The Role of Referenda in Orban’s Regime

Following the parliamentary elections and the national referendum in April 2022, the OSCE found that the legal framework was inadequate for the conduct of a democratic plebiscite. Even though the observers noted several shortcomings of the legal regulation and documented many serious anomalies of the electoral system, they failed to put their analysis in a broader political and legal context. The aim of this short piece is to briefly describe the role that the referenda play in Orbán’s regime.

Orbán’s Recent History With Referenda

Orbán has a seemingly contradictory relationship with referenda. On the one hand, several signs indicate that he is not a big fan of letting people easily express their opinion in a legally binding manner. For instance, the 2012 Fundamental Law made the organization of a successful national referendum much harder by significantly increasing the required minimum number of electors and votes.

In addition, the Orbán government systematically ignores the legally regulated forms of public participation in law-making and instead uses unofficial national consultation campaigns (i.e. letters containing misleading information and manipulative multiple-choice questions sent to every citizen) to ask for the people’s opinion on various topics, including the new constitution, the household utility charges, the relocation and resettlement of immigrants, the so-called “Soros plan”, LGBTQ rights and so on.

In February 2016, István Nyakó, a member of the opposition Socialist Party was physically blocked by a large group of men from submitting a referendum question on time to the National Election Office about the government’s unpopular law banning most stores from opening on Sundays. The police investigation was terminated after a few months, so the politician had to press charges personally. Eventually, the criminal court dismissed the case on the grounds that Mr. Nyakó was not a victim of the criminal offence and failed to describe sufficiently precisely the circumstances of the event.

Let me give you one last example. In 2017, the Momentum Movement collected enough signatures to call a local referendum on the government’s plan to organize the 2024 Olympic Games in Budapest. Without even trying to convince the people about the advantages of hosting such a huge sport event, the government and the then Christian-democrat chief mayor of the capital decided to withdraw Hungary’s application to render the whole issue moot.

On the other hand, Orbán uses national referenda from time to time to gain popular support for his agenda. As an opposition party, Fidesz initiated a nationwide plebiscite in 2008 to torpedo some measures of the Socialist government on the introduction of university tuition fees, medical consultation fees and daily fees for hospital care. Slightly more than 50% of the voters showed up, but 82-84% of them voted in favor of abolishing the contested measures, so the result was a spectacular victory for Fidesz and a clear sign of its growing popular support leading to its entry into power in 2010.

Following the massive influx of asylum-seekers in 2015, the Orbán government organized a referendum to ask the electors whether they “want the European Union to impose the mandatory settlement of non-Hungarian citizens in Hungary without the support of the Hungarian Parliament”. More than 98% of the voters said no, but the turnout was well below 50%, so the plebiscite was invalid. Nevertheless, the government interpreted the result as a popular authorization to amend the Fundamental Law. The bill failed because in 2016 Fidesz did not have two-thirds majority in the National Assembly. For Orbán’s satisfaction, however, the Constitutional Court stood ready to help the government out and in its famous (or rather infamous) Decision no. 22/2016 the Court introduced a test to review the constitutionality of the exercise of EU competences and provided ample ammunition for the government’s verbal combat against the European Union. The amendment eventually passed when Fidesz regained its qualified parliamentary majority after the 2018 elections.

The 2022 Referenda

In the summer of 2021, the National Assembly adopted a legislative act bearing a striking resemblance to the Russian anti-LGBTQI propaganda law of 2013 – even though it was consistently framed as a child protection measure. The fundamental rights violation was so obvious that the European Commission almost immediately launched an infringement procedure against Hungary. To show the Hungarians’ resistance to the EU institutions’ “rude and anti-democratic attacks against Hungary” (as the government put it in its resolution), PM Orbán decided to abolish the general ban on organizing referenda during the state of emergency and invite the electors to answer the following five questions:

• Do you approve of the participation of minors, without parental consent, in activities involving the presentation of various sexual orientations in public education institution?
• Do you approve of the propagation of gender reassignment procedures to minors?
• Do you approve of the availability of gender reassignment procedures to minors?
• Do you approve of minors’ unlimited access to media content of a sexual nature influencing their development?
• Do you approve of minors having access to media content presenting gender reassignment?

In the meantime, Gergely Karácsony, the chief mayor of the opposition-led Budapest, also announced his intention to initiate a nationwide plebiscite to reverse the government’s decisions in five controversial matters, more precisely:

• to abrogate the law establishing the Chinese Fudan University in Budapest,
• to prevent the concession on Hungary’s motorway network,
• to join the European Public Prosecutor’s Office,
• to make available the antigen covid test to senior Hungarian residents free of charge,
• to increase the length of entitlement to unemployment benefit from 90 to 270 days.

National Election Commission

Unsurprisingly, every question of the government was quickly given a green light by the National Election Commission in July 2021. On the contrary, the Commission took a long time to consider the questions proposed by Karácsony and eventually approved only 2 of them at the end of August: the one on the Fudan University and the other one on the unemployment benefit.

Supreme Court

The Commission’s decisions certifying the government’s questions were challenged at the Supreme Court. 4 of the 5 questions were approved (the judgments are available here, here, here and here). Only the question on the availability of gender reassignment procedures [correctly: gender affirming treatments] was found unlawful on the grounds that both a positive answer (the unconditional availability to all minors) and a negative response (a complete ban) would lead to an unconstitutional outcome.

The Comission’s positive decisions on Karácsony’s remaining two questions were also reviewed by the Supreme Court, but the justices confirmed their lawfulness (the judgments are available here and here). Subsequently, the opposition parties could start collecting the signatures necessary for official request to call a referendum by the National Assembly.

National Assembly

The government decided to go ahead with its four questions approved by the Supreme Court and the National Assembly officially called a referendum at the end of November. The reason of this hurry was a freshly enacted legislation which made it possible to hold the plebiscite on the same day as the April 2022 parliamentary election. The parliamentary resolution got challenged in a constitutional review procedure by several petitioners on many grounds, but the Constitutional Court rejected every argument.

The signatures collected by the opposition parties for the support of Karácsony’s two questions were submitted to the National Election Commission in January 2022, but their official certification was announced only on 9 March. It was already quite unlikely that the two plebiscites and the parliamentary election could take place on the same day in April, and of course the National Assembly did not lift a finger to make it happen.

Constitutional Court

In the beginning of November 2021, the government filed a constitutional complaint against the Supreme Court’s decision finding the question on gender affirming treatments unlawful. In mid-December, the Constitutional Court concluded that the judgment was contrary to the Fundamental Law because the Supreme Court interpreted the question too broadly and thus acted arbitrarily which infringed the government’s (!) right to a fair trial.

The remaining four Supreme Court judgments confirming the lawfulness of the government’s referendum questions were contested by individuals on various grounds, including the violation of the fundamental rights of minors and their parents, and the lack of clarity and legal certainty. In all of these cases (the decisions are available here, here, here, here and here), the Constitutional Court either found the petitions inadmissible or rejected the arguments entirely.

The Constitutional Court adopted a whole different attitude in the review procedures initiated against those Supreme Court judgments, which confirmed the lawfulness of the questions proposed by Karácsony (the decisions are available here and here). In both cases, the Constitutional Court’s reasoning followed a similar logic. Firstly, it was noted that the questions fell under the constitutional prohibition to hold a referendum on certain legislative matters, i.e. Hungary’s international obligations in the case of the Fudan University, and the central budget in the unemployment benefit case. Secondly, it was found that the Supreme Court’s interpretation was “contra constitutionem” (whatever that means) and thus arbitrary. And finally, it was concluded that this arbitrary judicial act constituted an infringement of the petitioners’ right to a fair trial.

Summary

In Orbán’s regime, the purpose of referendum is not to let the people express their opinion in a legally regulated and binding form, but to mobilize the voters of the governing parties in order to demonstrate their support for very sensitive political and very problematic legal decisions. The whole institutional system is assembled in a way to facilitate the organization of plebiscites proposed by the government but kill the initiatives of the opposition. If the politically biased National Election Commission makes a mistake, it can be corrected by the packed Supreme Court, and the servile Constitutional Court is always there at the end of the chain to guarantee the government’s satisfaction – if necessary, even by the abusive application of the constitutional complaint procedure.

The mission was accomplished: the government’s referendum took place in April 2022 together with the parliamentary elections, and the people will never get a chance to vote on any of the questions proposed by the opposition. The only tiny problem was that manipulating the whole electorate proved somewhat more difficult than making the constitutional organs loyal to the government. Slightly more than 47% of the electors cast a valid vote on the referendum, so legally speaking the plebiscite was a failure. What is even more interesting is that approximately 21% of the voters deliberately cast an invalid ballot due to the active campaign of human rights NGOs – who were later fined by the National Election Commission for this very reason.