An amendment to the Fundamental Law that was declared after the referendum may prevent the Hungarian implementation of EU legal acts that violate constitutional identity. When joining the EU, Hungary only transferred the joint exercise of certain powers deriving from sovereignty, not sovereignty itself. Therefore, any decision that may affect the core elements of sovereignty, is inconceivable without the approval of the National Assembly. A mandatory change in the composition of the population certainly falls into this category, therefore – as it can be seen from the practice of the Constitutional Court – no EU rule or decision that forces Hungary to endure mass immigration against its will is compatible with the Fundamental Law.
The referendum was invalid, but not since 1990 has an answer to a referendum question received this amount of support. According to the non-final results, the proportion of “no” votes exceeds 98 percent, which indicates a bigger consensus than when Hungary joined NATO, and more votes than when Hungary voted on its EU accession. In addition, it is important to stress that the first referendum held under the new regulatory procedure was successful, the electoral authorities appropriately and duly carried out their tasks, and the voting process was a clean and fair one.
The Fundamental Law, which was adopted in 2011, returned to the pre-1997 rules regarding the validity of a referendum. In fact, between 1990 and 1997 – similarly to the present referendum – it had to fulfil the condition of more than half of eligible voters casting a valid vote. However, before the NATO referendum, the regulation had been amended stating that a referendum be valid if more than a quarter of eligible voters vote the same way. The rules have since returned to the original system, and consequently – since 43.4 percent of the electorate participated in the October 2nd voting – the referendum was legally invalid.
However, the fact remains that since 1990, there has not been such a high proportion of voters who have cast their votes in favour of a particular political position or a political force. In the 1997 NATO referendum, 85 percent of the electorate voted in favour of membership, while in 2003, 84 percent supported joining the EU. Furthermore, in 2008, to the “most popular” question of the “referendum of the three yeses” 84 percent of those who went to the ballot – which is 3 million 385 thousand people – said no to hospital daily fees. By comparison, in the October 2nd quota referendum 98 percent, more than 3 million 280 thousand people cast a “no” vote, which is a record percentage since 1990.
Hungary’s prime minister announced after the referendum that, in accordance with the will of the voters represented in the referendum result, he would submit an amendment to the Fundamental Law to the Parliament. It should be emphasized that the Hungarian Assembly as a constituent power is also the main depository of national sovereignty. When joining the EU, Hungary only transferred the joint exercise of certain rights and powers deriving from sovereignty, not sovereignty itself, not even partially. About matters affecting the foundations of sovereignty, the EU, therefore, cannot validly take decisions without the approval of the Hungarian Parliament.
A state’s population is one of the pillars of sovereignty, thus to change its composition, the EU – which has no genuine sovereignty – has no right. The EU’s founding treaties recognise that the Member States’ national, constitutional identity falls outside the scope of EU law, which must be respected by the EU. Accordingly, EU bodies cannot decide what exactly falls into the category of protected (reserved) sovereignty, this may only be decided by the National Assembly, and in case of debate, the Constitutional Court.
In legal terms, however, the invalid referendum is not binding for the National Assembly. Only then would the National Assembly not be able to amend the Fundamental Law, if there had been a valid referendum with a majority of “yes” votes. However, due to the invalidity of the referendum (and the majority of “no” votes), there is no such “constraint”, and since the subject of the referendum is one that falls under the power of the National Assembly, the Parliament may decide irrespective of the invalid referendum to prohibit a migrant quota.
In connection with the practice of law it is worth pointing out that, under the new electoral law adopted in 2013, this was the first referendum held in Hungary to be initiated by the Government. Thus, in the past few weeks, the election bodies and the Curia decided on a number of issues without legal precedent. However, it can be clearly stated that the new regulation has proved satisfactory, the electoral bodies closely monitored the referendum to ensure a clean and fair vote. In addition to the elected delegates, 18,387 party delegates supervised the voting in 10,331 domestic constituencies.