“Referendum” is the term given to a direct vote of the electorate required by the legal framework or requested by the Executive or Legislative Branches on an issue of public policy, in contrast with votes cast at elections which are made in relation to parties or individual candidates and generally reflect voters’ preferences over a range of different issues.
The legal nature of a referendum is to be seen according to the various types of referendum and the different legal effect each type produces. A classification of the term referendum can be formulated on the basis of several criteria. In relation to area, that is, if the entire territory of a country or just a part of it is concerned, it can be national, regional or local. In relation to when it takes place, it is classified as preventive or successive depending on whether it concerns a measure in force or one still to be enacted. It can be necessary (or mandatory) or facultative (or optional), depending on whether the popular vote is an indispensable component of the constitutional (or legislative or administrative) process, or it may be held only on request by qualified subjects. A mandatory or obligatory referendum is a vote of the electorate which is called automatically under circumstances defined in the constitution or in the legislation. The consequences of the vote are usually binding. Therefore, if a proposal goes through, the government or appropriate authority is compelled to implement it. Mandatory referendums may be required in relation to pre-determined issues. These are normally on issues of major national significance, for example, adoption of international treaties, transfer of authority to international bodies, taxes and public expenditure commitments. In an optional referendum, a popular vote on a law passed by the legislature is required whenever petitioned by a specified number of voters. Through this means, actions of a legislature may be overruled. Obligatory and optional referenda should be distinguished from the voluntary referenda that legislatures submit to the voters to decide on an issue or to test public opinion. In addition, the referendum may be on popular initiative, that is when the power to activate a procedure is vested with the people itself, more precisely, with a certain number of electors, or an official initiative, if that power belongs to a public organ (the President, the Executive, or other political body). Depending on the subject, the referendum can be defined as constitutional, if it is aimed at the approval or revision of constitutional provisions, or legislative or administrative, if it concerns a law or an administrative measure.
However, the major differences are those connected with its effect. From this point of view, the referendum is: imperative, if its outcome may determine direct and immediate legal effect; suspensive, if, on the contrary, it may only suspend or delay the effects of the measure in question; consultative, if the voters are to express only an advisory opinion on the measure whose final adoption or rejection remains with the official organs; confirmative, if the popular vote is required to endorse a decision already made by the official organs; propositional, if it concerns a draft of law or constitutional amendment on the initiative of the people; finally, abrogative, if it is directed at the repeal of a law or constitutional provision.
A referendum is considered a way to integrate a control device of the electors upon the decisions adopted or about to be adopted by governmental bodies, so as to verify that those political decisions fully and appropriately correspond to the will of the majority. More precisely, a referendum should serve as a guarantee against disfunctions of legislative assemblies and the defects and abuses of parliamentarianism.
A different and more common opinion sees a referendum as a normative activity by the people, or more precisely, an act performed by the people in a direct legislative capacity. From this perspective, the Italian Constitutional Court defined an abrogative referendum as “an exercise of direct normative power even though limited to the elimination of a law”. It seems almost impossible to find a definition that applies to every form of referendum. At least a basic distinction is to be made between the cases where the referendum, if the result is favourable, determines a concrete modification of the legal system, and those where the result of the popular vote has no direct consequences, but simply expresses an opinion that is not binding on a measure which remains within the exclusive domain of governmental bodies as in the case of consultative referendum. In fact, only in the former case does the referendum integrate a normative activity, while in the latter, it merely has a political influence as an indicator for the institutional body that has the power to decide.
A recent example of constitutional referendum was one which took place in Italy on Sunday 4th December 2016. Voters were asked whether they approved of amending the Italian Constitution to reform the appointment and powers of the Italian Parliament as well as the partition of powers of State, Regions, and administrative bodies. This will be the third constitutional referendum in the history of the Italian Republic, the other two were in 2001 (which was approved) and 2006 (which was rejected).
In order to ensure the stability of the Constitution, it is necessary to provide a mechanism to modify the Constitution. The Italian Constitution is rigid: to amend it, a special procedure is needed, which is more complicated compared to the ordinary legislative procedure. This mechanism is ruled by the article 138 Const. which states: laws amending the Constitution and other constitutional laws must be adopted by each House after two successive debates at intervals of not less than three months, and must be approved by an absolute majority of the members of each House in the second voting. These laws are submitted to a popular referendum when, within three months of their publication, such a request is made by one-fifth of the members of a House or five hundred thousand voters or five Regional Councils. The issue submitted to a referendum cannot be promulgated if not approved by a majority of valid votes. A referendum is not to be held if the law has been approved in the second voting by each of the Houses by a majority of two-thirds of the members. The result of the vote is legally binding regardless of the turnout, in contrast to the vote on “abrogative referendums”.
Y. Dinstein Domb, “Israel Yearbook on Human Rights”, published under the auspices of the Buchmann Faculty of Law, Tel Aviv University, Martinus Nijhoff Publishers, 1996