Republican liberalism mandates the active role of the people as constituent powers in any decision-making process.322 Therefore governmental authorities have a duty to
create opportunities for public involvement in order to protect the interests of the people. As the expressed will of the people is a source of legitimacy, both practical democratic processes and theoretical democratic ideals (such as human rights) are crucial to improve the quality of territorial alteration processes. All the people can confer legitimacy on boundary alteration and policy-making, which gives them political equality in any decision-making process.323 According to the precedent of the Re Secession of Quebec, the Supreme Court of Canada stated that all people can
320 Allen Buchanan (n 313) 241-243; Patrick Dumberry, ‘Lesson Learned from the Quebec Secession Reference before the
Supreme Court of Canada’ in Marcalo G. Kohen, (n 147) 431-436
321 For instance, Ukraine civil society organization – Rukh See The Staff of the Commission on Security and Cooperation in
Europe, ‘The December 1,1991 Referendum/Presidential Election in Ukraine’ (1992) p.11
322 Stephen Tierney, (n 3) 3-4
323 Steven Wheatley, ‘Democracy in International Law: A European Perspective’ (2002) 51 International Comparative Law
82 exercise their right to self-government through democratic process and any functioning democracy requires a continuous process of public involvement resting ultimately on public opinion reached by the interplay of the people’s ideas.324
The following section will look at five interrelated factors which determine whether the free and fair will of the people has clearly been ascertained.
3.1 Clear wording of referendum questions
Constructing a clearly-worded question in a referendum is an important element of ensuring the credibility and legitimacy of the will of the people.325 The questions posed on ballot papers must be consistent with the outcomes, in terms of identifying the wishes of the population. In other words, the will of the people must be genuinely expressed in order to have legitimacy. The importance of constructing clear referendum questions is displayed in the Code of Good Practice on Referendums of the European Commission for Democracy through Law. The objective of this Code is to provide guidelines for best practice when holding a referendum, including setting referendum questions. Because the question has a direct impact on the people’s freedom and future, referendum questions must be constructed in a way which ordinary people can understand the implications.
Under the scope of this Code, elements of clarity and conciseness in a comprehensive referendum question are necessary to give people enough understanding to determine their future. The standards that the Code stipulates has a broader scope than simply independence referendums. The explanation stipulates that:
324In re Secession Quebec [1998] (n 57) para65,68 325 Stephen Tierney, (n 3) 226; Ilker Gokhan Sen, (n 8) 255
83 “The clarity of the question is a crucial aspect of voters freedom to form an opinion. The question must not be misleading; it must not suggest an answer, particularly by mentioning the presumed consequences of approving or rejecting the proposal; voters must be able to answer the questions asked solely by yes, no or a blank vote; and it must not ask an open question necessitating a more detailed answer. Lastly, electors must be informed of the impact of their votes, and thus of the effects of the referendum (is it legally binding or consultative? does a positive outcome lead to the adoption or repeal of a measure, or is it just one stage in a longer procedure?)”.326
Undoubtedly, a referendum mechanism provides a democratic method of ascertaining the views of the electorate on important political questions on a particular occasion.327 From these examples, it is self-evident that the clear manifestation of the people’s will would confer legitimacy on demands for secession. After the Canadian Supreme Court decision in the Re Secession Quebec, the standard setting of the Clarity Act 2000 regarding the referendum question was that it must clear and free from ambiguity as a precondition for considering the clear expression of the will of the population.328
In this manner, the Supreme Court of Canada formulation is specified in the preamble and article 1(3), (4) of the Clarity Act;
“The result of a referendum on the secession of a province from Canada must be free of ambiguity both in terms of the question asked and in terms of the support it achieves if that result is to be taken as an expression of the
326 European Commission for democracy through law (Venice Commission) ‘Code of good practices on referendums’ (n 217)
para15
327In re Secession Quebec [1998] (n 57) para87
328 The Minister of Justice, ‘Consolidation Clarity Act 2000, S.C.2000, c.26’, (current to 15 December 2014) preamble para4
84 democratic will that would give rise to an obligation to enter into negotiations that might lead to secession.”329
“A clear expression of the will of the population of a province that the province cease to be part of Canada could not result from
(a) a referendum question that merely focuses on a mandate to negotiate without soliciting a direct expression of the will of the population of that province on whether the province should cease to be part of Canada; or
(b) a referendum question that envisages other possibilities in addition to the secession of the province from Canada, such as economic or political arrangements with Canada, that obscure a direct expression of the will of the population of that province on whether the province should cease to be part of Canada”.330
What matters here is acceptance of the formulation of the Supreme Court of Canada as offering a common standard for referendums. A clearly expressed question supposes a clear will of the population before taking the further step of negotiations leading to an independent state. The clear will of the people is legitimate and credible if their will were determined with non-arbitrary or dominant by elites. Thus, any bias in the question asked may undermine the legitimacy of a referendum as a free expression of the will of the people.
In Re Secession Quebec, the clarity is premised on the basis that “clarity can be realized in a referendum on secession by posing a short and direct question and
329 Ibid preamble para4 330 Ibid article 1(3), (4)
85 obtaining an enhanced majority”.331 Pursuant to this, although the Canadian
Constitution does not address the use of a referendum procedure, and the results of a referendum have no direct role or legal effect in our constitutional scheme, conducting a referendum undoubtedly may provide a democratic method of ascertaining the views of the people on importance political questions on a particular occasion.332
Accordingly, the practice in Scotland illustrates the logic of a clearly-worded question being compatible with people’s feeling of security. The referendum legislation on Scottish independence set out the wording of the question to attain the highest standards of fairness and transparency after consultation with independent experts. The agreed referendum sentence was legislated by the Scottish Parliament, with just one question on independence. Then the question was set out in the Referendum Bill to be introduced by the Scottish government, subject to the Electoral Commission’s review process. After a review process, the Electoral Commission submitted the question with a report to the UK Parliament on the clarity of the question.333 Following this, interested parties were consulted, as they were capable of proposing wording to the Electoral Commission as part of the review process.334 This review process contributed to the intelligibility of the proposed referendum question, however, despite this, some academics pointed out that the Scottish Parliament set up
331 Nadia Verrelli and Neil Cruickshank, ‘Exporting the clarity ethnos: Canada and the Scottish independence referendum’
(2014) 27(2) British Journal of Canadian Studies 195, 209
332In re Secession Quebec [1998] (n 57) para87
333 Agreement between the United Kingdom Government and the Scottish Government on a referendum on independence for
Scotland (Edinburgh, 15 October 2015) section 6, 7 http://www.gov.scot/Resource/0040/00404789.pdf accessed 6 November 2015
86 the question in favour of the nationalist perspective, and other people’s demands were not taken into account.335
Another consideration for the importance of clear articulation in the wording of questions in a referendum was referred to in Order 30 of the Scotland Act (1998). The question presented to voters in a ballot comprised one ballot paper in the referendum, and the ballot paper must give the voters a choice between only two responses.336 The Commission did research, in collaboration with members of the public, to assess the proposed question in terms of intelligibility, simplicity and neutrality. During this information- gathering stage, there were many individuals, organizations and members of committees who gave their opinions on how to format an intelligible question with a clear, simple and neutral disposition.337 Participation and gathering information from all stakeholders are necessary components of constructive question in conformity with people’s demand. In order to avoid any confusion, a proponent of the phrase “do you agree” shall be replaced by a more neutral phrase, as they were concerned that this phrase might lead people into supporting independence rather than remaining with the status quo. Instead of asking “do you agree”, they proposed the following wording:
“Should Scotland be an independent country?” Yes or No.338
It is vital to note that the formulation of ballot questions is often placed in the hands of state organizations and sometimes with contribution from international institutions.
335 Daniel Cetra and Malcolm Harvey, ‘Explaining the differing government responses to self-determination demands in Spain
and the UK’ https://www.psa.ac.uk/sites/default/files/conference/papers/2017/Cetrà%20and%20Harvey%20PSA%202017_0.pdf
p.7 (Annual Conference of the Political Studies Association, Strathclyde, 2017)
336 Scotland Act 1998 (Modification of Schedule 5) Order 2013 section 3 5A (4)
http://www.gov.scot/Resource/0040/00404790.pdf accessed 6 November 2015
337 The Electoral Commission, ‘Scottish Independence Referendum: Report on the referendum held on 18 September 2014’
(December 2014) ELC/2014/02 p.32 sections 2.19–2.20.
338 Ibid section 2.21; Iain McLean, Jim Gallagher and Guy Lodge, Scotland’s Choices: The Referendum and what happens
87 This could be involved parliamentary decision-making process, executive bodies or international institutions such as the United Nations. On this point, a proposition to shape the wording of questions requires a consultative process to ensure ballot questions are in agreement with people’s concern339 such as holding public-forum debate, doing researches. Referendum questions should be clear and concise without any intent to mislead public opinion and attain a particular outcome because a clearly worded question provides a tool for eliciting information about what people think, what they feel and what they want.
As regards the external aspect of conducting referendums, no leading questions should be used to examine the people’s will on independence, equal sovereignty or greater autonomy demands. Further, in light of independence referendum procedures, the strategic wording of ballot questions is mostly divided into two patterns: the traditional style with a yes/no answer to a specific question or two choices with either a first or a second answer-option. Unlike the traditional style, multiple options in a referendum question allows for differentiated voting choices. Two or more decisive choices in a referendum let people express their preference decidedly for one option. Before discussing below the specific examples of the wording of the question, it is important to note three fundamental concerns for the formation of questions. First, the wording should be clear and free from ambiguity. This includes using unbiased questions to avoid influencing people to respond in a way that does not accurately reflect their positions. Secondly, the referendum question should not ask two deliberative matters simultaneously as this confuses people’s decision-making. In this respect, voters should not be forced to vote for more than one matter. Thirdly, the ballot question should include an option to retain the “status quo”. Maintaining the
88 status quo prevents boundary conflicts and preserves the interests of peace and security, given the importance of the territorial stability of states’ authority.
The following section elaborates on three different patterns of referendum questions. These examples will illustrate the inconclusive will of the people due to the content of the question put to the voters.
3.1.1 Ballot question with the influence of elite-driven undertakings
This sort of ballot questions is requested from a certain number of smaller elite groups, such as a political party leader or the leader of the opposition. An example of such an elite-driven referendum is the British Cameroons. British Cameroons was a mandate territory under the League of Nations entrusted to the British Empire until 1946. After this, the status of Cameroons shifted to Trust Territories under the United Nations. In terms of territorial administration, the British Empire administered Cameroons as an integral part of Nigeria and had shared the political advances in Nigeria. There was a division of territory in Cameroons: the northern part was administered as a part of the Northern region of Nigeria whereas the southern part was separated from Nigeria as a separate unit. Thus, British administration was indirectly controlled over these two areas with the commitment to release these territories as a full self-government within the year 1960.340
Prior to a referendum in 1961, there was a persistent objection to the colonial power from the western educated elites. They demanded independence and reunification of
340 Art.76 Repertory, Suppl.2, Vol. III (1955-1959) para82-83,85 http://legal.un.org/repertory/art76/english/rep_supp2_vol3-
89 Cameroons.341 In 1961, the British Cameroons referendum was organized by the
United Nations after consultation with the political leaders of the territory on the content of referendum questions. The different referendum questions were proposed by the Kamerun National Democratic Party (KNDP) and the leader of the opposition respectively. The KNDP requested secession and the maintenance of the Trusteeship Agreement before reunifying with the French zones whereas the opposition requested integration with Nigeria instead.342 After listening to these proposals, two referendums were carried out separately in the northern and southern parts of the Cameroons343 because local populations had dissimilar opinions about their future destiny.
In the Northern parts of the Cameroons, the question posed on the ballot paper was multiple-choice but specifically implied a particular outcome to join Nigeria:
1) Do you wish the Northern Cameroons to be part of the Northern Region of Nigeria when the Federation of Nigeria becomes independent?
2) Are you in favour of deciding the future of the Northern Cameroons at a later date?344
These two questions were biased because they reflected the agenda of the former British colonial rulers for the Cameroons to join Nigeria.
341 Nicodemus Fru Awasom, ‘The Reunification Question in Cameroon History: Was the Bride an Enthusiastic or a Reluctant
One? (2000) African Today 90,92 www.peuplesawa.com/downloads/48.doc accessed 1 June 2016
342 Art.76 Repertory, Suppl.2, Vol. III (1955-1959) (n 340) para103,105 343 UNGA Res 1350 XIII (13 March 1959) section 1
http://daccess-dds-ny.un.org/doc/RESOLUTION/GEN/NR0/335/84/IMG/NR033584.pdf?OpenElement accessed 12 November 2015
90 In the Southern parts of the Cameroons, the question posed on the ballot paper was also multiple-choice, but asked whether the people wanted to join Nigeria or Cameroon. The two questions asked:
1) Do you wish to achieve independence by joining the independent Federation of Nigeria? OR
2) Do you wish to achieve independence by joining the independent Republic of Cameroon?345
This question option in on the ballot in Southern Cameroons leaves some doubts about its neutrality. The questions did not give the people a chance to choose self- government. The referendum question in the Southern parts of Cameroon did not offer the status quo option as remaining a Trusteeship under another country’s administration. The first option also satisfied the British colonial authorities’ aim to integrate Cameroons with its former colony, Nigeria. Likewise, the referendum questions in the Southern parts of Cameroon did not respond to the Anglophone minorities. Further, it could be argued that the people were not consulted about the question, and therefore no alternative to the choice between integration with Nigeria or reunification with Cameroon was provided. For example, the traditional rulers of Southern Cameroon had requested a sovereign Southern Cameroon state without association with either the French Cameroons or Nigeria.346 This was not presented as an option in the question.
345 Ibid section 2
91 3.1.2 Biased and misleading questions
Having considered the biased and misleading questions, there were three related issues. First, the question on the ballot paper used either positive or negative phrases with a one-sided character.347 Respondents are limited in their answer. Second, the
use of vague words or statements could influence how people understood and answered the questions.348 Third, the wording of the proposed referendum question contained several questions in one sentence.349 Some of these questions were also biased, implying that the electorate would be lead to a particular outcome.
It is also relevant to look at some equivocal statements on ballot questions. To illustrate what I mean, consider two different formats for ballot questions: in Croatia and the USSR’s union referendums. In the case of Croatia, the wording does not include a straightforward question. A Decree calling for a Referendum on the Independence of the Republic of Croatia was issued with two sets of options. The content of the wording offered on the ballot paper was:
1. Do you agree that the Republic of Croatia, as a sovereign and independence state which guarantees the cultural autonomy and all civil liberties of Serbs and members of other nationalities in Croatia, shall enter into an association of sovereign states together with other republics (according to the suggestion of the Republic of Croatia and the Republic of Slovenia for solving of the state crisis in the SFRY)?
2. Do you agree that the Republic of Croatia shall remain in Yugoslavia as a unitary federal state (according to the suggestion of the Republic of Serbia and
347 Ilker Gokhan Sen (n 8) 260; Stephen Tierney, (n 3) 228 348 Ilker Gokhan Sen (n 8) 260-261; Stephen Tierney (n 3) 227-228 349 Ilker Gokhan Sen (n 8) 256; Stephen Tierney (n 3) 232
92 the Socialist Republic of Montenegro for solving of the state crisis in the SFRY)?350
The referendum phrasing implied the possibility of a territorial arrangement made by the administrative power of Yugoslavia. When considering the content of the first question, this phrasing did not deliver a fair test and allow for a decisive expression of the wishes of the population. The wording did not reflect the reality of the situation, as it did not directly ask people to express their views on further negotiations leading to secession. Rather, the first question and statement only implicitly referred to the actual independence of Croatia. It also contained the possibility of integration or