The Constitution invites itself into the conversation. In recent months, with the breathlessness – to use a measured word – of our democracy, the debate has swelled. This summer, L’Express revisits, with political scientist Olivier Rozenberg, associate professor at Sciences Po, researcher at the Center for European Studies and Comparative Politics, the history and issues of several emblems of the Fifth Republic. Second episode: the referendum.
EPISODE 1 – The President and the Constitution: “The five-year term is not responsible for all our ills”
© / The Express
L’Express: When you think of the referendum in France, you think of De Gaulle. Are we right to associate one and the other?
Oliver Rozenberg: Yes, because De Gaulle practiced the referendum a lot: there have been nine since the beginning of the Fifth Republic, including four during his presidency. The idea that there must be a leader and that this leader is supported directly by the population corresponds to his theory of power, and he will remain faithful to it when he resigns in 1969, after a victory of the “no”. De Gaulle used the referendum for the Algerian question twice (self-determination in 1961, Evian agreements in 1962) and this was very useful to him, because he had to face great resistance, from the army, from the feet blacks and some in his own camp. Only the legitimacy of the referendum allows him to get out of the ambiguity in which he was when he came to power. It is the interest of this practice to solve a central problem which mobilizes people in disagreement: the referendum imposes the statute of the minority.
There is a referendum which more than the others has gone down in history, it is that of 1969. Tell us about it!
The 1969 referendum concerns the Senate (merger with the Economic and Social Council, end of legislative powers) and the regions (creation of representative councils of the territories). It does not follow the logic of previous referendums, which had a vital character on matters dividing the French. There the subject is rather secondary, the ballot arrives a few months after May 68 but without really answering it: one cannot say that the demonstrators of 68 were very concerned about the fate of the Senate! In the majority, there are some defections. The general himself seems to lack enthusiasm, as if he were driven by an unconscious desire to end it all, a kind of flamboyant suicide.
© / Stephane Humbert-Basset
In 1984, we almost had a referendum on the referendum. What is the meaning of François Mitterrand’s maneuver?
The operation illustrates Mitterrand’s skill: power is entangled in a project on private schools, supporters of free schools are mobilizing en masse, with demonstrations on an unprecedented scale since 1968. Mitterrand withdraws the text and lights a backfire. The right-wing Senate had passed a referendum motion proposing a referendum on the Savary bill, which article 11 does not allow. Mitterrand therefore proposes that this article be modified by a constitutional referendum. The Senate is trapped because its agreement is necessary for this. Even if the project does not succeed and the Mauroy government resigns, Mitterrand can move on.
A referendum reaches a high degree of dramaturgy, it is that of 1992 on the European treaty of Maastricht. Is this proof that you can answer yes or no even to a complicated subject?
When Mitterrand chooses the referendum, we think that the “yes” will pass easily but the closer the date approaches, the more the campaign of “no”, led by the Pasqua-Séguin-Villiers trio, gains in scope. The “yes” passes narrowly. The Maastricht Treaty lent itself well to a referendum: it was a big step forward in European construction with a clearly identifiable object, the single currency. In 2005, when the referendum will relate to the European constitution, the stake will be more blurred.
Certain referendums have left a curious impression on public opinion. That of 2005 on the European constitution; the one, local and consultative, on the airport of Notre-Dame-des-Landes. Each time, the authorities give the impression of circumventing the results, right?
The power must manage the consequences of a referendum which are sometimes devastating, however powerful the narrative of popular sovereignty. France is no exception. In 2014, Switzerland approved by referendum a limitation of the freedom of movement of workers on its territory. This strained relations with the European Union so much that the Swiss parliament had to reconsider. Going back on a referendum is certainly not satisfactory, but the episode of the European Constitution is not unequivocal from a democratic point of view. After the no of 2005, the candidate Nicolas Sarkozy undertakes during the campaign of 2007 to have a European treaty adopted which one can understand will not be very different from the rejected one. It announces the color.
At Notre-Dame-des-Landes the question of the electoral body is raised: it was the people who lived at a distance from the place planned for the airport who approved its construction. As much as I am in favor of the multiplication of referendums, we must not make their result a revealed truth.
In 2008, the RIP was introduced into the Constitution, but in such a way that there may never be one… We are walking on our heads, right?
It’s really politics at its least pleasant: we pretend. Not only are the conditions very demanding for the organization of a referendum on a parliamentary initiative (gathering the signature of one tenth of the electorate in nine months is almost impossible), but the most absurd thing is that it would not lead to a referendum. It only requires Parliament to debate, five minutes if necessary, the subject. In 2019, Emmanuel Macron proposes to renovate the RIP, increasing to 1 million signatory voters and no longer close to 5 million. It’s a good gauge. But the non-automaticity was retained, which confirms the reluctance of politicians on the subject. In Switzerland, a law can be repealed by a RIP if only 1% of the electorate petitions. Or propose a new law with 2% of voters. And it works !
Emmanuel Macron often speaks of a referendum, but since 2005, the referendum practice has disappeared. Is it still possible to organize one in today’s France?
Macron is a Gaullist without the referendum. Like the general, he is wary of intermediate bodies, can mistreat Parliament but he does not counterbalance this verticality through the referendum. Facing the cameras with pissed off citizens while on the move is a shoddy substitution, even if he’s pretty good at the job. In fact, the last referendum took place eighteen years ago and ended in a resounding “no”: the legitimacy of the then president, Jacques Chirac, was affected until his departure from office. ‘Elysium.
Should the referendum procedure be modernized?
Article 11 authorizes the referendum on certain subjects only, which, moreover, must not modify the Constitution. Article 89 makes it possible to revise the Constitution by referendum, after a valid vote of the two assemblies. De Gaulle in 1962 introduced the election of the president by universal suffrage through article 11, to avoid blocking the first reading of the two chambers. In doing so he acts against the Constitution, but he does so with his authority of the time, at a time when respect for the rule of law is not as rigorous as today. He did it again in 1969. Now that would be hard to imagine. Since 2000, the Constitutional Council has controlled the decree convening voters. It holds the president’s hand. In theory, between good-natured democrats, the Constitution is no longer touched except by article 89. One can nevertheless imagine that an authoritarian head of state could override it. No procedure other than dismissal by the Assembly would sanction him. Given the populist dynamics of the day, this risk cannot be ruled out. Especially since the Senate can block the revisions by article 89 and since the radical forces are less present there.
Is it possible in France to trivialize the referendum?
One cannot neglect the requests for direct participation. The RIC [référendum d’initiative citoyenne] was one of the few consensual watchwords during the yellow vests crisis. The Conservatives are putting the brakes on, as are some of my colleagues, who are fans of participatory democracy but who find that the referendum is a somewhat low-cost because too binary. However, it is a unique way of involving all the citizens of a territory, which a citizens’ convention drawn by lot cannot do. We should review the RIP to make it a RIC with parliamentary validation and strict control of the Constitutional Council to avoid a referendum against minarets as we have seen in Switzerland. This presupposes that the role of guardian of the Council is explicitly mentioned in the Constitution. One can also imagine that it validates petitions upstream once they have reached a certain threshold without waiting for the one validating the referendum. In this case, nothing would prevent completely broadening the scope of the referendum provided for in Article 11. In a democracy, you have to take the risk of trusting the people, even if it is a risk. Let us remember what Guy Carcassonne said: “It would be naive to believe that the people are naive.” And then the negative prejudice vis-à-vis the voters in turn feeds their mistrust.