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The popular consultation and the referendum

The proposal to ask the residents about which city model they prefer for Benalmádena Costa has led to a debate on concepts such as popular consultations and referendums. Although it seems that both are synonymous, in practice the reality is that they are not. Thus, suddenly, although all referendums are popular consultations, not all of them can be considered referendums. We are going to try, without going into purely legal language, to expose the differences and the types that exist in our country.

Referendums in Spain are the exclusive competence of the State, while the autonomous communities and city councils can convene other forms of popular consultation and may do so as long as they are on issues related to their powers, since “there cannot be any affectation of the private sphere of competence of the State”.  

Thus, referendums would be consultations of special relevance and this is stated in article 92.1 -in the second chapter of Title III- of the Spanish Constitution, where it is stated that political decisions of “special importance” can be submitted to a “consultative referendum of all the citizens”.

What perhaps many are unaware of is that the “referendum will be called by the King”, according to the second section of article 92, which adds that it will do so at the expense of a proposal from the Prime Minister, which has been “previously authorized by Congress of the Deputies”. In addition, as we said before, article 149 of the Constitution underlines the “exclusive competence” of the State for the authorization to call a referendum. An Organic Law will regulate the conditions and the procedure of the different referendum modalities foreseen in the Constitution.

There are different types of referendums depending on their purpose (the area they concern), their basis (depending on what they propose or propose), their nature (the type of decision that is asked of citizens) and not all of them imply legal obligations, that is to say, that once the result is celebrated, it does not have to be binding as occurs, for example, with consultative referendums. 

On the other hand, popular consultations are the different forms of public deliberation that are taken as a mechanism for popular participation in political or social decisions. They can be done to the entire population or to a part of it, and can consist of surveys, public hearings, participation forums or any other similar instrument or summons.

They are, therefore, an instrument to know the opinion of the neighbors on matters of municipal competence and of a local nature that are of special relevance to their interests, without their result binding the convening local Entity, as established by current law. 

The Statute of Autonomy states that the Junta de Andalucía has exclusive power to establish the legal regime, the modalities, the procedure, the execution and the call by itself or by the local entities within the scope of its powers of surveys, public hearings, participation forums and any other instrument of popular consultation, with the exception of the referendum. In Andalusia there is its own legislation for popular consultations. On the one hand, there is Law 2/2001, of May 3, on the Regulation of Local Popular Consultations in Andalusia and on the other, Law 7/2017, of December 27, on Citizen Participation in Andalusia, which introduces new instruments of consultation and considerably expands the legal regime of local popular consultations, in particular, through the regulation that it makes of sectoral participatory consultations.

According to Andalusian regulations, the initiative to convene a referendum can originate either from a political group or from neighbors, who in order to request its realization must meet a series of requirements defined by the legislation in Andalusia for these assumptions, and that as we said , will also govern all the steps to be taken before, during and after the procedure.  



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