a network of constitutionalists from countries throughout the world
By Eszter Bodnár, Laureate Visiting Fellow in Comparative Constitutional Law, University of Melbourne; Assistant Professor, ELTE Eötvös Loránd University, Budapest.
In November 2017, two government-initiated national surveys came to end in two remote edges of the world, with several similarities.
Australia: The Marriage Law Postal Survey
Marriage equality has been a very debated issue in Australia. The opinion polls consistently showed that a majority of Australians supported same-sex marriage , but the Australian Parliament has not yet legalised it. In 2015 the government proposed a plebiscite, in a move that was widely viewed as a way of deferring the decision.
Two weeks ago, Australians voted and participated in the first nation-wide postal survey in the country’s history. After the government’s bill to organise a plebiscite on the question of same-sex marriage was rejected by the Senate, it decided to hold a voluntary postal plebiscite. The Census and Statistics Act 1905 served as legal basis, stating that the Statistician shall collect statistical information on the direction of the minister [Section 9(1)(b)]. The process was criticised because of the interpretation of the question as ‘statistical data’ and of the lack of procedural guarantees. However, the High Court of Australia rejected the complaints, together with the complaints that criticized the financial basis of the survey. One week later, a bill was adopted to implement some guarantees concerning the campaign and protection of voters.
The survey materials, which asked the question ‘Should the law be changed to allow same-sex couples to marry?’ were mailed to eligible Australians on the Commonwealth Electoral Roll. Participation in the survey was voluntary. Results were published on 15 November. The whole process was conducted by the Australian Bureau of Statistics (ABS) but the Australian Electoral Commission had some powers in relation to complaints and inquiries.
Hungary: National Consultation on the Soros plan
In the meantime, Hungarian voters have received surveys in their mailbox with seven questions about the so-called Soros plan, the Hungarian-American businessman’s pro-immigration document, the existence of which is also debated. The survey is called ‘National Consultation’ and is the seventh in the row since 2010. After it turned out during the first process that there is no legal basis for such a use of data, a statutory amendment ensured that the Government shall have access to citizens’ data to ‘ask them about their opinion’ [Act LXVI of 1992 on the Personal Data and Address Record Section 19/A]. National consultations are conducted by the Office of the Prime Minister, the National Election Office and Commission are not involved. Until now, the results were only partly published officially, however, on a claim by an NGO, a court decision obliged the government to make the answers public. A statutory requirement is still missing.
Enhancing direct democracy or confusing the voters?
With the increasing number of recent referenda, there is an ongoing and more and more heated debate about the relevance, advantages and disadvantages of the direct democracy tools in modern states (some examples are shown here, here, and here). Acknowledging these doubts in the role of the direct democracy, I would like to rather focus on the question of integrity of the process.
Both analysed country have legal regulations on and previous experiences with the direct democracy. The Australian Constitution demands a referendum for constitutional amendments [Section 128], and enables non-binding plebiscites initiated by the governments about any non-constitutional issue. Until now, three national plebiscites were held: two about the military service (1916-1917), and another about the national song (1977). The Hungarian Constitution enables legally binding national referendum on any issue in the competence of the Parliament, with few exceptions [Fundamental Law of Hungary Article 8]. Since 1989, seven national referendum were held. The last one was initiated by the Government in October 2016 .
In both cases, the governments could have used these means; however, because they were unable to secure legislative support for a plebiscite, they chose a tool that is outside the legal framework tested in practice and well-known for the voters. This decision results in several constitutional concerns.
First, the circumvention of the existing legal regulation results in a lack of guaranteed procedural integrity. The government can freely choose any issue and draft questions. There is no mechanism to hinder unconstitutional, anti-minority (as the first Hungarian National Consultation’s questions about the life-time imprisonment and sanctioning of homelessness), or manipulative questions. In a referendum process, the Supreme Court of Hungary could review the question before it is submitted to referendum whether it is in harmony with the constitutional requirements. The Australian High Court has no such kind of power (in the aforementioned case, it examined the question but only the form and not the content or drafting) but in the referendum and plebiscite process, the deliberative discourse in both Houses of the Parliament on the relevant Bill may ensure a guarantee against arbitrary processes.
Second, in a regular process, the existing frameworks of direct democracy tools ensure that the whole process is conducted by an independent electoral body and contains other procedural guarantees to maintain the integrity of the process, including the regulation on the casting and counting of votes, monitoring and complaining mechanisms. These guarantees are missing in a new form of process and are hard to re-establish. Even if the process fulfils the requirement for direct democracy tools, the obscurity may endanger the voters’ confidence in the legal institution.
Third, in a regular process, the presence of the different opinions on the question is ensured by campaign regulations such as prescribing official distribution to electors of arguments on both sides, forbidding anonymous advertisements [Australia Referendum (Machinery Provisions) Act 1984 Section 11 and 121], or obliging media providers to broadcast advertisement from both sides equally [Hungarian Electoral Procedure Act Section 147] . Without these safeguards, a survey can easily result in an unbalanced campaign. Australia addressed this to some extent with the last-minute regulation but Hungary lacks any guarantees concerning national consultations.
Finally, the situation can be confusing for voters. Different institutions in the process, different methods of voting and different use of results – all mix up, even in a confident citizen’s mind. Governments may argue that voters should be able to recognize the differences between the ‘normal’ and ‘exceptional’ cases where they are asked for their opinion. However, even the fact that the process is initiated by the government and conducted by a state institution makes it clear that it is not like an opinion poll organized by a magazine. The more the process is like a referendum or plebiscite, the less the voters can differentiate.
Adding this to the doubts concerning the integrity of the process, considering government-initiated surveys as an enhancement of direct democracy is rather questionable.