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The constitution of theFrench Fifth Republic allows three types ofreferendum:
The referendum is a process used to reclaimdemocratic ideals, in which "the body of citizens are called to express, through a referendum, an opinion or intention with respect to any measure that other authority has taken or plans to take" (translated),[Note 1] which will be acted upon or adopted in case of positive response. The referendum allows only two possible responses: yes (adopt) or no (reject).
Terminologically, the word "referendum" rarely appears in the French constitutions before 1958. It was replaced by circumlocutions such as "consultation" or "appeal to the people." Only Article 3 of the Constitution of 27 October 1946 recognized the people's right to a referendum. In the 20th century, it seems necessary to distinguish between referendum, which implies a decision, with the discussion that results in an opinion. In legal literature the informal terms "référendum consultatif" (advisory referendum) and "consultation référendaire" (referendum), depending on whether one focuses on the action or the consequences of the action. All of these uses meet the generic definition given above. However, the jurisprudence of the State Council clearly distinguishes national referendums in which the French people exercise their sovereignty (Articles 11, 89 and 88-5), subject only to the Constitutional Council, and other referendums.[Note 2]
The technique of a referendum is consistent with the democratic principle to which the republican regime established by the 1958 Constitution has claim:
The use of referendums at the national level tempersnational sovereignty under the constitution, thus mixing the processes ofdirect democracy andrepresentative democracy:
However, the ways of implementing the various referendums and discussions provided for in the current constitutionFrance as in many countries, are a method of semi-direct democracy.
The referendum was an important part of constitutional thought during the revolutionary era. The draftconstitution of theGirondists already provided for popular override of parliamentary acts. However, this concept did not make it to the final draft.[citation needed]
A referendum was first used in France in 1793 for the adoption of theJacobin Constitution. This constitution, inspired by the writings ofJean-Jacques Rousseau, also planned to use a referendum for the adoption oflaws which needed to obtain the approval of thepeople.[citation needed]
When the people met in assembly, if one-tenth of them in at least half of thedepartments (plus one), objected to the proposed law (see Articles 58-60), it was repealed.[citation needed] There was even talk of "popularveto". In constitutional matters, the electorate also had a right of initiative if one tenth of the primary assemblies decided to review the national level. The Constitution itself was adopted by referendum from July to August 1793, although some have reservations about the democratic nature of the latter.[Note 3][citation needed] This constitution was never applied.
Because of that, we will be wary of populism:[citation needed] the ideas ofEmmanuel Joseph Sieyès in favor of national sovereignty and representative democracy prevailed overpopular sovereignty. However,Napoleon knew all too well how to take a direct appeal to the people, while domesticating them, and the long period that followed discredited the process.[citation needed]
Under the imperial regimes, referendums became a plebiscites,[Note 4][citation needed] an aid in giving power to Bonaparte who, assisted by a zealous and pervasive administration, in 1800 obtained theConsulate after thecoup of 18 Brumaire and the Consulate for life, and his transformation during theEmpire, it gets extended, even if in moderated form athundred Days. While similarly forNapoleon III who endorsed thecoup of 1851, and the restoration of theEmpire where clear constitutionalized plebiscitary techniques,[Note 5] before ratifying a highly liberalizedgovernment on the eve of the war of 1870.
In theThird Republic, the referendum became an instrument ofdespotism. As a result, the formation of theFourth Republic ignored or marginalized the hypothetical use of referendum to only constitutional matters and alternatives.[Note 6][citation needed]
The trauma of the imperial practice was still alive and doctrinaldebate was not yet extinguished. IflawyerEdouard Laboulaye defended the referendum in isolation at the time of establishment of the Third Republic, the entiredoctrine, considered to be inconsistent with the parliamentary system untilCarré de Malberg, who brilliantly supported an inverse position in 1931.[1][citation needed] But the majority of the political class remained suspicious until the end.[citation needed]
However,General Charles de Gaulle reintroduced the use of referendum from theliberation of France in 1945 to end theThird Republic, and give the country a provisional plan.[citation needed] In addition, twice in 1946 the French voted on the draft constitution which gave birth to theFourth Republic. This allowed the people to free themselves from the past by voting "no" the first time. But the referendum was not implemented[Note 7] and it would not be until General de Gaulle's return to power in 1958 that the referendum was restored, both to ratify the new constitution and in the constitution itself which is one of its major innovations.[citation needed] Indeed, in the constitution of theFifth Republic, referendum is embedded as a principle, as a means of exercising sovereignty (Article 3) and, simultaneously, covering three areas: legislative (Article 11), constituents (Article 89) and self-determination (Articles 53 and 86).
At the same time it focused criticism from opponents of the Fifth Republic, who saw it as a confirmation of the creation of anauthoritarian government.[citation needed] In this instance, the referendum was in a much more democratic context than under the Empire, where the practice was strongly tinged with the plebiscite that de Gaulle would nevertheless regulate. Even so, many still had strong reservations about the referendum. Besides the use, by some considered unconstitutional, of Article 11 in 1962 and 1969 (seebelow), which raised strongdebate and the establishment of a "cartel of no";[2] by the President of theSenate even speaking of "forfeiture." We also know that de Gaulle considering the referendum as a substitute for thedissolution to arbitrate any disagreement withParliament, as a means to rejuvenate his personal legitimacy.[Note 8]
It is therefore not surprising that the following referendums suggest that in France, the process is marked by a plebiscite. The impression that voters are motivateda contrario even if, unlike de Gaulle, none of his successors has openly raised the question of trust.[citation needed] This is the main reason for the use of referendums in recent years, where politically random referendums give an opportunity for theprotest vote to speak, at the risk of failure (as was nearly the case in 1992, as was the case in 2005). In addition, out of an almost cultural dimension, the referendum may trigger a minor increase in interest andlow participation which, because of the requirement for a quorum, reduces the scope of its result (as in 1972 and especially in 1988).[3]
Notwithstanding the criticism that the terms of implementation of the referendum are subjective[3] and despite its shortcomings (see below), the referendum still has its followers at the expense of only being used to renovate.
PresidentValéry Giscard d'Estaing did not have much recourse to a referendum that he wanted to use to fix some societal problems[citation needed].
PresidentFrançois Mitterrand, who used the referendum after a hiatus of 15 years, failed in his attempt to broaden the scope of the referendum. The bill to expand the scope of Article 11 to includecivil liberties was adopted by theNational Assembly but was rejected by theSenate in 1984[citation needed]. Although Mitterrand had initiated the work of theVedel Commission in 1993, after the mixed success of the 1992 referendum he did not act on the commission's proposals. On September 10, 1991, President Mitterrand announced a referendum in order to effect institutional reform affecting the presidential office, justice and the role of Parliament. This referendum was never held.
PresidentChirac succeeded somewhat in 1995 in expanding the scope of Article 11. Before becoming a victim to referendum in 2005, he had also announced his intention to reestablish the use of referendums. He followed through on this twice, the first of which was a constitutional matter, according to the procedure (Art. 89 para. 2), in 2000. Under his tenure, after tidying up the constitution in 1995, including the referendum. In addition to expanding its scope, Article 11 was stripped of its reference to the defunctFrench Community. Article 86 has become obsolete for the same reason, and has been removed. Two other reforms expanding the referendum succeeded: one in 2003, which establishes the local referendum (including Article 72-1); the other, Article 88-5, in 2005 which forced the use of referendum to ratify any new concession to the European Union.
In October 2021,Jean Lassalle filed a proposal for constitutional revision at theNational Assembly, introducing theCitizens' Initiative Referendum for constitutional matters. Citizens would be able to trigger a referendum for a proposal of constitutional revision without involving representatives, provided they manage to gather 700,000 signatures. One week before the first round of the 2022 presidential elections, Jean Lassalle made a commitment before anotary to give away all his possessions if he fails to organize a referendum, once elected, to decide on the establishment of the Citizens' Initiative Referendum for constitutional matters.[4]