Bulgarian President spells out detailed reasons for veto of Election Code

President Rossen Plevneliev spelt out on February 28 the details of the reasons for the veto that he has imposed on the Election Code approved by the National Assembly seven days earlier.

Plevneliev is returning to Parliament for reconsideration a range of provisions, including seven articles and part of the transitional provisions, according to a statement posted on the website of the Presidency just before 8pm on February 28.

He welcomed what he called a number of positive steps in the bill, but said that in spite of these positive steps, he did not believe that the bill “achieved a sustainable solution to fully reflect public expectations”.

It remained unclear why the code was adopted before a final opinion on its provisions was received from the Venice Commission, and shortly before the scheduling of the elections of Bulgaria’s members of the European Parliament.

While a 2013 amendment to electoral law had intended that there would be experimental electronic voting in the 2014 elections, the code adopted by the National Assembly provided no such opportunity in future elections.

“I do not think that there are arguments for the abolition of the legal framework for electronic voting,” Plevneliev said in his statement.

The concerns expressed by opponents of electronic voting, that it could jeopardise the secrecy of the ballot, could be applied even more forcefully to machine voting, introduced in the new election law.

Introducing machine voting was turning to old technology instead of looking ahead to the future, Plevneliev said.

The debate about electronic remote voting had been conducted for several years, he said.

For such voting to be implemented successfully, it was necessary for it to be used in a real election environment, albeit experimental at first, to take account of the technological capability and to create safeguards for the secrecy of the ballot and the free expression of the will of the electorate.

Remote electronic voting would increase voter turnout, give more opportunity for Bulgarians abroad to exercise their right to vote, and facilitate voting by people with disabilities.

“I do not accept the thesis that electronic voting is contrary to the constitution,” Plevneliev said.

He said that the 2011 Constitutional Court decision quoted by opponents of electronic remote voting did not actually say that it was unconstitutional.

What the court’s decision actually said was, “The Constitutional Court is aware that electronic voting is responsive to modern realities, an opportunity to expand and facilitate the participation of citizens in elections, but only if it is helpful to ensure the confidentiality of the vote”.

Plevneliev said that the new code had again postponed tackling the matter of voters’ rolls. This was a reference to allegations in the past of abuses such as dead people voting.

“One possibility to overcome this problem is to take a step towards active voter registration,” he said.

State and local authorities could create a registry using as a basis the information on Bulgarian citizens who had voted in the past few national elections of Parliament and of the head of state. This list could then be updated by citizens applying for inclusion in it.

He did not agree with the arguments that had been raised in public that there should be no steps towards active citizenship registration because this would be a breach of the principle of the secret ballot.

“We need to distinguish between the vote and the secrecy of the vote. The secrecy of the vote ensures anonymity about for whom you voted, not whether you exercised your right to vote”.

Plevneliev noted that the election code bill provided a new way for constituting the members of the Central Election Commission.

He said that shortcomings in this provision included a lack of a requirement for specialist experience.

“Professionalisation of the CEC can be achieved through the establishment of requirements for members to possess a certain minimum education and experience in a speciality or expertise in the organisation and conduct of elections. “Lack of expertise can hinder the lawful conduct of the electoral process,” Plevneliev said.

He said that the approach to this part of the legislation raised the suspicion that the legislative changes were motivated solely by the desire to change the membership of the CEC and take away the constitutive powers of the head of state.

Plevneliev noted that in the past 25 years, the Bulgarian President, as head of state, had appointed the membership of the CEC in consultation with the political parties.

“This procedure is necessary because until now there was no doubt that it is in the constitution of the CEC that the political system is most in need of balance.”

It was the role of the head of state to be “equidistant” from the divisions of government and political parties. The presidential institution was called on seek balance and consensus among the political parties, Plevneliev said.

The head of state constituting the CEC had become a tradition. There was a lack of any argument calling for a change of approach right now.

The power of the President to appoint the members of the CEC did not prevent this being preceded by a public procedure in which the knowledge, reputation and profile of the potential future members could be verified, he said.

President Plevneliev also took issue with the system voted, by which there will be partial preferential system in marking candidate lists on ballots.

The election code provides that where a voter has not marked a preference for a candidate in his chosen candidate list, the preference automatically will go to the candidate first on the list.

“This legislative solution does not meet the demands of the Bulgarian citizens – their voice is important in determining the individuals who will represent them in the National Assembly and a municipal council.”

Plevneliev said that the point of any reform of electoral legislation was to increase the involvement of citizens in the democratic process.

Distrust of politicians and political parties had a negative impact on the overall attitude towards state institutions.

Strengthening of the majoritarian element in the electoral system would make it possible to vote for personalities.

“In this way, citizens can effectively influence the selection of candidates . The majoritarian element not only increases the competition between the parties in selecting candidates, but also will motivate the party leadership to nominate those who will earn at most public trust,” Plevneliev said.

Established rules for applying a preference in the election of MPs and municipal councillors differ from the rules for electing members of the European Parliament for Bulgaria .

In parliamentary and municipal elections, the votes of all those who have not exercised their preference is reported as a preference for the leader of the party list.

Plevneliev said that this legislative measure had no fundamental basis and meant that the voter’s voice would be “impersonated”.

The code should introduce a uniform approach. “For me, it is unacceptable that there are different ways governing voting preference.”

The difference in the rules would be an obstacle, and confuse voters in their intentions to vote for individuals.

Plevneliev said the public had not been told the reasons for the increased threshold, to seven per cent, in preferential voting for MPs and councillors. He said that he backed a discussion on reducing the threshold for preferential elections for MPs and councillors from seven to five per cent.

In a detailed objection to the rules for machine voting, he said that this had been motivated by those who proposed the legislation as overcoming the subjectivity of the work of district election commissions, preventing controlled voting and electoral fraud.

But, asked Plevneliev, “how will this be achieved with no standards to fully ensure the confidentiality of the individual voter’s vote?”

He objected to the wording of the provisions on the record of the vote, saying that there should be written procedures to ensure that information on the receipt for machine voting would not reach “third persons”.

“It should be recognized that in the polling station, committee members and other voters, observers, advocates, representatives of political parties and coalitions and initiative committees may be in attendance.”

One of the cornerstones of the franchise is the secret vote, Plevneliev said.

The law must contain sufficient guarantees to voters that their votes would remain secret. The absence of such guarantees was inconsistent with article 10 of the constitution, which provides that elections must be by secret ballot.

Plevneliev also raised text in the transitional provisions amending rules on the direct participation of citizens in state and local governments.

Without mentioning the Bulgarian Socialist Party by name, Plevneliev said recently there had been public pledges by senior representatives of the parliamentary group whose mandate is to form a government (the BSP) that legislative changes would be proposed to facilitate the possibility for citizens to initiate referendums and to reduce the minimum voter turnout requirement for a referendum to be regarded as legally binding.

But, he said, at the same time the transitional and final provisions of the election code included amendments to the law on the direct participation of citizens in state and local govenrment “which create significant barriers to the implementation of the forms of direct democracy”.

Citizens who initiate various forms of direct participation – national and local referendums, national and local citizens’ general meeting of the population, will face fees and new bureaucratic requirements.

“Establishing requirements for the submission of the petition and in a structured electronic format will create additional difficulties in the implementation of the forms of direct citizen participation in the exercise of state power and local self-government . The introduction of this burdensome requirement will increase the time required for payment of the subscription, and can impede the realisation of the forms of direct democracy.”

The legal framework of direct democracy should facilitate citizens when they exercise their right to participate in referendums, Plevneliev said.

He said that according to the constitution, the public administration was supposed to work for the “will and interests of the nation”.

“It is unacceptable to create legislation which will facilitate the work of the administration at the expense of the will of the people in implementing forms of direct democracy,” Plevneliev said.

There was “no truer form of democracy than asking the people,” he said. The rules adopted were an obstacle to implementing popular sovereignty.

Finally, one of the articles returned was because of a discrepancy, referring to how the CEC is meant to calculate the distribution of seats – in one place the text refers to 32 multi-candidate constituencies but in another, it refers to 31.

“It is obvious that it is a factual error, but it will cause difficulties in the interpretation and application of the code. I therefore return the text to remove the error,” Plevneliev said.

In recent days, the BSP has underlined repeatedly that it will seek a vote in the National Assembly to overturn Plevneliev’s veto.

The code, however, will face at least one other challenge, as the Movement for Rights and Freedoms has said that it intends challenging in the Constitutional Court provisions limiting the franchise on the basis of a permanent residence qualification.

(Photo of Plevneliev: president.bg)




The Sofia Globe staff

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