The problem with referendums

President Juan Manuel Santos was not obliged to hold a referendum to ratify the deal to end 60 years of war between the Colombian government and the Revolutionary Armed Forces of Colombia (FARC).  It was held because both Santos and the FARC leaders thought a referendum victory would make it harder for any later government to break the deal – but they lost the referendum.

Slightly more than a third of qualified Colombian voters (37 percent) actually bothered to cast a ballot – and the “No” side won by a sliver-thin majority of 50.2 percent. The “Yes” side, however, got large majorities in the more rural parts of the country that had been devastated by the long war.

In the war zones, most people just wanted the killing to stop, but in the safer urban areas people had the luxury of wondering whether it was morally justifiable to grant an amnesty to rebels who had killed so many people. And as in most referendums, lots of people seized the chance to make a protest vote against the government in general. So the peace deal was lost.

“The consequence of ‘No’ winning is war,” said former President Cesar Gaviria, who led the campaign for the “Yes” vote.

That may be too pessimistic, for FARC’s leaders really do want to end the war. “If ‘No’ wins, it wouldn’t mean that the process has to fall apart,” guerrilla negotiator Carlos Antonio Lozada said in late June. “We aren’t required by law to decide to continue such a painful war.”

But without the legal protection of the peace deal, many of FARC’s 5,000 fighters will be reluctant to lay down their weapons and come out of the jungle. Why did Santos take the risk of a referendum?

Neither the Colombian constitution nor any other country’s says that peace agreements ending civil wars must be ratified by a referendum. (National constitutions do not even consider the possibility of a civil war.) And when civil wars do end, most governments recognize that emotions are still too raw to put necessary concessions like an amnesty for all the combatants to a popular vote.

At the end of the anti-apartheid struggle in South Africa, Nelson Mandela won the country’s first one-person-one-vote election, but he did not hold a referendum asking the voters to approve the agreement he had negotiated with the white minority regime. Instead he created the Truth and Reconciliation Commission, where those who had committed atrocities were asked to admit their crimes, but were not punished.
There was no referendum held to ratify the Good Friday Agreement of 1998 that effectively ended the 30-year civil war in Northern Ireland. Nobody asked the Lebanese people to approve the diplomatic Taif Agreement of 1989 that led to an end of the fifteen-year civil war there, and it was the Lebanese parliament, not a referendum, that passed the amnesty law.

A referendum is a very blunt instrument even when the question at issue is less tangled and emotional than a civil war. In the recent referendum on British membership in the European Union, for example, most of the 51.9 percent who voted to leave were really voting against mass immigration (half of which does not come from the EU) and against the impact of globalization on their living standards.

It’s also easy for a government to write a referendum question that gets the answer it wants. In the Hungarian referendum on whether or not to accept some of the refugees who arrive in the European Union, for example, the question was: “Do you want the European Union to be able to mandate the obligatory resettlement of non-Hungarian citizens into Hungary even without the approval of the National Assembly?”
It might as well have read: “Do you want to abandon Hungarian sovereignty and let the EU resettle terrorists here?” Ultra-nationalist Prime Minister Viktor Orban wanted a “No,” and he got it: 98 percent of those who voted said “No.” (But more than half of the electorate didn’t vote at all, possibly out of contempt for Orban’s blatant attempt to manipulate public opinion.)

Then there was the Greek referendum of July last year, when Prime Minister Tsipras asked the public if it accepted the tough conditions of an EU offer to bail Greece out of a debt crisis once more. He wanted a “No” and he got it (61 percent “No,” 39 percent “Yes”) – but 10 days later he ignored the result and agreed to an even harsher offer from the EU. And got away with it.

Referendums are usually “advisory” and do not have the force of law. They rarely have an outcome that could not be achieved by a simple vote in an elected parliament at a hundredth of the cost. And a democratically elected parliament does a much better job of asking and answering the right question.