Towards a Liquid Democracy

It is proposed an evolution of the current democratic framework in Portugal

10/3/20269 min read

The undersigned, pursuant to Article 52 of the Constitution of the Portuguese Republic and Law No. 43/90 of 10 August, hereby exercise their right of petition, requesting that the Assembly of the Republic examine and develop a legal framework for digital political participation and for the possible gradual introduction of delegative or liquid democracy mechanisms, without prejudice to the constitutional guarantees currently in force.

This petition does not proceed from the premise that representative democracy should be immediately replaced, nor that the delegation of the exercise of suffrage is currently admissible under the Portuguese constitutional framework.

Rather, it seeks to have the Assembly of the Republic determine, as a matter of law:

which forms of digital participation can be developed within the current constitutional framework;
which legislative changes could enable their testing and implementation;
which legal and technical safeguards should accompany telematic voting;
which forms of voluntary and revocable delegation may be introduced in areas where the law permits it;
and, should delegation mechanisms eventually be applied to electoral suffrage itself, which constitutional amendments would be required.

1. Constitutional basis

The Constitution of the Portuguese Republic establishes that Portugal is a Republic based on the dignity of the human person and the will of the people and enshrines the principle of the democratic rule of law.

Article 10 provides that the people exercise political power through universal, equal, direct, secret and periodic suffrage, referendums and the other forms provided for in the Constitution.

Article 48 recognises the right of all citizens to take part in political life and in the direction of public affairs, directly or through freely elected representatives.

Article 108 expressly establishes that political power belongs to the people and is exercised in accordance with the Constitution.

Article 109 provides that the direct and active participation of citizens in political life is a fundamental condition and instrument for the consolidation of the democratic system.

The Constitution therefore provides, simultaneously, for mechanisms of representation and mechanisms of direct participation.

This petition proceeds from that constitutional reality and proposes that the manner in which digital instruments can develop constitutionally recognised political participation be systematically studied, without presupposing any alteration to the existing electoral model.

2. Digital political participation as a legal matter

The digital transformation of public administration and the existence of electronic identification and authentication mechanisms now make it possible to establish legal relationships between citizens and public authorities through digital means.

Portugal has, in particular, electronic authentication mechanisms associated with the Citizen Card and the Mobile Digital Key.

There is also specific legislation concerning citizens' legislative initiatives. Law No. 17/2003 of 4 June establishes the legal framework governing this right and allows legislative proposals to be submitted to the Assembly of the Republic electronically.

There is therefore a legal starting point for developing additional forms of digital political participation.

What remains to be determined is a coherent framework establishing, for each form of participation:

who may participate;
under what conditions;
the legal nature of the participation;
when the outcome is merely consultative or legally binding;
how the authenticity of participation is ensured;
how personal data are protected;
how duplication or misuse of identity is prevented;
how procedures are supervised;
and what means of complaint and appeal are available.

Digital political participation should not depend solely on isolated technical solutions. Where it produces legal effects, it requires a clear legal basis.

3. Remote electronic voting and constitutional safeguards

Any development of remote electronic voting — commonly referred to as online voting and, hereinafter, as telematic voting — should preserve the safeguards governing democratic suffrage.

Article 49 of the Constitution establishes that the exercise of the right to vote is personal.

Article 113 provides that direct, secret and periodic suffrage constitutes the general rule for the election of the holders of elective offices of the organs of sovereignty, the autonomous regions and local government.

Article 164 reserves exclusive legislative competence to the Assembly of the Republic in matters including elections for the holders of the organs of sovereignty and the legal framework governing referendums.

Telematic voting should therefore be treated as an integrated legal, institutional and technical matter, rather than merely as a change in the medium through which a vote is cast.

Any future framework should establish safeguards relating, among other matters, to:

universality and equality;
freedom of voting;
secrecy;
process integrity;
authenticity;
uniqueness of the vote;
service availability and continuity;
independent oversight;
auditability;
transparency;
data protection;
cybersecurity;
accessibility;
recovery from incidents;
complaints, challenges and judicial review.

Recommendation CM/Rec(2017)5 of the Committee of Ministers of the Council of Europe constitutes a specific international reference concerning the use of electronic means in voting and establishes guidelines intended to ensure that electronic voting systems comply with the principles of democratic elections.

4. Verifiable voting without disclosure of the voter's choice

The introduction of digital systems should distinguish between two different legal requirements:

verifying the process and preserving ballot secrecy.

Citizens should be able to benefit from safeguards that their participation has been correctly processed, without the system allowing the political choice they made in a secret ballot to be publicly disclosed.

For this reason, any telematic voting framework should legally define requirements for verifiability and auditing that are compatible with ballot secrecy.

The law should also determine what information must be public, what information must be made available to supervisory bodies, and which elements must remain protected.

The discussion of public source code, open-source software, technical documentation, audit records and possible distributed ledger technologies should likewise take place within this framework.

The legal requirement should concern the properties that the system must guarantee. Any telematic voting system should, at a minimum, provide end-to-end auditability, allowing independent verification of the integrity of the process without compromising ballot secrecy. No specific technology should be presumed mandatory in order to achieve these properties.

5. Voluntary and revocable delegation

The concept commonly referred to as Liquid Democracy or delegative democracy describes models in which a citizen may, according to previously established rules, either directly exercise a particular participatory power or authorise another person to exercise it on their behalf.

The essential characteristic of this model is that the authorisation may be limited, modified or revoked.

It is important, however, to distinguish this legal mechanism from an election to public office.

In a constitutional election, a citizen exercises suffrage for the purpose of electing holders of public office, within a framework established by the Constitution and the law.

In different contexts, civic delegation may constitute an authorisation to exercise a particular participatory power without necessarily entailing a transfer of ownership of the underlying right.

This distinction should be examined by the legislature before any such mechanism is implemented.

Among other matters, the following questions should be considered:

may delegation be general, or must it be limited?
may it be thematic?
may it be time-limited?
may it be restricted to a specific process?
may it be revoked at any time, or only until a previously defined closing time?
may successive delegation exist?
how can cycles or excessive concentrations of power be prevented?
how can political equality be guaranteed?
how can it be ensured that delegation does not result from coercion or fraud?
how should the legal effects of revocation be treated?

These questions should not be resolved through technological assumptions. They require legislative definition.

6. Scope for experimentation

The development of new participation mechanisms does not necessarily require an immediate transformation of the constitutional framework governing suffrage.

There are legal areas in which additional digital mechanisms can be studied and tested, including:

municipal participation;
participatory and deliberative processes;
citizens' legislative initiatives;
referendums and consultations where constitutionally and legally permissible;
internal democracy within political parties;
participatory processes associated with powers legally assigned to local authorities;
other mechanisms whose legal nature does not entail replacing the constitutional framework governing elections.

The Constitution itself provides for local referendums and allows the law to grant registered voters the right to initiate local referendums.

The legal framework governing local authorities also provides for forms of citizen participation and establishes the public nature of meetings of deliberative bodies.

Organic Law No. 2/2003, concerning political parties, provides that they are governed by the principles of democratic organisation and management and the participation of all their members.

These areas constitute legally distinct fields from the electoral question and may allow controlled experimentation before any decision concerning structural changes to the system of political representation.

7. The constitutional question

This petition does not seek to prejudge the answer to the question of whether a possible delegation of the exercise of electoral suffrage itself is compatible with the Constitution.

On the contrary, it seeks to have that question formally examined.

Article 49 establishes that the exercise of suffrage is personal.

Article 113 enshrines direct, secret and periodic suffrage as the general rule for the election of holders of elective offices.

Article 288 further provides that constitutional amendments must respect, among other elements, universal, direct, secret and periodic suffrage in the election of holders of elective offices of the organs of sovereignty, the autonomous regions and local government, as well as the system of proportional representation.

Consequently, any potential integration of delegation mechanisms into electoral suffrage itself cannot be treated as a merely regulatory or technological matter.

Its compatibility with the constitutional text must first be determined and, should it be concluded that a constitutional amendment is necessary, that issue should be identified and debated by the constitutionally competent bodies.

8. A legal framework before technological expansion

The creation of digital mechanisms for political participation should be accompanied by a legal framework that clearly establishes:

a) the rights and duties of participants;
b) the responsibilities of the entities managing the systems;
c) identification and authentication rules;
d) the separation of identity from the vote in processes subject to ballot secrecy;
e) personal data protection;
f) security and continuity requirements;
g) independent audit rules;
h) publicity and transparency of procedures;
i) mechanisms for complaints and challenges;
j) the retention and provision of the elements necessary for oversight;
k) rules governing delegation and revocation, where legally admissible;
l) liability for fraud, coercion, forgery or misuse of identity;
m) accessibility and non-discrimination mechanisms.

The legal framework should also provide for the coexistence of digital and non-digital means whenever necessary to ensure citizens' effective access and to prevent digitalisation from itself becoming a barrier to participation.

9. The request

In view of the foregoing, the undersigned request that the Assembly of the Republic, in the exercise of its powers:

1. Conduct a specific parliamentary analysis of the constitutional and legal framework governing digital political participation in Portugal.

2. Commission or develop a legal study on the forms of digital participation that can be created and implemented within the current constitutional framework, clearly distinguishing consultative, participatory, deliberative and binding mechanisms.

3. Promote the development of a general legal framework for digital political participation, establishing requirements concerning identification, authentication, data protection, security, accessibility, transparency, auditing, oversight and legal remedies.

4. Assess the creation of pilot schemes for participation and telematic voting in matters legally suitable for experimentation, particularly at municipal level, in participatory processes and in the internal democracy of political organisations.

5. Review the legislation governing citizens' legislative initiatives and other mechanisms of direct participation, with a view to the legally secure and verifiable use of digital means.

6. Assess the possibility for political parties, in compliance with the Constitution and the law, to adopt digital mechanisms for internal participation, including forms of voluntary and revocable delegation.

7. Establish, for any future telematic voting with legal effects, legal requirements concerning secrecy, authenticity, integrity, verifiability, independent auditing, transparency, data protection, cybersecurity and judicial oversight.

8. Determine which technical and documentary elements should be made public or accessible to supervisory bodies, including, where legally appropriate, source code, documentation, specifications, audit results and mechanisms for independent verification.

9. Promote a specific legal study on the constitutional compatibility of different forms of political delegation, clearly distinguishing delegation in participatory processes from the possible delegated exercise of the right to electoral suffrage itself.

10. Should it be concluded that certain forms of delegation within electoral suffrage require constitutional amendment, expressly identify the constitutional provisions affected and refer the matter to the constitutionally established constitutional revision process, without prejudging its outcome.

11. Ensure that any future development of digital political participation preserves the principle of equality among citizens, ballot secrecy, freedom of participation, independent oversight and the right to effective judicial protection.

12. Publish the studies, opinions and assessments produced in the course of this process, thereby enabling public scrutiny of the legislative and technical options considered.

Conclusion

This petition does not call for the immediate replacement of the constitutional system of political representation.

It calls on the Assembly of the Republic to examine, on a legally grounded basis, the possibility of developing more continuous forms of political participation through digital instruments and to determine, with due rigour, the limits and conditions of such development.

The central question is legal before it is technological:

What forms of participation can the law create?

What forms of delegation are legally permissible?

What safeguards are indispensable when participation becomes dependent on digital systems?

And what changes would be necessary if, in the future, delegative mechanisms were to be applied to the exercise of suffrage itself?

The undersigned consider that these questions should be the subject of study, parliamentary debate and possible legislative action, always within the limits established by the Constitution of the Portuguese Republic.

Liquid Democracy is presented here not as a presumed constitutional change, but as an institutional possibility whose admissibility, scope, safeguards and limits should be determined by law.

For these reasons, we request that the Assembly of the Republic promote the study and development of a legal framework for digital political participation and assess, within the constitutional framework, the conditions under which mechanisms of delegative democracy may be tested and potentially integrated, while preserving the fundamental guarantees of the democratic rule of law.

Fundamental legal references

Constitution of the Portuguese Republic, in particular Articles 1, 2, 10, 48, 49, 52, 108, 109, 113, 115, 164, 167, 240 and 288.
Law No. 43/90 of 10 August — Exercise of the right of petition.
Law No. 17/2003 of 4 June — Citizens' legislative initiative.
Law No. 75/2013 of 12 September — Legal framework governing local authorities.
Organic Law No. 2/2003 of 22 August — Political Parties Act.
Law No. 15-A/98 of 3 April — Organic Law governing the Referendum.
Organic Law No. 1/2001 of 14 August — Election of members of local government bodies.
Regulation (EU) 2016/679 (GDPR) and Law No. 58/2019 of 8 August.
Law No. 37/2014 of 26 June — Mobile Digital Key.
Recommendation CM/Rec(2017)5 of the Committee of Ministers of the Council of Europe — Standards for e-voting.

Studies and References on Liquid Democracy

For further conceptual and academic study of the concept of Liquid Democracy, the following references, among others, may be consulted:

Political Representation in Liquid Democracy
Chiara Valsangiacomo, Frontiers in Political Science, vol. 3, 2021.
https://www.frontiersin.org/journals/political-science/articles/10.3389/fpos.2021.591853/full

Clarifying and Defining the Concept of Liquid Democracy
Chiara Valsangiacomo, Swiss Political Science Review, 2022.
https://onlinelibrary.wiley.com/doi/epdf/10.1111/spsr.12486

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