Contrôler les référendums: quels enjeux dans les démocraties aujourd'hui?
Contrôler les référendums: quels enjeux dans les démocraties aujourd'hui?

Summary/Abstract: Whilst the compliance with constitutional rules and beyond that, the fundamental rights embodied in supranational documents seem to be acquired or at the very least in the process of acquisition in the past few years, particularly in Europe, several referendums, hastily held sometimes, seem capable of shattering some of the rules thoroughly elaborated and progressively built. If this capacity of the people to operate a legal revolution by its own will is not new, the novelty recently came from the context within which it intervenes and cultivates the paradoxes: the representatives keep speaking about the will of the people, even if they fear that it will express itself; the citizens wish to be more present since the decisions to be made have increasingly complex stakes; and above all, facing a Europe that has difficulties in uniting, the referendum is used as a pressure means by certain national leaders to obtain a particular treatment, cultivating as well the return of nationalism. For a long time, the referendums have been prohibited in the Constitutions or left at the goodwill of leaders who did not take risks in using them. With the rise of participative democracy, on one hand, and the parties so-called populist (most often nationalist) on the other hand, the use of the referendum has increasingly become more and more frequent. However, after the Second World War and then the fall of the Berlin Wall, it was difficult to accept that the priority given to the Constitution and the fundamental rights could be called into question by a simple vote of the citizens. Otherwise, the way in which questions are asked, the way in which referendum campaigns are carried out, as well as the effects of these referendums are questions which call for clarification so that the citizens have a genuine conscience of the challenges of scrutiny. Evidently, not all of the referendums represent the object of control according to their ranks and their scope. However, even the referendum of self-determination should be able to benefit from democratic guarantees which require a strict control. Because many referendums do not leave much room for an organized debate, except for, maybe, the case of Switzerland, because many issues will have the tendency to be overly simplified, because lies and deceit could be used in the case of political election and because the citizens can be manipulated, this control appears as imperative. But also because the respect for rights and liberties is an essential democratic condition since values claimed to be universal are conveyed. The authorities in charge of control must be capable of bringing their opinion and their decision without being subjected to pressures from whatever source. Thereby, suitable mechanisms of control must be established. That is why the expertise of the authorities empowered to make this controls must be clear and their power to interpret the norms that they have to apply cannot be unlimited. These filters cannot actually become obstructions because it could give arguments to populist criticism. The proposed contribution intends to address these issues in a comparative approach centred on Europe, but not exclusively.

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