The Controversial Anti-Migrant Referendum in Hungary is Invalid

Zoltán Szente

Institute for Legal Sciences, Hungarian Academy of Sciences, Budapest

Regardless of the intense government campaign which lasted more than a year and the involvement of almost the entire state apparatus, the Government-initiated anti-migrant referendum held on 2 October proved to be invalid due to low turnout.

The Hungarian Government initiated a national referendum in February 2016 against the controversial quota system proposed by the EU for the resettlement of migrants among the Member States (see Council Decision (EU) 2015/1601 of 22 September 2015).  According to this plan, the member countries should share the burden of the migrant crisis relocating the asylum seekers from the front-line states (Greece and Italy) among all member states. Under this plan, Hungary should admit 1,294 people from the total of 160,000. The Hungarian Government, led by Mr Viktor Orbán had an anti-immigration stance from the very beginning of the migrant crisis, after Hungary was deeply affected by the migrant influx to Europe last year. Earlier this year the Hungarian Government filed a case at the European Court of Justice arguing that the EU institutions do not have the power to compel the Member States to allow migrants to settle in. However, the government parties (the right-wing Fidesz and its satellite party, the Christian Democratic Party) did not wait for the ECJ’s ruling, but proclaimed a national referendum on the issue. The referendum question was: ‘Do you want the European Union to be entitled to prescribe the mandatory settlement of non-Hungarian citizens in Hungary without the consent of National Assembly?’ Before the referendum, the Government campaigned for ‘no’ votes saying that only Hungarians themselves may decide with whom they want to live.

However, the turnout did not reach the validity threshold set by law (more than half of the voters), as only 40.32% of the voters cast valid votes (the proportion of the protesting invalid votes was unprecedentedly high, 6.17%). Thus, the referendum result is not binding for the Parliament, whatever this would have been (see below).

Apart from the political gains and pains of the referendum, its moral ground, political objectives and constitutional basis were all heavily criticized.

The criticisms put the moral basis of the referendum into question, because the majority of the ‘no’ votes, independently of the validity of the popular vote, provides support for the Government’s policy which aims at keeping all refugees and immigrants outside the country.

Thus, it means the refusal of any solidarity with people who are fleeing from war or other armed conflicts, and the intensive hate campaign can stimulate xenophobia and racism in the country.

The political objections against the referendum have been based on the assumption that it might be a first step towards the ‘Huxit’, that is, Hungary’s exit from the European Union. Others claimed that the referendum is nothing but a new manifestation of the populist policy of the right-wing government to get more political support by enhancing and exploiting the existing fears of citizens.

Here, however, the constitutional concerns deserve more attention. In fact, the whole process of the referendum reflects the state of the rule of law in Hungary, as each of its stages has raised serious constitutional problems.

1. The constitutional problems regarding the referendum question

First and foremost, the referendum question itself raised constitutional disputes. According to the Fundamental Law of 2011, ‘[n]ational referenda may be held about any matter within Parliament’s responsibilities and competences’ (art 8 para (2) of Fundamental Law of 2011).  The result of the popular vote is binding for the National Assembly, and the outcome of the referendum must be enacted by Parliament accordingly.

In addition, according to the Law on Referendums (Law No. CCXXXVIII of 2013) and the established practice of the National Election Commission (NEC) and the courts, the referendum question must be clear and unambiguous; this means not only the question must be understandable for an average citizen who speaks Hungarian, and answerable with ‘yes’ or ‘no’, but the legislative implications should also be unambiguous. In other words, it must be clear what legislation the National Assembly has to adopt in order to implement the decision of the referendum. So far, the NEC, and the courts (including the supreme court (Kúria) and the Constitutional Court) have always strictly adhered to these requirements, extremely narrowing the possible scope of national referenda. Furthermore, some parliamentary competences may not be the subject of a referendum. Thus, according to the Fundamental Law, no popular vote may be held on ‘any obligation arising from an international agreement’ (Art. 8 para (3) point d) of Fundamental Law of 2011).

In the case of the so-called quota referendum, none of these requirements were met. Firstly, as the wording of the question shows, the question of the quota referendum was not about the powers of the national Parliament, but was related to a special measure of the European Union’s migrant policy. Thus, nobody knew what kind of law the National Assembly should (or could) have adopted in order to implement a valid referendum decision in this case.

Secondly, since the constitution’s EU clause provides that in order to participate ‘in the European Union as a member state, Hungary may exercise some of its competences arising from the Fundamental Law jointly with other member states through the institutions of the European Union under an international agreement’, all requirements of the EU membership derive from ‘international agreement’ about which no referenda may be held.

Finally, it is worth noting that the question was deceptive, because there is no EU regulation which would require ‘mandatory settlement of non-Hungarian citizens in Hungary’. The Council Decision, cited above, proposes only the distribution of the refugee proceedings of asylum seekers and their relocation from Italy and Greece among the member states.

But in this case, the NEC and the high courts spectacularly deviated from their previous practice and found the referendum question lawful.

While the NEC simply ignored its legal duty to give reasons for its own approval of the referendum question (Decision 14/2016 of the National Election Commission),  the Kúria, the Hungarian Supreme Court gave a detailed reasoning for its own ruling. The Court put aside the relevant constitutional provision and decided the issue taking into account only the Law on Referendum. It also referred incorrectly to a landmark case of the European Court of Justice arguing that the EU law cannot be regarded as international law (Costa v. ENEL (1964) Case 6/64).  It was important because, if the provisions of the EU law (including Council decisions) do are not characterized as international law, they may be subjects of national referenda. Since this argumentation can easily lead to the rational consequence that a referendum could even be initiated for the exit from the EU, the Court declared, without any explanation, that the EU membership of Hungary should not be subject to national referendum. The Kúria found that the legislative power of the National Assembly extends to regulating any public affairs, therefore the Parliament may take over any legislative competence. It is an embarrassing argument, because it makes the constitutional limitation of national referenda (only matters falling within Parliament’s responsibilities and competences) dead letter. The Court did not examine whether the presumption of the referendum question is true or not, declaring only that the word ‘settlement’ is quite understandable for any Hungarian citizen (Decision IV.37.222/2016/9 of the Kúria).

The Constitutional Court, for procedural reasons, dismissed all constitutional complaints which had been submitted for annulling the relevant decisions of the Parliament and the Kúria (Decisions 12/2016. (VI. 22.) and 3151/2016. (VII. 22.) of the Constitutional Court).

2. The constitutional disputes on the referendum campaign

The political campaign organized by the Government also evoked a number of objections and constitutional concerns. Some weeks before the referendum, the streets of Budapest and other big Hungarian cities were flooded with posters of the right-wing Government against migrants trying to draw a parallel between migration and terrorism. Street placards as well as TV advertisements used slogans like: ‘Did you know? The Paris attacks were carried out by migrants’, and ‘Violence against women has increased exponentially since the start of the migrant wave’, or ‘In Libya alone, a million migrants are waiting to come to Europe’. The ‘information leaflets’ sent by the Government Information Centre to all households asserted that ‘more than 900 no-go zones’ had been set up in Europe because of the migrant influx.

This political propaganda was legally problematic for several reasons.

One of the legal problems was that the Government ignored the provisions of the Law on Election Procedure limiting the campaign period (which opens 50 days before the referendum: Art. 139, Law No. XXXVI on the Election Procedure). In fact, the anti-immigration campaign was launched more than a year ago, and has intensified since February, when the European Union’s plan to distribute asylum seekers among its Member States became known. Other critics claimed that the Government campaign disseminates false allegations (like: “Did you know? Brussels wants to settle a townful of illegal migrants in Hungary”) and in this way, it was manipulative and unbalanced. Another objection criticized the violation of the equal opportunities of the candidates and the nominating organisations (here: the opposing parties), which is a basic principle of the election procedure (Art. 2 para (1) point c), Law No. XXXVI on the Election Procedure. It is to be noted that in the absence of special provisions, the rules of elections must be applied to referenda too).  In fact, while the Government spent from the state budget more than ten billion HUF (more than 30 million euros) for the referendum campaign, and also mobilized the public media and a number of administrative agencies, its opponents spent less than one per cent of this amount to advertise their preferences.

However, both the NEC and the Kúria rejected all these complaints. They both ignored the provision on the time-limit of the referendum campaign, with a simple reference to the legal definition of ‘political campaign’ according to which campaign activities are those that take place during the campaign period. The NEC, as a body which is responsible for the legality of the election and referendum processes, and the Kúria, the highest judicial tribunal, concluded that any kind of political activity which happens outside this period, cannot conceptually be a campaign, whatever its form or purpose is (Decision 50/2016. of the National Election Commission and Decision II.37.710/2016/2. of the Kúria). This explanation was completed with a no less cynical argument claiming that all political advertisements of the Government before the campaign period were only ‘information’, rather than campaign activities (even though there was no substantive difference between the respective advertisements) (Decision 53/2016. of the National Election Commission and Decision I.37.723/2016/3. of the Kúria). Rejecting the citizens’ complaints about the violation of the principle of equal opportunity during the referendum campaign, both the NEC and the Supreme Court found that the Government has such a special place in the system of separation of powers that it may use any resources in a case when it is the initiator of a national referendum itself: [in such a case] ‘the Government may use any possible legal instruments to express its own standpoint’, extending this empowerment to spend public money in the campaign (see, eg, Decision 90/2016. of the National Election Commission and Decision III.37.901/2016/2. of the Kúria). The approach, which does not recognize the effect of a legal guarantee of fundamental rights against the Government, a prominent agent of the public power, is indeed a legal innovation and a unique interpretation of law even in Hungary.

It is worth noting that a number of local governments also launched political campaigns in order to persuade their inhabitants to take part in the referendum, and say ‘no’ to the referendum question. A lot of media coverage reported that local authorities feared that the central government will reduce their subsidies if the local citizens do not actively support the Government’s position. However, the NEC and the Kúria claimed that the respective local authorities did not engage in a campaign activity, only exercised their power to make decisions on local public affairs (Decision 88/2016. of the National Election Commission and Decision III.37.891/2016/3. of the Kúria).

Finally, many citizens objected to the abuse of their personal data during the Government campaign. The Government sent about 500,000 letters to Hungarians living abroad. Although the Law on Election Procedure provides that the participants of political campaign may only use the voters’ register of the National Election Office, the Government used personal data obtaining from another administrative registry. The NEC refused the objection falsely claiming that ‘nothing prohibits’ using any personal data in political campaigns (Decision 77/2016. of the National Election Commission and Decision). Surprisingly, on this occasion, the Kúria overturned the decision (Decision I.37.888/2016/3. of the Kúria),  but without any legal sanction or practical effect: this judicial ruling was adopted several weeks after sending out the campaign letters, and just three days before the referendum.

3. The possible consequences of the referendum

Despite the legal invalidity of the quota referendum, its result might be a political victory for the Government, as 98,36% of those who cast a valid vote supported the rejection of the so-called ‘mandatory migrant quota’ of the EU plan. Mr Orbán may take it as a very strong mandate for his ‘counter-revolution against EU centralisation’, as he characterized it after the referendum. The Government urges other Member States to organise their own referendum to torpedo the EU’s migrant policy.

The overwhelming popular support of the Government’s protest against the EU migrant quota may be transformed into political capital, mobilizing and increasing the voters’ support of the Orbán Government. Many political analysts suppose this was the real purpose of the referendum.

As for the legal consequences, in spite of the invalidity of the referendum, the Government may claim that the unequivocal support of the denial of any ‘migrant quota’ cannot be ignored. Accordingly, referring to the ‘national unity’ in this matter, the Government announced that it will initiate a constitutional amendment (the seventh since 2012, when the Fundamental Law entered into effect) in order to protect the ‘constitutional identity’ of Hungary providing that no foreign citizens may be relocated and settle in Hungary without the consent of the Hungarian National Assembly.

By Zoltán Szente, Professor of Law, National University of Public Service Research Chair, Institute for Legal Studies, Hungarian Academy of Sciences Budapest. Post originally published on the Constitution Making & Constitutional Change IACL Research Group blog.