Mandatory referendum

The mandatory referendum is a special form of the referendum and an instrument of direct democracy. Unlike other forms of referendum must not be scheduled by the parliament, government or population, but under certain conditions (usually with constitutional amendments ) triggered automatically. Mandatory referendums are located worldwide in a wide variety of states, where the actual meaning of the instrument in the politics of these countries varies greatly. While in Switzerland is mandatory referendum is one of the main characteristics of semi-direct democracy, it does, however, in Germany and Austria no significant role in politics. Since a mandatory referendum not willingly and not on any question of political actors ( government, parliament, the population) can be triggered, it is often far less in danger of being misused for certain power-political ambitions of individual actors (see: Referendum abuse).

Etymology

The German word referendum is a foreign word from Latin and is composed of the prefix " re" ( = " back " ) and the verb " ferre " (= " carry" or " carry " ) together. The preceded by mandatory derives from the Latin verb " obligare " (= " commit " or " make binding " ) off.

In a mandatory referendum, the elected representative body (parliament or government ) is therefore to " committed " or it " tied ", deciding on a political subject to the sovereign (the people ) " carry back " or " return ".

The mandatory referendum in the German-speaking countries

Germany

In Germany, a mandatory referendum on a federal level is provided only in two very narrowly defined cases. Firstly, in the replacement of the Basic Law by the Constitution ( Article 146 of the Basic Law ), on the other hand, in the case of a reorganization of the federal territory (Article 29 § 3 of the Basic Law ). The first case has not yet occurred in the history of the Federal Republic of Germany, even if was intensively discussed after the reunification of Germany on this question. Were can vote in this referendum mandatory all eligible voters. At the reorganization of the federal territory two compulsory referenda since the founding of the Federal Republic of Germany carried out (1952 in the founding of the state of Baden- Württemberg and in the planned, but in 1996 rejected by the population, merging the federal states of Berlin and Brandenburg), in which case only in the affected by the restructuring area citizens are entitled to vote.

In the countries of the mandatory referendum is not to be found anywhere. In many states, this instrument does not, in some it is provided similar to the federal government only in the case of drafting a new state constitution (eg Brandenburg). Only Bavaria and Hesse have here a more extensive design process, since there all constitutional amendments are subject to a mandatory referendum. In Bavaria, found by the end of September 2013 a total of 14, in Hesse nine mandatory referendums on various subjects. In Berlin and Bremen each a special exists: In Berlin mandatory referendums for the case of a change in the direct democratic provisions in the state constitution are provided, which so far to a practical case (2006 ) resulted in Bremen applies since 2013, a mandatory referendum on privatizations, unless the underlying parliamentary decision will not be adopted by a two -thirds majority.

From the civil society, the demand has been raised on several occasions, to submit all changes to the Basic Law, a mandatory referendum, as is the case in Switzerland, but also in Bavaria and Hesse. This would secure the population greater control over the highest legal interest of the state ( the Constitution ) and prevent frivolous intervention in the basic law effectively by the parties represented in parliament. The opponents of this proposal argue that this could prevent necessary but unpopular changes to the Basic Law, thereby causing a paralysis of policy.

Austria

In Austria, a mandatory referendum on a federal level in the case of a total change of the Federal Constitution provides (Article 44 § 3 of the Federal Constitution ). A total revision of the Constitution is when one or more of the structural principles of the Constitution ( democratic, federal, rule of law, non-violent separating or liberal construction principle ) be changed significantly. It is controversial whether only the National Council or the President may decide whether a constitutional amendment is to qualify as a pan- changing and thus whether a referendum should be carried out. The case law of the Constitutional Court, the holding of a referendum can not be forced, but is finally decided by the National Council. A failure to carry out a referendum in the event of a total change of the Federal Constitution can be claimed only as a procedural defect in the legislative process.

The referendum of 12 June 1994 on the EU accession of Austria was a mandatory referendum on a federal level.

Depose A decision by the Federal Assembly, the Federal President before the end of the term (Art. 60Vorlage. Kind / Maintenance / RIS search para 6 B- VG), triggers a mandatory referendum. So far there is no use case for it.

In the summer of 2008 - a few weeks after the ratification of the Lisbon Treaty - the Social Democratic Party has positioned itself for mandatory referendums on major changes to the EU treaties. Although an appropriate parliamentary initiative request for mandatory referendums on major EU treaty changes was initially a parliamentary majority, but ultimately failed at the requirement of two-thirds majority.

At the state level mandatory referendums in the provinces of Vorarlberg and Salzburg are provided. In Salzburg is any " total change the state constitution " to undergo before its promulgation in the Official Gazette a referendum. In Vorarlberg, a mandatory referendum for individual, specially designated fundamental changes is placed.

In Salzburg, in 1998 a mandatory referendum on the abolition of compulsory proportional representation in the state government.

At the community level to a mandatory referendum in the city of Salzburg is provided. In the event of a substantial change in the formative for the cityscape cityscapes provide a plebiscite should be carried out. This enshrined in the grassland declaration of Salzburg protection of the city scenery is protected especially against deterioration. In Carinthia, there is a mandatory referendum in the case of a planned destruction of a community.

Switzerland

The mandatory referendum has a very strong position in Switzerland.

At the federal level, it is regulated by the Federal Constitution in Article 140. It is one of the main forms of political expression, both the semi-direct democracy as well as the Swiss federalism. So any constitutional amendments are subject to approval by both the people and the objects before they enter into force. In contrast to most conventional aspect of referenda, not only the majority of the valid votes cast by the voting population ( popular majority ) is required, but also the so-called cantons. This feature is intended to serve the equality of the small cantons with the populous cantons.

Also subject to a mandatory referendum Switzerland joining a supranational community or an organization for collective security (Article 140, paragraph 1 item b ). The votes in connection with the United Nations were also based instead on the article 140 of the Federal Constitution.

In addition to the federal government all the cantons and communes, know the obligatory referendum. Generally it applies to modifications of the cantonal constitution and of the Municipal Code ( municipal constitution ), in general wording of popular initiatives and formulated popular initiatives that are not accepted by the cantonal parliament. It is then triggered generally by individual public expenditures that exceed a certain, specified in the Constitution or law of height (see: Financial referendum). The formerly widespread mandatory referendum laws, however, has been abolished in most cantons and replaced by an optional referendum.

Risk of abuse

The danger of misuse is the mandatory referendum significantly lower than other forms of referendum, as it may not be actively initiated or triggered by the Parliament by a two -thirds majority. One of the dangers is, however, in the amalgamation of various constitutional amendments in a so-called " package solution ". To the extent not expressly prohibited by the respective constitution, various constitutional amendments can be connected together. Voters will then have to agree no way any single change or reject them, but can accept or reject all changes together only. In this way it is possible under certain circumstances, "buy " the approval of a majority rejected constitutional amendments by other more popular amendments.

In Germany the constitutional changes in the state of Hesse in 2002 were in this criticism. There was - so it is assumed - which is actually the majority rejected an extension of the parliamentary term of four to five years, made ​​possible by the same time asked the package to a vote state goal sport in the Constitution. When the vote is ultimately expressed only a small majority for the package of constitutional amendments.