The sovereignty of voters is a key tenet of democratic theory. If they are sovereign, they have the innate authority to draft, adopt, and amend constitutions, and enact, amend, and repeal laws.

Nevertheless, the majority of constitutions worldwide have been drafted by legislatures or special assemblies and were not submitted to the voters for their acceptance or rejection. Nor can most of them be amended except by the legislature. Similarly, few countries allow voters to enact laws, though some allow them to amend or repeal certain types of laws. So, it is quite legitimate to ask whether the people are really sovereign.

The Maltese political system is known as a representative democracy. 'Democracy', because we have some say in how we are governed, and 'representative' because we vote for those whom we think will best represent our interests.

But today's electorate treads a vastly complex web of opinions, causes, campaigns and pressure groups, which no elected representative can possibly hope to represent in proportion to their numbers in the population. This raises the question how 'representative' our MPs are. Moreover, rigid party discipline raises serious doubts as to how much we can call our MPs 'representatives'.

There are also other trends which are gnawing at the fibre of democracy. First of all, there is the phenomenon of our legislature being reduced to a 'rubber-stamp' for decisions already taken by Cabinet. Secondly, the increasing hijacking of decision-making from the legislature by technocrats and executive agencies, which will doubtless increase substantially in an EU context, has to trouble anyone concerned about maintaining the dynamic counterbalances essential to parliamentary democracy.

Arguably, our procedures for defining and resolving public issues are out of sync with the outlook and imperatives of most Maltese. What ails the Maltese body politic is that the democratic system is not responding adequately to the needs and desires of the people. It is almost the order of the day that our main political parties always find themselves at loggerheads over the issues, always arguing over who knows best, and always accusing the other side of being unimaginably stupid.

The truth is of course that many if not most government decisions are not over questions which have right or wrong answers, but rather are concerned with choosing between different value options, and since once person's value judgments are just as good as the next's, then there is no earthly reason why politicians should have any superior rights in taking these decisions over you or me.

Some people are convinced that the politicians know what's right for the country better than we do. But if the politicians are so good at knowing what is best for us, then why is it that the two main parties are always going at each other hammer and tongs, each insisting that the other one in government is totally incapable of organising a coffee morning in the village hall? The reality is that we the voters would be just as good at taking the decisions as they are, if not better.

Political disenchantment can set in, as it has in many democracies, when major policy initiatives are developed without public consultation. It is difficult to imagine, however, that public consultation alone would be enough to overcome this disenchantment. Major issues are, by their very nature, controversial, and thus resist consensus. The question also arises as to who is to determine the criteria for choosing issues of transcending national importance.

To some, taxation and the public deficit are of transcending national importance. If the objective is to reduce political disenchantment, surely the people should determine the issues on which to vote; it would be unthinkable for only government to decide on them.

Direct democracy would institutionalise the voters' right to decide for themselves on many of the issues of the day, usually by means of referenda. It would not only require governments to hold referenda as a regular and normal part of the democratic process, but in addition it would allow for private citizens to demand a referendum on any matter of their choice, provided that they can raise enough signatures in their support.

One of the main arguments for the use of referenda is that voters are not just restricted to voting for a party manifesto once every five years or so, even when they disagree with many of the policies contained in it. It means that politicians will not be able to get away with policies that the voters at large do not want. But then it must involve a system where voters themselves will be able to raise issues that the politicians are avoiding, or ones on which they are reluctant to lead, or ones on which they simply cannot agree.

The use of referenda has recently been on the increase worldwide. But it is still not clear whether this tendency is the result of a growing willingness to let the 'people' have a say in the regulation of their own affairs, or if it is merely reflecting a renewed form of plebiscitarian democracy. Referenda in most countries are still held infrequently, usually only when the government of the day has good reason to suppose that the voters will endorse a particular issue.

No wonder that some, like Arend Lijphart (Democracies, Yale University Press) have boldly asserted that referenda are "weapons in the hand of the government" (recently echoed by the Leader of the Opposition, Dr Sant, in relation to the proposed EU referendum).

But others, like Mads Qvortrup (Initiative & Referendum Institute) have concluded, from analysis of 128 national referenda in 12 countries, that "uncontrolled" (i.e. either obligatory constitutional, abrogative, initiatives, or minority veto) referenda account for more than 80 per cent of the total referenda. Also, the fact that most of them have gone against the wishes of governments suggests that the referendum can provide an effective check on the legislature. This has led some constitutional theorists, like Dicey, to propose the constitutional entrenchment of uncontrolled referenda whereby the rulers would submit certain issues to referenda.

Because the major issues facing Malta now are as much political, environmental and economic as they are technical, the consent that could be created by an inclusive and participatory approach through the all-important educative role of a referendum is potentially enormous. The referendum tool, if well used, could ensure that the policies of the government will reflect not merely the interests of its supporters but those of the "community of interest".

The purpose of a referendum is to poll the electorate on a given subject through polling similar to that of a general election. In the English-speaking world, referenda are essentially consultative and are not legally binding on a government, however great the political or moral obligation to respect the result. Referenda, in the strictest sense of the word, do not create law directly. Binding referenda are rare in parliamentary democracies, and are best suited to countries with a tradition of direct democracy, such as Switzerland. Through some 500 referenda since 1850 (usually called by the government, which won just over half of them), the Swiss have shown how ultimate power can truly be made to rest with the people.

Our Constitution provides for only two instances of recourse to a referendum. One concerns the amendment of the Constitution's Article 76 (2), whereby should Parliament extend its term beyond five years in times of peace, this would not become effective unless ratified by majority vote in a referendum. The other concerns the amendment of Article 56 (10), whereby the requirement for secret voting in such a referendum can only be removed by a majority vote in a referendum.

In 1993 Parliament passed a Referenda Act which provides for two further types of referenda. One type could be a referendum on a proposal specifically adopted by Parliament itself for this purpose. A simple majority of those voting in favour ensures that the proposal becomes law. The other type could be an abrogative referendum, whereby an initiative supported by at least 10 per cent of registered voters proposes to abrogate any provision of Maltese law with certain exceptions.

The main exceptions are the Constitution itself (subject to the preceding paragraph), the European Convention Act, the General Elections Act, fiscal legislation, treaty obligations, and certain local council bye-laws. In an abrogative referendum, those who propose to abrogate a law must overcome two hurdles, namely that 50 per cent of those eligible to vote actually cast their vote, and naturally that a majority of voters support the abrogation.

In Malta we do not have a tradition of holding referenda. Since 1849, when we started having some form of self-government, there have been just three national referenda. The two most important national referenda were the 1956 one on integration, when just over 60 per cent of eligible voters cast their vote and the Labour government won a 75 per cent majority, and the 1964 one on the Independence Constitution, when 82 per cent of eligible voters cast their vote and the Nationalist government won a 51 per cent majority.

The referendum on EU membership, to which the Nationalist government has committed itself, will break a 39-year abstinence. One can therefore hardly argue that the referendum is the highest expression of the people's will. It would also appear that the referendum will not be called under the Referenda Act, thereby legitimising a specific Act of Parliament, but will be a consultative referendum, thus leaving a potential new Labour government with considerable flexibility to respond.

But the Nationalist government would also have considerable flexibility in that, in the event that a majority vote against EU membership, there is nothing to stop it from having a second go at getting a yes vote.

Again, if by common consent the political system has been fashioned in such a manner that the government of the day is not obliged to continue to be bound by a past referendum, one cannot then attack an incoming Labour government if it decides to ignore the result of a past referendum, or the Nationalist government itself from trying to reverse a negative vote.

The consultative referendum is therefore a slippery device. A lot of brouhaha is being made about respecting a referendum result. But it is not unheard of that democratic governments ignore the people's advice. Thus, in 1955 an overwhelming majority of Swedes rejected a proposal for driving on the right side of the road. Nonetheless in 1963 the government implemented right-hand driving without holding another referendum.

It is in the nature of referenda that they result in a forced decision, rather than one based on consensus. Referenda are based on an unrealistic assumption that there is a simple yes or no answer to complex questions, and set up confrontations between their supporters and opponents. If the ultimate goal of the democratic process is consensus, then the binding referendum is surely not the best way of promoting the interests of all citizens, since it highlights differences of opinion and only lends itself to a "forensic" triumph of some people over their neighbours.

EU membership is not an abstract exercise in constitutional design subject to precise cost-benefit calculations. Continuing surveys of Maltese public opinion show that most people believe they lack the information needed to make such calculations. In the forthcoming EU referendum, Maltese voters will be confronted with an enormous barrage of sharply conflicting claims. Voters will have to decide in a context of high stakes and enormous uncertainty. Given that the stakes are momentous and the consequences of alternative outcomes are relatively unclear, the need for heuristics is substantial, and the impact of electoral behaviour variables will be strong.

I would contend that voters will use heuristics provided by the political context in which the referendum will occur. I believe that they will do so by employing readily available information as a convenient cue or heuristic device. Our voters have abundant information about the politicians and parties that are leading the campaigns for and against EU membership. The chief proponents and opponents of the proposal are dominant players in political arena, with salient track records in government and/or opposition.

As a result, assessments of the incumbent government's performance in office, party leader images, and party identification, which do much to explain voting in a general election, will, I would contend, have statistically significant and substantively important effects on the forthcoming referendum balloting. Surveys in other countries indicate that most voters develop affective, cognitive and evaluative orientations toward the politicians and parties long before a referendum campaign begins (e.g., H. Clarke et al., Absent Mandate: The Politics of Discontent in Canada, 1996).

In a nutshell, the referendum campaign will be a good proxy for the subsequent general election but, however depressing it may be, the result will not be the last word of the people on EU membership.

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