Constitutional Amendments for a Referendum?

This week, a few senators – certainly not the sharpest pencils in the box – introduced a draft bill to amend the constitution, seemingly driven by dissatisfaction from certain religious groups with the Supreme Court’s decision on same-sex marriages. This move raises concerns about using constitutional amendments to address cultural and social disagreements.

The Dangers of Ad Hoc Constitutional Changes

Constitutional amendments should be reserved for fundamental changes in governance rather than for reacting to specific court decisions or political desires – look at Venezuela. The Constitution is the bedrock of our legal system, designed to endure through changing times. Using it to respond to controversial rulings risks undermining its stability and authority. The consequences of ad hoc actions can be illustrated by the fact that when the draft bill was presented, a senator had signed it on behalf of a few others. This is against the constitution; a senator can’t legally vote or represent another senator. This is a deep-rooted democratic principle. The fact that this happened anyway shows that wisdom and cool heads must prevail over fanaticism and ignorance.

Learning from the past

Looking at how other nations handle similar issues offers valuable lessons. In the Kingdom of the Netherlands, referendums allow citizens to voice their opinions on legislative matters, but they are used sparingly and cautiously. These referenda are advisory, i.e., nonbinding of nature. In the Netherlands, referendums have been primarily advisory. The Dutch Advisory Referendum Act (Wet raadgevend referendum) was in effect from 2015 until it was repealed in 2018, and it allowed for nonbinding referendums on laws passed by Parliament.

In 2005, the Netherlands held an advisory referendum on the European Constitution, which 61.5% of voters rejected. This led the Dutch government to withdraw its support for the treaty. In 2016, a referendum on the Ukraine–European Union Association Agreement saw most Dutch voters reject the agreement. The Dutch government later ratified the deal after negotiating a legally binding decision of the European Council that addressed Dutch concerns. Despite these examples, referendums have been rare and carefully considered. 

In Aruba, the legal framework doesn’t even provide for referendums, reflecting a recognition that not every disagreement requires a public vote or a change in the highest laws.

Historical Context: The Role of Referendums

The history of referendums within the Kingdom of the Netherlands shows that they have been more of an exception than a rule. In 1993, Aruba held a referendum on its status within the Kingdom, offering a choice between remaining a separate country, returning to being part of the Netherlands Antilles, or becoming fully independent. The majority chose to maintain the status quo.

In 2004, Curaçao led to its status as an autonomous country in 2010. These referendums were significant, affecting the Kingdom’s constitutional structure. However, they were conducted with a clear understanding of their gravity and long-term impact, unlike the more reactive approach some senators are advocating now.

It’s worth noting that our constitutional fathers (and mothers) saw no need to include a referendum process in the Constitution. This omission reflects their belief that constitutional changes should be handled carefully and deliberated through representative governance rather than direct popular votes.

The Way Forward

Rather than rushing to amend the constitution, engaging in broader social dialogue and working towards building a consensus would be more prudent. The Constitution is not a tool for settling scores or appeasing specific groups; it is a document that should reflect the core principles and values that unite us all. We must avoid hasty measures that could weaken our constitutional framework. Instead, we should focus on finding common ground and upholding the integrity of our legal system. See you next week, and don’t forget to visit my new website www.lincolngomez.com for more blogs and podcasts and, of course, www.gomezcoffie.com.