Pour une redéfinition du référendum consultatif

Abstract

The purpose of this study is to analyze the practical difficulties that arise from the term consultative referendum’s traditional definition. Based on a consensus among some legal doctrine and the institutional practices of countries that hold referendums deemed «consultative» - such as Canada, the Scandinavian countries and the United Kingdom - we shall demonstrate that the results of a consultative referendum bind officials and that the very rare exceptions to this principle are justified by elements that, ultimately, do not pertain to the consultative or decisive nature of a referendum vote. It is imperative to redefine the notion of a consultative referendum so as to distinguish between a consultative and decisive referendum in order to avoid any confusion between the notions of «a binding or non-binding effect on Parliament» and «Parliament’s role in implementing the results». It then becomes necessary to differentiate how officials will take action according to the results of the referendum vote, which characterizes the traditional definition of a consultative referendum, from what constitutes the essence of this type of referendum vote, in other words that it is non-self-executing. Finally, in order to go beyond the binary and reductive characteristics of the typology consultative or decisive referendum, it would also be useful to view these two types of referendums as both extremities of a continuum where a third category, called orientation referendum, would fall in the middle.