A local referendum is the main instrument of self-governmental direct democracy. An open catalogue of matters which can be voted on, the referendum initiative granted to a municipality’s citizens, and the rather simple procedure of holding a referendum, could lead to the conclusion that it is an effective instrument giving citizens a direct influence on the municipality’s affairs. However, for both factual and legal reasons, the institution of a local referendum plays a marginal part in the process of managing the affairs of municipal communities.
In what affairs?
The subject of a municipality’s referendum can be the recalling of its council or administrator (mayor, president of a city), self-taxation of citizens for public purposes falling within the tasks and competencies of the municipality’s authorities, the manner of resolving a matter concerning an association falling within the tasks and competencies of a given municipality’s authorities, and also other essential matters concerning social, economic or cultural ties connecting a given community. Most local referendums held in Poland concern the recall of a municipality’s authorities and unfortunately in many cases they are an instrument of political struggle, and even an introduction to an election campaign.
It follows from a report by the Polish President’s Office of 6 September 2013 on the subject of local referendums that in 2010-2014 (state as on 6 September 2013) a total of 111 referendums were held to recall the authorities of local government units, and there were only 22 referendums of substance. It can be seen that the latter are held rather rarely. It also happens that they are exploited merely to gauge the citizens’ opinions, and not necessarily in order to introduce concrete changes in the municipality. In such cases the results of the referendum are rather a sort of indication for those in power regarding the local political course.
EXAMPLE
In September 2015 a local referendum was held in Wrocław concerning matters of substance regarding urban management. The city’s inhabitants were asked about the construction of a metro, restricting car traffic in the city centre, the organisation of mass events and the revitalisation of the city’s tenement houses. Because of the poor turnout (10.58 per cent) the referendum did not count, but even if it had been valid the way the questions were formulated and their subject matter meant that it would have been very difficult for the inhabitants to get the city authorities to put the referendum’s outcome into practice. Referendums of substance should rather produce realistic and direct effects, unambiguously obliging the municipal authorities to act, and should not constitute a sort of social consultation.
Who is entitled to an initiative?
A local referendum is held on the initiative of the municipal authorities or at the request of at least 10 per cent of those citizens of a given municipality who are entitled to vote. A referendum on recalling a municipal council can be held solely at the request of the municipality’s citizens. The statutory threshold for a referendum would seem to be fairly rational. Obviously, in most municipalities it will be much harder to get 10 per cent support for a motion to hold a referendum than in small municipalities. However, it should be remembered that whether a local referendum is valid or not depends on the turnout. Getting support at a level of 10 per cent of a given municipality’s citizens entitled to vote makes it possible to verify whether there is any point in holding the referendum and whether the citizens are at all interested in a particular matter. The purpose of a local referendum is for the municipality’s public to express its will in matters of importance to it, though these should be problems common to a considerable part of the community and not only to a small group.
The turnout problem
A municipal referendum is valid if at least 30 per cent of those entitled to vote do so. A referendum held to recall the municipal authorities is valid if not less than three fifths of those who took part in electing the authorities to be recalled take part in it. The outcome of a referendum is decisive if more than half of the valid votes are cast in favour of one of the solutions in the matter voted on. In the case of self-taxation of the citizens for public purposes, the outcome is decisive if at least two thirds of valid votes are cast in favour of self-taxation.
It follows from a report by the Polish President’s Office of 6 September 2013 on the subject of local referendums that in 2010–2014, in over 80 per cent of cases involving a referendum held to recall the authorities, the turnout was below the statutory threshold, and in matters of substance this was the case in over 50 per cent of referendums. The average turnout of local referendums in recalling the authorities of local government units in 2002-2014 was about 20 per cent, i.e. clearly below the statutory requirements. Several factors cause a low turnout in referendums.
Firstly, in Poland we do not yet have an aware civic society. As can be seen from the communiqué concerning a survey carried out by the CBOS Public Opinion Research Centre in May 2015, only one in two people polled believe they have an influence on the affairs of their city or municipality. Although this result is clearly better than in the case of an assessment of the impact of an individual on state affairs, because currently only one in four people surveyed have an opinion on the possibility of influencing the decisions of authorities at national level, local communities are still acting passively with regard to the affairs of their municipality or city. Secondly, voter turnouts are often an instrument used in playing politics. Politicians holding functions on municipal bodies which a referendum is to deal with discourage voters from taking part in it, hoping it will turn out to be invalid. This was the case, for example, in a referendum to recall Warsaw President Hanna Gronkiewicz-Waltz in 2013, when politicians openly urged people not to take part in it.
Translating the citizens’ will into reality
If a referendum turns out to be valid, which – as statistics show – is not at all obvious, and its outcome is binding, its results will have to be implemented. In the case of a referendum to recall municipal bodies, translating the citizens’ will into reality is a lot simpler than in the case of a referendum of substance. A decisive outcome of a referendum to recall municipal bodies before the end of their term of office means that the activity of those bodies will be shortened. At the same time, the prime minister appoints a person to exercise the functions of municipal bodies until new authorities are elected, and orders elections to be held ahead of time. The effect of such a referendum is therefore immediate, and the will of the local community is carried out as it were automatically. In the case of referendums of substance, the situation is different.
The Act on Local Referendums states that if a referendum produces a decisive outcome in a particular matter, the appropriate municipal body will take action without delay to implement it. Implementing the outcome of a referendum by municipal bodies means first and foremost issuing appropriate normative acts and taking specific factual or legal actions, for example concluding civil law agreements. Such an obligation by municipal bodies is connected with a fundamental lack of direct effectiveness of a referendum of substance in the legal sphere. There is currently no possibility of specific acts of local law being passed directly by way of a local referendum. Municipal communities have not been equipped with the capacity to create laws. A binding outcome of a referendum merely obliges municipal bodies to take specific action, although their passivity is not totally without consequence. Above all, persons holding office or forming part of municipal bodies bear political responsibility towards a municipality’s inhabitants. Apart from that, it would seem permissible to apply the procedure of bringing a complaint against the lack of activity shown by municipal bodies which do not implement a binding outcome of a local referendum, on the basis of Article 101a of the Act on Municipality Self-government.
REFERENDUMS ARE NOT ALWAYS PERMISSIBLE
The Act on Local Referendums allows citizens to express their will by voting on the manner of resolving a community matter falling within the tasks and competencies of the authorities of a given unit or in other essential matters concerning social, economic or cultural ties connecting the community. However, in some cases holding a referendum may not be permissible. In the rulings of the Supreme Administrative Court there is a standpoint according to which a local referendum should be a particular instrument of joint action involving citizens and municipal authorities, and should not marginalise the significance of other direct forms of public participation in governing.
In a ruling of 19 September 2007 (II OSK 1029/07), the Supreme Administrative Court held that the right to a local referendum, expressing the will of the citizens, does not cover a situation where they can jointly shape the decision-making process in matters concerning an important issue of a given community in other, statutorily specified, forms of public participation in proceedings. Also, in a ruling of 20 March 2014 (II OSK 344/14), the Supreme Administrative Court stated that subjecting the matter of locating wind farms in the municipality to the local referendum procedure would lead to a breach of law, because for such kinds of matters the Act on Spatial Planning and Land Management provides for a different, formalised procedure. Acknowledging the permissibility of a referendum proposal referring to the formulation of planning assumptions would be in contradiction to applicable regulations of the Act on Spatial Planning and Land Management which, in a detailed procedure, by granting the right to settle this question to the resolving body, guarantee the participation of the local public in strictly specified forms, among which a local referendum is not mentioned.
Similar conclusions are drawn in the ruling of the Supreme Administrative Court of 14 January 2014 (II OSK 2988/13). The ruling panel emphasised that referendums must not be used to resolve matters regulated in a resolution, in relation to which the act provided (provides) for obligatory consultations. This standpoint must also apply to a situation where the joint participation of a municipal community’s members in the process of issuing a normative act by local government bodies, through consultations, has been guaranteed. Thus, regardless of whether joint action is directly required by an act of parliament (as, for example, in the procedure of approving a local zoning plan), or whether a body has, in the process of enacting law, without an obligation imposed by an act of parliament, asked a self-governmental community to express its opinion on what is a key issue for it, a later referendum is pointless in a situation where the citizens have already stated their opinion in the matter being the subject of a resolution. Another standpoint would lead to depriving the consultations of any legal significance whatsoever. A renewed turning to the citizens in that matter, in a situation where an act of local law has been published and therefore applies, would lead to the certainty of legal relations being shaken.