András Bragyova

A shameful verdict: The Court finds the new Budapest electoral law consitutional

Now that Viktor Orbán has seen the light and convinced Péter Szentmihályi Szabó to shelve his ambitions to be the next Hungarian ambassador to Rome, I am returning to the domestic scene, which is not pretty either.

Although hardly a day goes by without some horrendous attack on Hungarian democracy, this week’s greatest abomination was the 8 to 7 decision of the Constitutional Court affirming the constitutionality of the new law governing elections in Budapest. Once, back in May, I wrote about Fidesz plans to completely change the electoral system in Budapest. Why? Simple. After the April elections it looked as if Fidesz’s position was not secure in the capital. And naturally, in Fidesz’s view, no election can ever be lost. By hook or by crook they will win. The party and its leader will march resolutely from victory to victory for time immemorial. And so a devilish plan was devised to ensure victory.

Since I went into the details of previous system in May, here let me just summarize it briefly. In the past the lord mayor (főpolgármester) was elected directly by all the eligible voters in Budapest. District mayors were chosen only by the inhabitants of the 23 districts. In addition, there were party lists on the basis of which the 32-member city council was elected. What particularly bothered Fidesz was that the opposition might get a majority on the city council given the fact that numerically more Budapest people voted for the opposition parties than for Fidesz. After some clever mathematics they came up with a solution: simply abolish the city council as it exists today and replace it with a body composed of the 23 district mayors. This body could then be joined by nine people from the so-called compensation lists of the losers. Thus, including the lord mayor, it would have 33 members, just as it has now.

But from day one it was clear that this scheme is glaringly unconstitutional because it violates the one person, one vote principle that is fundamental in a functioning democracy. This disproportionality is due to the varying sizes of the districts. Here are some examples. While District I (the Castle district) has 24,679 inhabitants, District III has 127,602.  District V (Antal Rogán’s domain) has 26,048 while District XIII has 119,275. I guess you will not be terribly surprised to learn that the smaller districts lean heavily toward the right. Thus, the Castle District where no socialist or liberal has ever won will be represented on the city council by one person as will the socialist District XIII.

As soon as this problem was discovered–and it didn’t take long–the Fidesz “election experts” started to tinker with the proposed law and introduced all sorts of amendments that were supposed to remedy the situation. Their attempts eventually made the system extremely complicated without satisfying the constitutional requirements. In a very rare moment of unity, all parliamentary members of the opposition–including Jobbik and LMP–turned to the Constitutional Court for a ruling on the issue. That was in June. On Monday at last the judges handed down their decision. It was a very close vote, especially considering the composition of the court: 8 out of the 15 judges found the law, by and large, constitutional.

One ought to keep in mind that the majority of the judges were appointed by Fidesz after the “court-packing scheme” was introduced. In addition, there are two judges who were put forth by Fidesz earlier. Currently there are only three judges on the court who were nominated by MSZP, one of whom will have to retire in September and two others in March 2016.  After that time there will not be one member of the court who was not a Fidesz appointee. As it is, seven out of the eight judges who were nominated by Fidesz since 2010 found the law constitutional; the one exception refused to concur because he couldn’t agree with the majority on the one side issue it found unconstitutional. So, this is where we stand.

A rather telling picture of the current Hungarian Constitutional Court Source: Népszabadság

A rather telling picture of the current Hungarian Constitutional Court. Source: Népszabadság

Several judges wrote separate opinions. Perhaps the  hardest hitting was that of the chief justice, Peter Paczolay, who is considered by legal experts to be conservative. He was endorsed by both parties and since his term will be up next February I guess he doesn’t particularly care what Viktor Orbán thinks of him. He pointed out that “the present case does not merely touch on constitutional issues but on the right to vote that is the very basis of democracy.” According to him, this Fidesz-created law “is entirely contrary to the fundamental principle of equality.” Moreover, he added that some of his colleagues did not fulfill their professional duties and instead wrote a decision that was dictated by the interests of a political party. Pretty tough words.

András Bragyova (MSZP), who will be leaving the court in September, had nothing to lose either. In his opinion the new “council will not be an elected body although the constitution states that Budapest must have its own self-government.” It is an unconstitutional creation. Moreover, he noted that while the constitution demands self-government for the city as a whole, the election of district mayors is not specifically mentioned in the constitution. As he wittily remarked,  “from here on instead of Budapest having districts, the districts will have a capital city.”

The behavior of István Stumpf, an old Fidesz hand and Viktor Orbán’s former college professor who doesn’t always toe the party line, was the strangest. He voted this time with the slim majority, but he wrote a separate opinion in which he objected to changing the electoral law only months ahead of the election.

NGOs such as the Hungarian Helsinki Commission and TASZ as well as independent electoral law experts are appalled by the poor quality of the opinion that was written by Béla Pokol. Viktor Orbán chose him to serve on the court despite the fact that he is opposed to the very existence of a constitutional court. His judicial views are also extreme.

Csaba Horváth (MSZP), who ran against current lord mayor István Tarlós in 2010, declared that this decision demonstrates that the last bastion of democracy, the Constitutional Court, has been captured by the enemies of democracy. Some people contemplate boycotting the election but most are ready to face the music. Between Fidesz and the totally incompetent opposition a huge Fidesz win seems to be shaping up for October 12.

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