Considerations on Some Electoral Rules

The (happy new?) year of the general elections of Members of the Hungarian National Assembly long awaited by many all over Europe has finally arrived. Most recent preludes to this year’s elections include the Hungarian opposition primary in 2021, organized for the first time since the 1989 transition. Political parties are in an active campaign mode yet the official campaign period – in accordance with Section 139 (1) of the Act XXXVI of 2013 on Electoral Procedure (EPA) – only lasts from the 50th day before and until the end of Election Day. Currently, we seem to have more questions than answers on some of the constitutional aspects of the campaign and the elections since Election Day was set on 3 April 2022 by the President of the Republic – consequently, the election period starts on 12 February 2022 – yet we don’t know whether the previous jurisprudence of the Hungarian Constitutional Court (HCC) and the Curia on state neutrality will be upheld. Nevertheless, I’m going to take a look at the details.

According to John Rawls, the neutrality of a state generally means that the state, on behalf of its citizens, cannot decide what constitutes “good life”. The same perception of state neutrality appears in different constitutional norms and constitutional principles; it can be also viewed as an underlying principle of constitutional interpretation. The criterion of state neutrality is a complex question. Although the Fundamental Law of Hungary does not explicitly state it, it can be inferred from its specified provisions such as Article VIII (3) which states that “political parties shall participate in the formation and expression of the will of the people”; as well as, “they may not exercise public power directly” or Article XV, which guarantees equal opportunity.

First and foremost, the Curia infers the requirement of neutrality from Section 2 (1) c) of the EPA. In its case-law it frequently refers to the established principles laid down in case no. Kvk.IV.37.360/2014/2., which hold that “the basis of parliamentary democracy is the political parties’ competition for votes. The healthy operation of democracy cannot be imagined without political pluralism and the political parties’ equal opportunity in the political contests. The legal framework with equal terms guarantees the state’s neutrality in the contests of the political parties. This requirement is relevant to the local governments as well. […] As the state, so the local government must warrant the equal expression of politically active citizens’ party preferences. The state and the local government with public power must not influence the actual competitive positions, must not level yet must not widen the differences.” In 2019, the citizens of ten (from twenty-three) cities with country status (megyei jogú város, the Hungarian classification of administrative law that house country-level administration and dispose of additional rights and obligations) elected mayors from the opposition parties. It remains to be seen whether these opposition leaders will interfere with the campaign on this level by using their public positions, even though part of them used to lodge objections with the National Election Commission against the governing parties for committing similar abuses of power.

The Venice Commission laid out the main fields of equal opportunity for political parties and candidates in its Code of Good Practice in Electoral Matters as follows: (i) the election campaign and its specific parts; (ii) media coverage, in particular by the publicly-owned media; and (iii) public funding of parties and campaigns. Before 2019, the basic premise of the case-law of the HCC and the Curia on state neutrality was that elections must be open to competition, and that the state shall guarantee the equal treatment of the parties and the candidates. However, due to the amendment of the EPA, entering Section 142 into force, the jurisprudence of the Curia took an unexpected turn. In the Case of Gulyás (Kvk.III.38.043/2019/2.) – in which Gergely Gulyás, the Minister of the Prime Minister’s Office, on behalf of the Hungarian Government, declared that he finds Gergely Karácsony unsuitable to the position of the Lord Mayor – the Curia held that since the entry into force of Section 142, its precedent on state neutrality within the election campaign cannot be upheld anymore, as it has already not been applied in the campaigns of the elections of the European Parliament’s Members. Under Section 142 EPA, the activities of election bodies, personal communication among citizens as private persons, regardless of its content and form, the activities arising from functions determined by the law and performed by the Constitutional Court, courts, local governments and other State entities do not fall under the notion of an election campaign. The above-mentioned decision of the Curia is apparently not in conformity with Article 28 of the Fundamental Law since the judicial interpretation of Section 142 (which states that the previous jurisprudence cannot be upheld), is inconsistent with the detailed justification of the same provision, highlighting the necessity of shifting back to the Curia’s earlier jurisprudence. According to Article 28 of the Fundamental Law, courts shall interpret the text of laws primarily based on their purpose which can be construed in reliance on the preamble of the law in question and the justification of the proposal for the law in question or its amendment. In conclusion, the Curia, referring to the jurisprudence of the HCC, allowed the amalgamation of the communication of the Government and the governing parties which encourages an alarming campaign strategy. In this year, the HCC shall decide what future is ahead for state neutrality within the election campaign.

Serious concerns can be raised over media coverage in Hungary and we may see a tendency how the publicly-owned media tries to influence the voters’ choices. The HCC differentiates between broadcast and print media based on persuasiveness in conformity with the recommendation of the Venice Commission. In connection with broadcast media, a wider restriction of the freedom of the press and editorial freedom can be acceptable since it has a more extensive impact on voters’ attitudes. The only exception is print media owned by public authorities because these publications represent the owner who exercises public power. Therefore, these outlets also have to be neutral. More specifically there is a constitutional and statutory requirement for balanced and impartial information under the Fundamental Law, for instance, Article IX (2) which states that Hungary shall recognise and protect the freedom and diversity of the press and shall ensure the conditions for the free dissemination of information necessary for the formation of democratic public opinion. According to HCC Decision 16/2020. (VII. 8.), the establishing and maintaining of democratic public opinion arise from the institutional protection of the freedom of expression, which is not only the obligation of the state but also of the media. Besides that, public media should provide equal conditions for the parties and the candidates to relay their messages to the voters, however, they usually interfere with the campaign by allowing access to platforms on the basis of political orientation.

Last but not least, let’s take a current example, and see how campaign funding can distort the political competition for votes. From 6 January 2022, a new Facebook advertisement is available, which is financed by the Hungarian Government. Its title is the Government’s latest campaign slogan for the upcoming elections which is “Hungary goes (or must go) forward, not backwards.” According to the information provided by Facebook, the Government already spent over one million Hungarian Forints on this advertisement and the number of impressions is over one million too. And yet, we haven’t talked about the billboards with the same slogan all over the country. Although the Government finances the advertisements, these can strengthen the governing parties’ messages and influence voters’ choices.

In correlation with the above-mentioned, another constitutional concern raises in terms of free elections, which should be protected by the state as well. Under HCC Decision 1/2013. (I. 7.) the state must provide the free expression of opinion and the freedom of choice in the context of the elections. The jurisprudence of the German Federal Constitutional Court holds that any state interference violates the integrity of the free expression of the voters’ will. If a state entity’s operation is intended to influence voters’ choices, on the one hand, it engages in campaign activity; on the other hand, it harms the free decision-making of the voters which should be undisturbed. The misuse of public media, the confusing slogans or disproportionate public campaign funding could easily lead to the violation of free elections.

Recognising this disquieting global trend, the European Commission set up six priorities between 2019 and 2024, one of them is called “A new push for European democracy.” The European Democracy Action Plan is part of this priority and intends to promote free and fair elections; as well as, to strengthen media freedom in the light of the Elections of the Members of the European Parliament. Key actions in the area of protecting elections include proposing legislation to ensure greater transparency in the area of sponsored political content, accompanied by support measures and guidance for political parties and the Member States, moreover, proposing a revision of the Regulation on the funding of European political parties. The Plan’s second pillar is media freedom and pluralism where the Commission tends to curb strategic lawsuits against public participation (SLAPPs by way of the wide-spread US acronym), furthermore, it aims to strengthen the transparency of media ownership and state advertising through the new Media Ownership Monitor.

To summarise, in the spirit of state neutrality, democratic elections cannot be imagined without equal opportunities for those who compete for votes and without the free expression of will. Free elections go hand in hand with democratic public opinion which stands on two pillars; (i) on the comprehensive and unbiased reporting by the media and (ii) on the information obligation of those who exercise public power. As regards the latter, in 2018, the Curia stated in the Case of the “STOP billboard campaign” (Kvk.III.37.421/2018/8.) that, during the campaign period, state entities shall inform voters about their activities within the framework of the EPA. Furthermore, the information must be impartial, objective, current and shall serve the public interest. By using its positions to engage in campaigning instead of providing information, through its media, to the public, any state entity might cross important thresholds of pluralism and decrease the possibility of an effective public debate.

Luca Sevaracz is a Hungarian final-year undergraduate law student at the University of Szeged, Hungary. Between 2020 and 2021, she was a teacher’s assistant at the Institute of Public Law. Her work experience includes voluntary work at different non-governmental organizations as well as an internship at the Office of the National Assembly and at the Hungarian Constitutional Court. She was awarded 3rd place in one of the sections of Constitutional Law at the Scientific Students’ Associations Conference and she won the National Higher Education Scholarship in 2021. She is the Vice President in charge of Academic Activities in the European Law Students’ Association (ELSA) in Szeged.

Her current research is on the position of a neutral state within the election campaign as far as the jurisprudence of the Hungarian Constitutional Court, the Curia and the National Election Committee are concerned.