Diritti umani e comparazione giuridica
Collana diretta da
Luis Efrén Ríos Vega e Irene Spigno
4
Collana diretta da
Luis Efrén Ríos Vega e Irene Spigno
Comitato scientifico
Gianmario Demuro, Giuseppe de Vergottini, Cristina Fasone
Giuseppe Martinico, Valeria Piergigli, Lucia Scaffardi
Comitato editoriale
María Guadalupe Imormino de Haro, Giammaria Milani
Carlos Zamora Valadez
Le pubblicazioni della presente collana sono sottoposte a un procedimento di revisione
finalizzato a verificare la corrispondenza del lavoro a un elevato livello di qualità scientifica.
1. Pubblicazione monografie
Per la pubblicazione di un lavoro monografico occorre la presentazione o di uno dei
due direttori o di un membro del comitato scientifico. Il lavoro è oggetto di revisione
da parte di almeno un revisore scelto da uno de due direttori all’interno del comitato
scientifico o esterno; in caso di parere negativo da parte di due revisori, il lavoro non può
essere pubblicato; nel caso di giudizio negativo da parte di un revisore, il testo può essere
sottoposto al giudizio del comitato scientifico.
I revisori ricevono il testo da valutare senza indicazione dell’autore, al quale non viene
comunicata l’identità dei revisori.
2. Pubblicazione di volumi collettanei
Per la pubblicazione di volumi collettanei, occorre la presentazione o di uno dei due
direttori o di un membro del comitato scientifico. Il curatore assume anche le funzioni di
revisore, tuttavia, ogni contributo può essere sottoposto a doppia procedura anonima di
referaggio; dell’attivazione di tale procedura si dà conto per ogni singolo lavoro.
IL DIRITTO ALLA CONSULTAZIONE
REFERENDARIA NEL XXI SECOLO
a cura di
Eleonora Ceccherini
Luis Efrén Ríos Vega
Irene Spigno
Editoriale Scientifica
Napoli
La pubblicazione è stata realizzata nell’ambito del progetto di ricerca PRIN 2017
“Implicazioni costituzionali dei separatismi europei” (P.I.: Alessandro Torre - Università
di Bari) - Unità di Genova “Argomenti, tecniche ed esiti delle negoziazioni separatistiche”
(Responsabile: Eleonora Ceccherini) ed è il risultato della collaborazione accademica
tra l’Academia Interamericana de Derechos Humanos dell’Universidad Autónoma de
Coahuila e l’Università di Genova.
Proprietà letteraria riservata
© Copyright 2021 Editoriale Scientifica s.r.l.
via San Biagio dei Librai, 39 – 80138 Napoli
www.editorialescientifica.com info@editorialescientifica.com
ISBN 979-12-5976-047-0
INDICE
Premessa 7
Parte prima
Consultazione referendaria
e diritto all’autodeterminazione dei popoli
1. Il diritto alla consultazione popolare nelle sue diverse configurazioni: i paesi dell’Unione europea
di Elisabetta Palici di Suni
13
2. Autodeterminazione dei popoli e separatismi europei: le nuove
sfide degli Stati contemporanei
di Simona Rodriquez
25
Parte seconda
Il diritto alla consultazione referendaria
delle minoranze e dei popoli indigeni
3. The Crisis of Public Participation. The Case of the Hungarian
Refugee Referendum
di Johanna Fröhlich
59
4. Criticità nella protezione delle minoranze in Svizzera. Problemi
e spunti dell’iniziativa popolare contro i minareti
di Elena Sorda
87
5. I diritti di partecipazione delle popolazioni aborigene fra consultazione e consenso
di Eleonora Ceccherini
107
6
Indice
Parte terza
L’oggetto delle consultazioni referendarie
6. Il problema della incostituzionalità dell’oggetto del referendum:
il caso della Catalogna (ATC 24/2017 del 14 febbraio 2017)
di Elena Bindi
7. I quesiti delle consultazioni popolari. Considerazioni alla luce
dell’esperienza referendaria in Italia
di Giancarlo Rolla
151
181
Parte quarta
Consultazioni referendarie e stato di diritto
8. El plebiscito especial para la paz y el blindaje normativo del
acuerdo de paz entre el Gobierno colombiano y las Fuerzas Armadas Revolucionarias de Colombia FARC-EP
di Pablo Moreno Cruz
9. Dal referendum Brexit al costituzionalismo del caso Miller
di Alessandro Torre
215
261
THE CRISIS OF PUBLIC PARTICIPATION.
THE CASE OF THE HUNGARIAN REFUGEE REFERENDUM*
Johanna Fröhlich**
Table of Contents: 1. Introduction. – 2. Context for the Hungarian referendum on the European quota decision – 2.1. The popular consultation of
April, 2015. – 2.2. The European quota decision and its challenge in front
of the Court of Justice of the European Union. – 3. The legal background
of the popular referendum. – 4. The popular referendum and its aftermath.
– 5. The neuralgic points of popular referendum. – 6. An integral approach
to person and participation.
1. Introduction
We are witnesses of a trend, where a growing number of highly
controversial social issues are decided by popular referendums. We
can see this phenomenon in Europe with respect to the independence
of Catalonia1, Great Britain’s membership to the European Union, or
to freedom of religion in Switzerland. This phenomenon is not alien
in other parts of the world either, as the examples of the referendum
on the Colombian peace agreement2 or on the secession of Quebec3
in Canada represent. However, public decisions adopted by popular referendums claim strong legitimacy, the public opinion is often
disappointed about the mere fact of organizing a referendum, not to
mention its results. This is not different in the Hungarian case which
led up to an invalid referendum about the European refugee quota
Peer reviewed.
Assistant Professor, Law School, Pontifical Catholic University of Chile. The text
is updated to July, 2018.
1
Cf. the Decision of the Constitutional Court of Spain that annulled Catalonia’s
referendum, Auto 24/2017, February 14, 2016.
2
The Colombian Constitutional Court approved the referendum that was hold on
October 2, 2016 about the final agreement on the termination of the conflict between
the Colombian Government and the FARC guerillas. See, Corte Constitucional aprobó
plebiscito para refrendar acuerdos de paz, in El Tiempo, 18/07/2016, http://www.eltiempo.
com/archivo/documento/CMS-16648418 (visited on 30/11/2020).
3
See, the Decision of the Supreme Court of Canada Reference re Secession of Quebec
[1998] 2 S.C.R. 217.
*
**
60
Johanna Fröhlich
mechanism4. Even though, the government utilized several forms of
direct decision-making methods, the results could not gain a legally
binding force, neither could they strengthen the social concord about
the necessary solution.
In the first half of the paper, I will present the Hungarian popular referendum on the European quota-decision, its legal background
and its consequences in the Hungarian context. Then, I will discuss
the most important neuralgic points of popular referendum, both
from a practical and from a theoretical point of view. Finally, I will
argue that the root of the problems with popular referendum lies in
the crisis of public participation on a more general level. True enough
that democratic participation has to do a lot with exercising our right
to vote in the voting booths, but the suffrage shall be seen as rather a
consequence of the practiced commitment, the engagement and the
dialogue that we shall perform on a personal level. I will argue that
the deficiencies of popular referendum cannot be resolved merely
through the means of law; the extra benefit of popular referendums
to serve as a medium for discussing and measuring reasons for public
actions and to build social cohesion around public decisions cannot
be successful without experiencing and acknowledging the good of
participation on a personal level.
2. Context for the Hungarian referendum on the European quota
decision
The broader context of the Hungarian story with respect to the
regulation of migration is the new constitutional and legal framework
founded in the new Fundamental Law in 2012. Widely known that
the new constitution and especially its early and various amendments
were seriously criticized5. After several problematic changes in the
Council decision (EU) 2015/1601 of 22 September 2015 establishing provisional
measures in the area of international protection for the benefit of Italy and Greece.
5
A. von Bogdandy, P. Sonnevend (eds.), Constitutional Crisis in the European
Constitutional Area, Oxford-Portland, 2015; A. Jakab, P. Sonnevend, Continuity with
Deficiencies: The New Basic Law of Hungary, in European Constitutional Law Review, 9,
1, 2013, 102; G.A. Tóth, Constitution for a Disunited Nation, Budapest, 2012; P. Sonnevend, Preserving the Aquis of Transformative Constitutionalism in Times of Constitutional
Crisis. Lessons from the Hungarian Case, in A. von Bogdandy, E. Ferrer Mac-Gregor,
4
The Crisis of Public Participation. The Case of the Hungarian Refugee Referendum
61
constitutional and legal system6, the subject of migration has been ruling the political landscape in Hungary since 2015.
Throughout its history, Hungary has always been on the crossroads of the different migratory flows. Hungary has been both the
host country for many refugees and migrants from the East and from
the Balkan region, and several times in history Hungarians themselves
too were forced to leave their home in order to find a place where they
could live a dignified life, for instance during the WWII, or after the
1956 Revolution. In the years preceding 2015, most of the asylum applications came from Afghanistan, Kosovo, Pakistan and Serbia (with
a total number of 1693 in 2011, and 2157 in 2012)7. These numbers
raised extremely starting from 2013, and Syria appeared among the
countries that provide the most asylum applicants (the peak was in
2015, when the three main countries of origin were Syria with 65.079,
Afghanistan with 46.675 and Kosovo with 24.746 applications)8. Since
the peak in asylum applications in 20159, the government’s rhetoric
turned to be more expressive about the dangers of migration. Hungary, as a border country in the EU Schengen area, with direct accessibility to the Western Balkan route, had a geographically important
position in the challenge that the Common European Asylum System
(CEAS) had to face in 2015-2016.
As the Hungarian government pleaded its obligation to protect
M. Morales Antoniazzi, F. Piovesan (eds.), Transformative Constitutionalism in Latin
America. The Emergence of a New Ius Commune, Oxford, 2017.
6
Issues concerning the judiciary, freedom of conscience and religion, and the legal
status of churches, or the amendments to the Fundamental law. See the opinions adopted by the Venice Commission at http://www.venice.coe.int/webforms/documents/?country=17&year=all (visited on 30/11/2020).
7
B. Nagy, Hungarian Asylum Law and Policy 2015-2016, in German Law Journal,
17, 6, 2016, 1037.
8
Ivi, 1037.
9
According to the annual aggregated data on asylum and first-time asylum applicants, in 2013 there was the first considerable rise in numbers (there were 18.895 applications, while before the average number had been around 2000-3000). Then, in 2014,
there were 42.775, and in 2015 177.135 first-time asylum applications from persons who
submitted an application for international protection. Later on, as a possible consequence
of the legislative and administrative measures taken by the government, the number of
applications started to fall, and in 2016 it was 29.430, in 2017 it dropped back to 3390.
Source: Eurostat: http://ec.europa.eu/eurostat/tgm/table.do;jsessionid=Hh4l6YykKSoTdadvEobaYpmjRff_U5HuvpGdSyT5Y7inuwVT5HYI!-1102445943?tab=table&plugin=1&language=en&pcode=tps00191 (visited on 30/11/2020).
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Johanna Fröhlich
the borders of the EU Schengen area, its attempt to control the borders and the in-flow of refugees both administratively and physically was not entirely successful. During the summer and early autumn
of 2015, the international media10 was full of pictures of the Eastern
Train Station of Budapest, where thousands of refugees were waiting for the Hungarian authorities to let them continue their journey
towards Western Europe. After the humanitarian emergency in the
ad hoc refugee camp in Budapest, the German Chancellor, Angela
Merkel made an exceptional decision and opened up Germany’s borders to unregistered refugees.
Hungary introduced both legal and security measures in order to
control the in-flow of refugees at the borders. Just to point out the
main legal measures taken in 2015-2016, the Hungarian government
adopted new lists of third safe countries11, changed the asylum procedure at the borders12, and introduced a state of exception13 covJust pointing at one example, D. Nolan, K. Connolly, Hungary closes main
Budapest station to refugees, in The Guardian, 01/09/2015, https://www.theguardian.
com/world/2015/sep/01/migrant-crisis-hungary-closes-main-budapest-station (visited on
30/11/2020).
11
An amendment to the Act LXXX of 2007 on the law of asylum gave the power
to the Government to adopt new lists of safe third countries. In line with this change,
the government Decree 191/2015 (VII. 21.) created two identical lists of safe third
countries and safe countries of origin. The list contained the Member States and
candidate states of the European Union (except for Turkey) and the United States
of America (except for those states that have death penalty), Switzerland, Bosnia and
Herzegovina, Kosovo, Canada, Australia and New-Zealand. Critics emphasize that EU
Members States could not be considered as “third safe countries”. See, Nagy (2016)
1045. Furthermore, after the deal between the EU and Turkey in March 2016, Turkey
was added to both lists.
12
The asylum procedure was shortened and accelerated, with stricter deadlines and
less days to appeal. See, Act CXXXVII of 2015 on the establishment of a temporary security border-closure and on the amendment of laws relating to migration. Official Journal
(Magyar Közlöny) July 13, 2015 (came into force on August 1, 2015).
13
According to the next large-scale amendment of several different laws (Act CXL
of 2015), the Hungarian Parliament introduced a state of exception, and adopted specific
rules for those asylum seekers who attempted to cross the fenced border with Serbia.
The main changes brought by these amendments are the following: the illegal crossing
or damaging of the fence were made criminal acts; the law created the so-called “transit
zones”, which consists of the proceedings of policemen, refugee officers and judges in
a series of containers as part of the fence; and introduction of a special notion “crisis
situation caused by mass immigration”. The changes entered into force on September
15, 2015, on the same day of the closure of the Serbian-Hungarian border. For critical
arguments about the special state of exception cf. G. Mészáros, Egy “menekültcsomag”
10
The Crisis of Public Participation. The Case of the Hungarian Refugee Referendum
63
ering the border area with Serbia. One of the last legal measures in
this period was the further amendment14 of the Asylum Act, which
terminated the integration assistance from recognized refugees or
beneficiaries of subsidiary protection and established the compulsory review of the refugee status after three years (instead of the
previous five years).
Opinions on both sides vary greatly about the evaluation of the
new regulation and its consequences in contemporary academic literature. Those, who fundamentally reject the measures of the Hungarian government, are using European and international legal arguments
in order to show the inappropriateness of these rules15. Other critical
voices tackle the issue from the point of view of constitutional identity
and argue that the Central and Eastern Europe constitutional courts
started to apply an ethnocultural understanding of constitutional
identity that goes against the European integration16. Still others argue
that the Hungarian measures represent an attack on inclusive values,
which could pose a challenge to the inclusive value order of a democratic society17. On the other hand, criticism emerged against those
views too that seem to support to open the borders without limitations. Arguments advocating for border protection stem from either a
sovereign-nation-state point of view18, arguing that migration should
be viewed as a political decision that belongs to the people (instead
of a pure legal concept applied by judges), or from a theoretical-legal
standpoint, holding that the protection of the values of democracy,
veszélyei – Mit is jelent valójában a tömeges bevándorlás okozta válsághelyzet? [The dangers of the “refugee package” – What does the crisis situation caused by mass-migration
mean in reality?], in Fundamentum, 2-3, 2015, 119.
14
Act XXXIX of 2016 (entered into force on July 6, 2016).
15
Cf. B. Nagy, Hungarian Asylum Law and Policy 2015-2016, 2016, 1040-1044 for
instance, uses the theoretical concept of “securitization” and “crimmigration” in order to
explain the recent legal changes in the Hungarian refugee policy.
16
K. Kovács, The Rise of an Ethoncultural Understanding of Constitutional Identity
in the Jurisprudence of the East Central European Courts, in German Law Journal, 18, 7,
2017, 1703-1720.
17
Z. Körtvélyesi, B. Majtényi, Game of Values: The Threat of Exclusive Constitutional Identit, the EU and Hungary, in German Law Journal, 18, 7, 2017, 1722-1744.
18
J. Holbrook, Immigration policy is for the people, not the courts, in Judicial Power
Project, 2016, analyzing the legalistic approach of the ECHR and arguing that immigration policy needs to be returned to politicians by reestablishing the centrality of collective
interests.
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Johanna Fröhlich
and even liberal democracy is tied to the existence of borders and
territoriality19.
Contrary to these approaches, I will focus on the refugee referendum in Hungary and provide a critical analysis of popular referendums. My main argument against popular referendum is not an argument on values vs. majority, nor on the preference of judicial decisions
over political ones, but it is about the insufficiency of referendums
to truly foster public participation. Real participation in the public
decision-making does not mean merely casting our votes in the ballots
on a Sunday morning. The moment of exercising our active right to
vote is probably the weakest, most vulnerable and most easily abused
phase throughout the whole range of actions we have in shaping and
influencing the public discourse. I will argue that the abuse of popular referendums, together with their inefficiency on a practical level,
result in questioning the values of participation and solidarity in everyday life, which destroy the foundations of a participatory society.
Without living the values of participation on a personal level, a society
will not be able to see and promote the good-making characteristics20
of a popular referendum either, without which the chance to make
any authentic decision on a community level is seriously hindered.
We will see how these concerns regarding participation, dialogue and
solidarity emerge in the Hungarian referendum on the refugee quota
decision.
2.1. The popular consultation of April 2015
Before the infamous incident at the Eastern Train Station in Budapest, the government organized a national consultation measuring the
public opinion on the problems concerning migration and security
in April 2015. This form of popular consultation is absolutely informal. The government sends a questionnaire to every citizen who has
the right to vote by post and asks them to send the answers back by
a certain deadline. The national consultation on migration was ac19
K.F. Gärditz, Territoriality, Democracy, and Borders: A Retrospective on the “Refugee Crisis”, in German Law Journal, 17, 6, 2016.
20
Reasons that have “good-making characteristic” in our views – through a deliberative procedure – are primary to other reasons in order to explain why we follow rules. Cf.
V. Rodriguez-Blanco, Law and Authority under the Guise of the Good, Oxford-Portland,
2014, 7-8.
The Crisis of Public Participation. The Case of the Hungarian Refugee Referendum
65
companied by a billboard campaign financed by the government. The
campaign consisted of confrontative messages addressed to the newly
arrived migrants, warning them about their duty to respect the Hungarian culture, for instance. Based on the fact that all these billboards
were in Hungarian, it is safe to say that these messages were rather
addressed to the Hungarian voters than to any foreigner.
In the case of the 2015 April National Consultation, the government made a questionnaire composed of 12 questions21 and sent it
to almost 8 million citizens. According to the data that was made
public22 about the results, around 1.058.000 persons answered, the
sweeping majority of which supported the government measures in
order to introduce stricter rules against illegal immigrants. The media
that is critical to the government argued that the questions were biased and already implied the answers that the government wanted to
hear23. Even though, the consultation brought to light the opinion of
government supporters, the results did not have a binding legal effect
of any kind, neither their effect is comparable to that of a popular
referendum.
2.2. The European quota decision and its challenge in front of the
Court of Justice of the European Union
In the meantime, the European Council adopted Decision
2015/1601 (September 22) on the provisional measures in the area of
international protection for the benefit of Italy and Greece (known
as the Quota Decision). According to this Decision, 120.000 asylum
21
Some examples of the questions: «There are some who think that mismanagement
of the immigration question by Brussels may have something to do with increased terrorism. Do you agree with this view?»; «Did you know that economic migrants cross the
Hungarian border illegally, and that recently the number of immigrants in Hungary has
increased twentyfold?»; «Would you support the Hungarian Government in the introduction of more stringent immigration regulations, in contrast to Brussels’ lenient policy?»; «Do you agree with the view that migrants illegally crossing the Hungarian border
should be returned to their own countries within the shortest possible time?».
22
The government has been taking advantage of the popular consultation since the
governing party won in the parliamentary elections in 2011, but until 2015 the results of
the consultations were not made public.
23
Súlyosan demagógra sikerült a nemzeti konzultáció 12 kérdése, Hvg.hu, 24-42015
[The questions of the national consultation are seriously demagogue] http://hvg.hu/
itthon/20150424_Sulyosan_demagogra_sikerult_a_nemzeti_kon (visited on 30/11/2020).
66
Johanna Fröhlich
applicants should have been relocated to other Members States over a
period of two years. Following the Council decision, Hungary should
have accepted 1294 refugees from Italy and Greece.
However, Hungary together with the Czech Republic, Romania
and Slovakia, was outvoted in the European Council (with Finland
abstain). Hungary and Slovakia contested the decision in front of
the Court of Justice of the European Union (CJEU). The main arguments of Hungary and Slovakia concerned the lack of competence
of the European Council to adopt substantive rules on migration
without providing the opportunity to the legislative bodies of the
Member States to have a word on the matter24. According to the
legislative action25 that the Hungarian Parliament adopted in November 2015, the Hungarian Government expressed its discontent
about the European policy on handling the refugee crisis and gave
the power to the government to impugn the quota decision of the
European Council on the basis of Article 263 of the Treaty on the
Functioning of the European Union (TFEU)26. The main arguments
according to Act No. CLXXV are the disregard of the original power-transfer of the Members States to the European Union and the
duty that flows from this, in order to discuss all legislative actions
with the Members States. The motion referred to the argument on
24
About the basic rules regarding the competences divided between the European
Union and the Members States in connection with the Council’s decision on the refugee quota, see B. Tárnok, A kötelező menekültkvóták szabályozása az Európai Unióban a
szubszidiaritás elvénak érvényesülése tükrében, [The regulation of the compulsory refugee
quotas in the European Union in light of the principle of subsidiarity], Pázmány Law
Working Papers, 2, 2016. Tárnok is basically describing the arguments about whether
the quota decision of the Council could be and should be treated as a legislative action.
25
Act CLXXV of 2015 on the protection of Hungary and the European
Union and on the challenge of the mandatory resettlement quota. See the motion
in
Hungarian
here,
http://curia.europa.eu/juris/document/document.jsf;jsessionid=9ea7d2dc30d5ad3d563d97914e73aa1589f4de0f360f.e34KaxiLc3qMb40Rch0SaxuSbhn0?text=&docid=174029&pageIndex=0&doclang=HU&mode=lst&dir=&occ=first&part=1&cid=505053 (visited on 30/11/2020).
26
Art. 263: «the Court of Justice of the European Union shall review the legality of
legislative acts, of acts of the Council, of the Commission and of the European Central
Bank, other than recommendations and opinions, and of acts of the European Parliament
and of the European Council intended to produce legal effects vis-à-vis third parties. It
shall also review the legality of acts of bodies, offices or agencies of the Union intended to
produce legal effects vis-à-vis third parties. (…)».
The Crisis of Public Participation. The Case of the Hungarian Refugee Referendum
67
the democracy-deficit of the European legal decision-making, and to
the violation of the subsidiarity principle27.
The Grand Chamber of the CJEU decided28 in favor of the European Council in September 2017 and rejected the actions of the
Hungarian and the Slovakian governments in their entirety. The main
argument of Hungary and Slovakia was that the quota decision required a legislative procedure and the Council could not have adopted it without the democratic procedure by the European Parliament.
The Curia turned down these arguments, pointing out that the legal
basis of the Council’s decision, Article 78 (3)29 of the TFEU, does
not contain any expressed reference to a legislative procedure, which
allowed the Curia to conclude that all the actions based on this provision could be adopted in a non-legislative procedure. Furthermore,
the Curia argued that the nature of the actions based on Article 78 (3)
of the TFEU are provisional and temporary, which is why they may
also derogate from legislative acts. The Curia also pointed out that the
quota decision of the Council is not inappropriate for contributing to
achieve its objective and that its legality cannot be called into question on the basis of a retrospective assessment of its efficiency. This
last note is clearly an answer to the Hungarian government’s opinion
according to which it is impossible to implement the quota decision
because of the lack of legal measures to force people to settle in a certain country in the Schengen area30.
27
For criticism of the Hungarian government’s arguments see, M. Varju, V. Czina,
G. Vető, Ott támad ahol a legjobban fáj – Magyarország keresete az uniós menekültügyi
kvótarendszerrel szemben. [Hitting where it hurts the most – Hungary’s legal challenge
against the EU’s refugee quota system], in JTI Blog, 2016. The authors argue that the
strategy of the Hungarian government to continuously demonstrate its strong democratic
legitimacy attacks the European integration where it hurts the most, i.e. at its democratic
deficit.
28
Judgment in joined cases C-643/15 and C-647/15, Slovakia and Hungary v.
Council (September 6, 2017) See, http://curia.europa.eu/juris/document/document.jsf;jsessionid=9ea7d2dc30dd9b9dcd04f3dd4e5dab38ce965d8c0181.e34KaxiLc3qMb40Rch0SaxyNbhr0?text=&docid=194081&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=84110 (visited on 30/11/2020).
29
«In the event of one or more Member States being confronted by an emergency
situation characterised by a sudden inflow of nationals of third countries, the Council,
on a proposal from the Commission, may adopt provisional measures for the benefit of
the Member State(s) concerned. It shall act after consulting the European Parliament».
30
Cf. the press release on the webpage of the Hungarian Government: The decision
on the mandatory resettlement quota is impossible to implement, http://www.kormany.
68
Johanna Fröhlich
Simultaneously, there is an ongoing infringement procedure31
against Hungary because of the amendments made to the asylum procedure, mentioned earlier in this article. While even after the judgment
of the CJEU Hungary, the Czech Republic and Poland remained in
breach of their legal obligation, the European Commission decided to
move forward in the procedure in December 2017. The forthcoming
second step consists of a formal request to comply with the EU law in
question and a calling on the Member States to inform the European
Commission of the measures taken to comply with the European standards. Since December last year, Hungary had two months to respond
to the reasoned opinion of the Commission. The Hungarian Government sent their answer to the Commission until the set deadline, in
which it stressed out that Hungary would not dismantle the physical
fence and would not abolish the legal borer closure either32.
3. The legal background of the popular referendum
Almost a year after the Council’s decision, but before the decision
of the CJEU, the Hungarian Government initiated a popular referendum on the refugee quota in February 2016.
Before touching upon the procedural and substantial details of the
referendum, I have to draw attention to the changes that were made
to the institution of popular referendum in the new Hungarian Fundamental Law. Before the new constitution came into force in 2012,
a popular referendum had been considered effective33 if, and only if
hu/en/ministry-of-foreign-affairs-and-trade/news/the-decision-on-the-mandatory-resettlement-quota-is-impossible-to-implement (visited on 30/11/2020).
31
Cf. the press release of the European Commission about the infringement procedure against Hungary, the Czech Republic and Poland, http://europa.eu/rapid/press-release_IP-17-1607_en.htm (visited on 30/11/2020).
32
Cf. the press release of the Hungarian Government about the answer to the
Commission, http://www.kormany.hu/en/ministry-of-justice/news/hungary-does-not-wish-to-change-asylum-regulations.
33
The effectivity of the popular referendum means that the Parliament has a legislative obligation in order to execute the result of the referendum. The legal timeframe for
complying with this obligation is 180 days after the referendum, and this result shall be
obligatory for the Parliament for three years. See, Act CCXXXVIII of 2013 on the initiation of a popular referendum, of the European civil initiative as well as the referendum
procedure, Art. 31 (1)-(2).
The Crisis of Public Participation. The Case of the Hungarian Refugee Referendum
69
half of the validly voting citizens, and at least quarter of all the citizens having the right to vote, casted their votes to the same answer34.
Since the new Basic Law entered into force, it is considerably harder
to achieve an effective popular referendum, because the new constitution introduced a limit of validity. In the new constitutional design,
a popular referendum is considered valid if, and only if at least half of
all the citizens having the right to vote casted their votes35. This does
not only mean that general indifference towards certain topics could
block a popular referendum, but also not-voting can become a realistic third option for those, who disagree with the question. We will
see that these opinions emerged in the popular referendum about the
refugee quota.
The rest of the rules regarding the referendum remained unchanged. According to Art. 8. of the Fundamental Law, the Parliament shall order the popular referendum in case the Government, the
President of the Republic or at least 200.000 voters initiate it. Popular
referendums may only be held about matters that fall under the powers of the Parliament. Furthermore, in the same Art. 8 (3) there are
ten exceptional topics, about which it is not permitted to organize
a popular referendum, such as the amendment of the Fundamental
Law, budget issues, obligations of international treaties, or personal
matters concerning the organization of the Parliament.
According to the Hungarian laws, the question(s) of the popular
referendum has to be approved by the National Electoral Committee
(NEC). The decision about the approval of the question(s) is based
on formal requirements36 as well as on substantial ones, such as the
unequivocal wording of the question37, and those that are laid down
by the Fundamental Law in the article that proved for the prohibited
Act XXXI of 1989 on the Constitution of the Hungarian Republic, Art. 28/C. (6)
Hungarian Basic Law, Art. 8 (4). Naturally, this implies that voting is not obligatory in Hungary.
36
Cf. Act CCXXXVIII of 2013 on initiating popular referendums, the European
citizens’ initiative and the referendum procedure, Art. 2-4, Art, 6, Art 8, Art. 10-12. These
requirements are for instance about the verified document for collecting the signatures,
the minimum number of those who initiate the referendum or the deadline.
37
According to Art. 9 of Act CCXXXVIII of 2013, the question of the popular
referendum shall be formulated in a way that it could be answered by the citizens unequivocally, and in a way that the Parliament could unequivocally decide whether it has an
obligation to legislate, and in case it has, what shall be its content exactly.
34
35
70
Johanna Fröhlich
topics of popular referendums. The NEC shall make a decision about
the approval of the questions in 30 days. The question that the Government initiated was as follows: «Do You agree that the European
Union, even without the consent of the Hungarian Parliament, could
ordain the mandatory settlement of non-Hungarian citizens to Hungary?». The NEC approved the question in February 201638, then it
was brought before the Supreme Court, as an appeal court, which
affirmed the approval.
The decision of the Supreme Court (SC)39 was widely debated in
academic and professional circles40, because the previous case law did
not clearly support the interpretation of the SC in order to approve
the question at hand. The main arguments against the approval of the
question were the following: 1) Arguing that the decision on handling
the refugee crisis is in the competence of the European Union, the
question cannot belong to the powers of the Parliament, therefore
there can be no referendum about it. 2) Considering the founding
treaties, the TFEU or the treaty on the Membership of Hungary in
the EU, the question is related to international obligations, therefore
it is a prohibited topic, and there can be no referendum about it. 3)
By answering NO to the referendum question, it would mean to give
permission to the Parliament to disregard or violate EU law, which
implies the intention to leave the European Union; in this case, Hungary should amend its Fundamental Law, which is prohibited to do
through popular referendums. 4) Whichever alternative interpretation we apply, it shows that the text of the question is not clear and
unequivocal, meaning that neither the citizens would know exactly
38
NEC Decision No. 14/2016. See the original decision in Hungarian, http://
www.valasztas.hu/hatarozat-megjelenito/-/hatarozat/14-2016-nvb-hatarozat-magyarorszag-kormanya-altal-benyujtott-orszagos-nepszavazasi-kezdemenyezes-targyaban (visited on
30/11/2020).
39
Decision Knk.IV.37.222/2016/9. Hungarian Official Journal May 3, 2016.
See the original text in Hungarian, https://net.jogtar.hu/jogszabaly?docid=A16K0621.
KUR&timeshift=fffffff4&txtreferer=00000001.TXT (visited on 30/11/2020).
40
E.g. Z. Pozsár-Szentmiklósy, A Kúria végzése a betelepítési kvótáról szóló népszavazási kérdésről. Országgyűlési hatáskör az európai jog homályában. [The decision of the
Supreme Court on the referendum question regarding the settlement quota. European
law in shadow of the Parliament’s competences], in JeMa, 1-2, 2016, 77-84.; T. Wágner,
Előírhatják-e az uniós intézmények idegen állampolgárok letelepítését a tagállamokban?
[Can the institutions of the European Eunion ordain the settlement of foreign citizens in
the Member States?] in Pázmány Law Working Papers, 3, 2017.
The Crisis of Public Participation. The Case of the Hungarian Refugee Referendum
71
what their answer means, nor the Parliament would know what the
content of its legislative obligations shall be after a valid referendum.
The SC’s arguments rejected all the above-mentioned concerns.
First, the SC dealt with the criticism according to which the referendum question would touch upon international obligations. The
line of arguments of the SC’s decision asserted that according to the
jurisprudence of both the Hungarian Constitutional Court and the
CJEU41, EU law is not considered to be international law, but a special
system of law. This reason partially served as a basis to demonstrate
that there is no implication in the question about affecting any obligations with regard to Hungary’s participation in the European Union,
which would clearly be a prohibited topic of any referendum. Secondly, the SC denied the arguments concerning the lack of competence
of the Hungarian Parliament. The reasoning of the SC is based on the
statement that the competences of the Parliament shall be considered
open-ended towards any issue taken place in the society. The issues
of asylum and migration, goes on the argument of the SC, are clearly
such topics that are under the legislative competence of the Parliament, which is further demonstrated by Act LXXX of 2007 on the law
of asylum. As an additional ground to justify the Parliament’s competence on refugee matters, the SC argued that in the latest amendments of the Hungarian law, new concepts were introduced, such as
the “mandatory settlement”42 that requires the legislative action of the
Parliament. Finally, the SC rebutted the arguments about the lack of
clarity of the question, saying that the term “mandatory settlement”
is known by the Act on the law of asylum and is widely used in the
public discourse, therefore the citizens are already familiar with its
The decision justifies this argument by referring to the case Costa contra E.N.E.L.
(C-6/64, EU:C:1964:66) and the decision of the Hungarian Constitutional Court, in which it reviewed the constitutionality of the Lisbon Treaty [Decision no. 143/2010 (VIII.
14.) AB]. See the summary of the decision in English, https://hunconcourt.hu/uploads/
sites/3/2017/11/en_0143_2010.pdf (visited on 30/11/2020).
42
This expression comes from the Act CLXXV of 2015 on «the protection of Hungary and the European Union and on the challenge of the mandatory resettlement quota». Although, in the European legal discourse the phrase “mandatory settlement” does
not exist, rather the terms “applicants for international protection” and “relocation” is
used. Contrary to this, Hungarian political discourse and legal measures are centered
around the terms “migration”, “economic migrants” and “forced settlement”, which indirectly imply that the status of those who will be relocated could be illegal and that they
would be settled in Hungary.
41
72
Johanna Fröhlich
meaning. Similarly, the arguments on the lack of an unequivocal understanding of the legislative obligation of the parliament, the SC argues that it concerns the Act on the law of asylum or other legislative
measures by the Parliament or by the Government43.
The next stage of the legal actions taken around the refugee referendum was the appeal to the Hungarian Constitutional Court (HCC).
The decision of the SC was brought to the HCC in the framework of
a constitutional complaint, the necessary requirement of which is to
be initiated by an individual whose fundamental rights were violated
by the concrete judicial decision in question. Because of certain dogmatic constructions in the jurisprudence of the HCC, the appeal was
rejected on a preliminary level, without discussing the merits of the
case44.
However, the decision does not cover any consideration on the
merits, the concurring opinion drew attention to some substantial
reasons regarding why Hungary shall have the sovereign right to take
independent measures in the refugee crisis and why it is permissible to
hold a popular referendum in this issue. Their main argument is that
the massive in-flow of migrants resulted in an emergency situation
[see, TFEU Art. 78. (3)] in Hungary, which gives basis for treating the
provisional measures regarding asylum as reserved competences of
the Member States [see, TFEU Art. 79. (4)]. According to this view,
cooperation in the fields of asylum and immigration policy shall be
developed through common policies, but this could not mean to force
either the Members States or the asylum-seekers to settle in a certain country. These decisions, goes on the argument of the concurring
opinion, shall be reserved for the sovereign Member States in line
with the principle of subsidiarity. About the problem of the referendum, the concurring judges argue that while the refugee quota deci43
Zoltán Pozsár-Szentmiklósy criticized and rebutted all the arguments of the Supreme Court in a systematic manner. One of his strongest points is that European law
should have been treated as international law in the specific framework of the prohibited
topics of referendum. His argument is that by using teleological arguments the SC should
have decided that the purpose of the prohibition is to guarantee the Member States’
faithful execution of all external legal obligations, such as the ones too that stem from
EU law. See, Z. Pozsár-Szentmiklósy, A Kúria végzése a betelepítési kvótáról szóló népszavazási kérdésről, cit., 82.
44
Cf. Decision 3130/2016. (VI. 29.) AB. The authors of the concurring opinion are
Justice András Zs. Varga and Justice Béla Pokol.
The Crisis of Public Participation. The Case of the Hungarian Refugee Referendum
73
sion touches the foundations of the country’s sovereignty (through
crucially altering its population), any answer to the refugee crisis shall
consider the will of the people; just as it did when the Hungarian
people were asked about the country’s participation in the European
Union.
4. The popular referendum and its aftermath
The popular referendum was held on October 2, 2016, the question of which stirred a heated debate in the Hungarian society on both
ends of the political spectrum and in the public discourse. The public
space was filled with heated emotions due to the extensive use of government billboards on the dangers of the anticipatory flow of migrants
that generated a downbeat and pessimistic atmosphere. In the midst
of this dark campaign, many found relief in the refreshingly sarcastic
counter-billboards making fun of the government’s communication
by Hungary’s joke party, the Hungarian Two-Tailed Dog Party. The
joke party exhorted to cast invalid votes, which will be important in
understanding the results of the referendum.
In the end, the referendum could not mobilize enough citizens,
which led to an invalid referendum, as less than half of all the voters
casted their vote45. Among those who voted validly, the majority of the
NO answers was sweeping, more than 98%. It seems safe to say that
only those who supported the government’s policy – and therefore
voted with YES – participated in the referendum. Those who were
against it or doubted the legitimacy of the whole referendum stayed
away from the ballots or voted invalidly. Invalid votes reached a historical peak with a 6 % out of the number of all voters. Besides the
indifference towards the question, another worrisome detail was the
low quality of public discourse, where instead of engaging in an honest debate through real arguments, many public actors rather spread
gloomy and malleable rumors46 in order to conquer the will of the
people.
Out of over 8.200.000 voters, not even 3.500.000 casted their votes, which is only
41,32% of all those citizens who have the right to vote. See, http://www.valasztas.hu/
osszesitett-eredmenyek-nepszavazas-2016.10.02 (visited on 30/11/2020).
46
It seems that the fight against distortion of truth should be a common enemy.
A. Juhász, P. Szicherle, Migrációs álhírek, dezinformációk és összeesküvéselméletek po45
74
Johanna Fröhlich
However, the referendum was not legally binding, the government
insisted that it still carries the unambiguous will of 3,5 million Hungarian citizens, which shall be considered enough to endorse a constitutional amendment. In the light of these developments, a week
later, the government issued the seventh amendment to the Fundamental Law47. The motion of the amendment was designed to provide
a constitutional basis for a stronger protection of Hungary’s national
sovereignty and its decision-making in the European Union. One of
the core ideas of the planned constitutional amendment was to implement the concept of “constitutional identity”. According to the
original text, a reference would have been implemented in the preamble as follows: «We believe that the protection of our constitutional
identity rooted in our historic constitution shall be the fundamental
duty of the state». Furthermore, the amendment would have provided
additional rules on the limits of Hungary’s participation in the European Union, as follows: «The exercise of the shared competences
[between the European Union and Hungary] shall be in concordance
with the fundamental rights and freedoms guaranteed by the Fundamental Law, as well as it cannot restrain Hungary’s inalienable right to
self-determination with regard to the unity of its territory, its population, form of state or state organization».
The original motion of the Seventh Amendment to the Fundamental Law could not be adopted, because the government coalition was
short of the necessary support in the Parliament. Things took another
turn since then, as the governing coalition renewed its majority and
won more than the two-thirds of the seats in the Parliament in the latest parliamentary elections in April, 2018. The Seventh Amendment
was therefore revitalized again and this time, the Parliament adopted
it with the necessary two-thirds majority48.
On a rhetorical level the changes could be observed more important than their actual practical influence. On the one hand, the concept
litikai hatásai [Political effect of fake news, dezinfromation and conspiracy theories in
migration], in Political Capital, 2017; Századvég No. 84. Álhírek 2017/2. [Special Issue
on Fake News] https://szazadveg.hu/uploads/media/59888870e25b0/szazadveg-84-alhirek-201708.pdf
47
Cf. parliamentary docket number T/12458, October 10, 2016, http://www.
parlament.hu/irom40/12458/12458.pdf (visited on 30/11/2020).
48
The changes will enter into force on January 1, 2019.
The Crisis of Public Participation. The Case of the Hungarian Refugee Referendum
75
of “national identity” is already known and applied in EU law49, however its objective was slightly different from the present Hungarian
context.50 On the other hand, the HCC has always held the national
constitution to be supreme and regarded that if the EU law is contrary
to the constitution, it cannot be applied in Hungary51.
However, in the end the amendment of the Fundamental Law
was successful, the doctrine of the Hungary’s constitutional identity was discussed by the HCC. The Hungarian Commissioner for
Fundamental Rights initiated the interpretation of those articles of
the Fundamental Law that concern the expulsion of foreign citizens
and the joint competences of Hungary and the European Union.
The HCC in the Decision 22/2016. (XII. 5.) AB52 stated that the
joint exercise of the competences with the European Union is not
49
Art. 4 (2) of the Treaty of the European Union (TEU) explicitly prescribes equal
respect to the national identities of all Member States: «The Union shall respect the
equality of Member States before the Treaties as well as their national identities, inherent
in their fundamental structures, political and constitutional, inclusive of regional and
local self-government. It shall respect their essential State functions, including ensuring
the territorial integrity of the State, maintaining law and order and safeguarding national
security. In particular, national security remains the sole responsibility of each Member
State».
50
Tímea Drinóczi presents a systematic overview of the use of national identity in
the practice of the CJEU, according to which the concept of national identity has not provided basis before in order to create exceptions from the duty to comply with European
law. T. Drinóczi, Az alkotmányos identitásról. Mi lehet az értelme az alkotmányos identitás
alkotmányjogi fogalmának? [About constitutional identity. What could be the meaning
of the constitutional concept of constitutional identity?], in MTA Law Working Papers,
15, 2016, 3; Z. Fejes, Constitutional Identity and Historical Constitution Clause in the
Hungarian Fundamental Law and its Effects on Constitutional Interpretation, in Z. Szente,
F. Mandák, Z. Fejes (eds.), Challenges and Pitfalls in the Recent Hungarian Constitutional Development. Discussing the New Fundamental Law of Hungary, Paris, 2015; Z.
Körtvélyesi, B. Majtényi, Game of Values: The Threat of Exclusive Constitutional Identit,
the EU and Hungary in German Law Journal, 18, 7, 2017, 1722; Alaptörvénymódosítás
hetedszer: sok papetikus hűhó a semmiért [Seventh Amendment to the Fundamental
Law: much pathetic ado about nothing], in Igyirnankmi.atlatszo.hu, October 11, 2016,
https://igyirnankmi.atlatszo.hu/2016/10/11/alaptorvenymodositas-hetedszer/ (visited on
30/11/2020).
51
Decision of 30/1998. (VI.25.) AB, 220, 234.; Decision of 32/2008. (III. 12.) AB,
ABK 2008. 319, 322.
52
See the whole decision translated to English, https://hunconcourt.hu/uploads/
sites/3/2017/11/en_22_2016.pdf (visited on 30/11/2020); T. Drinóczi, The Hungarian
Constitutional Court on the Limits of EU Law in the Hungarian Legal System, in Int’l J.
Const. L. Blog, 2016.
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Johanna Fröhlich
unlimited, and – based on Art. 4 (2) of the TEU and Art. E) (2)
of the Hungarian Fundamental Law – established two main limitations. The first one is that the joint exercise of competences shall not
violate Hungary’s sovereignty (sovereignty test) and secondly, it shall
not lead to the violation of the constitutional identity (identity test)
(Reasoning [54]).
The HCC provided some reference points for the interpretation
of the constitutional identity, for instance that it is to be unfold “on a
case-by-case basis” taking into consideration the whole Fundamental
Law, and certain special parts, such as the preamble and the article
on the achievements of Hungary’s historical constitution (Reasoning
[64]). We can learn from the decision that constitutional identity is
not a static and exhaustive list of values, but a fundamental value that
is not created, but only acknowledged by the Fundamental Law. This
means, goes on the argument of the HCC, that «constitutional identity cannot be waived by way of an international treaty», but Hungary
can only be deprived of it «through the final determination of its sovereignty» (Reasoning [67]). The decision also stressed out that the protection of constitutional identity may be raised «in the cases having
an influence on the living conditions of the individuals, in particular
their privacy protected by fundamental rights, on their personal and
social security, and on their decision-making responsibility, and when
Hungary’s linguistic, historical and cultural traditions are affected».
(Reasoning [66]).
5. The neuralgic points of popular referendum
The summary of the consecutive events of the refugee quota referendum leaves us wonder whether the means of popular referendum is suitable to express the public opinion and if it is safe to place
the basis of legitimacy in its results. In the following, I will elaborate
a critical stand against popular referendums and point out the most
important neuralgic points based on practical and theoretical considerations.
1) Popular referendum reduces people’s participation to merely cast
their votes in the voting booths:
Referendum is a device of direct democracy, the importance of
which has increased a great deal in the recent period not only in lib-
The Crisis of Public Participation. The Case of the Hungarian Refugee Referendum
77
eral democracies53, but in those countries as well that would not qualify clearly as constitutional democracies54. This institution is strongly
connected to the legitimacy of public decisions, while it creates a direct, one-step relation between the decision and the public, i.e. the
decision and the sovereign. However, direct democracy was not so
prevalent before, when the effectivity and accountability of representative government were questioned and criticism arose against the rigid party system and the corrupt representatives. A heated debate took
place in many countries in Europe and in the United States in the late
19th and early 20th century about popular referendum and representative democracy55. After the WWII, the debate on popular referendums became obsolete, but recently it returned to the academic and
public life in our contemporary time.
One dominant point of view among academics is the one that attributes an exceptional role to popular referendums compared to representative democratic methods.56 Referendums however are mostly
designed to offer a simple, binary-code type of choice to the people,
which reduces their participation to a one-shot decision (YES or NO)
in a concrete issue. Popular referendums cannot generate a public
space where the aggregation of true voters’ preferences is possible.
The solutions offered in a popular referendum do not – and cannot
– reflect on the opinions and interests of the whole political community, for two basic reasons. First, figuring out how the people want to
decide a concrete case, is not the purpose of a popular referendum.
Principally, referendums are designed to “approve” or “disapprove”
decisions that supposed to be already made on the level of traditional
party politics. Only in exceptional cases, as I will refer to it later, referendums are called to express the identity of the political community
in order to legitimize certain sensitive decisions. Second, there are
several democratic and less democratic means to manipulate the public opinion and the outcome of a popular referendum in order to get
the expected result.
The experience from the Hungarian case is suitable to shed light
L. Morel, Referendum in M. Rosenfeld, A. Sajó (eds.), The Oxford Handbook of
Comparative Constitutional Law, Oxford, 2013, 502.
54
D. Landau, Abusive Constitutionalism, in US Davis Law Review, 47, 2013, 189.
55
L. Morel, Referendum, cit., 503.
56
Ivi, cit., 504.
53
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Johanna Fröhlich
on the numerous difficulties of the attempt to justify public decisions
through referendums. First, the question(s) of any referendum are designed to favor a certain outcome, and they are always incomplete.
The refugee quota question was not simply one-sided, but through its
terms and clear counter-position against the EU’s policy and against
migrants, it tackled only the party’s own supporters. It does not simply mean to ignore the opinion of the rest of the political community,
but – even if it is unintended – it also sends a message about the value
of public participation. At least for the majority of the Hungarian voters (who did not participate in the quota referendum), it is clear that
popular referendum is not about contributing to a common decision,
but more about standing behind a party’s political program, independently from what the concrete question is. The abuse of popular referendum, however, has consequences, such as the citizens’ alienation
and detachment from the decision and voter fatigue in general. In the
Hungarian case, the abuse of people’s trust in the institution’s capacity to truly contribute to the solution of a common problem, gathered
momentum when the joke party launched its campaign to vote invalidly. Moreover, the government party reaffirmed its cynical stand,
when it argued that despite the invalidity of the referendum, it would
still initiate a constitutional amendment.
The requirements of proper justification for public decision-making, just as the condition of a well-informed and moderate society
are such requirements that can considerably affect the outcome of
any popular choice. Returning to the Hungarian example, the government’s billboard campaign did not help these goals, even less, the
intensity in both the accelerated rhetoric and in the frequency of the
billboards all around the country created a hostile gap not only between foreigners and Hungarians, but among Hungarians as well.
2) Popular referendum is trapped in the false debate about “Who
said it?”:
Popular referendums were created to solve a sovereignty issue:
how to guarantee the legitimacy of laws as public decisions. One pretty popular and wide-spread way to do it is to allude to the author
of the law, in other words to refer to a person (i.e. president) or to
a group of people (i.e. members of parliament) who exercise their
power to enact the laws. In representative democracies this approach
could contribute to the values of foreseeability, stability, legality and
finally to the rule of law, because the power to enact laws is exercised
The Crisis of Public Participation. The Case of the Hungarian Refugee Referendum
79
by those who clearly have competence to do that according to the
laws. In line with this, the “rule of the people” shall be limited to
establish exceptional decisions and not to be become the regular procedure. In the case of referendums, the question of “Who decides?”
trumps the question of “How to decide?”, which is the reason why it
undermines the quality of public decision-making57. Political parties
are so fond of popular referendums not in order to give a fair share in
the decision-making, but because of its expected capacity to mobilize
their supporters and legitimize their political decision.
Referendums therefore inherently carry the problem of the “authorship syndrome”58. According to this, the binding nature of public
decisions is based on the fact that it was enacted by certain people,
who were accepted to have such a power. The theories that suffer
from the authorship syndrome, try to trace back the normativity of
public decisions to the authors (the people, the constituent assembly,
the legislature, etc.) of the laws that they apply. According to Michelman, «such an authorial view of constitutional origins is the sheerest
banality, a view as simplistic as it is inevitable, a commonplace vernacular notion that cannot withstand critical examination»59. Indeed, it is
a banality, one that has survived and even more, flourished for so long
in our constitutional systems. The reader may ask, why is it wrong
exactly to explain the legitimacy of public decisions merely on the
grounds of their author.
The following example from Roman law seems ideal to make my
point. At the time of the revival of Roman Law in Europe, in the 12th
century, the need to apply a common law for a society that regained its
strength in commerce and social relations emerged with new dynamics. At the same time, it was necessary to provide a proper justifica-
57
Traditionally this is why constitutional doctrine limits the use of referendum to the
approval of a new constitution or its amendment, and to sovereignty issues. See, K. Loewenstein, Political Power and the Government Process (1957), in L. Morel, Referendum,
cit., 504. fn. 12; Stephen Tierney identifies very similar types: founding new states, creating or amending constitutions, establishing complex new models of sub-state autonomy,
and transferring sovereign powers from the state to international institutions. S. Tierney,
Constitutional Referendums: A Theoretical Enquiry, in The Modern Law Review, 72, 3,
2009, 360.
58
F.I. Michelman, Constitutional Authorship by the People, in Notre Dame Law Review, 74, 1999, 1605.
59
Ivi, 1605.
80
Johanna Fröhlich
tion for the use of Roman Law after some centuries of lying dormant
in Catholic monasteries. Dante, in his treatise on the Monarchy, was
discussing the possible reasons for the revivification of the Roman
Empire and tried to justify the use of Roman Law. «The goal of the
Monarchia was to establish the authority of the Roman Empire by rational arguments. (…) But if Dante had invoked Roman law as an authority to demonstrate the authority of the Roman Empire, he would
have committed the logical fallacy of begging the question (…)»60. In
other words, arguing that the law of the parliament (the people, or
the president) is legitimate because it was made by the parliament
(the people or the president) would be a self-referential fallacy61. Just
as Dante, and many others in history argued, we shall provide substantial reasons for the laws and public decisions we make, in order
to avoid a pure power struggle in the game called “who is stronger in
saying so”.
In the democratic theories of the referendum, many started to
argue that instead of participation, the democratic decision-making
procedure shall concentrate on deliberation62. According to the arguments of this line of thought, if the people are given a suitable framework for deliberation and discussion, it would not be any more a oneshot choice, but a true decision, accountable to the people. In my
point of view, there are at least two aspects, in which the deliberative
democratic theories are still proven to be insufficient. The first is that
they only fix the first neuralgic point I mentioned, namely they offer
a more sophisticated and complex technique in order to channel the
public opinion in a more effective way. The problem with the self-referential argument however is not solved, and the second neuralgic
point still applies. Secondly, a constructive referendum does not only
60
Roman law in Dante’s Monarchia in E.B. King, S.J. Ridyard (eds.), Law in Mediaeval Life and Thought, Columbia, 1990, 264.
61
I am using the term following, J. Boyle, G. Grisez, O. Tollefsen, Free Choice: A
Self-Referential Argument, Notre Dame, 1976.
62
«Proponents of deliberative democracy (…) recommend supplementing referendums with popular deliberative forums that would take place before the actual wording
of the [referendum] question or proposed legislation is formalized». L. Morel, Referendum, cit., 506. For the proponents of deliberative democracy, see for instance: J. Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, Cambridge-(MA), 1992; J.S. Fishkin, Democracy and Deliberations: New Directions for
Democratic Reforms, Yale, 1991.
The Crisis of Public Participation. The Case of the Hungarian Refugee Referendum
81
require that arguments are presented and measured against each other, but it also requires a complete political community.
3) Popular referendums do not function without a complete community:
The existence and definition of the political community is an important condition even for those, who are in favor of popular referendums. For instance, Tierney argues that referendums are not only
for public decision-making, but they also serve as a crucial tool for
self-expression and self-definition, which emerges especially in the
case of referendums on constitutional change.63 The condition of a
complete community does not only refer to the existence of a demos,
but also to the possibility to define the demos, to show a certain quality of the community that comes from the unity in common goals and
activities. Finnis defines this special quality by arguing that a complete
community is «an all-round association in which would be co-ordinated the initiatives and activities of individuals, of families, and of
vast network of intermediate associations. The point of this all-round
association would be to secure the whole ensemble of material and
other conditions, including forms of collaboration, that tend to favour, facilitate, and foster the realization by each individual of his or
her personal development»64.
Referendums become even more problematic when the identity of
the people is contested or the society is so divided that it is very problematic, if not impossible, to attribute a self-definition to the whole
community. If the community is struggling to define itself, popular referendums become highly controversial65 tools both for decision-making and for self-definition. Furthermore, in divided societies66 the
situation is even more difficult. In a divided society the identity of
the political community is not constructed and shaped by dialogue,
deliberation or reasoned debate, but on the basis of ethnical, linguistic, religious or cultural differences. In a society like this, differences
become “persistent markers of political identity” even in simple coordination issues, which hardens to respond to any type of social-legal
S. Tierney, Constitutional referendums, cit., 379.
J. Finnis, Natural Law & Natural Rights, Oxford, 2nd ed., 2011, 147.
65
S. Tierney, Constitutional referendums, cit., 375.
66
S. Choudhry, Bridging Comparative Politics and Comparative Constitutional Law:
Constitutional Design in Divided Societies, in University of Toronto Faculty of Law – Legal
Studies Research Series, 9, 1, 2009.
63
64
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Johanna Fröhlich
challenge. Choudhry argues that one of the most important difference
between a unified and a divided society is the constitutional regime,
which in the latter case serves the «principal vehicle for the foregoing
of a political identity»67 and to secure governing.
I would not say that the Hungarian society is divided in the sense
Choudhry describes it, but our identity is indeed contested68. If we look
at the Hungarian referendum on the refugee quota, the question did
not reflect on what the political community as a whole considered to be
relevant or adequate, but on something that needed additional justification from its loyal supporters. The Hungarian referendum was a further
step towards deeper and more serious social divisions, something that
is incompatible with its constitutional role. Because of this polarization,
the refugee referendum was rather like a party mobilization event than
an attempt to express the identity of the community, even less an attempt to make a decision. This explicit rejection towards those who do
not share the same opinion, in the end hindered the people’s participation to the extent to cause an invalid referendum. Such hostility does
not simply deepen the distrust in democratic institutions, but it has a
more far-reaching effect on the culture of participation.
6. An integral approach to person and participation
Popular referendums can be useful in order to express and measure the public opinion in questions about the sovereignty of the political community, especially where there is a strong democratic culture.
Referendums have however serious limitations not only technically in
achieving this goal, but also theoretically in corresponding with the
qualities of a good decision. However, there are successful examples
too about direct decision-making procedures, like in Switzerland,
where popular initiatives have the capacity to be a channel for raising relevant issues69, but we can safely say that this is an exception.
67
S. Choudhry, Bridging Comparative Politics and Comparative Constitutional Law,
cit., 5-6.
68
Such contested identity is noticeable for instance, in a great academic attempt to
face and analyze the manifold political, social and economic problems in Hungary. See,
A. Jakab, L. Urbán (eds.), Hegymenet. Társadalmi és politikai kihívások Magyarországon.
[Ascent. Social and political challenges in Hungary], Budapest, 2017.
69
Even in the case of Switzerland, preoccupations emerge from the point of view
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A more common trend is that referendums artificially force voters’
sensitivities into a binary code, on the basis of which political parties
escape responsibility for trying to make a substantially good decision.
There are several preconditions of successful referendums, starting from a fair regulation that makes the institution accessible for all
serious initiatives, a balanced and quality media, freedom of public
information, an acceptable level of public education, and a firm and
active public discourse. However, even in an ideal situation, the most
serious problem with deciding concrete issues through referendums
is that the vote is trapped in the power struggle about “Who says it?”
What is the solution then? Does this mean that we should not use
referendums to make public decisions? Even though there are several
problems with referendums, this does not mean that they should disappear from our constitutions. Most of the times, the way how we do
something is just as important as what we do. In the Hungarian case,
for instance, over-using popular referendum is clearly something that
devaluates public participation.
There is a precondition to any popular referendum, which is based
on our own personal in the societal life of the community. Where one
cannot engage in an honest and respectful debate about what is good
or bad on a personal or community level, referendums too will fail
to fulfil their limited purposes. The virtue of public participation lies
in our intention to fully and honestly enter into the debate and try to
provide substantial arguments for what we consider to be a good solution. In order to do this, rights and legal guarantees are not sufficient
(however necessary) tools; we, ourselves need to be and act according
to the demands of a participatory society; live in accordance with what
we say, think and do, as an aspect of living integrally. We need to be
open and responsible, free and honest, and through our every-day
actions create the foundations of a society where people care for each
other, where families and associations of persons care for their homes,
for their cultures and wider communities, and for those in need, no
matter where they are coming from.
In case anyone thinks we have come too far, I have to disagree.
Most of the democratic rule of law countries we are dealing with here
of international law limits to popular referendums, as the example on the prohibition of
minarets shows. Cf. A. Peters, The Swiss Referendum on the Prohibition of Minarets, in
Blog of the European Journal of International Law, 2009.
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(and no-rule-of-law-countries too, interestingly enough), have a fully-fledged fundamental rights catalogue in their constitutions, dozens
of legal guarantees and various institutions for the faithful execution
of those rights. Still, it does not seem to be sufficient. The argument
about the crisis of public participation obviously does not only concern popular referendums, but the whole democratic decision-making
edifice. We will find similar arguments if we look for the foundations
of strong democracies70. Strong democracies require strong democratic culture, which means that personal attitudes in general practice
correspond to the values and principles of democracy and citizens are
empowered to participate on the local level, and not only in regular
elections. Democratic culture also means that the idea of limited powers is respected, and citizens abide by the laws not only because that
is what the law says, but also because by understanding the good that
it corresponds to, they impose self-retrain even where the law is unclear in the concrete situation. Furthermore, a democracy is stronger
if the underlying community is less polarized. Deep social divisions
are provoked by economic difficulties and weak democratic culture;
however, the vicious circle could be broken on the long run through
personal attitudes. No system of norms could ever work sufficiently
without people putting those values and rights in everyday practice71.
The learning process of participation can only happen on a personal level. When we personally lost our ways to see why participation
could be good for us and for others, why does losing it on a social level
strike us as a surprise? Political parties and elites have a great deal of
responsibility in showing and continuously reaffirming the good of
70
Zsolt Boda lists very similar requirements of a strong democracy to what I mentioned in connection with popular referendums. Besides a strong democratic culture and
elimination of polarization, he argues that institutional innovations could also help and
promote democratic practice. See, Z. Boda, Nem, ennél még nem találtak ki jobbat [No,
no one has found a better solution yet], in A. Jakab, L. Urbán (eds.), Hegymenet. Társadalmi és politikai kihívások Magyarországon, Budapest, 2017, 103-109.
71
The same questions arise with regard to the constitutionalization of the European
Union. Weiler argues that whereas the regulatory framework of the European Union does
uphold high ideals – such as those embodied in the European Convention on Human
Rights, this is not enough. He contends that those ideals are doomed to failure if they are
not put into everyday practice with and through the personal virtues of both European
citizens and European officials. J. Weiler, Europe: Nous coalisons des etats, nous n’unissons pas des hommes in M. Cartabia, A. Simoncini (eds.), La sostenibilitá della democrazia
nel XXI secolo, Bologna, 2009.
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public participation; but we, citizens cannot refuse to act integrally
until this happens. These values shall be built in our everyday life, ideally through authentic personal experiences, so that we can promote a
democratic, participatory culture from the bottom-up level72.
If the goal is to participate fully and honestly in the debate about
how we, Hungarians would like to answer to the global challenges of
mass migration, there is no place for dangerous over-simplifications
and cheap manipulations of the public opinion, like the ones we saw
in the billboard campaign. It is possible to use a sharp rhetoric in order to persuade our counterparts, but it can never be good to personally destroy the other, no matter how much we believe in the solution
we offer. Denying the worth of the other’s opinion, who is honestly
and truthfully looking for a solution, leads to deny the value of our
own judgements too. If opinions are all about unchangeable political
preferences, why one decision would be better than another; why and
how my argument could be better than others’ if it is all about who
said it? Only a common objective could offer a meaningful alternative, which is to accept ourselves and others as persons with equal
dignity, and as persons who are continuously looking for what is good,
true and beautiful, not only for us, but for everyone else.
Promoting the idea of an authentic participatory society is a common interest.
See, P. Donati (ed.), Towards a Participatory Society: New Roads to Social and Cultural
Integration in Acta 21 Vatican City, 2017, http://www.pass.va/content/scienzesociali/en/
publications/acta/participatorysociety.html (visited on 30/11/2020).
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