December 7th, 2012

Áder remands electoral bill to Constitutional Court, but says controversial law guarantees free elections

President János Áder sent the election procedures bill to the Constitutional Court for preliminary legal review yesterday, as forecast by the prime minister last Friday.

Áder stressed in a statement that the bill passed by Parliament on November 26 guarantees free and democratic elections.

However, he objected to the ban on political advertisements on commercial radio and television stations during campaigns, saying this violates both the right to freedom of opinion and the freedom of the press.

It is also an unnecessary restriction that state-run media cannot broadcast party advertisements in the 48 hours prior to the elections, Áder said.

The President also considers it unconstitutional that the bill specifies a six-day moratorium on publishing surveys of support for political parties.

He also found worrisome a regulation requiring citizens to register to vote where their official residence is, saying this is a restriction on those who travel or work abroad.

Áder did not find fault with the bill’s most controversial aspect, the requirement that all citizens must register in order to vote.

This is the first time that Áder has referred a bill to the Constitutional Court since he became head of state in May. The Court has 30 days to rule on his concerns.

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  • MagyarViking

    “The Court has 30 days to rule on his concerns”

    So the Hungarian Constitutional Court cannot rule on the most important item –

    * “the requirement that all citizens must register in order to vote”

    That just means it will be the European Court of Justice (ECJ) that will do that instead

    • Anonymous

      Stop daydreaming. The European Court of Justice has no jurisdiction over such details of Hungary’s election law.

      • MagyarViking

        Thanks for forcing me to check up this question with similar rulings, then I think I just found a legal way of making the New Fidesz Election Law on Pre-Registration illegal under EU Law, when it comes to the Elections to the European Parliament, which are included in this new registration process

        1st to answer on the question of ECJ’s competence I refer to:
        Etienne Tête v. France (no. 11123/84)

        (http://cmiskp.echr.coe.int/tkp197/view.asp?action=open&documentId=825087&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649)

        “09.12.1987 (decision)
        A French politician complained about the Law on the election of French representatives to the European Parliament, which he considered discriminatory and in breach of the right to free elections. He alleged, inter alia, that he had not had an effective remedy in that regard.
        The applicant’s complaints concerned a Law enacted in a sphere in which the State had a wide margin of appreciation. The Commission stressed that, in principle, the State’s responsibility could be engaged, as it could not be accepted that by means of transfers of competence the States Parties to the Convention could at the same time exclude matters normally covered by the Convention from the guarantees enshrined therein. It nevertheless declared the application inadmissible as manifestly ill-founded.”

        In the 2nd last sentence, there is the legal justification for the ECJ to rule on ” a Law enacted in a sphere in which the State had a wide margin of appreciation” “as it could not be accepted that by means of transfers of competence the States Parties to the Convention could at the same time exclude matters normally covered by the Convention from the guarantees enshrined therein”

        You can find more rulings on similar issues, where the National State has competence, but still the ECJ claims to have jurisdiction in this pdf:
        http://www.echr.coe.int/NR/rdonlyres/EA6F3298-FE75-48E7-B8A7-F9C5FF5EB710/0/FICHES_Union_Europeenne_EN.pdf

        So, if it is not possible to hit Fidesz on National Elections, it is most likely possible to hit them on the procedures for the Elections to the European Parliament

        How?

        By the enshrined principle of “one man – one vote”

        As a EU-citizen I had to register in Hungary that my vote to the European Parliament should be cast in Hungary (meaning *only* here)

        The Hungarian Election Authorities informs the Swedish Election Authorities about my registered decision

        So, for any Slovak citizen with Hungarian citizenship, that registers to vote in Hungary, the Hungarian Election Authorities *must* inform the Slovak Election Authorities

        The Slovak Authorities are then of course free to do what they want with that information, like stripping the Slovak citizen in question off his/hers Slovak citizenship, then in Slovakia, as a permanent resident, it is not allowed to have multiple citizenships…

        I know Fidesz has declared that they will not tell any other States who has applied for the fast tracked Hungarian citizenship and still does not permanently reside in Hungary, but that would then be a breach against EU-law when those new Hungarian citizens register to vote for the the European Parliament

        Then the new Fidesz registration is valid for a 4 year period, which includes the election to the European Parliament, then all registrations of citizens permanently living in another EU member state *must* be made available to those other EU member states, informing them in reality, who are dual Hungarian citizens…which then would go contrary to Fidesz political aim of creating stealth Hungarian citizens abroad

        Yet another fucked up Law by Fidesz, who cannot grasp things bigger than their own noses

        • Paul

          Well done…thanks!

  • MagyarViking

    “Appeal by Members of the Pre-1989 Democracy Movement to European Institutions

    If the next Hungarian elections in 2014 were to be held under the
    recently rammed-through rules, they would be illegitimate and fraudulent
    which would be a first in the European Union.

    The undersigned are participants of the human rights and democracy
    movement that opposed the one-party communist regime in the 1970s and
    1980s. We struggled for a multi-party system; free and fair elections;
    and we achieved that goal in 1990. Every four years since then, Hungary
    has elected a Parliament and a government on the basis of laws designed
    and endorsed by all the political parties.

    However, in a manner unthinkable in the last 20 years, the
    “procedural law on elections” passed on 26 November 2012 completed the
    removal of key checks and balances. By this new law, it becomes
    virtually impossible in 2014 to hold a free and fair election, one which
    prevents fraud and expresses the real will of the electorate.

    We would like to elaborate on three grave concerns regarding the new Hungarian election laws:
    * They are illegitimate, because they are unilateral one-party diktates;
    * They are restrictive and discriminatory;
    * They create an institutional framework for fraudulent elections.

    We call on Hungary’s Constitutional Court, the European
    Commission, the European Parliament, the governments of the European
    Union, the Council of Europe and the Organization for Security and
    Co-operation in Europe to take preventive action, so that
    Hungarian citizens would not be forced to go to the polls in 2014 under
    the recently imposed, illegitimate and discriminating laws that
    practically institutionalize the rigging of election results. All
    diplomatic and legal tools available for the protection of European
    values, as well as possible new measures, should be used to halt the
    entrenchment of autocracy in a European Union member state.

    Action is also needed to maintain society’s peace. For the
    last two years, the foundations of democracy have been systematically
    demolished. A free and fair election would be Hungary’s last chance to
    peacefully return to democracy and the rule of the law. If the elections
    will be rigged, or even conducted under flawed laws that have been
    unilaterally enforced, democracy’s regeneration through the rule of law
    would become impossible in a member state of the European Union.
    Similarly to nations living under autocracies outside of the European
    Union, Hungarians might find no other recourse than civil disobedience,
    or even conflict. European institutions should not wait idly until a
    government which blatantly ignores our common European principles pushes
    a member state into a potentially violent crisis.

    We demand from the Constitutional Court not to make partial
    decisions and merely object to formalities; it should make clear that
    these unilateral election laws prevent holding free and fair elections,
    eliminate the guarantees for the rule of law, and destroy democracy.

    We appeal to the European institutions to monitor the review of
    the Constitutional Court by taking the following concerns into
    consideration.

    1. Europe must not tolerate that Hungary’s
    new election law was passed illegitimately, through one-party dictat
    that swept aside parliamentarism.

    The party which was freely elected in 2010 has now unilaterally
    passed an electoral law that pursues nothing but its own party
    interests. It did this on its own, despite fierce protests by all other
    parties. It acted in the same way as it did earlier, when it forced
    through a new constitution, or when it did away with pluralism in media
    governance, independence of the judiciary, the powers of the
    Constitutional Court, equality of religious denominations, or the rights
    of trade unions.

    The ruling party justifies its diktat by pointing to its two-thirds
    legislative majority, attained in the 2010 elections. But its actions
    fly in the face of the Copenhagen Criteria, which established the EU’s
    basic principles of democracy and the rule of law. In our new Europe,
    fundamental rights may be decided upon only by securing widespread
    legitimacy, by striving for consensus, and by exercising self-control.
    No parliamentary majority can justify the extirpation of citizens’
    rights for free and fair elections.

    2. Europe must not tolerate the new electoral rules that brutally restrict political competition and are openly discriminatory.

    The new media and electoral laws, together with the new constitution
    that is cynically adjusted to accommodate the new oppressive laws at
    every turn, will prevent millions of Hungarians from exercising their
    fundamental right to make an informed choice, or even to vote. The new
    regulations put insurmountable obstacles in the way of participation in
    the upcoming election, and arbitrarily limit the campaign conditions for
    opposition parties.

    The law prohibits commercial radio and television channels from
    running party political programmes or advertisements during the
    campaign; the public media have already been turned into a propaganda
    tool of the ruling party; the critical-minded independent media have
    been deprived of licences and advertising incomes; court decisions to
    restore the rights of the media are being consistently ignored.

    While the government is funnelling huge amounts of public money to
    pseudo-civil organizations, pro-government advertisers, it announced
    that it will do away with budget allocations for political parties.

    The ruling party has redrawn the electoral districts in its own
    favour; had these district borders been enacted earlier, Fidesz would
    have won every election since 1998.

    Hungary is the only country in the world which has replaced a
    modern, well-functioning national voter list with the archaic voluntary
    system of registration, operated by now only in a handful of countries.
    International electoral standards and observers invariantly criticise
    this outdated system because it facilitates ethnic, educational, social
    and regional discrimination. It disenfranchises a large number of
    citizens, depriving them of their voting right; lowers voter
    participation; delegitimises election results; encourages registry
    manipulations; and fuels politicised quarrelling over the rules.

    The obligation to personally register, according to fresh polls,
    would diminish the number of eligible voters to 4 million, as opposed to
    the 8 million eligible voters based on the previous rules. This is a
    radical break with the principle of universal suffrage.

    The new electoral law forbids registration in the last two weeks of
    the election campaign, thus making any campaign effort to attract
    undecided voters futile.

    Since both the introduction of voluntary registration and its
    banning during the last two weeks of the campaign are clearly
    constitutionally unjustifiable, the constitution was amended overnight
    to include the above details in order to block their revision by the
    Constitutional Court.

    Different rules will apply to voters who live outside of Hungary
    from those within its borders. For example, registration by mail is
    forbidden for local citizens while allowed for those residing abroad.
    The addition of bureaucratic hurdles will likely keep hundreds of
    thousands of potential voters from exercising their right to vote.

    The Hungarian government has nationalised schools, or turned them
    over to churches; elected school principals have been replaced with
    appointed ones; and while parents’ rights have been radically abridged,
    first-time voters in schools are being indoctrinated with compulsory
    textbooks; the law does allow schools to arrange voter registration.

    Ethnic minorities, including the Roma, may have representation in
    Parliament only on the condition that they lose their right to vote for
    any party; thus, instead of promoting minority rights, the law deprives
    hundreds of thousands of their political rights in a discriminatory
    manner.

    3. Europe must not tolerate rules that have opened the gates to election fraud.

    The new law grants a majority to members appointed and delegated by
    the governing party at all levels of the committees supervising
    elections, giving them the power to deny complaints or to adjudicate
    them in a partisan manner.

    A party which cannot send two delegates to a local committee will
    not be allowed to send even one, thus remaining without representation.

    Even the “independent” representatives in the supervisory committees
    will be appointed either by the government’s parliamentary majority or
    by municipal councils (of which roughly 95 percent are government-party
    dominated).

    The National Election Commission — the final arbiter of all disputes
    — will be appointed for nine years, and it will preside over every
    parliamentary, municipal, and European election during that period. Thus
    Fidesz delegates will be in control of all elections for nine years
    under any circumstances.

    Most of the procedural details — for example the particulars of the
    registration process — are omitted in the new law, allowing a partisan
    majority to arbitrarily settle disputes between parties.

    Whereas the previous law had prescribed prevention of any election
    fraud and enforcement of impartiality in arbitration, these provisions
    were deleted from the new law.

    The provider of the computer system that has, under multiparty
    scrutiny, overseen the information flow of previous elections will now
    be nationalised, and the whole system will come under government
    control.

    According to the new law, the process of electronic vote-counting
    will be interrupted at the mostly Fidesz-controlled municipalities
    awaiting absentee, votes from abroad and mail-in votes; these
    interruptions offer uncontrollable opportunities for manipulating the
    results.

    The Fidesz government has granted citizenship, as well as voting
    rights, to hundreds of thousands of Hungarians who live in neighbouring
    countries. The new law enables these individuals not only to vote by
    mail, but it also allows for a grace period of several days for their
    votes to arrive. The results of the mail-in votes will be announced by
    the National Election Council, leaving no room for public control.

    With reference to “protecting” Hungarians living outside the
    national borders, the government refuses to make the list of those
    voters public, and not even their number per country will be announced.
    Given this decision, unparalleled in Europe, there will be no chance to
    establish the validity of several hundred thousand votes.

    The Hungarians abroad may also vote at Hungarian consulates. The
    Hungarian parties can send observers at their own cost, thus many
    consulates will be unattended by non-governmental observers, and if they
    will be present, they will not be allowed to check voter lists.

    The law bestows a cabinet minister with the right to decide what
    types of data will be published from all of the election results, and
    what mathematical controls are expected to apply to the result sheets.

    International observers may be accredited or denied accreditation by
    the president of the National Election Council who is appointed for 9
    years. The president is not obliged to provide a reason, and the
    decision may not be appealed.

    In defiance of international obligations, observers have no right to
    put questions to party representatives, candidates, or voters. They may
    address only the election committee.

    We ask all Hungarian and European friends of democracy, as
    well as the Hungarian Constitutional Court and the European
    institutions in particular, to take immediate action. Please help us
    protect the right to free and fair elections. We have a short year and a
    half only. There is no time to waste.

    Budapest, December 5, 2012

    Attila Ara-Kovács, former diplomat
    Gábor Demszky, former Mayor of Budapest
    Miklós Haraszti, former OSCE Representative on Freedom of the Media
    Róza Hodosán, former MP
    Gábor Iványi, pastor
    János Kenedi, historian
    György Konrád, writer
    Bálint Magyar, former Minister of Education
    Imre Mécs, former MP
    Sándor Radnóti, philosopher
    László Rajk, architect
    Sándor Szilágyi, author”

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