Since last summer Dutch citizens have the formal right to demand a referendum vote on laws approved by the Dutch parliament. Tomorrow Wednesday, the first such popular ballot deals with the association agreement between the European Union and Ukraine. After the vote on the EU Constitutional Treaty in 2005, it is only the second referendum in modern Dutch history. Applauded by some as welcome democratic reform, the design and use of the new popular right is a detraction, criticises Saskia Hollander from Amsterdam.
On April 6, Dutch voters will have their say on the EU´s association agreement with Ukraine. The proposal was initiated by the Eurosceptic citizens´ movement GeenPeil, which collected more than 400,000 valid signatures - exceeding the required support of 300,000 citizens.
According to the promoters, the new referendum right will make Dutch democracy more democratic, since it gives citizens a direct say on national and EU decision-making. Arguably, such a process increases citizens´ engagement with politics and puts sovereignty back to where it belongs, the people. An argument that is watertight, or isn't it?
The new referendum law allows citizens to correct their elected representatives when they disagree with one of their decisions. It is remarkable that the Dutch now have this possibility. For a long time, the Netherlands was one of the few European countries with no formal regulations for holding nationwide votes on substantive issues.
The debate on the EU-Ukraine agreement in the Dutch media has been livelier than on any other association agreement, which is good for democracy one could argue.
However, due to imperfections in the referendum law, the GeenPeil-referendum - and potentially other referendums under this law - creates a sense of false participation and mainly mobilises negative sentiments, which potentially is undermining democracy.
Poorly designed device
In a comparative perspective, the Dutch veto-referendum is a stranger in Europe. Its peculiar properties are exactly its flaws. First of all, it is not really a veto since its outcome is only advisory, meaning that the government is not obliged to adhere to the referendum outcome.
Secondly, a turnout quorum of 30% applies. This is of course not very high, but it is still notable given the consultative nature of the vote. To put it bluntly, the Dutch referendum law thus allows citizens to force a referendum to advise the government to withdraw a legislative proposal. But the authorities only need to consider this when 30% of voters participated in the poll. For a referendum to correct representative decision-making, it is rather too little too late.
Such flaws can potentially do more harm than good to democracy, as is shown in the Ukraine-referendum. An advisory referendum on a complex international agreement where the Netherlands is not the only player in the game creates a sense of false participation.
Until now, the Dutch government - currently holding the EU presidency - has not made it clear what it will do when voters "advise" the authorities to put a halt to ratification.
The turnout quorum only increases the uncertainty. In order to prevent a valid No-vote, many people in favour of the agreement might act strategically and abstain from voting. In other words: the design of the referendum law creates a double incentive for non-participation.
In case of a valid rejection, the government should present a new proposal to parliament, either to cancel or retain ratification.
The latter will be politically risky, since elections are due in 2017. Consequently, most parties in parliament have stated that they will adhere to the voters´ verdict.
It is not clear what will happen if the Netherlands indeed does not ratify. In its reaction to parliamentary questions, the Dutch government argued a solution needs to be sought at EU-level in such a case. However, some parts of the agreement that deal with trade regulations have already come into effect in January 2016.
To cancel this in retrospect requires approval of all 28 member states. New negotiations with Ukraine on the political parts might then be a solution. But what happens if the Netherlands then still does not ratify a new agreement (for example because it is rejected in a new referendum)? It is highly unlikely that Brussels will let one country stop a ratification process on an agreement that has been ratified by all other EU member states and Ukraine. Such uncertainty will only fuel public distrust in politics.
The imperfections in the Dutch referendum law are the outcome of the difficult process by which it came into being. Proposals to introduce a binding citizens´ veto were consistently vetoed by the conservative centre-right parties.
Under the guise of better a watered-down form than having no referendum at all, three centre-left political parties (PvdA, GroenLinks and D66) in 2005 filed an proposal to introduce an advisory version, which in contrast to the binding veto, did not require a constitutional reform. The initiators made some other additional compromises, such as the guarantee that such referendums could also be triggered on international treaties, as well as the introduction of a turnout quorum. Now we see, that the devil is exactly in these compromises.
In 2005, the same parties also introduced a proposal to amend the constitution to allow for binding vetoes. This bill awaits approval in both houses by a qualified majority in the second parliamentary reading, which is due to take place after the 2017 elections. It might well depend on the outcome and evaluation of the Ukraine-referendum, whether this binding version will pass.
Mobilising negative sentiments
One could question whether the citizens´ veto is in itself an effective tool to increase citizens´ participation in decision-making. In contrast to citizens´ initiatives, vetoes only give citizens an instrument to vote on a proposal ex-post the parliamentary vote. Due to this, vetoes mainly mobilise a "No"-camp. After all, only when rejecting the proposal, citizens can change the course of policy.
When referendums are held on issues the public is informed about, corrections to representative decision-making could indeed be a valuable addition.
Yet, when citizens lack proper information (such as on the association agreement with Ukraine), referendums are susceptible to manipulation. Negative sentiments are, after all, more easily mobilised than positive ones. It is striking that the initiators of the GeenPeil-vote came clean about their actual motives: for them the referendum served as a vote to distort the relations between the Netherlands and the EU. They do not really care about this agreement whatsoever, nor about Ukraine.
Although there is a public debate, this can hardly be considered an informed debate. This is also due to the many problems surrounding the distribution of campaign money.
For example, an organisation was granted almost 48,000 campaign money to print toilet-paper with false "arguments" against the agreement, such as that Ukrainian people will be allowed to work in the EU without a visa, or that there are no women in Ukrainian politics.
One could question whether democracy is saved when people vote by majority-rule in a referendum that is susceptible to such manipulation.
Real citizens' empowerment!
What has been applauded as a welcome democratic reform could potentially do more harm than good because it is poorly designed and used in a context that lacks a tradition of informative public opinion formation and political engagement.
This could all be a matter of time. After all, when more such votes are held, people might well be inclined to be better informed about political decisions. Yet still, "saving" Dutch democracy requires more than only giving citizens a corrective instrument. It requires instruments that empower citizens and that allows them to be involved in all stages of decision-making.
Referendums are powerful instruments and in the absence of a deliberative process, they easily become instruments susceptible to political manipulation and misuse. In the end, the politics of the direct vote is far more important than what the instrument means on paper.
Saskia Hollander is completing her PhD thesis on the use of referendums in Europe at the Radboud University Nijmegen this year: "The People or the Prince. The Politics of Referendum Use in European Democracies." Saskia works at The Broker, a Dutch thinknet on globalisation and development.