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Voter registration annulled on formal grounds by Constitutional Court

December 31st, 2012

Analysts ponder the message and the wider implications of a first decision by the Constitutional Court to strike down mandatory voter registration.

On Friday, the Constitutional Court scrapped a series of rules contained in the Transitional Provisions to the Basic Law (intended to secure the continuity between the previous Constitution and the new Basic Law), because they were intended to serve “permanent, rather than provisional purposes.” One of the 17 rules thus cancelled is the widely contested one on compulsory voter registration which served as a basis for the Electoral Law adopted in November 2012 (See BudaPost, November 19). Fidesz has announced that since the decision does not concern the actual content of the rules, these can simply be incorporated into the body of the Basic Law. The opposition parties have welcomed the decision as proof that voter registration as such is unconstitutional. Whether or not the principle of voter registration (specified in the Electoral Law) is in line with the Basic Law and Hungary’s international treaty obligations is to be determined by a separate ruling of the Constitutional Court due next week.

The Constitutional Court made a bold decision by overruling voter registration, Népszabadság writes in a front page editorial. Although the ruling has been made on formal grounds, the Court has shown that there are formal and procedural norms which must be respected even by a two-thirds majority, Népszabadság notes. The left-wing daily accuses the government of intending to circumvent constitutional control by including all kinds of specific regulations in the Basic Law and believes that the right-wing parliamentary majority will not shy away from incorporating the much criticized voter registration provisions into the main text of the Basic Law.

But the next parliamentary session is scheduled for early February, and Népszabadság in a separate column speculates that the verdict has cleared the path for the Constitutional Court to strike down the Electoral Law’s provisions on voter registration in January. Since Friday’s decision retroactively eliminated voting registration from the Basic Law, the Court can now declare the Electoral Law stipulating mandatory voter registration unconstitutional.

Zoltán Simon in Népszava acknowledges that the decision surprised him, since he had expected that the pro-government Constitutional Court would shy away from annulling parts of the Basic Law. Simon points out that the inclusion of voter registration in the Basic Law was intended to rule out the possibility of legal redress by the Court, which has no authority to investigate the content of the Basic Law. The left-wing columnist predicts that the government will nonetheless amend the Basic Law so that voter registration will be part of the main text, and by doing so it will completely destroy what has so far remained of its credibility. The Hungarian public will now realize that the Fidesz government wants to manipulate the Constitution for political purposes, Simon suggests.

If the Constitutional Court next week rules that voter registration as specified in the Electoral Law is unconstitutional, PM Orbán will have two options, Gábor Miklósi speculates in Index. He may insist on introducing mandatory voter registration and include the provision in the main body of the Basic Law, as suggested by the government’s first reaction to the Court’s decision. This, however, would produce a paradoxical situation, since the Constitution would then include a section which, as part of the Electoral Law, will have been ruled unconstitutional, Miklósi points out. Alternatively, PM Orbán could regard the case as settled, and accept the fact that voter registration cannot be introduced, the liberal analyst concludes.

The opposition parties will interpret the decision as confirmation of their criticism of the Basic Law, András Balázs Orbán, Vice-President of Századvég Foundation remarks in Magyar Nemzet. Orbán notes that although the verdict could further constitutional revisions, including the one concerning voter registration specified by the Electoral Law, the Court has not addressed any substantive issues as yet. As it dismissed some constitutional provisions for formal reasons, the decision cannot be seen as a vindication of the opposition parties’ worries, he continues. The Constitutional Court pointed out only inconsistencies, and opened up the door for creating a fully coherent final version of the Basic Law, Orbán argues.

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