Government-sponsored referendum on mandatory refugee quotas unconstitutional, says legal expert

February 27, 2016

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The following text is a paraphrased translation of an article that appeared on Átlátszó.hu’s Így Írnánk Mi blog. The author, a constitutional lawyer,  frequently comments on matters pertaining to constitutional law in Hungary. In this piece, the author explains why the government’s recently announced referendum fails to meet the comprehension, legal and constitutionality tests required to be in conformity with the Fundamental Law.

The National Election Committee has 30 days to validate the question from the time it is submitted. After that, any citizen can challenge the National Election Committee’s decision within 15 days by requesting Hungary’s highest court, the Curia, review the decision.

If the Curia accepts the National Election Committee’s decision, the National Assembly has 30 days to call for the referendum to be held. If the Curia rejects the National Election Committee’s decision (and decides the question is invalid), the government may turn to the Constitutional Court.

The Constitutional Court could possibly reject a review of the complaint because the government itself, according to constitutional law, has no fundamental rights and therefore cannot submit a constitutional complaint. The catch here is that, while there technically is no real reason why the Constitutional Court would review the complaint, recent actions by the Court indicate that it would not follow this logic (as was the case with the referendum proposal concerning early retirement of males over the age 40).

Assuming the government succeeds in having the Constitutional Court review the case, the fate of this referendum would be left in the hands of the majority of Constitution Court justices. To make things even more interesting, the mandates of three Constitutional Court justices are set to expire soon. Should the parliament fail to successfully nominate three candidates to replace the retiring justices, the approval of 6 justices will be needed for the referendum to receive the green light.

Fidesz has successfully stacked Hungary’s Constitutional Court with sympathizers in recent years and they could easily secure the six needed votes. What is sure is that the Constitutional Court’s decision (for or against) will certainly have political consequences.

So what is this referendum about?

The subject of the government’s proposed referendum question is not the National Assembly, but the European Union. The question therefore asks whether the European Union should be allowed to dictate something (to Hungary) and on what grounds.

According to Article 8., Section 2. of Hungary’s Fundamental Law, referendums can only be held on issues for which the National Assembly is responsible. But according to the referendum proposal submitted by the government, the subject of the referendum is not the National Assembly but rather the European Union. Therefore, if the referendum concerns the decisions of the European Union (and not the National Assembly), the question does not concern itself with the responsibilities of the National Assembly. And referendums (at least according to Hungary’s own Fundamental Law) can be on issues that rest within the scope of responsibilities tied to the National Assembly.

Furthermore, the Fundamental Law governs only those legal issues which are not within the boundaries of Hungary’s state sovereignty. That is why, for example, Hungarians cannot have referendums on issues such as what the Klingon Empire is permitted or not permitted to do because those are issues that do not fall within the jurisdiction of Hungarian law.

Complicating matters further for the government’s referendum proposal is that the National Election Committee can only validate questions that are easily understood by both the electorate and the legislature. The question submitted by the government is vaguely worded so as to give room to several diverging interpretations.

Regarding its reasoning for the referendum, the Hungarian government has argued that European Union law does not permit the imposition of a compulsory quota. Interpreting the referendum’s question from this perspective, the question may also mean that Hungary rejects any modification to European Union law which would permit the imposition of a compulsory quota, or that Hungary should only support any changes to EU law that would give countries the option of opting out of something like the compulsory quota.

But the question can also be interpreted in another manner as well. For example, it can also be interpreted to mean (if successfully voted on by the people) that the government must vote on the advisement of the National Assembly on issues related to the compulsory quota in meetings with the European Council or the Council of the European Union.

It is important to keep in mind here that the question itself is not clear. No one really knows what a “yes” or “no” vote would actually mean, which, in turn, begs the question: does the referendum question actually meet the comprehension test?

Complicating matters further is that the referendum question gives no explanation as to what the National Assembly would be forced to do if the referendum was to pass. This runs counter to the requirement that there be a clear legislative action based on a successful vote.

The referendum question can also be interpreted in another manner. If the question is interpreted as an attempt to do whatever it takes to prevent a modification to European Law or as an attempt to determine the interpretation of European law, then, according to the Curia’s past decisions and Article 8, Section 3, Point D of the Fundamental Law, the referendum is not permissible because it addresses Hungary’s responsibilities pertaining to international agreements.

The referendum question would not be any more acceptable if Jobbik’s completely coincidentally submitted proposal from Tuesday was to be voted into law. The proposal seeks to remove international agreements from the list of items under Hungarian law that referendums are not allowed to influence.

If the referendum question (if successfully adopted) would seek to establish that the government must only vote in the Council of the European Union as advised by its parliament on the subject of the compulsory quota, then again it is unconstitutional because it concerns powers that, according to the Fundamental Law, the National Assembly does not have. The Fundamental Law states that the position represented in the Council is determined by the government, not parliament. Here, again, this referendum is not permitted by the Fundamental Law.

In any case, based on previous experiences it would not be safe to bet that Hungary’s rule of law defense mechanisms will be enough to prevent an obviously unlawful referendum from taking place. In order for that to happen, people would have to start acting like they have spines — which is uncommon nowadays.