DECISION № 1 OF 12 MAY 2009 ON CONSTITUIONAL CASE № 5/2009
The case was filed on 30 April 2009 as 70 MPs from the 40 th National Assembly challenged the constitutionality of: - Art 6, para 6 от of the Parliamentary Elections Act (PEA), (DV, No 37/2001 , last amended, DV, No 31 / 24 April 2009), that was established by § 3, item 4 of the Act Amending the Parliamentary Elections Act (AAPEA), (DV, No 31 / 24 April 2009); - Art. 39, para 2 of the PEA, established by § 23, item 2 of the AAPEA ; - Art. 115, para 2 and para 3 of the PEA, established by § 80 of the AAPEA; and the PEA texts that refer to them .
On Art . 6, para 6 of the PEA
The amendments to Art. 6 , para 6 of the PEA vis-à-vis coalitions set a ceiling of 8% valid votes won in and outside Bulgaria as a condition to claim seats on a pro rata basis at national level as per the proportional representation ticket in multi-seat constituencies. The provision in question also gives the same right to parties that won at least 4% of the popular vote. Art. 10 of the Constitution reads that all elections shall be held on the basis of equal suffrage.
Equal suffrage stands for equality of all voters who exercise their voting right as they vote for Members of Parliament. That is, the vote of an individual voter counts in the election as that of any other voter. The same holds true of the nominees. The Constitution-proclaimed equal suffrage precludes a condition that may put a nominee in a disadvantage while it favors other nominees.
The higher threshold to a coalition nominee to get elected as compared to what a party-nominated candidate needs appears to be discriminatory. The higher percentage set for coalitions makes the vote of an individual voter subject to harsher rules than those that apply to the vote of another voter. The election presupposes a preference declared by an individual citizen. The proportional representation system makes the preference related to the nominee's individual merits and to an assessment of the possible governance of the party that has nominated him. The running of parties and coalitions gives a voter the chance to vote for a ticket that he or she sees as better conformant with their views. Therefore it is unjust to pose higher requirements to a voter who would vote for a coalition rather than for a party to rule. Evidently this constricts the equal suffrage.
Hence the conclusion of the contravention of Art. 6 , para 6 to the Constitution.
On Art. 39, para 2 of the PEA
The amendment to Art. 6, para 1 of the PEA provides for a mixed voting system. The new paragraph 2 of the same amendment provides for the election of 31 MPs elected in the one-seat constituencies by the majority voting system. The remaining 209 MPs are elected in the multi-seat constituencies by a proportional representation system ( Art . 6, new para 3).
The Constitutional Court did not have the majority of seven (Art. 151, para 1 of the Constitution) required for a ruling on a legal text as compliant or noncompliant with the Constitution. The challenge was therefore dismissed.
Justices Roumen Yankov, Vassil Gotzev, Lyudmil Neikov, Emilia Drumeva, Vladislav Slavov and Blagovest Pounev pronounced the provision to be in contravention to the Constitution .
In their view :
The 31 one-seat constituencies (Art. 39, para 2 PEA ) being identical to the 31 multi-seat constituencies subject to the proportional representation voting system ( Art . 39, para 1 of the AAPEA ) fall foul of the principle of equal suffrage (Art. 10 of the Constitution ).
The number of voters in constituencies in the 2005 parliamentary elections (Election Returns Bulletin, 2005 Parliamentary Elections on 25 June 2005 – publication of the Central Electoral Commission) varies excessively from constituency to constituency.
To comply with the principle of equal suffrage (Art. 10 of the Constitution) the number of seats in multi-seat constituencies is commensurate to the number of inhabitants. This gives a relative parity in terms of the number of voters that get a candidate elected.
A fundamental principle of the majority voting system in the one-seat constituencies is a relatively identical number of voters to elect an MP.
With regard to the number of voters who vote for one MP, the Constitution-proclaimed equal suffrage stands for an approximate parity in terms of both the number of votes that get a candidate elected and the number of voters by whom a candidate is elected.
Similarly to most constitutions across the world, the existing Bulgarian Constitution does not prescribe an election system of a definite type. The principle of equal suffrage (Art. 10) evolves in the electoral laws. The majority voting system is the simplest type and therefore historically the earliest, including Bulgaria. How does the Constitution principle of equal suffrage materialize in the majority voting system? It materializes in the election campaign and the general legal rules , yet regarding the majority voting system in one-seat constituencies, the same number of inhabitants but for some minor fluctuation which may be tolerated is of particular importance ; it is within the jurisdiction of such a constituency that voters and their votes elect one member of Parliament. However, if a law provides for a multifold outnumbering without a force majeur, it is discordant with the equal suffrage that the Constitution provides for.
The challenged new paragraph 2 of Art. 39 of the PEA is evidently dissonant with that Constitution provision. As evident from the 2005 election statistics, an MP of the Third Varna Constituency would be elected to represent an electorate of 397,299 whereas an MP of the Fifth Vidin Constituency would represent just 109 , 274.
It is impossible for the mixed system introduced by the new paragraph of Art. 6 with 31 MPs who are elected by dual constituencies that are dissimilar in terms of population numbers and that are now one-seat now multi-seat constituencies, to function unless it discards the principle of equal suffrage that Art. 10 of the Constitution proclaims .
In the view of justices Evgeni Tanchev, Dimitar Tokushev, Plamen Kirov, Krassen Stoichev, Snezhana Nacheva and Georgi Petkanov Art. 39, para 2 of the PEA is not in contravention to the Constitution.
Their arguments are:
Art. 63 of the Constitution of the Republic of Bulgaria reads: The National Assembly shall consist of 240 members. The Constitution fixes the number for the national legislating authority and does not introduce a general rate of representation. Thus the number of MPs remains constant regardless of the changing number of voters. Hence the need each time a parliamentary election is held to redistribute the 240 seats in the constituencies in a way to make sure the principle of equal suffrage that Art. 10 of the Constitution of the Republic of Bulgaria proclaims is complied with. Compliance with the above principle presupposes that for all constituencies the seats will be commensurate to the number of inhabitants and that the ratio will be an invariable. In specific terms, if the population in a constituency is double the population of another constituency, the former will have twice the number of seats of the latter. Naturally, this is but one requirement of the principle of equal suffrage , viz. the equal rate of representation which principally guarantees the equal weight of popular vote.
The amendments to the Parliamentary Elections Act codify a mixed system in Art. 6, para 1 and some of the Members of Parliament (31 seats) are subject to the rule of relative majority whereas the rest of the Members of Parliament (209 seats) are subject to the proportional formula of Hare-Niemeyer. To that end the amendments to Art. 39 of the Parliamentary Elections Act divide the country into 31 one-seat constituencies subject to the majority voting system and 31 multi-seat constituencies subject to the proportional formula. Paragraph 2 of Art. 39 of the PEA explicitly provides that the boundaries of the one-seat constituencies subject to the majority voting system and of the multi-seat constituencies subject to the proportional formula shall overlap.
An initial allocation of the 240 seats among the 31 constituencies in proportion to the number of inhabitants in each constituency guarantees parity of representation and conforms to the principle of equal suffrage. The seats to be allocated to each constituency are allocated in a way where one MP is elected by simple majority with the ballots cast for candidates running in the election individually and the rest are the result of the Hare-Niemeyer electoral formula with the ballots cast for the tickets of parties and coalitions in the constituency. The allocation of seats to constituencies by the Central Electoral Commission in line with the above-said rule guarantees the equal weight of votes and conforms to the principle of equal suffrage.
The Constitution of the Republic of Bulgaria and the constitutions of most EU members states and European states do not predetermine the type of the election system and leave that to the legislating authority, the parliament. Therefore the Constitutional Court shall not revise the political will as expressed by the National Assembly in that amending act which adds the majority representation to the proportional one.
On Art. 115, para 2 and para 3 of the PEA
The Constitutional Court did not find the provision in question to be in contravention to the Constitution.
The replacement of MPs elected by the majority voting system with MPs from the tickets of parties and coalitions for proportional representation is not dissonant with the Constitution as they were elected by the same body of voters in the integrated constituency and represent one and the same political entities. Hence the popular vote expresses the voters' original wish. The depletion of tickets may lead to vacant seats in Parliament until next elections; however, such a hypothesis will always be there for the proportional representation rules out by-elections in individual constituencies.
The challenged paragraph 3 of Art. 115 of the PEA provides for a proportional representation hypothesis: if a seat in Parliament becomes vacant earlier, and if the ticket on which the MP who vacated the seat was elected has run out of nominations, the seat will remain vacant till the next parliamentary election.
In principle the Constitution provides for an earlier termination of authority of MPs and enumerates in detail the reasons. In any of the eventualities, at a certain moment the number of MPs will be 240-1 and will remain such until the vacancy is filled or, if the ticket is deplete, until the next regular parliamentary elections. Such a consequence might arise, inter alia, from a vacant seat of a one-seat constituency should the vacancy occur in the last six months of the term of the Legislature, as the PEA proscribes by-elections in the said period – Art. 115а, para 2, whose provision is not challenged at all.
Hence the conclusion that it will not be in contravention to the Constitution if the National Assembly functions in the interim with vacant seats for one-seat constituencies as prescribed in the different hypotheses in the Constitution and in the legislation. This is so as prudently, none of the Constitution texts require a majority of more than half or 2/3 of the votes of all National Assembly Members who are 240. The Constitution requires a majority of more than half of all Members of the National Assembly (Art . 89, para 1, Art . 101, para 2), i.e. of all who at that moment are legitimate National Assembly Members. Therefore, Art. 115, para 3 of the PEA is not in contravention to the Constitution.
Председател: Румен Янков