by Xenophon Contiades and Alkmene Fotiadou
No democratic country should have to decide on its future through an unconstitutional, undemocratic referendum. Greece did. On Sunday, Greek citizens went to the polls to answer a question characterized by oracular ambiguity.
A timeline of the short pre-referendum period would begin with the announcement of the referendum on Friday June 26th, when the Greek Prime minister announced that a referendum would be held on Sunday July 6th. The vote would be on the «Reforms for the completion of the Current Program and Beyond» and on the «Preliminary Debt sustainability analysis», the then latest offer of the international lenders. The referendum was officially declared by the President of the Republic on June 28th, after a Parliamentary vote held on June 27th. On June 28th the European Commission published these latest proposals “in the interest of transparency and for the information of the Greek people”. On June 28th, an Act of Legislative Content (Α’ 64 28/6/2015) altered several of the pre-existing rules regarding referendums. The first official translation of the two documents appeared on June 29th containing a mistake and was replaced by the corrected version on June 30th. On the same day the Greek EFSF programme expired and Greece did not pay its dues to the IMF. On July 3rd the Supreme Administrative Court unanimously rejected a complaint against the constitutionality of the referendum, as it lacks competence to decide on this question. Since the referendum object is a governmental act, it is not subject to judicial review.
Two crucial questions emerge. The first is whether the referendum is constitutional. The second is whether the bailout referendum meets the standards of a democratic referendum.
According to Art. 44 of the Greek Constitution “The President of the Republic shall by decree proclaim a referendum on crucial national matters following a resolution voted by an absolute majority of the total number of Members of Parliament, taken upon proposal of the Cabinet. A referendum on Bills passed by Parliament regulating important social matters, with the exception of the fiscal ones shall be proclaimed by decree by the President of the Republic, if this is decided by three-fifths of the total number of its members, following a proposal of two-fifths of the total number of its members, and as the Standing Orders and the law for the application of the present paragraph provide. “
It is obvious that only the first option was available, since the matter (at least that of the proposed question) is clearly fiscal. Can a fiscal matter be put to referendum as a crucial national matter? Or does the ratio of the exclusion apply to the first option as well? Given that in Greece nothing was ever put to referendum since 1974, there is no referendum practice whatsoever to draw interpretative guidance from. The referendum provisions have never been applied under the current Constitution and after 40 years of non-use seem to lie in between being dormant and disused. Furthermore, the Constitution says nothing about time or about clarity of the question. Nonetheless, according to the relevant Greek legislation (Law n. 4023/2011) the poll takes place within 30 days following the presidential decree proclaiming the referendum and the question must be clear and precise.
By the time the referendum was held, the referendum question, as put on the ballot paper, had no object. The offer had expired and had already been followed by other unsuccessful negotiations. What was left was an implied question, which was ambiguous and unclear. Furthermore, it was an ineffective question, which could not elicit a specific and applicable result. Its answer was incapable of leading to a foreseeable closure. Thus, the referendum question is in clear violation of the Constitution and the implementation law, which interprets it. Nonetheless, the wording of the question is indeed contained in a governmental act, and thus not subject to judicial review. This, however, does not mean it cannot be in violation of the Constitution and the legislation that regulates referendums.
The ambiguity of the question is tremendous. The most obvious reading should be yes or no (or rather no or yes according to the ballot paper) to the implied question whether Greece should remain in the Eurozone. On June 29 Jean Claude Juncker addressed the Greek people asking them to vote “yes”, since voting “no” would mean willingness to exit the Eurozone. Adversely, the Greek Prime minister has repeatedly and clearly stated that the “no” vote does not mean exiting the Eurozone -but it shall instead lead to a solution within the euro area. The “no” vote thus for some voters means yes to Europe but with a better deal, whereas to others “no” means Grexit. Referendum questions are not meant to be in application of the subjective reader response theory, according to which everyone can read their own things into the text. They are supposed to be understood in the same way by all voters. And after the vote, they are supposed to be understood in the same way by all actors. However, the “no” vote is open to multiple interpretations by voters, as well as by international actors and entities.
The first condition for elite manipulation is thus fulfilled: the question is totally unclear. A second characteristic that may render a referendum susceptible to elite manipulation is lack of time for deliberation. One week for deciding on bailout terms that are written in a language unaccessible to most citizens can only lead to a farcical referendum. Deciding on an underlying question is equally farcical. And if the underlying question is about a country’s place in the EU, the deliberation that took place in other member states with regard to their membership cannot even be compared with the hurried Greek referendum.
The most striking characteristic of the proposed snap referendum is that it is more than a snap referendum. It is a surprise referendum, a shock referendum. Lack of time for deliberation is more than apparent. Actually there was no time to even realize what is at stake. As far as referendums go, this was not an expression of deliberative democracy. Unless deliberation was unnecessary and it was presumed that the people had already decided and all they had to do was to express their pre-existing will. Did the stunned opposition make a good choice deciding to take part in the referendum campaign, or should it have refused to take up the challenge and refused to participate in a non-deliberative procedure?
Could it be possible that a democratic Constitution allows holding a referendum on a matter of crucial importance a week after it is proclaimed? Or that the 30 day period prescribed by law can allow for a one-week pre-electoral period? This time frame leaves no time for expert elaboration of the question or for informing the public. No time to deliberate and no time for a serious campaign. No time for an independent committee to revise the question or the ballot. This absence became conspicuous not only in the wording of the question, but also in the way in which the question appears on the ballot paper, where the “no” box is above the “yes” box.
However, one of the characteristics of the financial crisis has been that it accelerated law making. Can the importance of the matter be used as an argument for a hurried referendum in the same style as the decree-laws are used to speed up law making at the cost of deliberation in Parliament? And what makes the matter urgent? The failure in negotiations? The sudden realization by the government that it cannot fulfill its promises? Does the importance of an issue offer an argument in favour of speeding up procedures, or does it instead dictate that a longer deliberation period is required?
The campaigns that lasted for five days only were doomed to focus on narratives rather than information. The amount of time available for reflection did not allow making rational choices based on information but rather sentimental ones. It is noteworthy that the usual head start the “yes” campaigns normally have, being perceived as positive and as such easier to support, did not apply in the Greek case. The “no” answer was fraught with the connotations of heroic resistance against foreign occupation. It reflects the rejection by the Greek prime minister in 1940 of an Italian ultimatum demanding the occupation of Greek territory. Still, this “no” for many stands for “no to austerity”, whereas for others it is a “no to the EU”.
Does merely giving the people a sudden opportunity to express themselves suffice to view this referendum as an expression of democracy? Or would a clear question and an opportunity to deliberate be also necessary? Are closed banks following the imposition of capital controls an environment that allows sober reflection and debate?
The lack of referendum practice experience had the side effect of creating a strange blurred mixture with representative democracy. The Prime minister campaigning for “no”, implied that he would resign in case “yes” prevailed. This added an extra parameter to the referendum dilemma. On the other hand, the referendum being a novel experience for many made it easier for citizens to feel empowered by the very participation in a democratic procedure. Absence of an independent electoral committee to elaborate the question and so on, seemed like legal technicalities, trivial before the chance of popular expression. Constitutional scholars who expressed their view on the unconstitutionality of the referendum putting forth the question whether it was indeed democratic, were accused of attempting to stifle democratic expression or even of taking a political stance. This was perhaps a symptom of the extreme polarization, which emerged after the referendum was called.
What is certain is that this referendum shall have important consequences for Greece. So far, it is the Greek government that bears the responsibility for organizing an undemocratic, undeliberative referendum. What remains to be seen is whether the European and international actors involved shall link important consequences to a referendum that falls short of democratic standards. A referendum, which according to the secretary general of the Council of Europe does not meet the non-binding guidelines drawn up by the Council and falls short of international standards for the conduct of referendums. How shall multi-level constitutionalism absorb this? The interpretation of the ambiguous referendum question remains open. How shall Europe interpret it?
Cross-post from Constitutional Change through Euro Crisis Law, EUI Law Department, http://eurocrisislaw.eui.eu/news/the-greek-referendum-unconstitutional-and-undemocratic-by-xenophon-contiades-and-alkmene-fotiadou/