A referendum is a simple yet powerful means of giving a direct voice to the people on key issues. Properly worded, there should be no ambiguity on what the sentiment is of the electorate and governments are obliged to act accordingly. Our government has now introduced legislation to formalise the adoption of referenda as an additional means of voter input into the decision making process. For this they should be applauded.
A few cautionary words: referenda should be binding and they should be valid based on a simple majority of voters. While these two conditions might seem obvious, the two occasions when Bermuda has adopted a referendum to arrive at a position saw the absence of at least one of these two conditions. In 1990, government organised a referendum on the death penalty but lacked the courage to make it binding. As a consequence most voters didn’t bother to turn up, leading to an embarrassing 30% turnout. In 1995 we had the infamous independence referendum. The anti-independence faction within the UBP, so fearful were they of popular sentiment, persuaded the government to rig the referendum giving a minority the right to decide the outcome. This was accomplished by a requirement that 50% plus one registered voters had to vote “yes” to independence in order for the “yes” vote to be successful. If there was an 80% turnout and just over half these voters had voted “yes” the result would have been invalidated. This would have given a minority of voters the right to decide the direction of the country. We cannot go back to these retrograde practices.
On another level, governments may at times face tough choices as to what should be decided by referenda. My view is that on questions of fundamental human rights governments should simply lead and, if necessary, try to persuade the public of the need for such decisions. An issue that stands out today that falls into this category is equality based on sexual orientation. Such rights fall beyond the pale of public opinion as much as did rights for black people in 1960s America. It is just the right thing to do. And governments should get along doing it.
Gaming and decriminalisation of marijuana are perfectly suited to decision by referenda. Either matter could easily be justified as a decision solely by Parliament: the former because it is so fundamental to any revitalised tourism strategy and the latter because of the damage associated with it. But the public have very strong views on both and as we are moving to a place of greater public engagement with decision makers this is entirely reasonable and progressive.
Referenda work best when they are clearly and simply worded and limited to two choices. Quebec‘s 1995 independence referendum question was controversial, in part for its 54 words and reference to outside documents. Scotland, in contemplating its question for its planned independence referendum, has to decide whether there should be two or three options. The outcome has to be a clear position.
There are some who argue that certain decisions should be decided by a super-majority, to reflect the “clear will” of the people. My view is that this is only valid when there has been a collective decision-making process to arrive at a position on a particular issue—crafting a new constitution, for example. If the people, either directly or through their representatives have come to such a position there is some validity in arguing a super majority (such as two-thirds) is necessary to alter that position. Anything else is code language for giving a minority of voters more weight to their vote than the majority.
As we travel down this path of strengthening our democracy and giving the electorate an additional avenue of decision making, the public will have a greater ability to be directly involved in the big issues shaping our progress. We should all be encouraged to participate.