a) Hungary / b) Constitutional Court / c) / d) 17-05-2007 / e) 27/2007 / f) / g) Magyar Közlöny (Official Gazette), 2007/61 / h) .
Keywords of the Systematic Thesaurus:
General Principles - Democracy - Direct democracy.
General Principles - Rule of law.
Institutions - Elections and instruments of direct democracy - Referenda and other instruments of direct democracy.
Fundamental Rights - General questions - Positive obligation of the state.
Keywords of the alphabetical index:
Legislative omission / Referendum, result, binding force on Parliament.
The Constitutional Court identified an unconstitutional omission to legislate, as there was no provision within legislation as to how long the result of a decisive national referendum binds Parliament. Neither was there any provision for amending a statute enacted or confirmed as a result of the referendum or a statute confirmed by the referendum. Parliament had also failed to deal with the possibility of initiating a further referendum on the same question.
The Court reviewed petitions claiming that there had been an unconstitutional omission on the part of the legislator. The Court pointed out that the rule of law requires that legal institutions and instruments operate in a predictable way. The lacunae in the statutory provisions on referenda make it impossible to apply the current statute properly.
The Court emphasised that the right to referenda is a fundamental political right. According to the jurisprudence of the Constitutional Court every fundamental right entails not only an entitlement for a subjective protection but also an objective obligation of the State to provide the preconditions for the exercise of the right. With respect to the obligatory referendum, these institutional guarantees include statutory provisions regulating the binding nature of the result of the referendum and the possibility to initiate a further referendum on the same question.
Under Article 28/B.2 of the Constitution, a majority of two thirds of the votes of the Members of Parliament present is required to pass legislation on national referenda and popular initiatives. This means that although the Constitution contains detailed rules on referenda, a statute can limit the scope of the right to referenda in accordance with Article 8.1. of the Constitution. Besides, by a two-third majority of the Members of Parliament, it is possible to enact and amend constitutional provisions regulating the referenda and popular initiatives.
Justice László Trócsányi attached a dissenting opinion to the judgment. He argued that since the Constitution contains very detailed provisions on referenda and popular initiatives, statutes should not regulate questions affecting directly the direct exercise of power by the people. Regulating the questions required by the Constitutional Court in its current decision is possible only at a constitutional level.