The diasporic vote has become a pressing topic in the Greek political discourse during the recent years, since it came to affect a larger section of the population, due to the emigration of approximately 500,000 Greeks in the crisis period. In turn, political discourse sparked growing legislative interest, with a new diasporic electoral regime being now ante portas.

The issue at stake is that constitutional provisions for the diasporic vote exist in Article 51 § 4 of the Greek constitution, but are not applied, since no implementary law has passed through Parliament to facilitate the application of this provision or to determine the exact process of its application.

As such, the members of the Greek diaspora do have electoral rights, in the sense that if they are on the electoral rolls, then they have the ability to vote. But they can do so, as long as they return to Greece. This means that the Greek diaspora is obliged to make an effort in order to exercise said rights, spend money on tickets, as well as request (unpaid) leave from their employers, alongside other practical burdens.

On the contrary, voters that reside in Greece do not have to make an effort to vote – their electoral poll is usually their neighbourhood’s school. And even when residents of Greece do have to travel to an area different from their residency, it is a matter of personal choice: they chose not to transfer their electoral rights and instead, travel to their registered electoral poll by maintaining the status of ‘heterodimotis’.

The practical burdens of the diaspora are, in and of themselves, an obstacle towards the fulfilment of the constitutional right to vote, but they become even more disproportionate, when we think of the weight of electoral rights. We do not just talk about any right – the rights at stake are the very basis of our representative democracy.

The diasporic vote as a state duty

The most recent legislative effort to tackle this inconsistency was a Bill called ‘Exercise of the right to vote in parliamentary elections by Greek voters living abroad’, placed before Parliament on 19 February 2009, under a Nea Dimokratia government, which held 152 out of 300 seats in Parliament, led by Kostas Karamanlis. The Bill was rejected by Parliament since it failed to secure the majority of two-thirds of the total number of members of parliament required under Article 51 § 4 of the Constitution, with only 159 MPs voting for it.

The report, which accompanied that Bill, though, was interesting, since it acknowledged that not only are the electoral rights per se important on constitutional terms, but they were also significant in facilitating a second constitutional principle. Namely, Article 108 § 1 and §2, which require the cultivation of ties between Greek expatriates with Greece: regulating the conditions for their right to vote in Greek parliamentary elections will undeniably contribute to real ties being forged between Greek expatriates and their homeland.

Therefore, the report concluded that those articles oblige the Greek State, as a matter of ‘state duty’, to take all necessary measures to provide the diaspora with electoral rights.

The diasporic vote as a state option

The thinking of the report, though, seems to depend on a central assumption: a constitutional provision has an intrinsic value, and as such, needs to be implemented, whereas the lack of its enactment, is in turn, a blow to constitutionalism and legality. But, is that the case?

According to the Scientific Council of Parliament, a consultative body reporting to the Speaker of Parliament, rejected such a view of ‘state duty’ on a report dated 31 March 2009, asserting that is a mere option for the legislature to permit the exercise of voting rights from abroad.

The constitutional limitation in such a thesis lies in the fact that such a facilitating bill might not lead to the increase of the people registered on the electoral roll, yet, will increase the voter turnout: if the electoral process for more people becomes facilitated, it is only reasonable to assume that more people would vote.

Such an increase seems desirable in principle, since it enhances the democratic ideal of citizen participation. Nevertheless, given the current electoral system of voting in favour of MPs representing regional constituencies, there might be concerns that the ballot of – let’s say – 300 voters from the same electoral constituency that now live abroad might influence asymmetrically the election or not of the MP(s) of that constituency.

Debating the diasporic vote in the ECtHR

Nevertheless, the legitimacy of attributing to the facilitation of the vote an optional character is debatable. The very premise of the argument – i.e. that we will have electoral asymmetry – seems to ignore the basic principle of the equality of the vote. Since any other vote of groups of Greek citizens, which might demonstrate distinctive party-political preferences (be they regional, occupational, generational) in the ultimate composition of parliament, then why should the diasporic vote likewise not be equally decisive to the composition of the Greek Parliament?

The debate concerning the diasporic vote, being a duty or mere option for the state, reached the higher judicial levels when in 2012, the Grand Chamber of the European Court of Human Rights (ECtHR) decided the case Sitaropoulos and Giakoumopoulos v. Greece.

The applicants in the case supported that the requirement for the Greek legislature to pass legislation in accordance with Articles 108 and 51 § 4 of the Constitution was binding and not optional, on the basis of European human rights law. They submitted that the delay in giving effect to a specific provision of the Constitution amounted to a disproportionate interference with Article 3 of Protocol No. 1 to the European Convention on Human Rights (right to free elections). In introducing, the terminology of proportionality, the applicants realised the so called ‘proportionality test’, which is an integral component of EU law that requires from the decision-maker to firstly, have a sufficiently important legislative to justify limiting a fundamental right; secondly, rationally connect this legislative objective to the measures; and thirdly, employ means no more than is necessary to accomplish the objective.

Nevertheless, the ECtHR did not find the Greek state culpable, which has further consolidated the ‘option’ side of the debate ever since.

Whereas the ECtHR’s decision set a significant authority on the matter, it is by no means a definitive authority on rejection of the diasporic vote as a state duty. This is because of two reasons.

Firstly, we have to understand that even if (and this is a big if) the ECtHR had a definite answer on something, this would not be on the question of Greek constitutional law. The Court made it clear that it is not its task to indicate to the national authorities at what time and in what manner they should give effect to Article 51 § 4 of the Constitution, but to decide whether Article 3 of Protocol No. 1 places States under an obligation to introduce a system enabling expatriate citizens to exercise their voting rights from abroad. And the ECtHR decided that under European legislation, this is not the case.

Secondly, the view of the ECtHR should be contextualized, bearing in mind the nature of the Court and the vehement criticism which it has faced for interfering excessively with the sovereignty of the members states. This has led to accusations of judicial activism and illegitimacy, since supranational judges are replacing national legislators in defining the general public interest.

As such, we understand that the Court is in a very delicate position, and it would not be an extreme claim to say that it would decide against Greece on such a matter of national importance, only if the most compelling of cases were to be brought against it. The Court rushed to identify the non-compelling parameters of the case, namely, that the applicants were simply two private citizens, and it would be unreasonable to ask from ‘the competent authorities to take account of every individual case in regulating the exercise of voting rights’.

Constitutional interpretation – the case for a state duty

Due to the limitations in the European decision, we shall return to Greek constitutional law as a means by which to resolve the debate. I would like to argue that the negation of the existence of a state duty in facilitating the diasporic vote, takes a very narrow view of constitutional interpretation, which agrees with the blinkered premise of Lord Camden when he said that: ‘if it is law, it will be found in our books; if it is not to be found there, it is not law’. But such a maxim is not quite true – when we interpret a legal rule, we should not only just understand the meaning of the plain text, but make sure that the enforcing of the rule really rectifies the mischief that it was aimed to resolve.

During the revision of the Greek constitution that took place in 2001, the content of the constitutional provisions that could be read as establishing a state duty was clarified, adding that the principle of simultaneous voting did not rule out the exercise of voting rights by postal vote or other appropriate means, provided that the counting of votes and the announcement of the results were carried out at the same time as within the country. Why would the lawmaker opt for such an enhanced wording if not to direct the legislature towards the rectification of a specific mischief, i.e. of the indirect restriction of the diasporic electoral rights? It is, thus, safe to conclude that whereas the letter of the law provides the state with a mere option, the spirit of the law, as fostered by the effect of the constitutional revision of 2001, recognises that there is a significant duty.

The recognition of this constitutional duty has acquired additional political weight, due the crisis-driven immigration of the last decade, which resulted in a significant section of the electorate moving abroad and as such, not having its vote facilitated. Such a gesture of inclusion would be of paramount symbolic significance, too, due to the high disillusionment of the crisis-driven migrants from the Greek state. In turn, nowadays, more and more MPs feel compelled to support such a policy, increasing the probability that the requisite enhanced majority required will be found.

Currently, debates between parties and in parliament are being carried out with unprecedented interest, rendering the facilitation of the vote of the non-resident in Greece, Greek citizen, no longer fictional, but a realistic prospect, hopefully reaching the broadest possible inter-party agreement.