| dc.description.abstract | The rights of initiative and referendum are fundamental rights protected by the Constitution. In the procedure prior to the referendum, the freedom to vote without interference could be protected by preliminary relief proceedings. Before the referendum, people’s rights may be infringed in different ways. Therefore, the thesis of this paper is to discuss and analyze the applicability of preliminary relief proceedings based on the cases the Administrative Court made, which distinguishes into three phases: the review of the referendum proposal, the review of the referendum signature, and the pre-referendum.
In the phase of reviewing the referendum proposal, the constitutional court illustrates clearly in No. 645 that the rights of initiative and referendum are fundamental rights that protect people’s freedom to vote without interference, which is also emphasized in the General Comment No. 25 of the International Covenant on Civil and Political Rights. After the main text and reasons have been scrutinized and approved by the Central Election Commission, people have the right to apply for preliminary relief proceedings in the Administrative Court if people believe that there is interference with their freedom to vote. The Administrative Court should protect people’s right of raising referendum proposals but has to respect CEC’s discretionary power and margin of appreciation. In the phase of reviewing the referendum signature, the leader of the proposer doesn’t have the right to submit a petition again, nor does the person have the right to request the referendum held together with the general election. Besides, the person doesn’t conform to applying for the preliminary relief proceedings. In the phase of pre-referendum, the government has the constitutional obligation to continuously provide correct referendum information in order to ensure that people′s will to vote is not interfered. Moreover, the government should explain the legal effect of passing or not passing the referendum. The Administrative Court should not prohibit CEC from publishing supplementary submissions from government agencies through the ruling of suspension of execution, which is the way that CEC fulfills the Constitutional obligation.
In summary, preliminary relief proceedings can be an immediate and effective rights and remedies system, which is premised on subjective rights, meaning fundamental rights, the rights of initiative and referendum. This protects people’s freedom to vote without interference. After people apply for preliminary relief proceedings, the Administrative Court shall only do a limited review and respect the margin of appreciation of the independent agencies when reviewing CEC’s deliberation conclusions. And the Administrative Court shall also only do a limited review of the opinions of government agencies, respecting the opinions made by the government based on the governance and ensuring that executive power is not infringed upon by judicial power.
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