Benjamin Morel is a lecturer in public law at the University of Paris II Panthéon-Assas.
THE
FIGARO.
- At least 185 parliamentarians have agreed and would be ready to table a bill for a shared initiative referendum (RIP) in order to block the pension reform, announced on BFMTV the Communist deputy for Seine-Saint-Denis Stéphane Peu .
Can RIP really happen?
Benjamin
Morel.
-
The referendum can theoretically be held.
The case law on the subject is not abundant, but article 11 of the Constitution provides that the referendum may in particular relate to the “economic or social policy of the nation”.
We can therefore consider that a pension reform falls within this framework.
There is a doubt about the nature of the text.
Article 11 talks about bills.
However, here we are dealing with an amending social security bill.
Does this include ordinary bills only or extend to all bills generically… that is a question only the Council can answer.
In what conditions ?
To launch a referendum of shared initiative, it is necessary to unite 1/5 of the parliamentarians, which will not be difficult.
It is then necessary to gather the signature of a tenth of the registered voters, that is to say a little more than 4.5 million, all within nine months.
It should be understood that this figure is very high.
In Italy, for example, a comparable state, it takes 500,000 signatures or five regional councils to launch an abrogative referendum procedure.
Moreover, under the French RIP, if these signatures are met, the referendum does not necessarily take place.
The text is first submitted to the two chambers of Parliament, which can examine it.
If they examine it, even if only to reject it, then the referendum does not take place.
Only if the rooms don't
are not seized of it within six months that one proceeds to the consultation of the People.
We are therefore dealing with a baroque procedure that was designed never to be used.
In addition to its acronym, RIP, which shows that its designers themselves believed little in it and the time is that the organic law that made its inclusion in the Constitution in 2008 applicable took five years to be voted on.
The RIP is very dysfunctional and does not have much of the RIC requested by the yellow vests.
However, in this case, it is not impossible.
The anger of the French on this reform, the political and trade union networks that can be mobilized can make the signatures attainable.
If a text were to arrive before Parliament, rejecting it to put an end to the procedure would be politically difficult to sustain, like trying to put out a fire with gasoline.
The executive would then find itself in an impasse.
If the pension reform is enacted before the validation of the referendum of initiative shared by the Constitutional Council, can it still be organized?
This is the point that was not considered by the opposition.
She should have done it sooner.
The organic law is clear, the RIP must relate to a text which has not been promulgated for less than a year.
As soon as Emmanuel Macron promulgates the text, the short-term RIP becomes impossible.
If the text is voted or passes by 49 paragraph 3, then the Council will be seized, once it will have finished its examination, the President will be able to promulgate.
Before this fateful moment, the parliamentary signatures must be collected and the Constitutional Council must have ruled on the constitutionality of the RIP.
If the two texts arrive on his desk at the same time, theoretically he should prioritize the government bill, theoretically, however, this induces a sprint.
The citizens' initiative referendum was at the heart of the demands of some "yellow vests". Can the RIP be a solution to the democratic crisis we are going through?
For the reasons we have already mentioned, the RIP is very dysfunctional and does not have much of the RIC requested by the "yellow vests".
It is even quite paradoxical.
In most states, including Italy, the RIC is a referendum veto.
If the people disagree with a law, they can block it before it applies.
It is coherent, because it avoids legislative disorders.
By suspending a law that does not yet apply, we avoid creating precarious legal situations.
Read alsoYellow Vests: “And if we were inspired by the Italian popular initiative referendum?
»
In France, for fear that the people would disavow the politicians, we did the opposite and we demanded not only that a large portion of parliamentarians have the key to the device, but also that the number of signatories be prohibitive, in short , it is necessary to rethink this system of direct democracy which applies today in many European States and in a number of American federated States.
The fears that we have vis-à-vis him are paradoxical.
We want to constitutionalize the right to abortion to put it under the supervision of the Constitutional Council… why not?
However, in the United States it is not the people, it is the Supreme Court that has undermined this right.
The referendums of
citizens' initiative which followed this decision and tended to abolish this right all resulted in a no.
In this case, the people are therefore more reasonable than the judges reputed to keep them from their excesses.
The RIC certainly produces concerns of disinterest and abstention if it is used too often as in Switzerland.
However, with a good gauge, we avoid the frenzy of RIC.
With a quorum of registered voters voting yes, we avoid the confiscation of the device by a minority or strategic voting, this is the Estonian model in particular.
In short, all this has been put in place elsewhere and hardly poses a problem from a constitutional point of view, there remain the political and psychological blockages.
The RIC certainly produces concerns of disinterest and abstention if it is used too often as in Switzerland.
However, with a good gauge, we avoid the frenzy of RIC.
With a quorum of registered voters voting yes, we avoid the confiscation of the device by a minority or strategic voting, this is the Estonian model in particular.
In short, all this has been put in place elsewhere and hardly poses a problem from a constitutional point of view, there remain the political and psychological blockages.
The RIC certainly produces concerns of disinterest and abstention if it is used too often as in Switzerland.
However, with a good gauge, we avoid the frenzy of RIC.
With a quorum of registered voters voting yes, we avoid the confiscation of the device by a minority or strategic voting, this is the Estonian model in particular.
In short, all this has been put in place elsewhere and hardly poses a problem from a constitutional point of view, there remain the political and psychological blockages.