From Shrinking to Closing Civil Society Space in Hungary

In a classy late Friday dump, on April 8, 2022, the National Election Commission (NEC) fined over a dozen Hungarian civil society organizations for illegally interfering with the referendum held on election day (April 3, 2022). These NGOs ran a month-long campaign encouraging voters to cast invalid votes in response to the government’s referendum question. Altogether the fines add up to 24.000 EUR: the leaders of the campaign, Háttér Society for LGBTQI rights and Amnesty International Hungary were fined approx. 8.000 EUR each. The NEC found that encouraging voters to cast invalid ballots amounts to an abuse of rights, as it defeats the purpose of exercising popular sovereignty through a popular referendum.

Although the affected NGOs can now seek review at the supreme court (Kúria), these complaints appear to open a new chapter in building Hungary’s illiberal Christian democracy. The Hungarian government has already provided ample proof of its ability to listen and learn: (i) it seized the opposition’s idea of holding a referendum on election day, (ii) it relies on the legal activism of private citizens who seek to suppress participation in public affairs and (iii) public authorities deploy the language of human rights to silence dissenters. It remains to be seen how far the Hungarian government is willing to go in following the Russian playbook on suppressing public participation in politics, on gradually moving from shrinking to closing civil society space.

Super Sunday: national elections + referendum

On Sunday, April 3, 2021 Viktor Orbán’s Fidesz party won a 2/3 majority in the Hungary’s national elections – again. The government won with 54% of the votes (3.05M) cast in their favor while the united opposition managed to collect 34% (with 1.9M voters). 3.05M votes were translated into 68% of the seats in Parliament (135 mandates), while 1.9M votes yielded 29% of the seats to the opposition (57 mandates). The third largest force in parliament is a newly founded extreme right fraction: 6% of the popular vote (0.3M) yielded 6 seats in Parliament. In sum: Fidesz has 2/3 majority in Parliament with winning 3.02M of the 8.2M potential votes.

The government’s sweeping victory took the opposition by surprise, as polls suggested a much closer race.

Despite the defeat of the opposition, the mood among civil society actors was still jubilant: the government’s referendum initiative to protect children from LGBTQI influences failed. The referendum questions posed by the government and approved by Parliament in November 2021 urged voters to consider the following:

• Do you support subjecting minors to sessions on sexual orientation in public schools without parental consent?
• Do you support the promotion of sex change treatments [properly: gender confirmation surgery] for minors?
• Do you support subjecting minors without any restriction to sexually explicit media content that may affect their development?
• Do you support making available to minors media content that depicts sex change [properly: gender confirmation surgery]?

In a legal sense the referendum on child protection measures was completely superfluous. The Hungarian Parliament has already adopted a law to shield children from so-called LGBTQI+ propaganda in June 2021. This law implements a constitutional amendment adopted in December 2020 that makes it a state obligation to ensure the education of children according to their biological sex at birth, in line with the values of Hungarian constitutional identity and Christian values (Article XVI(1)). It also entrenches the heteronormative definition of marriage in the Fundamental Law (Article L(1)), clarifying that “the mother shall be a woman, the father shall be a man.” The European Parliament called the “child-protection” law state-sponsored discrimination on the very day it entered into force. In December 2021 the Venice Commission found the very title and several provisions of the law to violate European and international human rights standards.

The campaign lead by civil society organizations appears to have convinced some 1.7M voters to cast invalid ballots, rendering the referendum unsuccessful. [In addition, some 0.3M votes were cast against the government’s initiative.]

The success of the campaign against the government’s referendum initiative was no small feat. According to the OSCE’s preliminary report on the April 2022 elections, „[t]he referendum legal framework is largely inadequate for the conduct of a democratic referendum and does not provide for a level playing field for referendum campaigns.”

From illiberal adaptation to authoritarian learning

The government’s referendum campaign was the perfect illustration of the flexibility and adaptability of an illiberal (hybrid) regime in action.

(i) Holding a referendum on election day was not the government’s idea – in fact, a legislative amendment was required to remove a ban on referenda on election day. Rather, the government seized an opportunity that was first spotted by the opposition. The removal of the ban on holding a referendum on election days was proposed by the opposition in the fall of 2021, at a time when the not-yet-united opposition was in search of a message, a strategy and a leader. In the summer of 2021 – in the midst of the pandemic – the government floated the idea of holding a referendum in support of its ‘child-protection’ measures to fight back to European condemnation. The opposition decided to counter this initiative by a referendum to challenge the government’s plans to build a new campus for the Fudan University’s Budapest campus. When this idea got some traction among opposition supporters, opposition MPs moved to remove the statutory ban on holding referenda on election day.

In an unexpected turn of events, the government agreed, and in November 2021 Parliament unanimously gave green light to holding a referendum on election day. Shortly afterwards Parliament approved the government’s questions on child protection, while the opposition had to take to the streets and collect 200.000 signatures (as required by law, for putting a popular initiative on a referendum). The signatures were collected by mid-January 2020, too late to be put on the ballot on April 3, 2022. By that time the opposition managed to unite behind a single candidate – but was preoccupied by crafting a coherent program. Countering the government’s ‘child protection’ referendum has not been a political priority for the united opposition.

In the shadow of the government’s billboards urging voters to say ‘no’ to anything that puts children at risk, civil society organizations relied on a dedicated website, social media and thousands of volunteers across the country to mobilize voters, urging them to cast invalid ballots in the referendum. On April 3, 2022 invalid ballots stood in the way of the government’s success.

(ii) Legal activism to suppress public participation is a well-recognized phenomenon; strategic litigation of this kind targeting journalists and human rights defenders is a matter of concern for the European Commission. The Hungarian government is rather keen to mobilize citizens against private behavior that the government disapproves of. The ‘child protection law’ is meant to be enforced as a consumer protection measure: it relies on the complaints of vigilant private individuals, e.g. about a book that should not have been placed in a shop window, or should have been published with a warning about its abnormal content. The Association of Hungarian Publishers and Book Distributors was genuinely uncertain about their obligations under the law.

The complaint against the referendum campaign of the civil society organizations was filed by a private citizen on April 6, 2022 – i.e. three days after the results of the election and referendum were made available. Such civic-mindedness suggests the outsourcing of the suppression of dissent to private citizens. As a result, a new layer of control is installed over the public square, after law enforcement and digital surveillance dissenters also encounter private vigilance – reinforced by 2/3 majority in parliament.

(iii) The NEC’s justification of its fines (in Hungarian) is presented in human rights terms. The NEC found it problematic that the civil society organizations urged voters to engage in a form of civil disobedience, thus violating the principle of exercising fundamental rights in good faith and according to their purpose [18-19]. Borrowing the concept of abuse for rights from civil law [32-33], the NEC emphasized that encouraging voters to cast an invalid ballot violates the constitutional purpose of popular initiative [34]. Although the NEC said that voters may choose to cast an invalid ballot [35-36], urging them to do so in a public campaign divests a referendum from the very purpose of enabling the people to express their will on a legislative proposal [37]. That the ‘child protection law’ has already been cast into law and in force did not seem to affect the reasoning of the NEC.

The affected NGOs can now turn to the Kúria against the decision of the NEC. In an unrelated case where an opposition candidate was found to violate election rules for calling voters to cast invalid referendum ballots on Facebook, she argued before the Kúria that under the Fundamental Law voters are free to decide whether and how they take part in a referendum (Article XXIII (7)). The Kúria dismissed her complaint, saying that a direct reference to the Fundamental Law did not constitute a legal argument – as under the Fundamental Law only acts of parliament, government decrees, ministerial decrees etc. qualify as legal norms (Article T(2)), while the Fundamental Law is the foundation of the legal system (Article R(1)), but not a legal norm itself.

The Kúria’s decision in this unrelated case does not predict the outcome of the complaints against the referendum campaign of civil society organizations in the Kúria and then in the Constitutional Court. The NEC’s and the Kúria’s appetite for creative legal argument is certainly noteworthy: these decisions illustrate the malleability of constitutional and human rights arguments when deployed by the legal machinery of an illiberal (hybrid) regime.

It remains to be seen how far the Hungarian government is willing to take its fight against civil society in its fourth consecutive term of building an illiberal Christian democracy. The Russian example of gradual restrictions (leading ultimately to the liquidation of the human rights center Memorial in December 2021) is a well-charted path. While the Venice Commission has expressed serious reservations about demonizing civil society organizations through designating them as foreign agents, and the CJEU has also expressed concerns about the chilling effect of rules that seek to deter the financing of NGOs from abroad (C-78/18), the applicable human rights standards are far from clear. Since March 2017 the ECtHR has communicated dozens of cases against Russia’s targeting civil society organizations as ‘foreign agent.’ The fate of these communicated cases is in somewhat of a limbo since Russia’s exit from the Council of Europe. In the meantime, the Russian playbook and the gaps in the existing legal framework provide numerous options for an illiberal regime interested in suppressing participation in public affairs – in closing civil society space.