—Zoltán Pozsár-Szentmiklósy, ELTE University, Budapest
On October 21, 2014, Hungarian government officials announced that in the 2015 state budget they would include a tax on internet data transfer. This so-called internet tax was widely criticized in the media and in civil society. A rapidly growing protest movement was organized on Facebook and a demonstration took place on October 26 in Budapest. The protest was suprisingly widely supported; several thousand protesters participated. The protesters expressed a clear message to the Government: they expected state officials to withdraw their proposal, otherwise after two days another demonstration would follow.
Due to the fact that there was no change in the official communication of the Government, two days later another demonstration was organised in Budapest and in several other cities. In the capital people gathered together in surprisingly large numbers (in the tens of thousands). According to them, the planned tax was a restriction of their freedom to access all relevant information related to private and public life. The organizers of the peaceful demonstration have also stated that their intention is to stand against the arbitrary legislation proposed by the Government. In this regard it is important to note that the freedom of information is a prerequisite for genuine and open debates related to public matters – an essential value of democracy itself.
Although the Government continued to refuse to give any reasonable explanation to the public regarding the new tax, three days later the prime minister announced that the Government would withdraw the proposal. The main argument expressed was that the governing party wants to govern together with the people, so there will be no decision which people don’t support. The prime minister also expressed his will to initiate a so called national consultation about the regulation related to the internet.
How can we assess all of these developments from the point of view of constitutional law?
The demonstrations were peaceful. Tens of thousands of ordinary citizens brought a strong political message related to values they believe in. It is worth referring at this point to a clear statement of the European Court of Human Rights, articulated in a recent judgement: the freedom of assembly is a fundamental right in a democratic society and, like the right to freedom of expression, is one of the foundations of such a society.[i] The fact that protesters seemingly have reached their goal is good news from the point of view of the functioning of democracy in Hungary.
However, the planned national consultation raises more troubling questions. The process of national consultation in Hungary has differed from the complex method proposed by the UN High Commissioner for Human Rights for post-conflict states in matters of transnational justice (something which was missing in Hungary in 1989-1990) or the constitutional practice of Latin American states.[ii] Instead, it seems to be a distinctively Hungarian invention. The notion was introduced to the political agenda by the governing Fidesz party and became widely used before the enactment of the new Fundamental Law in 2011. At the time, there were serious concerns as to whether the new constitution was legitimate due to the fact that opposition parties did not participate in the drafting process and the Government had expressed its will to oppose a national referendum regarding its enactment.[iii] Before passing the law, as part of the national consultation, every citizen received a simplified questionnaire which contained 12 questions more or less related to the constitution. Questions about complex constitutional issues and fundamental rights were formulated in a very simple way[iv] and even suggested right answers.
It is clear that such a unilateral consultation, which lacked real open questions, was not a genuine one, even if approximately 10 percent of citizens returned their answers to the Government. It is also doubtful that these answers had any real effect on the final governmental decision. Since 2010, four more national consultations have been organised in Hungay. These sorts of national consultations lead to an illusion of open political debate.
It is important to separate the actions initiated by the Government from the notion of direct democracy. Like in many other Central and Eastern European countries, the introduction of provisions related to national referendums and popular iniatives into the Hungarian constitutional order was part of the democratization process.[v] Since 1989, the people have had their say on national referendums 6 times, related to 12 different questions.[vi] National referendums have a special place in the constitutional order. According to the jurisprudence of the Constitutional Court, in the constitutional order of Hungary the primary form of exercising popular sovereignty is representation,[vii] but the direct exercise of power … in exceptional cases when it is actually realised stands above the exercise of power through representation.[viii] Since 2012, the possibility of a successful national referendum has been greatly restricted: the Fundamental Law prescribes as a necessary condition for validity the participation of the majority of the voters in the referendum. This condition was barely reached twice in the preceding decades.
The national consultation – contrary to its Latin American form – has neither constitutional foundations nor legislative background in the Hungarian legal order. Even though it seems like a similiar technique to the national referendum, in reality it is quite different. The questions raised and even the possible answers are formulated exclusively by the Government (not by the people), there are no constitutional safeguards related to the procedure (including judicial review)[ix] and the legal consequences are uncertain. As a result, national consultations lack the possible benefits of direct democracy (influencing legislation, counterbalancing parliamentary absolutism) and bear the typical weaknesses of it (lack of expertise, avoidance of compromise solutions).
In this context the announcement of the prime minister has two different meanings. From one point of view, it is a great succces of exercising a genuine form of freedom of assembly. However, taking into consideration that Hungarian national consultations in practice have been mostly communication tools to symbolize presumed public support related to questions formulated in a populist way, it is also deeply worrying. Democratic societies should be based on the actual exercise of rights, not on illusions.
Suggested citation: Zoltán Pozsár-Szentmiklósy, The Internet Tax Debate: Genuine Freedom of Assembly vs. the Illusion of Direct Democracy in Hungary, Int’l J. Const. L. Blog, Nov. 19, 2014, available at: www.iconnectblog.com/2014/11/the-internet-tax-debate-genuine-freedom-of-assembly-vs-the-illusion-of-direct-democracy-in-hungary/
[i] Case of Yilmaz Yildiz and Others v. Turkey (Application no. 4524/06), Judgment of 14 October 2014. 41.
[ii] See Monica Barczak: Representation by Consultation? The Rise of Direct Democracy in Latin America In: Latin American Politics and Society Vol. 43, Issue 3, 37-60 (2001)
[iii] In its Opinion on the Fundamental Law, the Venice Commission stated the following: it is regrettable that the constitution-making process, including the drafting and the final adoption of the new Constitution, has been affected by a lack of transparency, shortcomings in the dialogue between the majority and the opposition, the insufficient opportunities for an adequate public debate, and a very tight timeframe.”
[iv] To give an example: Many people think that the new constitution should refer to the possibility of life imprisonment sentences without parole in the case of the most serious crimes. What do you think?
[v] See: Laurence Morel: Referendum In: Michel Rosenfeld – András Sajó (Eds.): The Oxford Handbook of Comparative Constitutional Law Oxford Univeristy Press, New York, 2013, 509.
[vi] In the first wave of national referendums, the issues to be voted on were related to the transtion, in the second wave the questions raised were about the principal aims of the country (NATO and EU accession), whereas in the last decade political debates were the principal issue.
[vii] See Decision 2/1993. (I. 22.) AB of the Constitutional Court
[viii] See Decision 52/1997. (X. 14.) AB of the Constitutional Court
[ix] Regarding the possible constitutional safeguards based on the European constitutional heritage, see the Code of Good Practice on Referendums of the Venice Commission.
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