What makes the referenda so unpredictable and so dangerous is that we have unanimity for the process of ratification. I would propose for the future to remove unanimity for the process of ratification. This means that we will need to find some kind of qualified majority so that the constitution can enter into force.
Two Faces of Referenda
Interview with Carlos Closa Montero, Deputy Director of the Centre for Political and Constitutional Studies, Spain
First, what did you feel like after the French and Dutch ‘no’ to the Constitution? Where you disappointed or did you feel like saying ‘told you so’?
No, I was personally deeply disappointed. Many people argued afterwards that the result could be foreseen, that everybody could predict that the constitution would be voted down in France and the Netherlands. But that was not the case. Eurobarometer polls at the end of 2004 gave strong support [for the constitution] in all countries but one, the United Kingdom. That was the only country where there was a majority, a very small majority against the constitution. In all the other countries there was a strong backing. So I don’t think that one could foresee such a result, and because of that it came to me like a strong disappointment. I did not think that the constitution deserved that.
Why did you feel like that? Could you say in short why Europe needs this constitution?
It comes to resolve some practical problems. The constitution introduces the common foreign affairs minister, the change in the rules in the Council, the simplification of the pillar structure, the simplification of the decision-making process between the Council and the Parliament, and the codification of the legal acts in three specific categories that are more similar to the national model, the distribution of the competences, at least on paper… So there are a number of problems resolved in the constitution. Now, it is not only the practical and specific issues that the constitution addresses. It also has a symbolic importance because this constitution would give Europe the ability to proclaim itself to be a kind of unity – and here we have to remember the motto “united in diversity”. It also brings the idea that the issues that the EU, the member states and the people of the EU want to raise are the issues that are to be considered constitutional, i.e., the social model, the economic governance model. So it is not just because of practical issues but also this symbolic meaning of the constitution that is very important.
So even today you would say that this document – the constitution – is needed?
When you put this question with the words ‘document’ and ‘is needed’, it comes off very strongly. I would not say that it is the best document, and many would say that the governments have reached a poor compromise and therefore it is not good enough, and it’s true. But no constitution is good enough and when you look at different constitutions you will find many issues that people still need. For example, in Spain in our constitution we have put together different issues that many people may object.
It is not that this is the best constitution, or that this really is the constitution, but it releases a kind of constitutional dynamics. When you have a constitution, you open up a process of deliberate arguing on what the constitution should be. You start a process of changing that, and making the instrument – the document – work as a constitution. So it is not that this document is the most perfect one, but it is the one that opens up a constitutional process and a constitutional dialogue – and I think, that that is very important.
Does Europe need a constitution? I think so because in my perception there is a risk of falling back, a kind of… I would not say disintegration but losing a bit of the impetus of the European integration. There is a threat of bringing backwards some of the policies that the EU has constructed in the last 50 years. So I think that Europe needs this kind of constitution now as a starting point.
A year ago following the French and Dutch ‘no’, the so-called reflection period was announced. Some said that this meant a slow dying of the constitution while others said – this is a possibility for a renewal and the document will be in force at some point. What did you think?
It is very difficult to find a way between the two alternatives. One would be what I would like to think, and the other is the realistic assessment. I would like that this process was a process that relates towards the continuation of the ratification procedures. But in realistic terms, what is going on? There is very little reflection, very little discussion, and a little bit of doing nothing, that in a way could give ground to those who said that this would be a slow dying of the constitution. But we are going to see that in 2007. I don’t think that anything will move before 2007, before the elections in France and the Netherlands – those are the two most relevant events.
But what is important at this moment is that the ratification process keeps on going in several countries and the constitution will soon be ratified in 16 countries (15 plus Finland where the ratification process has started). When we have 16 ratifications it will be very difficult to argue that the constitution was a failure because 16 countries will have ratified it, two countries did so with referenda while two others [France and Netherlands] voted against. That raises questions about, firstly, the democratic quality of the process, and, secondly, the quality in which you treat different member states.
You mentioned the ratification still going on. What kind of message do you think it gives that the France and Netherlands said ‘no’ to this document (even though you could argue that they did not say ‘no’ to this particular document) while other countries apparently think it is good enough?
There is a strong discourse in France and particularly in the Netherlands saying that the constitution is dead, and that in a way is a kind of self-fulfilling prophecy. Why? If you say that the constitution is dead, and more people believe that the constitution is dead, there are no incentives to ratify it, to keep the ratification alive, and hence, the constitution becomes dead. But what is happening is the other way round. You have countries that are ratifying the constitution and there will be a point – let’s say we will reach 20 ratifications – in which the situation will not be that the constitution is dead but that you will have 20 favourable ratifications and two countries that have said ‘no’. At that moment the situation becomes different because what we have seen in the domestic arenas in France and the Netherlands is that they are projecting their problems to the highlight of the European Union. ‘We kill the constitution, it’s not our problem’. We have not heard any politician in France or in the Netherlands taking the blame for the failure of the ratification, stepping down from an office, taking their political responsibility. We haven’t seen that. We have seen that they have projected their problems on the European level. They say the constitution is dead and hence the European Union needs to find a solution for the decisions of France and Netherlands.
When you will have 20 ratifications, as will happen in the future, you will have a different situation in which you could say – listen, we have 20 countries in favour and two countries against this. So the problem has to be resolved at the domestic level, on the internal arena.
And therefore you’re saying that nothing would happen until 2007 when there are elections in France and the Netherlands.
That’s right. I don’t think that the current governments in both countries can do much.
Is this really stopping the debate overall in Europe, I mean, not rising voices to discuss these issues just because we should keep quite for the sake of France and the Netherlands?
Well, there is an important part that we should not forget. The negative source in France and the Netherlands convey a negative perception all through Europe. Many people elsewhere have thought that if the French and the Dutch have said ‘no’ to the constitution, it must be because something is wrong with this constitution. That is a kind of spill-over all over Europe. It has terminated the perception of the constitution of public opinion and politicians in other European countries. That explains a little bit the lack of willingness of many politicians to face public opinions if the parliament ratifies the constitution.
But the other element there is that the process is still alive. Yes, there has been a slow-down in the ratification from May 2005 and late autumn 2005, but after that the process continued. If you pay attention to the countries that are left, these are countries with strong sceptic public opinions like Britain, like Poland, or the Czech Republic, Ireland and Sweden. In all these cases you have this unwillingness of the politicians to face the public opinions because of the fears of its influence. But these fears will be overcome in the moment in which the perceptions transform in the following way. They will start to think - if we don’t ratify the constitution, we will be out of the constitutional process, and we cannot really allow ourselves to be left out. That will be the change of mentality that, I think, will happen after 2007 once you have some other countries ratifying the constitution, and the change of governments in the Netherlands and France.
You mention 2007 all the time. The plan was that the constitution would be ratified by 2007 so that it would enter in force from 2009, so we have some deadlines approaching. What about the functioning of the EU, should these deadlines not be met?
The EU can continue working just like it is now.
So for now we have the Nice treaty and the EU can work according to that?
Certainly, the Nice treaty is inefficient and we will have problems, but it can work. But the thing is that the problems the constitution addresses are still there. They are not going to disappear just because we say ‘no’ to the constitution. The EU can work without a constitution right now but the problems are still there. Again, I am not saying that the constitution is a solution for all of our problems, but it is a beginning of a path towards solving these problems.
Talking of public opinion, would you say that the French and Dutch referenda have increased the sensitivity with which governments overall in Europe look and react to public opinion, for example, on the issue of letting citizens from the new EU countries work in their labour markets?
Yes, it is true. Some governments in Europe are sensitive to EU issues and the perception of the public opinion of the EU issues just because they don’t feel politically responsible for that. That’s the real problem. We see some governments in Europe taking decisions that are not very popular, they are taking decisions that are against the public opinion. Think of countries like the UK or Spain taking a strong line on the war in Iraq siding with the US against their own public opinions. Why do countries do that? Because they feel responsible for these decisions. But on the European Union level there is this blaming of somebody else. Governments don’t care that they’re responsible for taking unpopular decisions and therefore they listen to public opinion and follow the mood of the public. But the public opinion is not necessarily more informed or of a better quality that the opinions of politicians. I think that’s a dangerous trend to follow the public opinion so closely.
You were among those who warned against holding referenda on the Constitution saying that it would backfire. Would you advice refraining from referenda on European matters as such, or would you say that such voting is not a bad idea in other circumstances – when the divide between politicians and the people, the democratic deficit is smaller?
My argument here was in two dimensions. One was that in normative terms it should be done – I think constitutional issues should be treated always by means of referenda. Why? Because they are very important for defining the polity for a country, for designing a polity, and in this sense a citizen should have a say. That’s my normative argument. But then I recognize that referenda are very tricky. Why? Because when you have referenda, you give the people two alternatives ‘yes’ or ‘no’, asking them one question. But what happens in peoples’ minds is that they may change the question. For example, if you ask them ‘do you like the EU constitution’, this questions can be changed into ‘do you like Chirac’, ‘do you like the common agricultural policy’ or ‘would you like Turkey to be a part of the EU’. You redefine the question, but you keep the answer. This is the tricky part about referenda – they are very easily manipulated, very easily. So in realistic terms this contradicts my normative preferences.
How to fit it together? Well, what I have proposed is to look at the process. What makes the referenda so unpredictable and so dangerous is that we have unanimity for the process of ratification. Meaning, a decision taking in a country is not necessarily assumed by the citizens of that country. They can run away from their decision, like the French and the Dutch. They have said ‘no’ to the constitution and projected this decision on the Latvians, the Estonians, the Spaniards, etc. Therefore I would propose for the future to remove unanimity for the process of ratification. So anyone is free to say ‘no, we don’t want this constitution’, but you are not free to impose this decision on other people. This means that we will need to find some kind of qualified majority so that the constitution can enter into force.
In comparative the story of the US is very telling. There the constitution established that it would enter into force when ratified by 9 out of 13 colony states. The prevailing mood in some of the colonies was not in favour of the constitution, and one of the most critical was the state of New York. So what happened? They were the tenth to ratify it because as the constitution was already ratified by nine colonies that meant that it would enter into force. That as a result meant that the state of New York might be left out. Two other colonies first voted against the constitution but then reconvened and voted in favour. Why? Because the course of voting against the constitution was assumed by those countries alone, not by the whole group. That transformed the setting of the decision.
Coming back to Europe, don’t you think it would be a big problem if, for example, we have France and the Netherlands left out of this constitution and it still enters into force. What do we do with the common foreign affairs minister, for example?
That can not enter into force because the constitution now says that it enters into force after all EU members have ratified it. I am not talking about the present situation. But it should be bared in mind for any constitution or any treaty in the future that this unanimity principle has to be changed. We now have a Union of 27 countries in which it will be very difficult to avoid a specific parliament, a specific constitutional court give a negative result blocking the whole process. The problems of vetoes have increased dramatically in the EU and I think that they will influence any prospect for development in the future.
Finally, talking about the sceptic public opinion about the EU in general, what would be your recipe for change, making people believe in the idea of Europe again?
I don’t have a recipe for that. But I think that one of the problems of the EU is the centre that the national governments can blame for unpopular decisions. ‘Whatever may go wrong, it is because of the EU; whatever may go right, it is because we here [national politicians] have done the right thing.’ In that context it will be very difficult to change the perceptions of the people because they believe it. But it is the national politicians that should be asked to bring back national results out of the EU.
The EU that has brought prosperity, peace, economic development and growth, social welfare. The EU has developed goods in 50 years and despite of that the EU is regarded very negatively by the populations. That is a big paradox and I don’t have any recipe for changing that.
Do you think something should be done, for example, in line with the new communication strategy of the EU that states that the EU should not just tell people what it does but also listen to what the people want the EU to do?
Yes, but ‘listening to people’ – what is the meaning of it? You don’t have to listen to the people for making national governments work. What you have is a political process. You vote for politicians, you sack politicians. What is understood by ‘listening to the people’? It is not about what we want. I assume that Latvian politicians don’t go around asking what kind of university policy you want. Instead they decide for one policy over another, and then they stand up saying ‘we have done that, what do you think of this?’ If people agree, they will vote for those politicians, if not, politicians will be voted out of office. That is the kind of listening that the citizens want.
The other thing about listening to citizens is that it makes big implications for many things. I don’t want to sound elitist but we have 470 million inhabitants living in the EU. How many of those are you going to listen to? How will you integrate demands like free trade, opening up of the borders and keeping the common agricultural policy? There are all kind of competing and contradictory claims. Even more, there will be clashes in the system of competencies [between EU level and national level competencies].
I think this is a kind of naļve approach – to listen to the citizen, to identify demands and deliver those demands. It is a nice idea, it might sell well in the media, but it won’t succeed at all because politics does not work that way! And even if it would and the EU would be able to deliver the goods that people demanded, they can change their minds! You can want one thing and the opposite, being coherent, for example, you can want the government to provide you with more public goods and at the same time pay less taxes. Perfect! You can want the government to do something about the social security, education, unemployment, and at the same time ask the government to spend less. So nothing can secure that when you listen to what the public says, you won’t get very differing opinions.
So should nothing be done?
It is very easy to say that something is going wrong, it is very easy to say ‘we should listen to the people’. My concern is, when you have a problem, you have to make a very good diagnosis of the problem and then find a proper recipe. You have to be responsible and accountable for how you made that diagnosis and how you found that recipe.
Remember that ‘listening to people’ is nothing new! We have heard that rhetoric since Maastricht and even before.
Am I happy with the EU? There are things that could be changed, but I don’t think that the problems of the EU are located in the positions in which people identify it. I think that one of the problems of the EU is that it is a two-level system, and as a rule there are internal contradictions in any multi-level system. You have two levels of government - each with their own share of competences - that are fighting against each other. That produces inefficiency and second-best results, permanently. It is very difficult to transmit to the people that what we have is not the best possible result but nevertheless it is very good because it allows us to cooperate, to stay together and work together. It is a paradox. It is inefficient in a way but is very inefficient to be together and cooperate.