Basic thesis for the Law on General Referendum

(henceforth also Referendum) on national, regional and local level

 

1. The citizens of the Czech Republic exercise their civic sovereignty either through intermediaries, i.e. by their elected representatives or directly through Referenda.

 Only the citizens themselves decide when their civic sovereignty will be exercised directly in a referendum.

Comment: The law on General Referendum is the legal tool, which will enable the people of this country to use its sovereign power in the state (if it wants) in accordance with Thesis 4.

The democratic decision-making in everyday issues in elected or appointed bodies (the Parliament, the Government, regional and local assemblies) will be retained.

Direct Democracy is definitely not about deciding every detail in a referendum (this is not the case anywhere in the world). In practice, referenda will only settle substantial questions, which can significantly influence the direction of the state and its governance.

2. Types of referenda

a) The Citizens Initiative – a referendum has to be called, if a certain number of citizens ask for it by petition and if the proposal doesn't have any formal errors.

b) The compulsory referendum – the referendum has to be called in matters stipulated by a law, which has been approved by referendum. Examples of such matters are: all constitutional changes, membership in any supranational organisation, and assignment of important powers of the state to supranational organisations; at local level: the division or merge of two municipalities 

 

 3. A referendum can be held on any issue, apart from the exceptions mentioned in Article 4.

The question has to be formulated so that it can be answered YES or NO.

The question in the referendum has to either:

a) address a specific problem or

b) be in the form of a draft law.

If a law has to be passed (or amended) in order to fulfil the decision of the referendum in (a) above, then the parliament has to table the draft law to within one year from the referendum. The draft law is then voted upon in a second referendum.

If the draft law has been approved in a referendum, then it cannot be further amended before it becomes law.

Comment: the sovereign power of the state belongs to the people and in every instant, the people has to have the inalienable right to change the form of its governance, in any way which it finds appropriate.

Since we want to live in a country ruled by law, the results of the referenda have to be incorporated in a clear and systematic way in the legal system.

 

4. The referendum cannot be called on issues, which are in breach of fundamental human rights and freedoms; it cannot particularly be called on issues, which allow for the discrimination of citizens based on race, gender or religion.

 On national level, it cannot breach certain compulsory articles of international law (for instance the prohibition of genocide, torture, apartheid, racial discrimination or slavery). In case of doubt, the body responsible for organising the referendum asks the appropriate court to decide upon the issue. 

Comment: We consider any restriction on the range of possible issues for a referendum, as tantamount to an attempt to deny the people its rights. The people has to have the right to collect signatures under the petition to call the referendum in any issue it finds appropriate. An independent court decides whether that issue would constitute a case of discrimination.

 

5. The referendum cannot be called on issues, which don't fall within the jurisdiction of the relevant local or regional government in the case of local or regional referenda, and on issues which don't belong to the jurisdiction of the Czech Government or Parliament in the case of national referenda.

Comment: Citizens have to have the sovereign right to decide upon issues which concern themselves at all levels (local, regional and national). It is therefore unimaginable, that citizens would decide on national issues in a local referendum, just as a national referendum cannot decide upon regional issues.

 

6. By a referendum, it is in particular possible to:

a) abolish laws approved by the Parliament,

b) propose and approve new legislation,

c) recall elected representatives in local or regional councils or MEPs (the recall can only take place once every year and not earlier than one year after the representative or MEP has taken office),

d) decide upon the dissolution of a publicly elected body of representatives.

e) decide in matters belonging to the jurisdiction of municipalities or regions.

Comment: These are five fundamental ways by which citizens can exercise their sovereign power in the state.

 Citizens must have the right to

  • abolish a law, if they come to believe that it somehow harms or restricts their rights and interests, and
  • pass a law proposed from outside the parliament and government, if they think that its content is in accordance with the will and wishes of the people and if the parliament fails to approve it.

 Only then do we reach the point, where written laws respect the so called “natural law”, i.e. what people consider to be legitimate and fair. A large proportion of the people (including lawyers) consider part of our laws to be illegitimate and unjust (favourable only for "somebody") and believes that the Parliament is not fulfilling its main responsibility, and that is to continuously determine the will of the people and to codify it in law.

 Citizens must also have the right to recall their elected representatives with immediate effect, if they come to believe that their representatives fail to fulfil their promises on which they were elected and if they are breaking them Similar to Article 4 above, we consider attempts to codify the conditions under which representatives cannot be recalled as attempts to deny the people its rights.

 

7. Citizens have the right to initiate a referendum in the form of signatures on a petition calling for a referendum.

 The petition may be signed either physically or electronically. The government should provide resources for the secure collection of electronic signatures. The Law on Referendum must set a date by which a government body will provide these resources.

 Signatures should be collected without financial support from the state, corporations or private or state-owned companies. Every eligible voter is entitled to propose a referendum, i.e. to initiate the petition for a referendum; that includes any Czech citizen, who has attained the age of 18 and has not been deprived of her/his civil rights by a final court ruling.

Comment: The right to initiate a referendum means, that if the citizens manage to collect the required number of signatures under the petition, according to Article 7, then the referendum must be held (see Article 8)!

 The cost to collect the signatures for the petition and its transmission to the appropriate self-governing body shall be borne by the citizens who initiated the petition.

 

8. A referendum must be held if a petition gathers the following number of signatures of eligible citizens - voters in the municipality, district, region or nationwide:

 a) Up to 2,000 voters - 15 % of the eligible voters (max. 300)

 b) Up to 10,000 voters - 300 + 10% of voters exceeding 2000 (1100 max)

 c) Up to 400,000 voters - 1,100 + 5 % of the voters in excess of 10,000 (max. 20,600)

 d) Up to 1.5 million voters - 20,600 + 2.5% of the voters in excess of 400,000 (max. 48,100)

 e) More than 1.5 million voters - 48,100 + 0.6 % of the voters in excess of 1.5 million (max. 90,100)

 Comment: The required number of signatures is calculated similarly in other countries.

 

9. The body of representatives at the appropriate level may submit a counter-proposal to the proposal in the petition.

 In this case, the petition and the counter-proposal are put to vote on the same ballot. Voters respond to each proposal separately and to the third question, asking which of the proposals they prefer, in case both proposals are approved. Unanswered questions are not counted as valid votes, i.e. non-answers are treated, as if the voter did not attend the referendum on that question.

Comment: This thesis is identical to the way counter-proposals are set up in Switzerland. The philosophy behind the counter-proposal is based upon the principle that democracy is a dialogue. The Parliament and the representative bodies at lower level may react to the proposal in the initiative by submitting a counterproposal and by this compete for the favour of the people with the initiators of the referendum. In this way it is possible to improve the final quality of the decision taken and to avoid cases where the referendum approves the proposal in the petition with a slim margin, even though there might be a similar proposal, with stronger support.

 

 10. A referendum must be held within six months after the required number of signatures is gathered and after they have been submitted to the appropriate authority.

 The competent self-governing body is responsible for financing and organising the referendum. When determining the date of the referendum, the responsible authority has to minimise costs, in particular by calling several referenda on the same day or by calling the referendum on Election Day. For this purpose, the time period within which the referendum has to be held may be extended by a maximum of three months with the consent of the initiators of the referendum.

Comment: The petition should be handed over to the appropriate representative of the self-governing authority (the Mayor, the Regional President, the Department of Home Affairs), which has to accept it and provide organizational and financial means for holding the referendum. The costs of the referendum should be paid by the self-governing authority (the office of the municipality, the region, the Department of Home Affairs).

 

 11. Informing the citizens on the referendum

 a) The public service media should provide space for the equal and fair presentation of the arguments of the petitioners and their opponents, similarly as in public elections

 b) The relevant state authority should send the voters the full text of the initiative or the draft law and of the counter-proposal, if it was submitted. Furthermore the voters should get an information leaflet, which contains arguments for and against the proposal(s) sent by post to their mailboxes well in advance of the vote.

 

 12. A proposal voted upon in a referendum is approved, if a majority of the voters in the referendum approve of it.

The people may decide by referendum, that other majorities are needed for some types of decisions taken by referendum, for instance:

a) the approval of constitutional laws by referendum: 3/5 majority of voters, or

b) changing the required majority for the approval of a proposal in a referendum: the majority under the current legislation and the new required majority in the proposal.

Comment: Since the constitutional laws form the framework of the democratic rule of law in the country, it is suitable that this framework does not change as often as conventional laws. For this reason, it may be desirable to approve constitutional laws with another majority than a simple majority.

Similarly, it may be appropriate to ensure that referendums in some areas are not "virtually abolished„ by approving an unrealistic conditions on the validity of future referenda by small majority. For example: a proposal that changes the majority required for approval of certain amendments to the Constitution from a simple majority to a 9/10 majority, would require a 9/10 majority for approval.

 

13. The referendum is valid regardless of the number of eligible voters participating.

Comment: The right to vote is a right, not an obligation. A citizen, who does not vote, voluntarily waives his right to influence the decision taken, a decision which will be binding even for her/him (she/he makes her/his vote available to those who vote). Attempts to constrain the referendum by setting a minimum number of citizens, who have to vote for the referendum to be valid, are considered as attempts to restrict the rights of citizens. Since only one vote is enough to elect an MEP, the same criterion should apply for the validity of the referendum.

 

14. The result of the referendum is binding. Decisions approved in a referendum are binding for local and regional authorities and have the same validity as decisions made by the local or regional body of representatives, but have greater power (i.e. are superior to all other decisions by the local/regional body of representatives).

 This paragraph also applies for national referenda and for the Parliament and the Government.

 The result of the referendum can only be cancelled by another referendum, and only after a specified period of time.

Comment: The results of the referendum must be the law for everyone. Any attempts to condition the validity of the referendum by requiring an approval of the corresponding governing body (at local, regional or national level) or the corresponding body of representatives (parliament, regional or local government, etc.) is regarded as inadmissible.

 In short: the principle of „Populus locuta, causa finita ", should apply (The people have spoken, the case is closed).

 

 15. Obstruction of the petition or the referendum should be considered a criminal offense.

Comment: The penal code should be updated with provisions which qualify any deliberate action against the purpose of the general referendum as a crime. This crime will have higher penalties for people who commit it as public officials.



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Jiří Matuszek:


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