HUN-1999-3-007

a) Hungary / b) Constitutional Court / c)  / d) 07-07-1999 / e) 25/1999 / f)  / g) Magyar Közlöny (Official Gazette), 62/1999 / h) .

Keywords of the Systematic Thesaurus:

01.03.04.06.01

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

03.03.01

General Principles - Democracy - Representative democracy.

03.03.02

General Principles - Democracy - Direct democracy.

04.01.01

Institutions - Constituent assembly or equivalent body - Procedure.

04.05.02

Institutions - Legislative bodies - Powers.

04.09.02

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

Keywords of the alphabetical index:

Sovereignty, popular / Constitution, amendment.

Headnotes:

The Constitution cannot be amended trough a national referendum initiated by voters, since amending the Constitution falls within the exclusive competence of Parliament. The national referendum, whose aim is to amend the Constitution, would deprive Parliament of its constitutional competence, and would therefore be unconstitutional.

Summary:

According to Article 28/C.5.c of the Constitution, a national referendum may not be held on the provisions of the Constitution on national referendums and popular initiatives. According to some, through an a contrario interpretation of the Constitution, it follows that a national referendum can be held on all the provisions of the Constitution with the exception of the provisions on national referendums and popular initiatives.

The Court, referring to its previous Decision no. 894/B/1990, held that the Constitution does not provide that certain issues fall within the exercise of power directly and others through representation. The competence of the representative organs is as a rule complete and general. Compared to this, the institutions of direct democracy are exceptional. However, in the exceptional case when the constitutional requirements of a referendum had been met, the referendum was to be given precedence over exercising power through representation.

In its previous decisions, the Court also stated that in addition to Article 28/C.5 of the Constitution, which does not list all the questions which cannot become subject of a referendum, there are other cases deriving from the Constitution when referendum is excluded. According to Article 2 of the Constitution, according to which the Republic of Hungary is an independent and democratic state based on the rule of law and on the principle of the separation of powers, the Constitution cannot be amended by national referendum, since this is within the exclusive power of the Parliament.

Cross-references:

Decision no. 52 of 1997 (X. 14), Bulletin 1997/3 [HUN-1997-3-009].

Languages:

Hungarian.