External Affairs

Beyond Brexit, the Vote is Also on the Utility of a Referendum

Part of a flotilla of fishing vessels campaigning to leave the European Union sails under Westminster Bridge towards Parliament on the river Thames in London, Britain June 15, 2016. Credit: REUTERS/Stefan Wermuth

Part of a flotilla of fishing vessels campaigning to leave the European Union sails under Westminster Bridge towards Parliament on the river Thames in London, Britain June 15, 2016. Credit: REUTERS/Stefan Wermuth

The British referendum on June 23 on staying in the European Union or exiting, labelled Brexit, is making the world of international finance and commerce nervous as indeed raising concerns about Europe’s – and Britain’s – future. But a larger question is also riding on the outcome: Will referendums be the new drivers of decision-making globally on domestic, regional and international issues?

“Referendum”, derived from the Latin refero, means bringing back i.e. to the people for deciding. It marks a reversion to a form of direct democracy as it evolved in Athens in the 5th century BCE, where all Athenians – other than women, slaves and foreigners – could participate in debate and decision-making. While the dominant form globally is representative democracy i.e. people express their sovereignty through elected representatives, some form of direct democracy co-exists in many nations to decide local, constitutional or national issues, supplementing the delegated democratic process.

Switzerland leads with over 600 such votes since its founding in 1848. Next is Australia. India, with a written constitution, does not provide for referendums but then the constitution itself can always be amended to allow for them – at least in a limited way, so as not to violate the ‘basic structure’ doctrine that the Supreme Court laid down.

Disputed history

Referendums for settling international disputes have an unhappy history and are perhaps now anachronistic. Concomitantly, more effective has been their use to tackle – some may say defuse – sub-national movements within individual countries. By holding referendums to tackle secessionist movements in Quebec and Scotland, the Canadian and British governments demonstrated that, there are civilised alternatives to repression and the armed might of the state.

The referendum question that troubled India from literally its independence was mandated by United Nations Security Council resolution 47 of April 21, 1948 on Jammu and Kashmir. That resolution says in paragraph 7 that the people will decide via a plebiscite “the question of the accession of the state to India or Pakistan.”

Islamabad ignores two crucial points when repeatedly demanding self-determination in Kashmir. One, it is in breach of the pre-condition imposed on Pakistan to “secure the withdrawal … of tribesman and Pakistani nationals not normally resident therein”, i.e. the Pakistani army. In other words, unless Pakistani forces fully withdraw from all parts of J&K, including both the Gilgit-Baltistan and ‘Azad Jammu Kashmir’ regions of Pakistan-Occupied Kashmir, the plebiscite cannot be held. Two, the only choice envisaged by the resolution is for the J&K people to pick India or Pakistan and not independence, as the Hurriyat demands. In any case, the Simla Agreement of 1972 and Pakistan’s isolation over its 1999 Kargil intrusion affirm that the plebiscite proposal is dead.

A similar UN plan for Western Sahara exists since 1991 for settlement via a referendum of the dispute between Morocco (which is in possession of the former Spanish colonial territory) and the Sahrawi people led by the Polisario Front, which waged an armed struggle. Morocco, favouring the status quo, ignores the repeated renewal of the mandate for MINURSCO – the UN Mission for Western Sahara. Referendum proposals thus are ineffective as solutions to contentious international disputes as national histories and competing sovereignties come into play. Only when there is consensus among the parties to the dispute have referendums been successful – such as the 1993 Eritrean independence referendum (to which Ethiopia, the occupying power concurred) or the 1999 vote for the independence of Timor L’Este from Indonesia. The 2011 referendum for the independence of South Sudan was extracted from the Sudanese government by a combination of international pressure and armed struggle but Khartoum did eventually sign off on it.

In domestic politics, however, referendums have a growing role as existing democratic institutions have become sclerotic and log-jammed across the world. It is argued that such direct votes overcome the apathy of the electorate and facilitate the resolution of controversial issues – sometimes those even dividing ruling parties, much as the judiciary is used in India by politicians for similar effect. On the other hand, they undermine the status of elected representatives and perhaps even the sovereignty of parliament. In Venezuela, which went through a ‘recall referendum’ in 2004, the government of Nicolas Maduro accused the United States of using the vote to push regime change.

Some argue that complex issues may not also be easily explicable to the common citizen and the debate may get hijacked by more populist demands. Ireland’s vote over the EU’s Lisbon Treaty was dominated by abortion and conscription, for exmaple. Above all is the risk of majority opinion drowning minority interests. For instance, women got the vote in Switzerland only in 1971; until then, men had voted to deny them this right.

At the federal level in the US, there is no provision for referendums, though many states empower citizens to propose new legislation or review an existing law. Alexander Hamilton, one of the authors of the US constitution, criticised ancient democracies where people deliberated directly as: “their very character was tyranny; their figure deformity.”

The future

Sometimes, however, recourse to referendums may be unavoidable.

Take the issue of judicial appointments in India. The Supreme Court has reversed the simple meaning of Article 124 (2) of the constitution by invoking the basic structure doctrine. The government disagrees, but its counter proposal on a National Judicial Appointments Commission is unacceptable to Supreme Court. Other than via a referendum how does one resolve the issue?

Similarly, matters like the abolition of capital punishment, the utility of governors, Narendra Modi’s proposal of synchronising state and parliament elections (avoiding unnecessary expenditure but thereby also allowing a dominant party to assert its authority across the country more easily), perhaps need the people’s direct verdict.

Much will depend on how the Brexit vote goes and what its consequences are for Britain. If the result generates strife and tension, the world will be increasingly wary of taking major decisions by referendum. But if it brings clarity and closure on a subject that has proved so divisive – regardless of whether Britain remains in the EU or exits – expect the calls for direct democracy to mount across the world.

K.C. Singh is a former Indian ambassador