“If the Head of State wants to broaden the scope of the referendum, we must introduce new safeguards”

2023-11-16 06:15:12

Marthe Fatin-Rouge Stéfanini is director of research at the CNRS at Aix-Marseille University and teaches comparative constitutional law. She works on citizen participation in institutions, in France and abroad, and more particularly on the methods of implementing the various referendum processes and their supervision.

How do you react to Emmanuel Macron’s proposal to broaden the scope of the referendum to social issues and to submit texts on subjects such as migration issues to direct universal suffrage?

This project raises numerous legal questions and remains, as it stands, very vague. Article 11 of our Constitution allows the President of the Republic to organize a referendum on a certain number of subjects: organization of public powers, ratification of international treaties, reforms relating to economic, social or environmental policy.

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If we want to broaden the scope to other areas, we must revise the Constitution. However, migration issues are framed by numerous texts of European and international law, which limit the room for maneuver of the policies that can be implemented. The draft referendum law on migration issues should respect these international commitments and the fundamental rights enshrined in the Constitution. There may be a contradiction between, on the one hand, wanting to broaden the scope of the referendum by including migration issues, and, on the other, respecting the rule of law, which requires respect for higher standards. The project mentioned by the Head of State highlights the importance of the limits of the referendum process and the control of these limits.

Who today verifies the conformity of the question submitted to referendum with these higher standards?

Only the shared initiative referendum (parliamentary then citizen), set up in 2008, is regulated, and even so regulated that none has ever been held. When the referendum is a presidential initiative, this control does not exist. No authority is officially responsible for verifying that the referendum proposal corresponds to the areas defined in Article 11.

It is this flaw in our Constitution which allowed General de Gaulle to propose a constitutional revision in 1962 through article 11, without going through the normal process of constitutional revision which provides, in article 89, that the text is discussed and voted on by each of the assemblies then proposed to the referendum or adopted in congress by a three-fifths majority. The procedure caused a lot of commotion, but, as citizens voted by a significant majority of 62%, it was considered legitimized at the time by this positive vote. This interpretation of the Constitution has never been officially called into question.

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