The new Hungarian electoral law: An appeal of the Democratic Opposition to organizations of the European Union

President János Áder waited until the very last minute allowed him by law to decide on the fate of the electoral bill. Today he announced that, instead of signing the electoral bill passed by members of the government party alone, he will send it over to the Constitutional Court to decide on the constitutionality of certain provisions of the bill.

“Greetings, Mr. Kovács! I didn’t see you at the Peace March. Were you sick?” The cartoon accompanying the original text in Népszabadság

According to the opposition parties, the bill is unconstitutional in its totality. They were hoping that Áder would reject the entire bill, not simply question certain paragraphs. But, let’s face it, this would have been too much to expect from Áder, one of the founders of Fidesz. He found that the new electoral law by and large guarantees free and democratic elections. Áder had no problem with the idea of the entirely unnecessary registration process; he found only the restrictive nature of registration troubling. An eligible citizen, he maintained, should be able to register anywhere in the country and not just in the place of his residence. His second observation concerns the overly restrictive nature of advertising opportunities. As it stands, only public television and radio stations could carry political ads during the campaign season.

This is mighty little to object to. As you will see from the text below, there are many, many things that are wrong with this bill. I’m very pleased that I received an English translation of this Appeal by the members of the pre-1989 Democracy Movement to European Institutions that appeared in yesterday’s Népszabadság because I don’t think that anyone could better summarize the grave implications of this bill.

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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