Vox Populi, Vox Dei? (2)
In a recent opinion piece on the Estonian-language uudised.err.ee, journalist Alo Lõhmus made a case for holding a referendum on the issue of the gender-neutral cohabitation act, as "in heady times it would be wise to let the people have their say" - a voice that all interest groups would have to listen to.
Now certainly the people should be listened to in any times, heady or not, except for one thing - the people's voice, vox populi, is something that should be treated with caution. Civil partnership and allowing gay marriage is something that many countries have indeed decided at referendum, so it is an option worth exploring. On one hand, it is a very simple and specific way out of a problem that's hard to solve in a way that pleases all parties. But the simplicity and concreteness could itself prove become thorny than it seems at first.
The main argument that referendum supporters like to make is that a referendum is a "democratic" way of solving a problem. But we should pause for a second. First off, a referendum is never unconditionally democratic; many tyrants have held referenda. Second, it is also a very poor method for resolving differences of opinion. And since a referendum is a majority vote, it is a particularly poor way of resolving differences of opinion on minority rights.
Before we choose the way in which we solve the problem, let's examine what sort of difference of opinion we have here.
If the basis for supporting or opposing the Cohabitation Act is arguments for birth rate and survival of the nation, these questions can definitely not be answered at referendum - it would be reasonable to look at the experience of countries where civil partnerships and same-sex marriage are legal. On the other hand, if it comes down to morality for some people, then we can't solve that at referendum either - morals are absolute (they certainly are for focus-on-the-family groups) and it doesn't matter what anyone thinks about them. If morals are not absolute, they cannot be arbitrarily established - so once again, there's no good that can come out of a referendum.
A referendum is a zero-sum game where one side's victory is another's defeat. Nothing is agreed, no compromises are made, the other side is not heard out and its concerns or proposals are not considered, it's just a counting of votes. It short-circuits the political process; it's the nuclear button of democracy. Pushing this button doesn't unite the public into one contented people, it just divides them into winners and losers. And if the margin is close, it is not certain the losers will accept defeat, either.
Lõhmus said in his piece that the original idea of a referendum is "not just to document the people's will, but to determine what they want." But we should remember Article 105 of the Constitution, which says that if a draft law put to referendum doesn't get majority backing, the President shall announce early Parliamentary elections. The president has no choice in the matter - he can't not call early elections.
So, if the idea of a referendum is truly to "determine what the people want," why should parliament have to be disbanded if the result goes one way and not the other? The answer is pretty obvious, of course - the idea of Article 105 is to serve as a deterrent to keep split votes from being put cavalierly to referendum in the first place, just for the sake of learning "what the people want."
That is of course a very reasonable principle: otherwise there is the danger that the vox populi expressed at the plebiscite would start to seem very similar to a vox dei - the voice of some high and vengeful Old Testament God who enacts laws at his own whim and visits destruction and punishment on a wayward people.
Tarmo Jüristo is a Tallinn University Ph.D. student and civic activist. Translated and adapted from the original piece on uudised.err.ee