“Observer”: Inappropriate “guidance” by the National Election Commission

Last week the NEC issued guidance re the application of Sec. 254 of the Electoral Procedure Law of 12013 XXXVI (EPL). The opposition parties are protesting, claiming the action illegal, but there is no sense of crisis. This post is meant to inform and suggest one line of thinking, but surely more opinions will emerge.

The political background

The 2013 Fidesz legislation was tailored to favor them and to handicap the opposition parties. One such hurdle is that a party has to register a minimum of 27 candidates in the 106 single member constituencies in order to be able to register a national party list. While this condition forces the parties to carefully co-ordinate how they field candidates against each other, its impact should not be overestimated. The parties can easily field candidates against each other in constituencies where they have no chance to win and so achieve the min of 27.

The guidance of NEC is not an administrative action, although it provides the grounds on which such action may be taken later.

More troubling are the role played by the NEC and its timing.

The EPL can be amended only by a 2/3 supermajority, which Fidesz doesn’t have at present, so the action of the NEC, composed of Fidesz appointees only who unanimously approved the proposal, looks like an attempt to circumvent the law by pretty transparent legal tricks, a  practice often used by Fidesz, the most blatant recent examples being the ASZ “suggestions” of fines or the earlier contravention of the 2/3 supermajority law on political advertising by an amendment of a simple majority law on the image of settlements.

The timing of the action, i.e. 90 days before the elections, seems to be aimed at inflicting as much hardship on the parties as possible, since by now several agreements between the oppositions parties have been finalized or have entered their final phase. Needless to say, the Fidesz candidates/lists are not affected by the matter at all.

András Patyi, president of the National Election Commission, presiding / MTI / Photo: Zsolt Szigetvári

The Law

I reproduced the text of  Sections 137, 138 and 254 which are of interest in our case and offer links to the full text in Hungarian and in English.

Elimination of candidates (Sec. 137)

A candidate is eliminated if he or she relinquishes the nomination in writing before the start of voting, if he or she is deleted from the central electoral register, if he or she loses the right to stand in the election, or if the election commission deletes the candidate’s nominating organisation from the register of nominating organisations, candidates and lists. The names of eliminated candidates shall be deleted from the register of nominating organisations, candidates and lists and from single member constituency ballot papers.

Elimination of lists (Sec. 138)

A list is eliminated if the nominating organisation revokes the list, if all candidates on the list are eliminated before the start of voting, or if the election commission deletes the candidate’s nominating organisation from the register of nominating organisations, candidates and lists. The eliminated list shall be deleted from the register of nominating organisations, candidates and lists and from ballot papers.

Notification of national lists (Sec. 254)

(1) When putting forward a party list, nominating organisations shall take into account the number of single member constituency candidates notified before the registration of the list, except for candidates whose registration was refused by the parliamentary single member constituency election commission.

(2) The National Election Commission shall remove the party list from the register if the nominating organisation has fewer*  finally registered and notified but not finally adjudged single member constituency candidates than the minimum specified by law.

* The official English version translates “nem éri el” as the pretty general – the party “has fewer,” while the meaning in Hungarian is unequivocally “doesn’t reach the minimum prescribed by the law,” a crucial distinction in our case.

254. (2) A Nemzeti Választási Bizottság törli a nyilvántartásból a pártlistát, ha a jelölő szervezet jogerősen nyilvántartásba vett, valamint a bejelentett, de még jogerősen el nem bírált egyéni választókerületi jelöltjeinek száma együttesen nem éri el a törvényben foglalt minimumot.

The National Electoral Commission’s position

According to the protocol of the meeting the NEC first considered the necessity of the current guidance and found it justified in order “to preserve the integrity of the election process,” “to assure the expression of the voters’ will,” and to “act in the interest of the nominating parties” as far as the parties’ lists are concerned, etc.

K. Gáva admited that neither the EPL nor the material law contained any specific provision about what happens with the party lists if the number of candidates drops below the required minimum after the list has been registered.

Patyi argued that the guidance action of Sec. 254.2. is necessary because the national party list role as introduced in 2014 was now dual – [in addition to the distribution of the national list mandates] it is also a compensation list, where “the unbroken presence of the conditions under which the list was registered becomes an issue regarding the proper reflection of voters’ will expressed at the election.”

He argued that the removal of the party list under Sec. 254.2 had no time limit, hence can be carried out at any time before the poll.

In his opinion Sec.137 had also to be taken into account** and emphasized that if the minimum number of candidates dropped below 27 that means that the condition for the list registration is missing. He saw supporting evidence in the fact that while the old 1997 C. law Sec. 94.2 explicitly stipulated, just as the current local government elections law, that the reduction of the number of candidates did not affect the right to register a national list, the EPL did not contain such a provision.

** He ominously ignored Sec. 138 which explicitly deals with the “Elimination of the list,” the importance of which is discussed below.

The legal argument

I find the argument of NEC/Patyi legally flawed and its effects unacceptable.

The first problem arises from the fact that Sec. 253-255 are related to part 114 – Notification of national lists, where all provision regulate the process leading to and prior to the registration of the lists. Sec. 254.2 logically follows the process and stipulates that “The National Election Commission shall remove the party list from the register …. if it doesn’t reach” the minimum. This kills the NEC no-time-limit argument and means that removal can be carried out until the registration.  My guess is that this distinction is a leftover element of the old law.

Patyi might have had a point in arguing that the current law does not reproduce the old provision where the once registered party list was not affected by the number of candidates dropping below the required minimum, if it was not for Sec. 138, which he ominously ignored because it undermines his argument.

To start with, Sec. 137 and 138 deal specifically with the elimination of candidates and lists respectively, i.e. they are applicable after the moment of registration. So the ELP didn’t ignore the issue – Sec.138 explicitly stipulates that one of the three cases where the list can be eliminated is “if all candidates on the list are eliminated before the start of voting.” Patyi’s attempt to analogize from Sec. 137 is inappropriate in the face of the clear purpose and wording of Sec.138.

One may find the provision of Sec. 137 clumsy, since it is hard to envisage a case where all 27 or more candidates are eliminated, or may argue that the subsequent violation of the condition may render the latter meaningless, but the provisions are there. Poor drafting of the hurried Fidesz legislation has been criticized for years.

A primitively formalistic interpretation has been practiced by the ruling Fidesz since 2010, actually appallingly double standards interpretation:

– A very narrow, formalistic interpretation, when serving their interest e.g. right now the National Security Committee Fidesz members appeared at the session called by the MSZP chairman, as they had to, but walked out effectively rendering the right to call meaningless.

Or

– The widest, often wild interpretation where the law restricts or prohibits an intended Fidesz action, e.g. the MNB bank funds moved to a MNB foundation ruled by a MNB board “lost their public funds nature.”

The unacceptable effects

In any rule of law system it is a fundamental principle that the legislator strives to avoid imposing unnecessary hardship, undue burden on the subjects of the law. In our case the NEC guidance action seems to aim for the opposite – by these changes to the rules it imposed serious challenges on the opposition parties, possibly prejudicing their participation in the election race.

The lawfulness question aside, the NEC timing unreasonably imposes these challenges 90 days before the election, while taking no action for four years since the provisions were introduced and for 18 months or more since the subject of mutual candidates’ coordination became a major political issue. The timing also severely reduces the opportunities for judicial recourse and leaves no time for the parties to comply with the eventual ruling of the court.

Those parties which had their lists eliminated will also lose their normative state funding, practically disabling their political activities.

If we “look at the bright side of life” we can feel at happy that at least the votes from the eliminated lists will not go to Fidesz as winner compensation but will be declared invalid.

To put things in prospective again, the NEC intervention is small potatoes compared to the Fidesz book of legal horrors in the electoral law, the media and advertising regulations as well to their usurpation of the state media and their huge war chests laden with hundreds of billions of embezzled state funds, etc.

Such actions do not take place in rule of law countries, in democracies, but they do under the current regime in Hungary.

January 29, 2018
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dos929
Guest

Even these and other ‘lawless’ rules were not implemented (alas they are…), since there are no checks and balances in the actual election process, the regime can and would declare results that would suit them. ‘Hungarians Over the Border’ will cast as many votes as the Fidesz would need to secure their overwhelming parliamentary majority. No one will be able to dispute the results, as in the case of the National Consultation, they will pull out any number from the hat….

Michael Kaplan
Guest

Thank you Professor Balogh. I don’t know how you do it, but you are working non stop. The actual free world is indebted to you, which we can not always equate with specific countries; often we are are talking about individuals!

petofi
Guest

Such utter, bogus nonsense: what difference do the laws make, tilted or not in Fidesz’s favour? It’s all a ‘blind’.
Viktor Orbanus will put up whatever result he wishes.

Sic transit Hungaria gloria!

Hajra Magyarokkkk!!!

petofi
Guest

Anyway, the less time they spend to count, the more they’ll have for the pig/dog roast…

The Kraken
Guest

I don’t envy Patyi’s mother. Apart from her there’s probably nobody who likes this infinitely servile silovik. At least I haven’t met anybody. Orban sure knows how to pick mindless drones.

petofi
Guest

I would oh-so-like to read the book that Orban will eventually write about what fools he made of the Hungarian people and the country’s government…

petofi
Guest

Gypsies worldwide are holding their sides laughing at how one of theirs pulled the wool…

Vajda
Guest

As a Hungarian Roma , longtime reader but first-time commenter, can someone ban this racist troll? Such comments are totally unacceptable.

Observer
Guest

Vajda, .. Hun Roma, .. longtime reader … Really?

Petofi, now this one seems to be pulling the wool.

Observer
Guest

Btw
The “PC warriors” and other single issue crazies are undermining democracy; it’s a complex interaction not all understand, but one can try:
https://m.youtube.com/watch?v=WsTuMmyHw8s

petofi
Guest

@ Vajda

You worry about me?
How are you doing with that political leader of yours in bed with Orban, and stealing all the Roma monies….?

Vajda
Guest

All Roma are represented by Farkas ? Who decided that he represents me? I did not!

Ferenc
Guest

Fully agree with Eva and zsuka

Observer
Guest

S. Lezsák is another political prostitute who uses his propensity for easy bed hopping to sell himself to a high bidder:
https://444.hu/2017/09/…/15-milliarddal-tomte-ki-a-kormany-lezsak-hungarikum-parkja
http://www.origo.hu/itthon/20151202-dol-a-penz-lezsak-sandor-birodalmaba.html

Member

I would love it if Sharif Horthy would chime in with an editorial about Lezsak and his gang, but I doubt he’s up for it.

wrfree
Guest

Mr. Leszak’s words appear as to act as a quite narrowed and ‘in-your-face’ defense in dealing with the ‘German and Jewish’ problem during the war.

The ‘defense’ appears to typify a result that Churchil commented on in a paper he was perusing, ‘This paper by its very length defends itself from ever being read’.

Translation: In Magyarorszag today we cannot expect any inclination toward candid and penetrating investigations of the Horthy era that differ from the current line. Current ‘defensive naneuvers can only guarantee that the Horthy ‘book’ will be closed for quite awhile.

Istvan
Guest

As a Catholic I am appalled at Sándor Lezsák’s undelivered speech at the memorial mass for Horthy having now read it. This passage was deeply disturbing to me: “Miklós Horthy, was in the defenseless position as was the country, it took courage [to take on the ] Hitlerian leadership to accept the Polish and Jewish refugees. The governor [Horthy] took the courage to defend our countrymen, the Jewish people of Budapest, [Horthy] alone protected many, using [Hungarian] soldiers from Hitler’s demands for Jewry, as long as possible. It is no scandal, therefore, rather a natural gesture, that the horrible and inhumane holocaust, as well as the memory of the Hungarian governor and his family, as a Catholic believer in the remembrance day and in the Mass. Our Jewish compatriots could take an example of our Jewish compatriots who appreciated the courageous decisions of Miklós Horthy’s governor and expressed it in numerous forms. Neither of them should be more than fairness in judgment. “

wrfree
Guest

Re: on the Polish responsibility for the Holocaust..

‘But the time
in which darkness
prevails
that time one
does not see’

the late WG Sebald

He will be held as perhaps one of the foremost ‘memorists’ of the destructive 20th and its impact on humanity’s unsettled relationship with memories of the past.

Europe never has thrown off its complicated relationship to its past. Refusal and willful ignorance are the twin results of a sort of tenuous accomodation by nations and populations to a dismal and dilapidated past of our civilization.

And where is ‘truth’ in all this? It appears to work like the Black Plague. It brings about a shuddering to the death when contemplation comes to bring on its great weight.

Istvan
Guest
I think Eva’s comment on Petofi was appropriate. It is also appropriate and necessary that the deep cynicism that Petofi expresses on the blog reflecting an attitude many of us see within our own families in Hungary continue to be reflected on Eva’s blog. That attitude also exists in and amongst Chicago’s Polish community. I have numerous friends in that community some of whom are Law and Justice supporters from afar. But a draft Polish law that would make it illegal to suggest Poland bore any responsibility for Nazi atrocities committed on its soil has deeply divided that community. I will be honest that I have never seen such open hostility towards Jews amongst people I have known for years as I have with this draft law. It was sitting just below a certain level of cilivity in the community and it is that attitude of hidden racism that I believe is often reflected in Petofi’s sharp and often hostile comments. A few members of that Polish American community have said, yes of course we were occupied by the Nazis, but my family did not really give a good damn what happened to the Jews. So yes in some ways… Read more »
zsuka
Guest

I don’t like this offensive language either. It’s not an excuse to point at the misbehaviour of others. Rather it would be appropriate to apologize.

Ferenc
Guest

Thanks Observer, for your detailed explanation!!
Another point to be added to OECD list (2014 had already 36 points!!). Points to be fulfilled before elections in Hungary can be considered really democratic!

Marty
Guest
Let’s not forget that that both of the people on the picture used to work at the Constitutional Court and ended up in hyper-fidesznik positions. Ilona Pálffy used to be the chief of staff, András Patyi used to be a clerk to various judges. The interesting question is how and why did the well-regarded and conservative but not fidesznik Janos Németh (then the chairman of the court) hire exactly Pálffy and not somebody else more qualified in 2000? Pálffy had had almost 30 years of work experience during communism (though details of those three decades are completely unavailable, one wonders why) but lacked any substantive constitutional law knowledge. Nevertheless after Péter Paczolay left the position of chief of staff we now know that Fidesz was smart enough to place one of its reliable loyalists (with an interesting communist background to boot) into a position where she could see and hear everything for 10 years serving four other chairmen. MSZP and the rest of the left-wing never understood how a legal system works and they never cared. The left-wing’s cluelessness has always been astonishing and it hasn’t changed. Fidesz smartly understood that to win in the long term the Constitutional Court… Read more »
Observer
Guest

Marty
Come on, nonsense that ” …the left wing never understood how a legal system works”, they respected the newly acquired democracy, e.g. the Horn gov had well over 2/3 majority, but didn’t abuse it to usurp power, properly gave the opposition all due positions and membership in parl committees ands other bodies (for which Fid privately commented that “these are stupid”).
This is the logic of the thieves: we steal because the stupid ones don’t protect their belongings and cars well enough.
And this is YOUR statement, not how the people perceive it.

Observer
Guest

Marty
What you’re saying someone else, e.g. an MSZP/SZDSZ gov should have usurped power in order to prevent the “smart” but evil Orban from doing it.
Firstly it’s great to judge with the benefit of hindsight.
Sec maybe the Huns aren’t yet at the level of soc development to sustain a democracy.
Yes, democracy should defend its institutions, be tougher with the budding fascists, I would have different ands more aggressive action, but then we are back to the who’s the dictator game. And many of the “clueless” left Libs would be up in arms against us, e.g. remember their tirades against the attempts of the Gyurcsàny gov to stop the Fidesz organized riots? U think Gy could say, if you criticize me there’ll be more tear gas ands rubber bullets?
History shows that “the people” lften get it wrong, some more often I’m afraid.

Observer
Guest

Marty
You have many valid points, but it’s a long discussion, not the time and place here.

Marty
Guest
Observer, it’s emphatically not the usurpation of power to use power what you are legally entitled to have if the goal is noble — to entrench democracy and prevent tyranny. The power is there to wield. You don’t have to be ashamed of it or apologize for it. You are elected, as a leader (as a government) your exact job is to use that power – wisely and ethically. Preventing a potential tyrant emerging down the road would’ve been such a worthy cause, in fact there’s no more worthy cause than that. MSZP and SZDSZ abjectly failed in that. Mind you there was a process of actually drafting a new constitution under the 1994-1998 government since the 1989/1990 constitution (formally the amended 1949 constitution) was originally (during the 1989 system change when it was amended wholesale) thought of a transitional constitution (in the very text of it was called transitional). MSZP and SZDSZ knew that there was a danger (they did amend some technical rules to reflect their awareness but it was – amateurishly – worded and drafted and later that provision was deemed irrelevant by the constitutional court; that small provision wanted to increase the validity threshold for the… Read more »
Marty
Guest
Observer, a good lawyer (btw Horn was an “economist” who studied in Rostov na Donu and you can imagine the economic science he studied there graduating in 1954) will know that his/her adversary (in Horn’s case Fidesz) will act like a thief in due course and prepares for it. That’s the job of the lawyer, not to trust, but to prepare. Orban and his pals, as lawyers, did prepare. The founding fathers of the US constitution (which document btw I don’t idolize) knew exactly that tyranny is a real danger, the risk is always part of politics so any framers of a constitution must very carefully prepare against it. Horn and SZDSZ should’ve entrenched democracy with their 2/3s instead of bickering and doing corrupt stuff and allowing Fidesz to take over which was bound to happen. Mind you Laszlo Kiss (the former judge at the constitutional court who was nominated by he Socialists) told already in the 1990’s that in an election system which is based on first past the post elements (ie. the Hungarian) sooner or later one party ends up with 2/3s alone because such party systems usually end up with two major parties and a few almost… Read more »
Guest

Marty, what are you telling us:
Hungarians (at least a majority of them) are not able and willing to understand democracy and the reason is that the country (like all of Eastern Europe) is fifty years behind because of the Socialist Years.
Imho if that’s true then they should leave the EU and join Putin’s block!
We civilised Westerners don’t want their phobias and illiberl ideas to destroy our democracy!
Of course, those who agree with our ideas are welcome to join us – and many do …
The rest? Maybe in Russia there’ll be a new revolution against the oppression of the new Czar in fifty or a hundred years?

Istvan
Guest

Related to corruption of elections and Russians in general. I would recommend that enterprising Hungarian journalists examine closely this document released last night at four minutes to midnight by the US government https://www.scribd.com/document/370313106/2018-01-29-Treasury-Caatsa-241-Final Its a long-awaited list of 114 Russian politicians and 96 “oligarchs” who have flourished during the reign of President Vladimir Putin. That fulfills a demand by Congress that the U.S. punish Moscow for interfering in the 2016 U.S. election. I suspect amongst them those journalists will find numerous ties to Hungary and pro-Orban oligarchs.

wrfree
Guest

With leadership going ‘back to the future’ particularly the medieval it could behoove the opposition to fight fire with fire and think like medievalists. Perhaps bringing back that old staple Lex Salica and dousing that fire with a custom made ‘ordeal by water’. You know hands put in buckets of boiling water and then the check for festering to get to ‘decisions’…. ;-)..

The salient characteristics? Unfortunately untidy with screams but the ‘system’ couldn’t be as rigged as with what they’ve got. There certainly will be ‘variation’ even though ‘God’ is holding the buckets.. .;-)…

Observer
Guest
Lezsák speech. There are very few Hungarian clerico-fascists of the Polish kind, since ours are pretty devoted to Mamon as well, and S.Lezsák is a perfect example. (The speeches of Peter Boros had some flabbergasting gems as well). Here is a PRAYER where politics, propaganda, movie director, school textbooks were also involved. Some snippets in my translation: http://magyarhirlap.hu/cikk/109318/Csendes_ima_a_Belvarosi_Plebaniatemplomban Sándor Lezsák says a Quiet prayer in the Belvárosi Plébánia – church The governor was the only one in Europe who took the courage to defend our countrymen weapon in hand, the Jewish people in Budapest, and to resist Hitler’s blackmailing demands for as long as possible in the interest of the [Hungarian] Jewry… Our Jewish compatriots could take the example of those Jewish compatriots who commended the courageous decisions of Governor Miklós Horthy… Miklós Horthy is the victim of historical and political character assassination, whose personality and life path were deliberately tarnished and distorted… It is the historians’ task and responsibility to analyze in detail, to confront the deliberately distorted for decades image of Miklós Horthy with the facts. It is the historians’ task to carry this out in science, in education, in the school textbooks. But it is for the… Read more »
Ferenc
Guest

OT
Before today’s meeting with Kurz, OV had a meeting with Pecina (‘Haupt-Stróman Felfüggesztés’). As explained by one of OV’s press-boys “on request of Pecina”.
In Vienna OV also met with some sausages, which he had to picture and put on his facebook.
WHY didn’t he put also a picture of himself with ‘Haupt-Stróman Felfüggesztés’ up there??
https://zoom.hu/hir/2018/01/30/titkos-talalkozo-becsben-heinrich-pecinaval-is-targyalt-orban-viktor/
https://24.hu/kozelet/2018/01/30/heinrich-pecinaval-is-targyalt-becsben-orban/

Marty
Guest

OT:

While we were sleeping Silvio Berlusconi is back!!

At the age of 81 he is poised to win the next elections of Italy.

Orban is only 54, even if he loses in 2018 (which is extremely unlikely) he’ll be back in a few years at most.

Voters want populist people who are fascinating. Of course having TV channels do help.

Parties without interesting (media savvy) leaders and without media (ie Hungarian left-wing) have minuscule chances in the ‘society of spectacle’. Guy Debord, who coined this term in 1967, was a Marxist philosopher yet the left-wing somehow completely missed him. The lewft-wing just didn’t care about media – right-wingers instinctively knew that it is key, from Hitler to Trump to Berlusconi to Orban. I just don’t get the leftists, what were they thinking?

https://www.nytimes.com/2018/01/29/world/europe/berlusconi-italy-election.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=first-column-region&region=top-news&WT.nav=top-news