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Referendum goes to court

JUDGES of the Constitutional Court will have to decide on the constitutionality of the questions posed in a referendum on the so-called protection of family.

JUDGES of the Constitutional Court will have to decide on the constitutionality of the questions posed in a referendum on the so-called protection of family.

President Andrej Kiska requested on September 3 that the court evaluate the four questions posed for the referendum and rule on whether they are in line with the constitution, and whether a referendum can be held on the issues it pertains to.

The Alliance for Family (AZR), which currently shelters over 100, mainly pro-life and traditionalist organisations, has collected more than 400,000 signatures as part of its petition to hold a referendum on what it calls the protection of family, thus fulfilling one of the main legal requirements – the support of 350,000 citizens – for a plebiscite to be held in Slovakia.

Representatives of the AZR handed over the signed petition to President Kiska on August 27, hoping to have the referendum held alongside the municipal elections on November 15 this year.

“I am honoured that the AZR, as the first civic initiative in the history of Slovakia, managed to collect the necessary number of signatures to hold the referendum,” said Anton Chromík, a spokesman for the AZR, on August 26, as quoted by the SITA newswire.

The AZR declares itself to be a non-partisan and non-religious organisation that emerged during the preparations for the September 2013 March for Life as an alliance of dozens of pro-family organisations.

Right for privacy

Ever since the AZR announced its petition and published the text of the questions, it has been disputed whether or not the questions concern people’s fundamental rights and freedoms. In Slovakia, a referendum cannot be held on the state budget, taxes or on issues involving fundamental rights and freedoms, according to the constitution.

While the AZR claims that the questions were approved by lawyers, a number of attorneys have stated publicly that the proposed questions might interfere with people’s fundamental rights, namely the right to privacy and to family life for non-heterosexual people.

LGBTI community welcomes step

This view has been shared by LGBTI rights advocates ever since the launch of the petition for the referendum, which they have called “the anti-gay referendum”.

“It is the unconcealed intent of the organisers [of the referendum] to limit the access of part of the citizens to the legal institutes of marriage, adoption and registered partnerships,” the Initiative Inakosť wrote in its official statement following the president’s decision, adding that these fall under the right to privacy and family life. In their view, the president is only fulfilling his basic duty to follow the constitution.

The ban on holding a referendum on fundamental rights is a constitutional brake to prevent the tyranny of the majority, Initiative Inakosť wrote, charging that this referendum is exactly the sort that seeks to get the majority to approve and confirm unsustainable limits on the rights of a minority.

Organisers disappointed

On the other hand, the organisers of the petition have not hidden their disappointment over the president’s decision. They claim that prior to the presidential election Kiska promised them he would allow the referendum to take place simultaneously with the municipal elections and that now he has broken that promise.

“It is a great disappointment with the first civic president,” a member of the petition committee, Eva Grey, told the press briefing, as quoted by SITA. Chromík noted that Kiska did not communicate any doubts about the questions before the election.

The AZR maintains that it is not the elites who should decide about values like family and marriage, and the Constitutional Court should not be the one to introduce what it calls super-rights, or rights that have never previously existed in Slovakia, SITA reported. Registered partnerships and adoptions of children by same-sex couples are not fundamental rights, according to the AZR.

“We would be very displeased if the Constitutional Court introduced such fundamental super-rights for some of the groups, or found them where they are not and where nobody has ever found them in the constitution in 25 years,” Chromík said, as quoted by SITA.

The Conference of Bishops of Slovakia (KBS) also reacted to Kiska’s move, with its head, Stanislav Zvolenský, saying the president’s decision came as a surprise, and stressed that the Church will continue supporting the model of family as a union of a man and a woman, calling the institutionalisation of other ways of behaviour a fundamental violation of the basis of society.
The petition has been widely endorsed by the Church, and in many churches people could add their signature directly to the petition.

Court to decide

Kiska maintains that there are legitimate doubts over whether the questions pertain to fundamental rights, and this is why he considered it his responsibility to request the Constitutional Court’s legally binding opinion.

“I respect committed people who care about the direction Slovakia is taking,” Kiska told the September 3 press conference, adding that he respects the people who collected the necessary amount of signatures for the referendum to be held.

“I am convinced that also they, as well as all those who signed the petition, should wish, just like the president of the republic, that the referendum they request could not be constitutionally doubted,” Kiska said.

By turning to the court, the 30-day deadline for the president to announce the date of the referendum is suspended until the court delivers its ruling.

In theory, the Constitutional Court now has 60 days to decide on the motion, but this deadline is not legally enforceable. That is why the decision-making might take much longer than that, and the referendum (even if the questions are ruled constitutional) would be postponed for much later than November 15, the day when the municipal elections are held.

Former deputy chair of the Constitutional Court, current advisor to PM Robert Fico and constitutional lawyer Eduard Bárány, who believes that the proposed referendum questions concern fundamental rights, admitted in a recent interview with the Sme daily that the court might not make the 60-day limit, arguing that there are certain procedural steps that the court needs to take, such as requesting the stances of the proceeding participants.

“We have fortunately never dealt with such an issue, but I do not suppose it would be a years-long proceeding,” Bárány said when asked about his estimate of the length of the proceeding.

If the court deems some of the questions unconstitutional, the president will be required to announce the referendum, featuring only those questions that have been approved by the court.

THE REFERENDUM QUESTIONS:

1. Do you agree that no other cohabitation of persons other than a bond between one man and one woman can be called marriage?

2. Do you agree that same-sex couples or groups shouldn’t be allowed to adopt and raise children?

3. Do you agree that no other cohabitation of persons other than marriage should be granted particular protection, rights and duties that the legislative norms as of March 1, 2014 only grant to marriage and to spouses (mainly acknowledgement, registration or recording as a life community in front of a public authority, the possibility to adopt a child by the spouse of a parent)?

4. Do you agree that schools cannot require children to participate in education pertaining to sexual behaviour or euthanasia if their parents or the children themselves do not agree with the content of the education?

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