International Peace and the Rule of Law.
General Editors: Rainer Grote, Frauke Lachenmann, Rüdiger Wolfrum.

A.  Notion

1.  Referendums, plebiscites, petitions, citizens’ initiatives and recalls represent the most common forms of popular consultations by which the people are asked to vote directly on an issue, a policy or an elected representative (direct democracy). Both from a theoretical and practical standpoint, drawing a clear-cut distinction among these consultations is extremely complicated. As far as the plebiscite is concerned, one cannot find a generally accepted definition within the literature, and in practice the term ‘plebiscite’ has been used to describe very different forms of popular votes. Thus, the most important issue that has to be faced is to identify the distinguishing features of the plebiscite, and differentiate between the latter and other similar forms of popular consultation, notably the referendum.

2.  In analysing the (very few) constitutions and statute laws that still expressly mention the term ‘plebiscite,’ a very confusing and contradictory picture emerges. For example, according to the Constitutions of Brazil (Constitution of the Federative Republic of Brazil: 5 October 1988, Art. 18(3) and (4) (Braz)) and Costa Rica (Political Constitution of the Republic of Costa Rica: 7 November 1949, Art. 168 (Costa Rica)) a plebiscite is required for territorial modifications, such as the creation, merge or split of sub-state entities (eg, member states, provinces, counties etc). The Constitution of the Republic of Iceland: 17 June 1944, Art. 11(3) (Ice), on the contrary, uses the term ‘plebiscite’ when referring to the ‘recall’ of the president of the republic.

3.  The distinction between plebiscite and referendum is likewise far from clear. According to the Constitution of Honduras (Political Constitution of the Republic of Honduras: 11 January 1982, Art. 5 (Hond)), referendums can be held to ratify or reject ordinary laws or constitutional norms, while plebiscites refer to ‘constitutional, legislative or administrative issues, on which the Constituted Powers have not made a previous decision.’ In Australia, on the other hand, the Constitution does not distinguish between referendum and plebiscite, but the popular consultations aimed at amending the Constitution are conventionally called referendums, while issues put to a vote that does not affect the Constitution are known as plebiscites (Parliamentary Handbook of the Commonwealth of Australia 2011 (32nd edn Commonwealth of Australia 2011) 373 et seq). In Colombia, Law No 134 of 1994 draws another distinction: it states that through referendums, people are asked to either approve or reject a bill, or to repeal (or not) a law that is already in force (Art. 3); through plebiscites (which are to be called by the president of the republic), people are asked to approve or reject a decision made by the executive branch (Art. 7).

4.  Within the literature, the most relevant criteria that has been used by scholars to differentiate these two forms of popular consultation are as follows: (1) the object of the referendum is a normative act, while the plebiscite refers to issues that are political in nature; (2) the object of the referendum is a statute law or an administrative act, while the object of the plebiscite is a normative fact; (3) unlike the referendum (which refers to ‘ordinary’ issues), the plebiscite refers to ‘exceptional’ events, and for this reason the latter is usually not provided for by legal texts; (4) unlike the plebiscite, in the referendum the initiative comes from the people; (5) the object of the plebiscite refers to a proposal of constitutional amendment, while in the referendum people are asked to vote on statute laws; (6) in a plebiscite, people, regardless of the object of consultation, are de facto asked to legitimize a person, a political party, or a constitutional body (Luciani 133 et seq).

5.  Part of the literature, on the contrary, has stressed that it is almost impossible to identify an ‘objective’ criterion to differentiate these two forms of popular consultation (Denquin 13 et seq). Other scholars have championed an extreme view, according to which, in light of the inability to draw a clear-cut distinction between the two, the only solution would be to abandon the term ‘plebiscite’ and to include under the definition of ‘referendum’ all popular consultations in which people are asked to vote ‘yes’ or ‘no’ (Trechsel and Esposito 271 et seq).

6.  It appears that this extremely high degree of uncertainty can be overcome by relying on comparative constitutional history. Indeed, the purposes of ‘old’ plebiscites (ie, the plebiscites held during the eighteenth and nineteenth centuries) can be used as solid criteria to differentiate ‘modern’ plebiscites (ie, plebiscites that took place in the twentieth and twenty-first centuries) from other popular consultations. The reason for relying on ‘old’ plebiscites is that these seem to provide the only certain point of reference, the only anchor when trying to qualify a plebiscite, as witnessed, inter alia, by the fact that very few scholars would disagree that these consultations should be considered as such. Thus, this historical approach shows that in the twentieth and twenty-first centuries, one can find a number of popular consultations (1) on territorial status, (2) on the form of government, (3) on the trust (or distrust) of a country’s leader, as well as (4) on other ‘exceptional’ and ‘political’ issues that—irrespective of their formal denominations (most of these consultations are indeed generally referred to as ‘referendums’)—fall within the notion of plebiscite (Biagi).

B.  Historical Developments

7.  The term ‘plebiscite’ dates back to Ancient Rome. Indeed, the Roman plebiscitum referred to the decisions made by the plebs gathered in the concilium plebis (plebeian council). While initially the plebiscitum only bound the plebs itself, following the enactment of the Lex Hortensia de plebiscitis in 286 BC, the resolutions passed by the plebeians became binding on the whole population and gained legislative force (Borgeaud 137 et seq).

8.  The modern notion of this popular consultation derives from the French revolutionary era and developed during the nineteenth century. The various forms of plebiscite that took place in this period may be classified, according to the purposes for which the appeal to the people was employed, into three categories: (1) territorial plebiscites; (2) plebiscites on the form of government; and (3) ‘personalistic’ plebiscites.

1.  Territorial Plebiscites

9.  Plebiscites on territorial status were held for the first time during the French Revolution and were aimed at ‘ratifying’ territorial annexations. Indeed, in the eyes of the revolutionaries, the plebiscite was a device to justify the right to conquer, and it represented a clear manifestation of the principle of popular sovereignty. The consultations took place in Avignon, Comtat Venaissin (1791), Savoy (1792), Nice, Rhine Valley and Belgium (1793), and all of them gave a favourable verdict to France.

10.  Almost 60 years later, territorial plebiscites represented a crucial part of the birth of the Kingdom of Italy. In 1848, adult male citizens of Piacenza, Modena, Parma, Lombardy and Venetia expressed their desire for a union with the Kingdom of Sardinia—all, save the city of Venice, by plebiscite. The following year, however, the defeat of the Piedmontese forces at Custoza and Novara by Austria restored the status quo.

11.  Despite this unlucky experience, the idea of consulting the people on their political future had rooted. Indeed, the question of uniting with the constitutional monarchy of Victor Emmanuel was the object of popular consultations held in 1860 in Tuscany, Emilia, Sicily, Naples, Umbria, and the Marches. Significantly, on 17 March 1861, the Italian Parliament gave Victor Emmanuel the title of King of Italy ‘by the Grace of God and the will of the Nation’ (emphasis added). One of the first duties of the Italian Parliament was to approve the Treaty of Turin (of 24 March 1860) for the cession of Savoy and Nice to France. The treaty, however, provided that the annexation should be effected without any constraint on the will of the populations. This led to plebiscites in Savoy and Nice, and in both territories the people voted for annexation to France. The Italian territorial plebiscites ended with votes by manhood suffrage in Venetia (1866) and Rome (1870); even in these cases, the populations expressed their wish to become part of the recently established Kingdom of Italy.

12.  Despite the fact that the abovementioned consultations were not always expressions of free and fair votes, these plebiscites represented a historical step; indeed, for the first time, people began to take part in processes from which they had been previously excluded, thus changing their role from observers to actors.

13.  Plebiscites also led to the creation of Romania through the union of Moldavia and Wallachia (1857), and were then used in the case of Denmark’s cession of the islands of St Thomas and St John, West Indies, to the United States (1868), and when Sweden ceded the island of St Bartholomew, West Indies, to France (1877). Furthermore, the plebiscite found a theoretical basis in the 1866 Treaty of Prague, and in the 1883 Treaty of Ancón.

14.  During the nineteenth century, however, ‘plebiscites were only rare exceptions to the general rule of arbitrary, forceful conquest or international political compromises, followed by annexation’ (Beigbeder 79). The United States, for example, did not organize any plebiscite for the Louisiana Purchase (1803), the acquisition of Florida (1819) and Alaska (1867), the annexation of Texas (1845), New Mexico, California (1848), the Hawaiian Islands, Puerto Rico, and the Philippines (1898).

2.  Plebiscites on the Form of Government

15.  The second category includes the plebiscites on the form of government. This category derives from the territorial plebiscites held in Italy during the Risorgimento, and from the plebiscites aimed at ratifying the 1793 and 1795

16.  With respect to the plebiscites held during the Risorgimento, it should be highlighted that by voting in favour of the union with the Kingdom of Italy, the people of the various regions not only made a decision on territorial status but also expressed their consent for a monarchical regime, thus showing that these consultations were de facto also plebiscites on the form of government. Indeed, the plebiscite questions purposively not only referred to the union with Italy, but also specified the future form of government of the country—that is, a monarchy, with Victor Emmanuel as king. In the plebiscites held in Tuscany and Emilia, for example, the people were asked to choose between the ‘Union with the Constitutional Monarchy of King Victor Emmanuel’ (emphasis added) or ‘Separate Kingdom.’

17.  Even the plebiscites that ratified the 1793 and 1795 French constitutions became in practice also plebiscites on the new form of government. The 1793 Constitution, which never actually came into operation, provided for the first time a republican regime, and the 1795 Constitution confirmed this form of government. Even if the decision to abolish the monarchy and to establish the republic had been made ‘from above’ without consulting the people, by voting in favour of these constitutions, the French expressed their support for the new ‘régime politique.’

3.  ‘Personalistic’ Plebiscites

18.  In the third category of plebiscites we find the consultations in which the French people were asked to express their trust in one man—Napoleon, and (afterwards) Louis-Napoleon. Indeed, despite the fact that sometimes the object of these ‘appels au peuple’ did not directly refer to a single person, in practice the aim of these consultations was to legitimize the power of the country’s leader and to obtain popular approval for political actions that had already been taken.

19.  In 1799 French people were called to accept or reject the new constitution which was drafted after the coup d’état of 9 November 1799 (18 Brumaire). Executive power was granted to three consuls, but the first consul—which, according to Art. 39 of the Constitution, was Napoleon—clearly prevailed over the others. Thus, voting ‘oui’ to the Constitution meant making Napoleon the real leader of the country. The personalistic character of these plebiscites became even more evident in the 1802 and 1804 consultations. In 1802, when the Senate refused to make him consul for life, Napoleon decided to consult the people on the subject of his position. The question put before the people—‘Napoléon Bonaparte sera-t-il consul à vie?’ – clearly represents the quintessential plebiscite on a single man. Napoleon took a further step two years later. Indeed, after the ‘Sénatus-consulte’ of 18 May 1804, proclaiming him emperor of the French was approved, even the principle of hereditary empire was submitted to a plebiscite. All these three consultations represented a paramount success for Bonaparte.

20.  Louis-Napoleon understood well the relevance of this political device and was quick to follow in his uncle’s footsteps. In the plebiscite that he called in 1851, Louis-Napoleon not only asked the people to confirm his authority, but also asked the French to delegate him the powers necessary to draft a new constitution. In the wake of the success achieved in this consultation, the following year Louis-Napoleon called for another plebiscite to ratify the re-establishment of the Empire; the results gave the emperor another extraordinary majority. Finally, the third (and last) plebiscite organized by Louis-Napoleon took place in 1870. The consultation, in which the people were asked whether they approved the liberal reforms made to the Constitution, was once again a triumph for Napoleon III. The Second Empire, however, came to an end just a few months later, during the war with Prussia. The plebiscites held under Napoleon and Louis-Napoleon were far from being free and fair—the pressures from central authorities on the people were a matter of fact. If nowadays the term ‘plebiscite’ has often a negative connotation, it is largely because of these consultations.

C.  Categories

21.  In the previous section, the plebiscites held in the eighteenth and nineteenth centuries were classified according to the purposes for which the appeal to the people was employed. As these consultations represent (as mentioned above) a crucial point of reference when trying to qualify a plebiscite, it seems that their purposes can be used as solid criteria to differentiate ‘modern’ plebiscites from other popular consultations, particularly the referendum. Thus, in the twentieth and twenty-first centuries, one can find four (rectius, three plus one) categories of popular consultation that fall within the notion of plebiscite: (1) plebiscites on territorial status; (2) plebiscites on the form of government; (3) ‘personalistic’ plebiscites; (4) plebiscites for other ‘exceptional’ and ‘political’ issues.

22.  In the past decades the plebiscite has garnered quite a bad reputation, as it is considered an instrument typical of illiberal regimes through which people merely ratify a decision that has already been made ‘from above.’ Indeed, this type of consultation is often regarded by the literature as highly manipulative. Comparative examples, however, show that while it is true that they can often be found in autocracies, these popular votes are not incompatible with democratic regimes.

1.  Territorial Plebiscites

23.  Several popular consultations aimed at resolving sovereignty issues over territories and boundaries have been held during the twentieth and twenty-first centuries. These votes represent one of the most evident expressions of the fact that the Medieval, ‘patrimonialistic’ conception of governmental bodies disposing as they please of their own territories has been replaced by the principle of self-determination (Chiappetti 946–947).

24.  The first example of a twentieth century territorial plebiscite is the one that took place on 13 August 1905 in Norway to decide on its separation from Sweden. Not surprisingly, the vote was overwhelmingly in favour of the dissolution of the Union, which had been established in 1815.

25.  In Puerto Rico four territorial plebiscites were held to try to resolve the longstanding issue of the more than 100-year affiliation with the United States: in 1967, 1993, 1998, and 2012. In the last consultation, 54 per cent of voters expressed their intention to change the political status of the island, and 61.2 per cent expressed a desire to become the 51st state of the United States. Following this plebiscite, the Parliament of Puerto Rico adopted a resolution to request the president and the United States Congress ‘to begin the process to admit Puerto Rico to the Union as a State’ (The Senate and the House of Representatives of Puerto Rico ‘Concurrent Resolution’ (11 December 2012)).

26.  In the territorial ‘referendum’ that took place in Crimea on 16 March 2014, people were asked whether they wanted to join Russia ‘as a subject of the Russian Federation’, or whether they wanted to restore ‘the 1992 constitution of the Republic of Crimea and Crimea’s status as a part of Ukraine’. This plebiscite played a crucial role in Russia’s annexation of Crimea, as 95 per cent of the voters pronounced themselves in favour of joining Russia. It should be noted, however, that according to the Ukrainian Constitutional Court this consultation was unconstitutional since it violated the principles of indivisibility and inviolability of the territory of Ukraine and because it went beyond the limits of the competences assigned to the Autonomous Republic of Crimea (Case 1-13/2014 Judgment No 2-rp/2014 (14 March 2014) (Ukr)). Similarly, even the Venice Commission considered this popular consultation incompatible with the Ukrainian Constitution and with European and international standards (Council of Europe ‘Opinion on ‘whether the Decision Taken by the Supreme Council of the Autonomous Republic of Crimea in Ukraine to Organise a Referendum on Becoming a Constituent Territory of the Russian Federation or Restoring Crimea’s 1992 Constitution is Compatible with Constitutional Principles’’ (adopted by the Venice Commission at its 98th Plenary Session 21–22 March 2014) Opinion No 762/2014 CDL-AD(2014)002).

27.  Notwithstanding their formal denominations, even the so-called ‘independence referendums’ must be included under the category of territorial plebiscites. This is the case, for example, of the popular consultations in former Soviet republics following the dissolution of the Soviet Union (in the early 1990s), in former Yugoslav republics following the breakup of Yugoslavia (also in the early 1990s), in Eritrea (1993), in Quebec (1980 and 1995), in East Timor (1999), in Montenegro (2006), in South Sudan (2011), in Scotland and in Catalonia (2014).

28.  Direct popular participation in sovereignty issues through plebiscites has become more frequent, but there are some important exceptions. In Czechoslovakia, for instance, the decision to dissolve the Federation was made without resorting to popular consultation, despite the fact that Constitutional Law no 327/1991 provided for a ‘referendum’ in case either the Czech Republic or the Slovak Republic wanted to secede from Czechoslovakia (secession).

(a)  Territorial Plebiscites in International Law and in International Practice

29.  The principle of self-determination, at the basis of the plebiscites of the eighteenth and nineteenth centuries, officially entered the international scene during World War I and the Bolshevik Revolution. According to Lenin, self-determination was an instrument for the liberation of oppressed peoples, who were supposed to contribute to the success of the socialist revolution. However, Lenin supported this principle only strategically, insofar as it promoted class struggle. On the contrary, according to United States President Wilson, self-determination was strictly linked to popular sovereignty.

30.  However, the peace treaties after World War I applied this principle only to a limited extent. Five plebiscites were provided by the Versailles Treaty (Schleswig, Allenstein, Marienwerder, Upper Silesia, and Saar territory), and the sixth plebiscite was provided by the Saint Germain Treaty (Klagenfurt). Moreover, the Sopron plebiscite was decided by the Venice Protocol of 13 October 1921 (Protocol and Additional Article regarding the Settlement of the Question of Western Hungary (signed 13 October 1921, entered into force 28 December 1921) 3 LNTS 203). All these consultations were held between 1920–21 (except for the Saar plebiscite, which was carried out in 1935) and were monitored by international or interallied commissions (Wambaugh 1933 and 1940).

31.  Following World War II, the principle of self-determination was explicitly mentioned in several of the United Nations’ fundamental documents, including, inter alia, the United Nations Charter (Arts 1(2) and 55), the International Covenant on Economic, Social and Cultural Rights (1966) (Art. 1), and the International Covenant on Civil and Political Rights (1966) (Art. 1). The United Nations also supported the adoption of the plebiscite as a regular international instrument for self-determination (see, for example, UNGA Res 637 A (VII) ‘The Right of Peoples and Nations to Self-Determination’ (16 December 1952) GAOR 7th Session Supp 20, 26).

32.  The plebiscite has been a very important instrument in the decolonization process. Indeed, the United Nations supervised or observed numerous popular consultations in trust and non-self-governing territories between 1956 and 1991: British Togoland, British Cameroon, Western Samoa, Ruanda-Urundi, Equatorial Guinea, Niue, the Gilbert and Ellice Islands, the Mariana Islands, French Somaliland, the Trust Territory of the Pacific Islands, the Marshall Islands, the Federated States of Micronesia, and Palau. It should be noted that the United Nations has since continued to organize or supervise popular consultations on territorial status, such as in Eritrea (1993), East Timor (1999), Cyprus (2004) and South Sudan (2011) (see also Referendum).

2.  Plebiscites on the Form of Government

33.  In the twentieth century, one can find several plebiscites on the form of government. For example, in 1905, Norwegians not only voted (as mentioned in this article) in support of the dissolution of the union between Sweden and Norway, but they were also asked to decide whether Norway should continue to exist as a monarchy or if it should become a republic. Therefore, a second popular consultation was held on 12 November and 13 of the same year, and the monarchy obtained a strong majority.

34.  A popular consultation on the form of government was also held in Italy after the fall of Mussolini, thus following the plebiscitarian tradition of the Risorgimento. Indeed, Decree no. 98 of 1946 (known as the ‘Second Provisional Constitution’) stated that the Italian people—by means of a ‘referendum’—should decide on the future form of government. Thus, on 2 June 1946, men and women went to vote not only to elect the members of the Constituent Assembly, but also to decide whether Italy should maintain a monarchy or establish a republic: the latter obtained 12,717,923 votes (54.3 per cent), while the former garnered 10,719,284 (45.7 per cent).

35.  In Greece the choice between monarchy and republic was put to popular consultation six times between 1920 and 1974. It should be noted, however, that some of these consultations occurred under autocratic regimes, and therefore their outcomes were a foregone conclusion. The last ‘referendum,’ though, which took place in 1974 following the collapse of the Regime of the Colonels, passed as a free and fair vote under universal suffrage, and saw an overwhelming victory for the republic.

36.  The case of Brazil is peculiar. Indeed, the 1988 Constitution foresaw the holding of a plebiscite in five years to decide whether to restore the monarchy or to retain the republic, as well as whether to keep a presidential form of government or adopt a parliamentary system. In the 1993 plebiscite, the majority of voters pronounced themselves in favour of retaining the republic and maintaining a presidential form of government.

37.  In Australia, on 6 November 1999, two questions were put to popular consultation. The first one was on the form of government—whether to replace the monarchy with a republic—while the second question concerned the insertion of a preamble to the 1901 Constitution. Both questions, however, were rejected.

38.  Compared to the plebiscites on the form of government held in the eighteenth and nineteenth centuries, citizens in the twentieth century certainly played a more decisive role, as they had the possibility to choose the future form of government of their country, and not only to confirm a choice that has already been made ‘from above’. Moreover, the results of these plebiscites were considered expressions of free and fair votes, thus offering further evidence that the plebiscite is an instrument that is compatible with a democratic regime.

3.  ‘Personalistic’ Plebiscites

39.  The twentieth and twenty-first centuries offer numerous examples of ‘personalistic’ plebiscites, which can be found not only in autocratic regimes, but also in democratic countries. In these plebiscites, what really matters is not so much the object of the consultation (which may vary significantly), but the political and institutional meaning of the consultation itself. Autocrats, by showing through plebiscites the high degree of support that they enjoy, aim to consolidate their authority and legitimize their rule, whereas in democratic regimes, countries’ leaders make their political fate dependent on the outcome of these consultations. Thus, the plebiscite represents a very effective instrument to establish a direct relation with the crowd.

(a)  ‘Personalistic’ Plebiscites in Non-Democratic Regimes

40.  In Italy two plebiscites were held during the Fascist regime, in 1929 and 1934. In both cases, voters were asked to approve or reject the list of the members of the Chamber of Deputies, which had been prepared by the Grand Council of the National Fascist Party. The real objective of these consultations, however, was the demonstration of the full adhesion of the people to Fascism, and in particular to its Duce.

41.  Under the Nazi regime, the plebiscite was one of the most evident manifestations of the permanent mobilization of the popular masses. The first plebiscites were held on 12 November 1933 (on Germany’s exit from the Disarmament Conference and from the League of Nations), and on 19 August 1934 (when Hitler also became head of state following the death of Hindenburg). Even the elections that took place on 5 March 1933 and on 29 March 1936 were plebiscitarian in nature. Two more plebiscites were held during Hitler’s regime, ie the 1935 Saar plebiscite and the 1938 plebiscite on the annexation of Austria (‘Anschluss’).

42.  The plebiscite represented an important political device in many other authoritarian or hybrid regimes, such as in Portugal under Salazar, in Spain under Franco, in South Korea under Park Chung Hee and in the Philippines under Ferdinand Marcos. Numerous popular consultations of a plebiscitarian nature were also held in Egypt under Nasser, Sadat, and Mubarak, as well as in Morocco under Hassan II and Mohammed VI.

43.  In non-democratic countries the outcome of the plebiscites is usually a foregone conclusion. The case of the 5 October 1988, plebiscite in Chile, however, shows that electoral ‘surprises’ although extremely rare, can happen even in autocratic regimes. Indeed, General Pinochet was defeated in this consultation, as 54.71 per cent of voters did not grant him another term in office.

(b)  ‘Personalistic’ Plebiscites in Democratic Countries

44.  The case of France under General de Gaulle shows that ‘personalistic’ plebiscites can also characterize democratic countries. Under his presidency (1958–69), de Gaulle called four plebiscites. The first two consultations (that took place in January 1961 a April 1962) aimed at obtaining people’s approval on the policy he wanted to pursue to resolve France’s relations with Algeria. Although from a formal standpoint they were ‘referendums,’ both consultations were de facto plebiscites on a single man.

45.  The third consultation organized by de Gaulle was on a constitutional amendment that marked a turning point in France’s political, institutional, and constitutional history; indeed, the reform aimed at introducing the system of direct election of the president of the republic. Since the Parliament was strongly opposed to this reform, the General decided to use the procedure provided for in Art. 11 of the Constitution (which allows the president to use a referendum to approve changes to the ‘organization of public institutions’), rather than the amendment procedure in Art. 89 (which requires the approval of any constitutional amendment by both houses of Parliament before being submitted to a referendum). De Gaulle, whose aim was to reinforce the link between him and the population, managed to represent the campaign as a battle between him and the old Fourth Republic. This strategy was successful—in the 28 October 1962 consultation, 62.2 per cent of citizens voted in favour of the constitutional amendment. When asked to review the constitutionality of this reform, the Constitutional Council stated that it did not have the jurisdiction to do so, since ‘the laws adopted by the People by referendum represent the direct expression of the national sovereignty’ (Judgment No 62-20 DC (6 November 1962) (Fr)).

46.  The fourth plebiscite organized by de Gaulle (which was on a constitutional amendment aimed at reforming the regional system and the Senate) turned out to be fatal for his political career. As in the previous three plebiscites, de Gaulle linked his future to the outcome of the consultation; when 52.4 per cent of the population voted ‘no’ in the plebiscite, he immediately announced his resignation.

47.  De Gaulle was not the only national leader who hinged his political fate on the outcome of a plebiscite. Greek Prime Minister Alexis Tsipras affirmed that he would have resigned if the majority of the population had voted ‘yes’ in the 5 July 2015 ‘referendum,’ which asked citizens whether they approved the bailout conditions proposed jointly by the European Commission (‘EC’), the European Central Bank (‘ECB’), and the International Monetary Fund (‘IMF’) to deal with the country’s government-debt crisis. By voting ‘no’ (as 61 per cent of voters did), Greek people not only rejected the conditions of the EC, ECB, and IMF, but also expressed their trust in Tsipras and in the government’s policy.

48.  Another country leader who recently linked his political future to the outcome of a popular consultation is the former Italian President of the Council of Ministers, Matteo Renzi. In April 2016 the Parliament adopted a major constitutional reform aimed, inter alia, at transforming the Senate into a chamber representing the territorial institutions, as well as modifying the allocation of competences between the state and the regions. In the referendum that took place on 4 December 2016, 59 per cent of the citizens voted against this constitutional reform. Renzi—who had made clear that if he were to lose the referendum he would have considered his political career over—decided to resign immediately after the results were announced. Italians were therefore asked to vote in a popular consultation that was also plebiscitarian in nature. This consultation clearly showed that popular votes are sometimes difficult to classify, especially when they combine features of both referendums (ie when the object of the consultation is a normative text) and plebiscites (ie when the consultation becomes a vote of confidence on a current leader).

49.  If it is true that an abuse of ‘personalistic’ plebiscites should be avoided, it is also true that this type of popular consultation does not seem incompatible with democratic regimes. Unlike what happened under Napoleon and Louis-Napoleon, or under other authoritarian or hybrid regimes, the abovementioned plebiscites are held in a completely different context and are characterized by profound differences in their nature. Indeed, the press is very influential and extremely critical; the political parties are well structured, and they actively participate in the electoral campaigns; and the possibility of electoral fraud is almost non-existent. In other words, these votes are truly competitive, and leaders take a huge risk when centering these consultations on themselves, as the outcome is often hardly predictable (Conac 102). If the result is unfavourable to them (as it was for de Gaulle in 1969, and for Renzi in 2016), they pay a very high political cost. Indeed, neither de Gaulle nor Renzi were legally compelled to resign, but since they linked their political fate to the outcome of a popular consultation, from a political standpoint they could have hardly done otherwise.

4.  Plebiscites for Other ‘Exceptional’ and ‘Political’ Issues

50.  The historical approach followed in this entry seems to permit the identification of other purposes in addition to the three mentioned above, but only if two essential requirements are met. Indeed, it is necessary to consider that the three categories of plebiscite have two distinguishing features in common. The first is their character of ‘exceptionality’: the plebiscites occurred una tantum and referred to issues of paramount importance and utmost seriousness for the future of the country as a whole. Indeed, they often concerned decisions on national identity and sovereignty, that are two elements upon which the very existence, the essence of the State is based. Second, the questions that were the object of the plebiscites seemed more ‘political’ than ‘normative’ in nature. When people were asked to choose the territorial status of their country, or when they had to decide on the new form of government, or when they were asked to express their trust in a country’s leader, the consultations were not centred (or were not only centred) on normative acts, but referred to crucial political choices. Therefore, according to these criteria, a popular consultation would be considered a plebiscite only as long as it refers to issues that are both ‘exceptional’ and ‘political’ in the sense mentioned above.

51.  Thus, for instance, despite their formal denominations, country ‘referendums’ on membership to the European Union (‘EU’) are characterized by both requirements, falling within the notion of plebiscite. The ‘referendum’ that took place in the United Kingdom on 23 June 2016, in which 51.9 per cent of voters expressed their desire to leave the EU, represented a paradigmatic example. First (and not surprisingly, given the nature of the EU), the electoral campaign was centred on issues related to nationality and sovereignty, which made this consultation largely similar to a territorial plebiscite. Moreover, the outcome of this consultation determined the political future of David Cameron, since he decided to resign as Prime Minister. Additionally, this plebiscite appeared to be one of the most crucial events not only in the United Kingdom, but also in the EU, as the withdrawal of one of its most important member states would probably have an enormous impact on the EU itself. Thus, the consultation was not only on the project of a nation, but also on the project of Europe.

D.  Final Remarks

52.  Despite what is commonly argued, the plebiscite is still a very popular instrument that can be found not only in illiberal regimes but also in democratic countries. This consultation, however, can hardly be regulated by a legal text (particularly by a Constitution) as an autonomous legal ‘institute,’ in a way similar to how other popular consultations (for example, the referendum) are regulated. Indeed, while the latter correspond to ‘abstract typologies’ that can be predetermined on the basis of certain formal features (such as the object of the consultation), the former can often be identified only on the basis of substantive characteristics (such as the purposes for which the appeal to the people is employed and the meaning that the consultation acquires in a specific circumstance) (Luciani 137 et seq).

53.  Although it is often formally absent from legal texts, the plebiscite nevertheless continues to play—sometimes under false pretences—a key role in today’s societies.

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