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The presidential referendum is a precedent mainly because of the consultative and at the same time constitutional nature.
According to the art. 235 points 6 of the Constitution of the Republic of Poland binding a constitutional referendum can only be carried out after the adoption of a specific project by 2/3 of votes in the Sejm and an absolute majority in the Senate . 92 deputies, the president or the senate can then request a referendum. And it is also only in the situation of chapters I, II or XII, that is to say those that best reflect the lives of citizens: Rzeczpospolita, freedoms, rights and duties of the student. man and citizen, constitutional amendment mode. In this way, the possibility of organizing a constitutional referendum has been considerably reduced.
The executive power, in this case the president, should not use the will of the people to use it against the parliament, in order to limit its powers, as in Belarus, Kazakhstan, Azerbaijan or in Turkmenistan – indicates prof. Jacek Zaleśny, lawyer and political scientist at the University of Warsaw.
Importantly, such a referendum does not require a 50% interest. The new Constitution is adopted if it was simply supported by the majority of voters.
President Andrzej Duda realizing that with the current parliament there is no chance of approving the draft new constitution, he decided on a different solution. He used the art for that 125 of the Constitution according to which the head of state can order a referendum on matters of particular importance to the state, provided that he is not in charge of the state. he obtains the consent of the Senate. According to this article, however, the result of a referendum can be binding if at least half of the eligible persons have participated.
Here we have the problem: how can a binding constitutional referendum be binding, which is not done in a particular way to amend the Constitution? All the more so in a situation where the questions relate to rather vague postulates, and not to specific articles. The differences between the freely presented referendum question and the specific constitutional provision are too great to be considered identical. And a completely absurd situation would be one in which most citizens would express differently on two contradictory issues.
Theoretically, one can imagine (although it is difficult) that the participation is greater than 50%, and at the same time the majority would oppose the constitutional changes (question n ° 1 in the proposal of the president), and for example in the Food Security Constitution (question 7). No one can forbid citizens from voting inconsistently or without thought. Then what? Which of the questions would be "more restrictive"?
It seems that the president's camp is aware of this possibility. Therefore, no declaration of the initiators will find the declaration that the planned referendum can be binding. Even if more than half of the citizens participate. President Andrzej Duda himself has said time and time again that the referendum was only advisory, so the parliament should not take it into account. However, it aims to have an opinion on the current system of government at the source, that is, ordinary citizens. It is only after the announcement of the results that the time will come to formulate regulations in accordance with the recommendations of the Poles
The Doctrinal Dispute
If the participation rate is high enough, the The results of this consultative referendum are likely to have important political consequences. – The ruling camp can then argue that vox populi vox dei. It would be an unacceptable attempt to change the Constitution beyond the political system. In the same way, the constitution was changed in Belarus in 1996 – [1945900] says prof. Jacek Zaleśny
Similarly, the Constitution proposed to change the President Bronisław Komorowski in the 2015 referendum. The issue of single-mandate constituencies in the Sejm is a matter governed by the Basic Law. The present, however, assumes the proportionality of elections to this House of Parliament.
Some experts (eg Professor Marek Chmaj) cited in the expertise of the Office of Analysis and Documentation of the Chancellery of the Senate argued that such a referendum could take place, although that at best it would only obligate the President to submit a planned change project. Under no circumstances would this require an amendment to the Constitution during a parliamentary vote. All the more so since the question did not concern the chapters mentioned in the art. It can be concluded that the referendum organized by President Duda could also have the same effect – in the case of more than 50% participation, the Sejm would not be obliged to adopt a new Constitution, but only the President would submit a project including the result of the vote. in the normal way provided for the creation of the new Basic Law. Worse still, if his results forced the president to submit a ridiculous, contradictory project internally, which is not excluded by going through the prism of the issues raised. Nevertheless, the very answers of the Poles to important political questions could be interesting. Satisfactory Presence
World Precedence
The Presidential Referendum Proposal is a novelty on an international scale. It is rare that a consultation vote concerns constitutional issues before a specific project is prepared. A relatively large number of ten questions is also unique – usually they do not appear more than five. – Thanks to this, voters are able to make more rational and thoughtful decisions – prof.
At the change of the Basic Law we often have to refer to the voice of a sovereign. In Switzerland, several referendums are held each year at the national level. – They are most often made when citizens want specific changes, but they are not approved by parliament. Then the dispute between the citizens who initiated the legislative process and the parliament that does not want change is resolved by the Swiss in a referendum – says prof. Zalesny.
An example of this is the vote on the citizens' initiative in 2009 regarding the construction of minarets. At that time, citizens decided to forbid them to build in Swiss mosques. Similarly, in 2011, the Swiss opposed limiting the constitutional right to own a weapon
. Similarly, one of the issues proposed by President Duda was a referendum in 2016 regarding the introduction of a provision forcing the state to guarantee a guaranteed income for every Swiss citizen. an amount of 2.5 thousand francs and 625 francs for each minor. Interestingly, 76.93 percent. The Swiss were against this proposal, considering it irrational and populist – adds prof. Zalesny. According to Professor UW, the classic example Consultative Referendum was a 1993 Russian vote, when President Borys Yeltsin asked for support for the current economic and social policy and organization of 39, premature and parliamentary presidential elections.
However, there is rarely a referendum on the Constitution without presenting ready proposals. – The constitutional vote prior to the approval of the project took place mainly in Ukraine in 2000 or in Belarus in 1996. This was intended to generate legal effects against the planned procedure of change of the Constitution – an expert. He adds that in both cases the Constitutional Court ruled that it was in breach of constitutional rules and that the result of the referendum was not binding.
It was stated that President Leonid Kuchma did not have the right to ask questions. The omission of this institution in the constitutional process was considered unacceptable. The questions concerned the change of the constitution by referendum, the adoption of a vote of no confidence in parliament (dissolution), the introduction of a bicameral parliament, the reduction of the number of deputies or the the limitation of their immunity.
President Kuchma accepted the decision of the constitutional court. However, Alexander Lukashenko did not, however, annul that judgment in 1996 and declared the validity of the vote. – This is a typical behavior of the leaders of post-Soviet countries. They use the referendum of the presidents of Turkmenistan, Tajikistan and Uzbekistan in the same way – noted by an expert
An interesting idea of the Polish referendum was a Slovak idea [1945900] of vote in 1997, in which both as well as the opposition. The government has asked, among other things, to join NATO and its opponents for direct presidential elections. The participation rate did not, however, total 9.5%. – The Slovaks, seeing that the vote is only an expression of the political struggle, have decided not to go to the polls. This lesson is also significant for Polish politicians – commented Professor Jacek Zaleśny
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