The upcoming referendum, yet another jaded look

I must have written at least four or five blogs on the forthcoming referendum and its questionable constitutional underpinnings. According to most respectable constitutional experts the questions posed by the Fidesz should never have been the subject of a referendum for at least three reasons. First and foremost, according to the Hungarian constitution no referendum can be held on any topic that can have an influence on the budget. In this case all three questions have direct relevance to the financing of health care and higher education. If the referendum is valid and successful from the point of view of the Fidesz the missing income of family doctors, hospitals and universities cannot be replaced from the central budget. This would be unconstitutional. Second, most experts consider a nationwide referendum a constitutional tool that should be used only rarely to decide questions of critical importance to the country. For example, the country’s membership in NATO or the European Union. Petty questions concerning a co-payment of $1.50 for medical care or a modest contribution by students toward their own education surely don’t qualify. Third, the questions themselves are ridiculous: no one in his right mind would want to pay money for something that until now was free. A fairer way of putting the questions would have been, for example, to ask "Do you prefer to pay 300 Ft as co-payment for a medical visit and 500 Ft for a hospital stay or would you rather have your social security contributions raised by X amount?" One has the feeling that the voters in this case would opt for the small co-payment. However, the geniuses of the Hungarian Constitutional Court decided otherwise.

Well, the reason I’m writing again about the referendum (however boring a subject) is that at last we know the date when the referendum will be held. It’s amazing how fast President Sólyom can decide when he wants to. The Constitutional Court gave its final okay on Tuesday and on Wednesday Sólyom spoke. He had fifteen days to decide, but he was in an awful hurry. Other times he waits until the very last day: for example, when he sends something back to parliament for reconsideration. According to the law he could choose a date between March 9 and April 20. And which one did he pick? March 9. His spokesman claims that he picked the date in order to save money and to have the whole thing over with before the national holiday, March 15. However, many people think that this early date helps the Fidesz. After all, the Fidesz has been actively campaigning for months while the other side has waited until the word came from the Constitutional Court and the President. Some people also worry that in case the referendum is not valid (i.e. fewer than 2 million people vote) those who sympathize with the opposition might express their disappointment in a less than peaceful way on the holiday. That would not be a first.

As for the predictions of the outcome: not surprisingly the majority would vote "yes" to all three questions. According to the latest poll 48% of the people now say that they would vote. This number is very high, though most pollsters claim that this early enthusiasm usually doesn’t pan out on the day of the actual referendum. (Of course, this time it’s a pocketbook issue. Just think how much you could save if you spent a few minutes voting.) Another consideration is that the government parties haven’t really started their campaign which will be a mostly "common sense" approach to the necessities of the reforms. Whether this will be enough to convince Hungarians that $1.50 co-pay will not ruin them and upset the whole economic future of their families, no one knows. Also, there seem to be cracks of late within the medical community. Perhaps the family doctors who stand to lose quite a bit of money if the co-payment question passes will no longer campaign against the reforms and will convince their patients to say "no" to that ridiculous question.

A lot will depend on the effectiveness of the government propaganda and the medical profession’s attitude. There are after all almost six more weeks to turn things around. In any case, it is too early to predict one way or the other.

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Viking
Guest

Could you please elaborate a bit on “the family doctors who stand to lose quite a bit of money if the co-payment question passes”?
We speak about the HaziOrvos?

Odin's lost eye
Guest

Viking I agree with you on this one. However as the author of the article Ms Balogh says “according to the Hungarian constitution no referendum can be held on any topic that can have an influence on the budget”. Her arguements are clear and precise. If she is right then someone somewhere has “Dropped a Clanger”. The result of the referendum (what ever it will be) must give rise to a long drawn out argument in the highset courts in the land probably ending up in the European court. The only one who realy gets on the Gravy Train will be the Lawyers. Viccy (of the ‘G&O show’ is a lawyer – think of his share of the fees!

Viking
Guest

I remember something about they changed the question/s/ to be “in the future”. I beleive they interpret the “budget” as “this years budget, already accepted by Parliament”. That cannot be altered via a referendum, but questions that affect future budgets, like the one for 2009 and onwards, could be eligable for a referendum.
I am also not a fan of referendums for everything. We do have a Parliamentarian Democracy and we pay the politicians to take care of business between the elections. For historic reasons (no democratic history before 1990) Hungary has a law on referendums that favours populistic issues. It only takes 200.000 verified signatures to push through a referendum, that is not much on a population of 10 Millions.

Odin's lost eye
Guest

Viking Do the people have the right to deny an elected government ‘Supply’ (taxes etc) by referendum? From what you have said in this case NO! Next years budget is a different matter. If the word in the origional legislation is ‘budget’ then referenda cannot change any future tax/spending plans. If original law refers to the ‘Finance act’ which brings the budget proposals into force that is a different matter. Mr ‘G’ (of the ‘G&O’ show) could declare the outlines of budgets from the next 5 years. Exit Mr ‘O’ clucking like chiken!
In a democracy no government can be bound by the acts of previous governments or I suspect earlier referenda. Could a referendum of say 1998 have any effect in 2008? At what point do the results of a referendum become ‘spent’?
I think Mr ‘O’ is trying to use the referendum to ‘Bring down the Government’. Mr ‘O’ just wants to get back on the ‘Gravy Train’. Just an aside google the ‘goon show’. The capers that both Mr ‘G’ and Mr ‘O’ are pulling might have been taken from one of the ‘goon show’ scripts.

Viking
Guest

The problem is that you are stuck with the Constitutional Court. Remember the US deciding Bush/Gore. The best thing one can do is to elect good politicians that select good judges. Easier said than done.
If 25% of all eligable voters say YES (and they are in majority) then the result is binding for the Government, but that must be for further Governments also. If this is true, it means that ANY future Government can only implement the same thing AFTER a new referendum, otherwise you just “take them to court…”. It becomes a bit ridicoulous in the end – any more fees we can vote away?

New World Order
Guest

It is unfortunate, but the Hu. constitution is not a serious document that can be interpreted in a manner like the U.S. one, and the judges on the court have demonstrated that they are and have always been singularly incompetent.
I realized this whole thing was a sham some years ago when the Ct. ruled that the recently introduced charges levied at the new tolls on the M1 highway were unconstitutional. I am too lazy to look up the reasoning now. But come on, making this a constitutional issue is a joke (just like their inane parsing of the referendum law so as to interpret the impacting the budget provisions as they did).
This country is so unbelievably unserious that it never ceases to amaze.

Odin's lost eye
Guest
Viking you say “That If 25% of all eligible voters say YES (and they are in majority) then the result is binding for the Government, but that must be for further Governments also” When a Parliament is dissolved, the next Parliament is not bound by any legislation of the previous Parliament. Note I use the word ‘Parliament’ not ‘government’. This is internationally recognised see Section3 Articles 61 & 62 of the Vienna Convention on Treaties 1969. I suspect that a General Election would automatically to wipe out or nullify all previous referenda. This happens even when the new parliament was an exact replica of the previous one. Ms Balogh raises the interesting point where she says in reference to the Constitutional Court “The opinion made a distinction between the income and the expense columns of the budget. According to the wise Hungarian judges, no referendum can be held on issues concerning expenses but the same doesn’t apply to income”. This is very clear a referendum cannot change spending plans it can only change the method of raising taxes/duties. This means referenda can only shift the burden of taxation (who pays) and not the total amount. This is because spending plans… Read more »
Viking
Guest

Odin – Finally I think I got Eva’s original point! Thanks for explaining it one more time.
But I do not buy your Vienna-argument, then
“Article 1
Scope of the present Convention
The present Convention applies to treaties between States.”. It means that it is not valid for national laws.
On the other hand IF you are still right (but with another argument), then a smart/evil (your pick) majority of the existing Parliament make a law containing the content of the referendum. That will definitevly carry over to the next Parliament.
Future Parliaments are of course free to change any normal law, but it has a much higher political price for any Government that does not have the same political composition as the current.
Any tricks to use similar fees, whole or in part, with different names, can of course be challenged in court. Similar to what is happening in Germany now with the HARZ-program, where both individuals and local governments taken the current German Government to court for breaches against the German Constitution. And actually won in lower courts.
You normally take an action or praxis, that you think violated someone’s rights, to the European Court. Do not know how to get that into this referendum-problem though.

Viking
Guest

So, to answer myself about if the referendum is binding “forever”. After reading the Hungarian Constitution (http://www.mkab.hu/en/enpage5.htm) I beleive the answer is found in Article 28/C Paragraph “(3) If a national referendum is mandatory, the result of the successfully held national referendum shall be binding for the Parliament.”. This means to the end of its period.
But my trick with making it into a normal law always works…
In paragraph “5) National referendum may not be held on the following subjects:
a) on laws on the central budget, the execution of the central budget, taxes to the central government and duties, customs tariffs, and on the central government conditions for local taxes,”
Maybe you can call co-payments for “duties” in the clause “taxes to the central government and duties”. It is clearly not a tax, but is a fee = duty?
For me the paragraph “f) the Government’s program,” sounds more correct for me, then one of the most important part of the Current Government’s Program is co-payment etc. But if the complaint to the Constitutional Court was not about that, then they could not reconsider it.

Odin's lost eye
Guest
We seem to have arrived at an understanding here. As Ms Balgoh says earlier “According to the wise Hungarian judges, no referendum can be held on issues concerning expenses but the same doesn’t apply to income. The problem with this distinction is that there is nothing in the constitution, which would allow such interpretation”. One of the duties of any judge (or group of judges) is the interpretation of the law. No law is ever complete (neither is a constitution). The judges here have exercised their prerogative and have interpreted this part of the constitution. As Viking quite rightly says in his quote from the referendum “In paragraph “5) National referendum may not be held on the following subjects: a) On laws on the central budget, the execution of the central budget, taxes to the central government and duties, customs tariffs, and on the central government conditions for local taxes”. The judges reasons now become clear. ‘Taxes’ are charges laid upon money i.e. Income tax – on peoples earnings, Corporation tax – on company profits, Capital gains tax – on gains made by selling some item of a capital nature (house, stocks and shares etc), Value added tax (AFA) which… Read more »
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