Special-Majority Referendum on territorial concessions

http://www.ynetnews.com/articles/0,7340,L-3818314,00.html, December 11, 2009

A special-majority referendum constitutes an acceptable procedure in Western democracies, when faced with exceptional – and sometimes irreversible – decisions, such as territorial concessions in the Golan Heights and in Judea and Samaria.


Contrary to opponents of a special-majority referendum - as a prerequisite for territorial concessions – such a procedure protects individual rights, national security and democracy, which are threatened by hasty decisions made under the influence of domestic and international pressure, impacted by exceptionally emotional developments and supported by a slim, tenuous majority, which could be transformed summarily into a minority. Special-majority referendums check an imperial executive branch of government, which wishes to dominate the legislature and to ignore public opinion.


For example, the "Evian Accords" which led to France's withdrawal from Algeria, were approved by two referendums in April and June 1962. President de Gaulle, who initiated the withdrawal, insisted that such an exceptional decision required a special majority, in order to prevent an internal rupture. De Gaulle insisted that a regular-majority could represent a minority of eligible voters, forge a sizeable disgruntled opposition and cause a collapse of democracy.


Charles de Gaulle understood the threat to democracy – under exceptional circumstances – if the special-majority referendum was dismissed. In 1946, the 53% majority which approved the constitution of the Fourth French Republic amounted to a mere 36% minority of eligible voters.  Under such results, France deteriorated to the verge of a civil war in 1958.


Article 4, Section 3 of the US Constitution stipulates a double-majority – by Congress and by State legislatures - for any change in the territory of individual States. Article 2, Section 2 requires a 2/3 Senate majority to ratify international treaties. Article 5 mandates a 2/3 majority in both Congressional Chambers and a simple majority in 3/4 of the legislatures of the 50 States for the ratification of amendments to the Constitution. A 2/3 majority in the House and Senate, in Washington, DC, is necessary to override a presidential veto, and a similar Senate majority is necessary to impeach a president, Cabinet secretary, judge or legislator. And, a 60% Senate majority is essential to initiate a debate on any controversial legislation. 


According to Article 38 of the 1982 Canadian Constitution, any amendment to the Constitution – including territorial changes – requires a double-majority: 2/3 of the legislatures of the 10 Canadian Provinces and a simple majority of both chambers of Parliament in Ottawa. In August 1998, Canada's Supreme Court ruled in favor of a special-majority referendum, proclaiming that "Democracy is more than just an ordinary majority."


The Constitutions of Norway (Article 1), Italy (article 5), Spain (Article 2), Portugal (Article 3), Singapore (Article 6), Turkey (Articles 3-4) and Venezuela (Article 8) preclude any territorial concession. And, according to the 53rd Section of the French Constitution, no territory should be conceded – or exchanged – without the consent of the people.


The late Professor Daniel Elazar, a world renowned expert on Western constitutions, refuted the claim that the intent of a special-majority referendum would aim at diluting the political weight of Israel's Arab minority. In 1995, he wrote that special-majority referenda were conducted almost everywhere – when exceptional decisions were debated - including in the most homogenous societies, where race and ethnicity were not relevant. 


A vote on ordinary issues calls for an ordinary majority.  But, a special-majority referendum is appropriate when a vote is conducted on an inordinate, dramatic, fateful, fundamental and irreversible (territorial) change in the status quo, a change in basic values that heavily impact the security, territorial and the constitutional future of a democratic society.


A special-majority referendum – under exceptional circumstances – advances the institution of checks and balances, which constitutes a prerequisite for a genuine democracy based on the centrality of the constituent, separation of powers and prevention of tyranny.


A special-majority referendumon territorial issues – enhances public debate, requires wide support, accords advantage to reason over emotions, neutralizes the influence of radical elements and public opinion volatility and minimizes the danger of the disintegration of democratic institutions. A special-majority referendum is an obstacle to "Peace in our time," "Peace at any price." It is a catalyst to national security and long-term genuine peace.