EU Constitution Stirs Up German Debate on Plebiscites

In France, voters will be entitled to make the ultimate decision on the fate of the draft European constitution. That's also the case in Britain and Denmark and at least seven other EU countries. But why not Germany?

Opponents of a referendum -- including Chancellor Gerhard Schröder, Foreign Minister Joschka Fischer and opposition Christian Democratic Union chairwoman Angela Merkel -- have all pointed out on numerous occasions that Germany's own constitution promotes representational democracy, a political philosophy that leaves little room for plebiscites. Under the country's constitution, the so-called Basic Law, referendums are only called for in the case of restructuring the country's federal territory.

Article 20 of the constitution holds that all state authority is derived from the people and shall be exercised "by the people through elections and other votes and through specific legislative, executive and judicial bodies." In other words, the constitution does leave, at least theoretically, breathing room for stronger plebiscite elements. However, legislation from the ruling Social Democratic and Green parties introduced in 2002 to strengthen the role of referendums failed to obtain the two-thirds majority support it needed to clear parliament.

Parliament to have last say on constitution

Currently, it's almost unthinkable that Germany would hold a referendum on the constitution. Instead, Germany's two chambers of parliament, the Bundestag and the Bundesrat, will ratify the constitution.

German politicians aren't alone in their belief that the Bundestag and Bundesrat have sufficient legitimacy to ratify the constitution.

According to Andreas Maurer of the German Institute for International and Security Affairs, a referendum on the constitution wouldn't make sense because the document "is too long and will relatively quickly represent itself as being in accordance with international law. But it's also a treaty that can be changed at any time. It's not a document that the European Union or its citizens can really call a constitution -- at least not one that would be comparable to the Basic Law."

State referendums

Some German states already have provisions in their state constitutions allowing for the possibility of plebiscites. Local citizens do frequently take advantage of these laws. Often the referendums are held on regional issues -- a plebiscite that would deal, for example, with the construction of a roadway bypass -- but sometimes the issues have wider ramifications. A number of years ago, voters in Bavaria chose to eliminate their state senate. The advisory second chamber of the state parliament was ultimately dissolved through a referendum initiated by voters in the state.

But even in places where referendums are legal, they are still complicated business. The process usually starts with a petition for a referendum which requires a minimum number of signatures from local voters. If the organizers succeed, then the local community government or state parliament must take up the issue. Only if the government is unable to come to a resolution is the issue then put before local voters for a referendum. Incidentally, referendums also require the support of a minimum number of voters in the state or community in order to be valid.

Fear of chaos

Thus, the hurdles are pretty high. But they haven't been made so without reason. Generally, the fear is that plebiscites could open the door for any demagogue off the street to put issues before voters. It's a line of argument that is often applied by Berlin, which has only to look back at the failed Weimar Republic for evidence of the problems the political fringe can unleash. During the short-lived history of Germany's first democracy, demagogues of every political persuasion had broad playing room. But critics of this line of argument note that only two referendums took place during the Weimar Republic, which existed from 1918 to 1933.

"Germans have learned so much since then and have become so experienced in democracy that they wouldn't have any problems dealing with referendums on constitutional questions," said Maurer.

It's also possible that in the future some "bigger questions" will be determined by plebiscite in Germany, but the limites must be clear. The catalogue of basic rights set forth in the constitution, for example, should not be put up for a public vote, Maurer said. Nor would he allow the federal budget to be determined by any referendum.

"We need a broad debate in Germany that asks, when do direct democratic elements through voter participation in referendums or similar interesting instruments complement (our) representative democracy, without being seen as a replacement for the national or European parliaments?"