The mandatory referendum is a special form of the referendum and an instrument of direct democracy . In contrast to other forms of referendum, it does not have to be set up by parliament , government or the population , but is triggered automatically under certain conditions (usually when the constitution is changed ). There are compulsory referendums in a large number of countries around the world, although the actual importance of the instrument in the politics of these countries varies greatly. While the mandatory referendum is one of the most important features of semi-direct democracy in Switzerland , it does not play a significant role in politics in Germany and Austria .
The German word referendum is a foreign word from Latin and is made up of the prefix re "back" and the verb ferre "wear" or "bring" together. The prefix obligatory is derived from the Latin verb obligare »obligate« or »make binding«.
In an obligatory referendum , the elected representative (parliament or government) is "obliged" or "bound" to "carry back" or "bring back" the decision on a political issue to the sovereign (the people).
The mandatory referendum in the German-speaking countries
In Germany, a mandatory referendum at the federal level is only provided for in two very narrowly defined cases. On the one hand, when the Basic Law is replaced by another constitution ( Art. 146 GG), on the other hand, in the case of a reorganization of the federal territory ( Art. 29, Paragraph 3, GG). The first case has not yet occurred in the history of the Federal Republic of Germany , even if this question was discussed intensively after German reunification . All citizens entitled to vote would be entitled to vote in this mandatory referendum . Since the FRG was founded, two mandatory referendums have been held to reorganize the federal territory (in 1952 when the federal state of Baden-Württemberg was founded and when the federal states of Berlin and Brandenburg were planned to be merged, but rejected by the population in 1996 ), with only those in the Citizens affected by the reorganization are entitled to vote.
The obligatory referendum is not to be found everywhere in the countries . In many federal states this instrument does not exist at all; in some, analogous to the federal government, it is only provided for when a new state constitution is being drawn up (e.g. Brandenburg ). Only Bavaria and Hesse have a more far-reaching structure here, since all constitutional amendments there are subject to the mandatory referendum . In Bavaria, a total of 14 referenda took place by the end of December 2019, and 24 in Hesse on a wide variety of topics. In Berlin and Bremen there is a special regulation: In Berlin, mandatory referendums are provided in the event of a change to the direct democratic regulations in the state constitution, which has so far led to a practical case (2006), in Bremen there has been an obligatory referendum for privatizations since 2013, provided the underlying parliamentary resolution is not passed with a two-thirds majority.
Civil society has called for all amendments to the Basic Law to be subject to a mandatory referendum , as is the case in Switzerland , but also in Bavaria and Hesse. This would give the population greater control over the state's highest legal interest (the constitution) and effectively prevent frivolous interference with the Basic Law by the parties represented in the Bundestag. The opponents of this proposal argue that this could prevent necessary but unpopular changes to the Basic Law and thereby paralyze politics.
In Austria, a mandatory referendum at federal level is provided for in the event of a general amendment to the federal constitution ( Art. 44 para. 3 B-VG ). An overall amendment to the constitution occurs when one or more of the construction principles of the constitution (democratic, federal, constitutional, separation of powers or liberal construction principle) are seriously changed. It is controversial whether only the National Council or the Federal President can decide whether a constitutional amendment is to be qualified as an overall amendment and whether a referendum should therefore be held. According to the case law of the Constitutional Court, the implementation of a referendum cannot be forced, but is finally decided by the National Council. Failure to hold a referendum in the event of an overall amendment to the Federal Constitution can only be criticized as a procedural defect in the legislative process.
The referendum of June 12, 1994 on Austria's accession to the EU was an obligatory referendum at the federal level.
A decision by the Federal Assembly to remove the Federal President before the end of his term of office ( Art. 60 Para. 6 B-VG) triggers a mandatory referendum. So far there has been no use case for this.
In the summer of 2008 - a few weeks after the ratification of the Lisbon Treaty - the SPÖ positioned itself for binding referendums on major changes to the EU treaties. A corresponding parliamentary initiative motion for mandatory referendums on major EU treaty amendments initially found a parliamentary majority, but ultimately failed due to the requirement of a two-thirds majority.
At the state level , mandatory referendums are planned in the states of Vorarlberg and Salzburg. In Salzburg, every "general amendment to the state constitution" must be submitted to a referendum before being announced in the state law gazette. In Vorarlberg, a mandatory referendum will be ordered for individual, specially designated fundamental changes.
In 1998 there was a compulsory referendum in Salzburg to abolish the mandatory proportional representation of the state government.
On the municipal level , the mandatory referendum provided in the city of Salzburg. A referendum must be held in the event of a significant change in the urban landscapes that shape the cityscape. In this way, the protection of urban landscapes anchored in the City of Salzburg's grassland declaration is particularly secured against deterioration. In Carinthia there is a mandatory referendum in the event of a planned demise of a municipality.
The mandatory referendum has a very strong position in Switzerland.
At the federal level , it is regulated by Article 140 of the Federal Constitution . It is one of the central political expressions of both semi-direct democracy and Swiss federalism . So any constitutional amendments both to the approval subject by the people and the objects before they enter into force. In contrast to the globally customary design of referendums, not only the majority of the valid votes cast by the electorate ( majority of the people ) is required, but also the so-called number of estates . This peculiarity is intended to ensure the equality of the small cantons with the more populous cantons.
Switzerland's accession to a supranational community or an organization for collective security is also subject to the obligatory referendum (Art. 140, Paragraph 1, Letter b). The votes in connection with the United Nations were also based on Article 140 of the Federal Constitution.
In addition to the federal government, all cantons and political communities are also familiar with the mandatory referendum . In general, it applies to changes to the canton's constitution and the municipal code (municipal constitution), to generally formulated popular initiatives and to fully formulated popular initiatives that are not accepted by the cantonal parliament. It is then generally triggered by individual public expenditure that exceeds a certain amount stipulated in the constitution or law (see: financial referendum ). The mandatory legal referendum , which used to be widespread , has been abolished in most cantons and replaced by the optional referendum .
Risk of abuse
The risk of misuse is significantly lower with the mandatory referendum than with other forms of referendum, since it cannot be actively initiated or can only be triggered by parliament with a two-thirds majority.
One of the dangers, however, is the amalgamation of different constitutional changes in a so-called "package solution". Unless this is expressly prohibited by the respective constitution, various constitutional amendments can be combined with one another. The voters then have no way of approving or rejecting every single change, but can only accept or reject all changes together. In this way it is possible under certain circumstances to "buy" the approval of constitutional amendments, which are generally rejected by a majority, through further, more popular amendments.
- More democracy e. V. - Association for Direct Democracy (Germany)
- Initiative and Referendum Institute Europe
- more democracy! - the non-party initiative for strengthening direct democracy (Austria)
- ↑ Overview at Mehr Demokratie eV
- ↑ The end of the salami tactic The judgment of the Federal Constitutional Court on the Treaty of Lisbon , Journal for Direct Democracy ● No.83 ● 3/09
- ^ Theo Öhlinger : Constitutional Law. 8th edition. Vienna 2009, margin no.62ff.
- ^ Theo Öhlinger: Constitutional Law. 8th edition. Vienna 2009, margin no. 453 FN 18.
- ^ Result of the referendum of June 12, 1994
- ^ Letter to the editor of the Kronen-Zeitung ( memento of July 11, 2012 in the web archive archive.today )
- ^ Initiative request from FPÖ, SPÖ and BZÖ on referendums on EU treaties ( memento from September 11, 2012 in the web archive archive.today ) submitted on September 12, 2008
- ↑ Art. 23 para. 2 Salzburg State Constitutional Law
- ↑ Article 35 Paragraph 2 Vorarlberg State Constitution ( Memento from February 24, 2014 in the web archive archive.today )
- ↑ Klaus Poier: Property Direct Democracy in Austria's state and local. An overview of the legal situation and empirical experience. In: Neumann, Renger: Material Direct Democracy in an Interdisciplinary and International Context 2008/2009. 2010, p. 44f.
- ↑ Article 53a Paragraph 1 Salzburg City Law
- ↑ "Protected Grassland". Annex to the spatial development concept (REK 2007) (PDF)
- ↑ Article 3 Paragraph 3 Carinthian Provincial Constitution ( Memento from July 12, 2012 in the web archive archive.today )
- ↑ Article 140 of the Federal Constitution of the Swiss Confederation.