Last Friday the Constitutional Court gave the abrogative referendum on spring hunting the green light. In a 24-page decision it threw out each and every objection which the hunters’ organisations submitted for the Court’s consideration.
The nit-picking strategy of the hunters’ lobby has failed, with the Constitutional Court declaring in clear terms that the objections listed by the hunters’ organisations do not constitute valid reasons for halting the abrogative referendum. In particular, the Constitutional Court underlined the fact that the hunters had not in any way attempted to prove their claim that some minority right was in danger of being trampled upon as a result of the proposed abrogative referendum. The Constitutional Court pointed out that the FKNK had failed to identify any provision of the Constitution – or of the European Convention – that spells out a “fundamental right to hunt”. Nor, added the Constitutional Court, had the FKNK specified which of the provisions of the Constitution or of the European Convention would be infringed by the proposed abrogative referendum.
The voice of 41,494 electors is now being heard loud and clear. These electors triggered the call for an abrogative referendum to abolish spring hunting by removing from the statute book the regulations which permit it. These regulations are contained in Legal Notice 221 of 2010 entitled Framework for Allowing a Derogation Opening a Spring Hunting Season for Turtledove and Quail.
This is the third referendum to be held in Malta during the last 12 years. The abrogative referendum authorised by the Constitutional Court on Friday is, however, of a completely different nature from the other two.
Both the 2003 European Union referendum and the 2011 divorce referendum were consultative in nature. In 2003, the government consulted the electorate on Malta’s accession to the EU. It had no legal obligation to do so but it did, however, have a political commitment which it honoured by putting the question of Malta’s accession to the popular vote.
In 2011 Parliament asked the electorate for political direction as to whether or not divorce legislation should be approved by Parliament. It was the political way out for both the Nationalist Party and the Labour Party when faced with the private member’s Bill on the introduction of divorce. Both had then hoped for a no, yet they got a resounding yes.
The referendum this time is not consultative in nature. This time, the referendum will deliver a decision as to whether regulations permitting spring hunting are to be deleted from the statute book. This initiative originated outside Parliament on the initiative of the Coalition for the Abolition of Spring Hunting, made up of 13 environmental NGOs together with Alternattiva Demokratika, the Green Party in Malta. It is the first time that the provisions of the Referenda Act on abrogative referenda are being made use of.
This is the direct result of the backroom dealings practised by the parliamentary parties and the hunting lobby over the years. The hunting lobby has managed to cling on to a spring hunting season through lobbying the parliamentary parties and trading votes for concessions on hunting issues. Public opinion, consistently contrary to the agreements reached by the hunters’ organisations with both the Nationalist Party and the Labour Party, was ignored. Faced with this attitude, the only remaining option was to use the provisions of the Referenda Act, which have been left idle since being enacted in 1996.
Contrary to what some may think, it is not possible to hold an abrogative referendum on any matter whatsoever on merely a whim. The areas that can be subjected to an abrogative referendum are limited by a number of provisions of the law. A basic limitation is the number of signatories required to initiate the process. Ten per cent of the registered electorate is a substantial number of signatures. But then this is a necessary safeguard in order to ensure that the proposal being placed before the electorate is supported by a reasonable number of voters.
Fiscal measures, the Constitution, international treaties, electoral legislation, referendum legislation and issues of human rights are matters that cannot be subjected to a referendum.
Friday’s decision by the Constitutional Court means that the issue of spring hunting will now be decided by the electorate itself. While the specific issue being addressed by the abrogative referendum is spring hunting, the significance of the process is much more than that. It is an empowerment of the electorate, an exercise in direct democracy. The realisation will soon sink in that, on a number of matters, we voters have the right to recall the decision-making process from Parliament. It is a right that has been available but left idle for the past 19 years.
The abrogative referendum – which will be held between mid-April and mid-July – is a celebration of democracy. It strengthens democracy at its roots as it gives each and every one of us the right to participate in specific decisions. To be effective, however, it requires the participation of the largest possible number of voters.
That is the next challenge.
published in The Independent – Sunday 11 January 2015