operations
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that may be allowed by a constitution.
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These consist of the
following:
(1)
Legislative Power. This can consist of one or a combination of two
provisions. (i) Initiation. Citizens can initiate legislation by petition if they
obtain sufficient signatures. This may be an initiation for making proposed
legislation or for repealing existing legislation. (ii) Referendum. The
constitution can require that a law of particular kind or in particular
circumstances is referred to the people who have power to approve or
disapprove it at a referendum. In these cases the legislature may be constituted
solely by the people, or the people may be one component along with the
existing elected legislature. Commonly where citizens can initiate legislative
action by a petition the provision also allows them to vote on it.
(2)
Executive Appointments. Citizens may be authorised to vote public
officials into office, or to petition to recall an elected official so that their office
is vacated.
Informal Implementation
There are however less formal means of implementation. One consists of what
is labelled participatory democracy. This entails citizens being given
opportunities to make a meaningful contribution to decision making. An
obvious way that this can be done consists of consultation with interested
parties by the government prior to taking action, something that now
commonly occurs. However, if the consultation is not adequate this is partisan
rather than democratic. Public debate, or course, is another means of
consultation where citizens can express both their thoughts and their feelings.
Finally, there can be devolution of decision making power to local
communities, sometimes referred to as grass roots democracy.
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Morris (2004) considers with regard to the New Zealand provision how
democratic such provisions really are.
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Professor Schacter (1995B) at p 109 points out the huge problems for a court
to interpret statutes made this way by reference to their original intention. She
writes: “There are reasons to suspect that a search for ‘popular intent’ will be even
more problematic than the traditional search for legislative intent. Consider, for
example, the mass size of the electorate; the absence of legislative hearings,
committee reports, or other recorded legislative history; and the inability of
citizen law makers to deliberate about, or to amend, proposed ballot measures. In
addition, voters are not professional lawmakers, so it is problematic to impute to
the electorate the same knowledge about law, legal terminology, and legislative
context that courts routinely ascribe –
if sometimes only as aspiration –
to
legislators”.
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