Emmanuel Macron receives, Wednesday, August 30, in Saint-Denis, the parties represented in Parliament, from La France insoumise (LFI) to the National Rally (RN). With this rout, the Head of State wants to build legislative texts “together” and plans, “if necessary”, to hold referendums.
Proof that “no door is closed”, on the content of the discussions as on the form of their concretization, the spokesman of the government, Olivier Véran, describes a president “open, and why not even [on the organization ] of the preferendum”. “It is a concept that would allow us to test several subjects at the same time during the same vote, developed the Minister Delegate for Democratic Renewal, on August 28 on BFM-TV. For example, you can ask multiple questions to French people. »
Ecology, security, immigration, institutions, education: Emmanuel Macron opened wide the field of subjects that will be on the table on Wednesday in Seine-Saint-Denis. Olivier Véran took care not to specify those who could be the subject of a “preferendum”. Nor did he really present the conditions for organizing this still hypothetical consultation. Just the elected official of Isère praised it as a means of circumventing the “reproach often made in the referendum”: transforming the vote into a personal plebiscite of the citizens for the President of the Republic. “By asking several questions [at the same time], people will perhaps let go of an item [subject] and be able to answer in substance on all the other questions”, envisaged Olivier Véran.
By “several questions” in a single ballot, the former health minister means the simultaneous holding of referendums in different areas. The ten referendums called since 1958 – the last in 2005 on the European Constitution – all focused on a single subject. But nothing as it stands would prevent several from being organized on the same day.
Article 11 of the Constitution allows the Head of State to submit to referendum “any bill” on strictly defined subjects: “organization of public powers”; “reforms relating to the economic, social or environmental policy of the nation and to public services”; “ratification of a treaty”. “Any draft law”: the supreme norm of French law does not limit, in principle, the number of texts possibly debated during a consultation.
In several decisions (rendered on June 26, 1987 and May 4, 2000), the Constitutional Council ruled, however, that the question asked during a referendum had to “satisfy the double requirement of fairness and clarity of the consultation” and not ” be ambiguous”, neither on the meaning of the question asked, nor on the scope of the consultation. “The requirement for clarity is appreciated not only for each question, but also on the whole of the consultation if they are multiple”, specifies Bertrand Mathieu, professor of constitutional law at the University of Paris-I-Panthéon-Sorbonne, doubtful on the possibility of questioning citizens, at the same time, on subjects as varied as the environment and security, or institutions.
Device without any legal translation, the term “preferendum” – handled without further precision by Olivier Véran – can also evoke a mode of consultation carried for several years by the defenders of a “democratic renewal”, the citizen consultation. In a column published in February 2019 in Le Monde, the Better Voting association, deploring in particular the “binary logic” of the referendum, pleaded for the establishment of a “preferendum”. Or a “tool for pacification and building consensus” which, for the classic alternative, between “yes” or “no”, would substitute the mentions provided for by the majority judgment (“excellent”, “good”, “passable” , “insufficient”, “to be rejected”).
Voting Better took taxation and the environment as an example. Rather than asking people if they are “for” or “against” a fuel tax, they would be asked to express their opinion on several ways to tax fuel and energy, each of which they should evaluate ( “What do you think of a tax on fuel for cars only?”; “a tax on kerosene for planes?”; “a full redistribution of revenue to households or an investment in the ecological transition ? “, etc.).
If this is the device addressed by Olivier Véran, a “preferendum” resulting from Wednesday’s meeting would therefore offer citizens “several choices” on multiple subjects. All governed in the state of the law by no law, even less by the Constitution.
A “ex nihilo procedure, a kind of life-size survey organized by the State”, according to the constitutionalist Bertrand Mathieu, who is already alerting to the lack of “security” of such a ballot. “Insecurity first about the terms of the summons and the organization, recalls the lawyer. Insecurity especially about the fate of this “preferendum”: nothing will bind the legislative and executive powers to its outcome, and no one will be able to seize the Constitutional Council to enforce the ballot boxes. We would end up with a gas plant with an unpredictable fate, all marked by a strong risk of confusion due to a misuse of the term “referendum”. »
