HUN-1997-3-009

a) Hungary / b) Constitutional Court / c)  / d) 14-10-1997 / e) 52/1997 / f)  / g) Magyar Közlöny (Official Gazette), 89/1997 / h) .

Keywords of the Systematic Thesaurus:

01.02.01.08

Constitutional Justice - Types of claim - Claim by a public body - Ombudsman.

01.03.04.06.01

Constitutional Justice - Jurisdiction - Types of litigation - Litigation in respect of referendums and other instruments of direct democracy  - Admissibility .

01.03.05.03

Constitutional Justice - Jurisdiction - The subject of review - Constitution.

03.03.01

General Principles - Democracy - Representative democracy.

03.03.02

General Principles - Democracy - Direct democracy.

04.09.02

Institutions - Elections and instruments of direct democracy - Referenda and other instruments of direct democracy.

Keywords of the alphabetical index:

Referendum, right / Referendum, compulsory.

Headnotes:

In the exceptional case when the constitutional requirements of an obligatory referendum have been met, this kind of referendum has to be given precedence not only over exercising power through representation but also over other kinds of referenda. The Court laid down for the Act on Referendum to be passed with procedural rules which would guarantee this precedence and also provides for the possibility to lodge a constitutional complaint to the Constitutional Court in all matters concerning referenda.

Summary:

Following an amendment to the Constitution which brought detailed rules on referenda into the Constitution and within the political turmoils of two competing initiatives for a national referendum on the same question (one initiated by voters, which the government tried to take over by «its» referendum), the Constitutional Court restated the relationship between the direct exercise of power by the people and representative democracy.

The Parliamentary Commissioner for Civil Rights (Ombudsman), among other petitioners, requested the interpretation of certain constitutional provisions.

The Constitution (as amended by Act LIX of 1997) provided: a) by Article 28/C.2 of the Constitution that where at least 200,000 voters petitioned for a national referendum, the State was obliged to hold one, using for the question the wording as already formulated in the petition; and b) by Article 28/C.4 of the Constitution, that the President, the Government, one-third of MPs or 100,000 voters might initiate a referendum but it remained within the discretion of Parliament as to whether one should be held as well as the formulation of the question to be put to the people.

This particular field was more closely regulated by the Law XVII of 1989 on Referenda and Popular Initiatives which laid down the procedures, inter alia, for the collection and verification of the requisite number of signatures together with the holding of the referendum itself.

A situation arose whereby, in the course of verification of the signatures collected to initiate a referendum under Article 28/C.2 of the Constitution, the Government sought to initiate a referendum (with parliamentary approval) under Article 28/C.4 of the Constitution on the same issue but with questions which were contrary to those put in the first proposed referendum.

In accordance with his statutory powers, the Parliamentary Commissioner for Civil Rights sought a ruling from the Court on the interpretation of the relationship between paragraphs 2) and 4) of Article 28/C of the Constitution.

The Constitutional Court, giving the interpretation sought, held that:

1.     The mandatory referendum under Article 28/C.2 took precedence over the discretionary one in Article 28/C.4 of the Constitution. The direct exercise of power by the people enshrined in Article 2.2 of the Constitution had two essential features: initiation (including the determination of the question to be decided) and enforceability (both as regards the holding of the referendum and the binding force of its result). On the one hand, the mandatory referendum, an exceptional form of the exercise of the sovereignty of the people, left the people in control of every element of this direct exercise of power. Parliament was obliged not only to ensure the referendum was held and its result implemented but also to refrain from any act or omission which would influence or frustrate the realisation of such exercise, even to the point of preventing other state organs from committing such acts or omissions. On the other hand, the holding of a discretionary referendum, once the 100,000 signatures had been verified, fell within the discretion of Parliament. Thus no guarantee existed as to the continuation of the initiative nor to its wording remaining unaltered - Parliament consequently maintained complete control up to the holding of the referendum. As an exercise of power through representation, discretionary referenda therefore ranked below obligatory ones.

2.     The right to a referendum was a fundamental political right according to Article 70.1 of the Constitution and this right extended to the initiation of the referendum, the signing of sheets and gathering of signatures as well as participation in the vote. Such a right was not only to be protected but also obliged the State to provide the preconditions for its exercise. On the basis of the Constitution, the petition for a mandatory referendum enjoyed protection of an absolute character commencing with the submission (and not with the completion of the verification) of the signatures. While the right to hold a referendum on the question specified in the petition only came into existence with the verification of the requisite number of signatures, this was a declarative not a constitutive act: the existence/absence of support was given at the time of submitting signatures and was merely stated on their verification. Nevertheless, voters had a claim flowing from their right that state organs could not frustrate their right to hold a referendum after the submission of signatures but before verification was completed: this right also extended to the period of collecting signatures. However it was for the legislature to decide upon the starting point for the collection and other matters related thereto by amending Law XVII of 1989 on Referenda and Popular Initiatives.

Languages:

Hungarian.