Referendums: a formalistic approach’

Nov 04, 2024 Letters

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Dear Editor,

A referendum is a majoritarian instrument that is generally unsuitable for use in ethnically divided societies such as Guyana. Recently, a Ram & McRae survey showed that four out of five (83.2%) Guyanese want more than the current 2% royalties provided in the country’s contract with Exxon and 79.4% of them want changes to the existing tax arrangements. There is also talk about having a referendum on the issue and suggestions that the referendum should be conducted at the same time as the forthcoming 2025 national elections. Here, the proposed plebiscite on the Exxon contract is a topical sidebar: the main reason I am tackling this issue is because the notions of constitutional reforms and referendums are closely associated.

Arend Lijphart suggested that referendums might serve as instruments of oppression against minorities (‘Constitutional Design for Divided Societies,’ Journal of Democracy, 2004). ‘Suppose that an opportunity arises for Israelis and Palestinians to reach a settlement in their decades-old conflicts. Would holding a referendum be useful in the ratification process (‘Negotiated settlements and peace referendums,’ European Journal of Political Research, Volume 53, 2014)?

‘In binding referendums on constitutional issues, referendums cannot establish the equality majoritarianism requires without supermajority requirements.’ Importantly, ‘There are all kinds of good representational reasons that democracies weigh different votes differently. They do this when balancing different kinds of representation. The influence of representation by population and geography are the most notable examples, and this in turn may reflect challenges of protecting minorities, languages, and cultures. These considerations of weight are driven by the idea that even formal equality is not self-sustaining. Without these kinds of interventions, minorities of different kinds—geographic, religious, or linguistic, for example—do not have an equal, basic opportunity to participate in democracies or protect their rights. There are often good reasons, particularly in deeply divided societies, to require majorities of multiple constituencies for constitutional change. Such requirements do not undermine equality, they support it. The purpose of special majority, or supermajority, requirements in such circumstances is to ensure formal parity as between different political communities, even if those political communities are of different sizes.’ (Matt Qvortrup, Leah Trueblood, International Journal of Constitutional Law, 2023).

There are two common types of referendums: mandatory and optional. A mandatory referendum usually deals with important matters defined in the constitution or other laws such as article 164 of Guyana’s Constitution that relates to its alteration. Optional or elective referendums, such as the present one being requested to deal with the controversial Exxon contract, may be initiated by the executive, legislature, civil society, etc., but endorsed by the government and may or may not be binding.

Supporters argue that referendums help to counter voter disenchantment with traditional forms of democratic participation and thus strengthen political legitimacy and democracy. But this argument needs to take into consideration that turnout at referendums is usually lower than at national elections. It also aids political stability and increases legitimacy when consequential constitutional and other changes are ratified by referendums.  Further, mandatory referendums can provide a broad consensus that negotiators may be able to use to reach solutions on highly controversial issues.

On the other hand, it is suggested that referendums weaken representative democracy by undermining the role and importance of elected representatives, are means by which some elected representatives avoid taking unpopular positions and induce voters to make ill-informed decisions based on partial knowledge, particularly where complex issues such as constitutional change, international affairs, etc are concerned. Note too that, as with Guyana’s 1980 Constitution and the presidential commissions the PPP has been organising, if the government has the power to determine when referendums are held, they can be used as a political tool to suit the needs of the governing party rather than the interests of democracy.

To mitigate the effects of majoritarianism, states use different approaches. For example, Australia has a double majority:  most of the States and most of the electors voting must approve the proposed law. In Italy the proposal will be approved if a majority of those eligible to have participated in the voting, and if it has received a majority of valid votes. Montenegro provides for a supermajority: for the referendum to be declared validated, turnout must, be over 50% of those on electoral lists and must be approved by at least 55% of voters.

In relation to Guyana and the Exxon contract, even if its sample size is questioned, very few persons associated with Guyana will doubt the general results of the Ram & McRae survey that most Guyanese will support renegotiations of the Exxon deal. A referendum can only have been proposed because the political elite is reluctant to engage Exxon and there is a belief that a referendum will pressure it and the government into such a negotiation. However, this belief is fundamentally flawed and results from the common practice in Guyana of concretising what is formal.

That is, making policy based upon what Guyana is not – a malleable multiethnic state – rather than upon what it is – a quarrelsome ethnic bicommunal society in which ethnic political support is prioritised – with the expectation that the outcomes will be like those of the more pliable states. As such, one could personally support seeking changes in the Exxon contract but most likely not back such an approach if one is advised by one’s ethnic party that it is likely to jeopardize its possibility of winning and/or holding government. In other words, in Guyana a referendum that is not supported by both parties will not induce a meaningful public opinion around this, if any, serious political issue.

Secondly, while it may be more economical to combine referendums with national elections, the prudence of doing so depends on the national situation. In normal circumstances, national elections are intended to hold governments accountable for their performance during their period in office, and, for example, to combine that with support for improvements in the Exxon contract can be confusing. Indeed, a malfunctioning government might well be tempted to frame its response to the referendum to detract from its non-performance.

Thirdly, the controversial historical nature of national elections in Guyana would suggest that the usual corrosive environment created by them is most likely to spill over to the referendum issue, and this should be avoided if, notwithstanding my contention above, a united public opinion is the objective of the referendum.

However, organising a referendum would be a simple matter if political consensus is reached on the question to put to the vote and the PPP and APNU agree to support the result. It may not have gone to a referendum, but substantial consensus was reached around the changes made in the 2000 Constitutional reform process.  But the 2000 reforms also beg the question that if the political behemoths agree, what is the point of a referendum?

Sincerely,
Dr Henry Jeffrey

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• Dr Henry Jeffrey, Letters, majoritarian instrument, Ram & McRae

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