a) Hungary / b) Constitutional Court / c) / d) 17-06-2005 / e) 22/2005 / f) / g) Magyar Közlöny (Official Gazette), 2005/81 / h) .
Keywords of the Systematic Thesaurus:
Constitutional Justice - Jurisdiction - Scope of review - Extension.
Constitutional Justice - Jurisdiction - The subject of review - Failure to act or to pass legislation.
Fundamental Rights - Equality - Scope of application - Elections.
Fundamental Rights - Civil and political rights - Electoral rights - Right to vote.
Fundamental Rights - Civil and political rights - Electoral rights - Direct / indirect ballot.
Keywords of the alphabetical index:
Election, constituency, number of voters, difference / Election, constituency, boundary / Election, equal voting power.
A doubling of the difference between the numbers of voters registered in individual voting districts is at variance with the principle of equality in voting rights. In such cases, the difference between the numbers of voters is so large that it cannot be made constitutionally acceptable in any circumstances.
I. The decision arises from the constitutional review of certain parts of Act XXXIV of 1989 on the election of Members of Parliament (hereinafter described as "the Act"), and Decree 2/1990 on the demarcation of specific voting districts (hereinafter described as "the Decree"). According to the petitioners, since the Act and the Decree came into force, a significant reconstitution of groups of the population has taken place in certain parts of the country, and the number of citizens registered in the directory of voting districts has changed, with the result that the difference between the numbers of voters in individual voting districts has more than doubled. This is in breach of Article 71.1 of the Constitution, under which Members of Parliament, members of representative bodies of local governments, Mayors and the Mayor of the Capital are elected by direct, secret ballot, based on the universal and equal voting rights of citizens.
II.1. The Constitutional Court took as its starting point the principle of equality in electoral matters as set out in Article 71.1 of the Constitution. Did this mean that the numbers of voters registered in the directory of individual voting districts should be equal, and that the number of mandates to be won in individual voting districts should be in exact proportion to the number of registered voters?
The Constitutional Court stated that the principle of equality in voting rights requires each voter, under normal circumstances, to be entitled to one vote only. In this respect Article 71.1 of the Constitution excludes the right to plural voting, under which certain favoured groups amongst the electorate would be guaranteed more votes or votes with a different value during the elections. Although the constitutional requirements that follow from the equality in voting rights included in Article 71.1 of the Constitution are greatly influenced by the electoral system created by the legislature, the requirement of equality in voting rights is also to be considered standard in relation to the candidate of an individual voting district, and in relation to regional elections. Equality in voting rights in both types of election is secured by certain procedural entitlements which are due to all voting citizens. These include regulations concerning nomination as candidate, the order of election, and legal remedies.
2. According to the Constitutional Court, equality in voting power is to be viewed differently in the procedural sense and in that of content, in the case of the constitutional review of the importance of votes. Votes are of relatively equal importance if there is the possibility of an equal number of voters' decision resulting in winning a mandate. Under Article 71.1 of the Constitution, bringing people within certain voting groups into an unfavourable position by comparison with others can neither be the purpose nor the result of determining mandates within districts and lists. At the same time, under Article 71.1 of the Constitution, it cannot be required that the number of voters registered in the directory of individual voting districts should be absolutely equal. However, the principle of equality in voting rights does require the equal division of mandates among voting districts.
3. As the first premise of its decision, the Constitutional Court set out a constitutional requirement to the legislator that the number of people entitled to vote in individual voting districts should differ only to the slightest possible extent, and only for an adequate constitutional reason. The legislator also has to aim at the slightest possible difference in defining the mandates to be won on regional electoral lists. The mandates will have to be adjusted according to the number of voters registered in a directory. The legislator has to try to ensure that the principle of equality is manifest both in the case of voting districts and that of regional lists.
The legislator can only depart from the maximum manifestation of constitutional requirements originating in the equality in voting rights and relating to the importance of votes, if there is an adequate constitutional reason. However, in the view of the Constitutional Court, the double difference between the numbers of voters registered in individual voting districts was at all times against the principle of the equality in voting rights. In such cases the difference of the numbers of voters is so huge that it cannot be constitutionally justified under any circumstances.
5. The Constitutional Court also criticised the rules concerning the formation of constituencies as being highly inadequate. Neither the Act, nor any other law defines any authoritative standpoints relating to changes of constituency boundaries. It is also unclear what the government does or does not have to consider when deciding upon such changes. There is no legal regulation which could deal with the acceptable degree of difference, either by the definition of difference between the numbers of registered voters in individual voting districts, or by the definition of difference of individual districts from the average, and any possible exceptions. Legal guarantees are also lacking that would enable parliamentary procedure to meet the requirements of balance and impartiality. These deficiencies give rise to a breach of Article 71.1 of the Constitution. Therefore, the Constitutional Court ex officio stated that the parliament had neglected its duty as legislator and created an unconstitutional situation. It had not guaranteed the statutory conditions necessary for the manifestation within the electoral system of the constitutional requirements resulting from the basic principle of equality in voting rights embedded in Article 71.1 of the Constitution.