Curia to decide fate of government referendum on EU refugee settlement quota

March 3, 2016

Hungarian asylum seekers arriving to Austria in 1956
Hungarian asylum seekers arriving in Austria in 1956

Somebody has formally challenged the National Election Committee’s decision green lighting the government referendum on the question of European refugee settlement quotas, reports online daily

The National Election Office is not permitted to disclose the identity of the party challenging the decision.  The matter now goes before Hungary’s highest court, the Curia, which will have 90 days to issue a verdict. writes the following:

It is necessary to wait a bit for the referendum: someone challenged the decision of the election committee which cleared the way for the government referendum regarding the quota.  The Eötvös Károly Institute believes (the referendum) to be faulty and phony owing to the fact that a Hungarian referendum is not binding on EU decision making mechanisms.

The National Election Committee’s Monday decision giving a green light to the government referendum on rejecting the obligatory settlement quota has already been challenged.  The National Election Office, however, cannot disclose who initiated the challenge.  In this way, it is certain that the Curia will have the final word, and the highest legal forum has at most 90 days for this, although presumably it is possible to calculate with a faster decision. 

According to an official statement issued by the Eötvös Károly Public Policy Institute (EKINT), the initiative is faulty and phony.  “Would you want for the European Union to prescribe for Hungary without the approval of parliament the obligatory settlement of non-Hungarian citizens in Hungary?”  This is what Fidesz would ask in order to induce people to vote “no” on the settlement quota.  Except the government is misleading citizens in the hope of obtaining political advantage, they claim.

The institution believes that it is not clear from the phrasing of he question what the initiative pertains to.  According to one possible reading the subject is the decision passed last September by the European Council on the basis of which 1294 asylum seekers are to be resettled in Hungary from Greece and Italy and their asylum procedures conducted in Hungary. 

Hungary voted against this decision, but a qualified majority of member states accepted it, and for this reason—according to the decision making rules of the European Union—the decision is binding on us.  For certain it is not possible to hold a referendum on whether an EU decision should be violated, sums up EKINT.  Based on Prime Minister Viktor Orbán’s annual state of the union speech another interpretation also arises, according to which it pertains to a possible decision in the near future pertaining to the quota decision.  

The government is trying to represent the situation as one in which a collective European decision on refugee policy was made by bureaucrats in Brussels over the heads of the Hungarian people even though this is not the case, claims the institute.  They refer to the fact that the Hungarian citizens decided in a 2004 referendum to join the European Union. Later parliament approved the wording of the basic agreements that are currently in force, the so-called Lisbon Contract, which it adopted into law.

A decided majority regarded EU accession to be a national victory, and membership has brought very significant advantage on our homeland in recent years according to EKINT.  They believe that without the European Union there would not be any economic growth in Hungary, and that we could have bade farewell to what little remains of the rule of law state as well.

The government’s referendum question implies that the validity of a decision taken by the government of the European Union requires the approval of the national assembly, even though by accepting the basic agreement Hungary already accepted once that the jurisdiction of certain matters, including refugee policy, are to be exercised collectively by the various member states by way of EU institutions emphasized EKINT.

The instance disputed by the government is a decision taken by the council made up of ministers from the member states.  The opportunity existed there—warns the institute—for the Hungarian minister to persuade the other member state representatives of his point of view.  However, the decision is also binding if in the given case the Hungarian party does not agree with it, as accepted by Hungary when joining the EU. 

Participation in the community is not partial.  Observing the common rules does not depend on whether a given decision was sympathetic to a given member state or not.

If the Hungarian government does not agree with a collective European decision, then EU law ensures it the right to challenge the decision and other regulations at the EU Court, of which the government availed itself last autumn.  In this way the court will decide whether the ministerial council overstepped its authority with the decision regarding the resettlement of asylum seekers. 

In light of the above the referendum is conceptually and legally a meaningless device with regard to EU law.  The accepted decision on quotas remains binding, and while it is not on the agenda, a referendum would not prevent the introduction of new quotas. 

In EKINT’s opinion the government’s referendum initiative creates the false appearance that there is something at stake and that there is a point to the citizen’s decision. Within the EU Hungary is represented by the prime minister and the minister responsible for the given area.  In this way it is the government and the organ of the state that plays a defining rule in forming and representing the Hungarian point of view.

The national assembly has a completely different position.  The government is responsible to parliament, and this responsibility extends to the state’s participation in the EU decision making process, but—as in the case of other areas—the House does not possess the right of effective control over the government in this matter—claims EKINT.

Cooperation between parliament and the government in EU matters is regulated by the national assembly law, according to which the government is to inform the national assembly about participation in EU government procedures, about which parliament may ask the government’s point of view and formulate its own opinion in connection with EU plans.  The government itself consistently determines the Hungarian point of view represented in the EU, and is responsible for this.

The referendum question falsely implies, according to the institution, that in this matter the opinion of the national assembly would bind the government’s hands.

So no matter how the referendum turns out, the government’s room for maneuver does not change legally.  Referendums are an exception device in parliamentary democracy in which the people directly exercise power and their decision binds parliament.  It is essential that the subject be clearly defined and the will of the voters be expressed in a clearly regulated procedure.

It is for this reason that the law on referendums requires that the question be clear, and in EKINT’s opinion the government initiative fails in this regard.  The subject of referendums can only be questions falling within the jurisdiction of the national assembly.  The quota decision, on the other hand, falls under the authority of the government since it is the representative of the government that votes in the EU, and the parliament, claims the institute, cannot make a binding decision with regard to the representation of the Hungarian point of view.  Moreover, the question does not pertain to the decision making process of the national assembly—pointing out yet another contradiction—but rather implies that Hungarian citizens can demand anything directly of the European Union.