Uitz, Renáta

English

<intR>²Dok

From Shrinking to Closing Civil SocietySpace in HungaryRenáta Uitz 2022-04-10T19:23:14In a classy late Friday dump, on April 8, 2022, the National Election Commission(NEC) fined over a dozen Hungarian civil society organizations for illegally interferingwith the referendum held on election day (April 3, 2022). These NGOs ran amonth-long campaign encouraging voters to cast invalid votes in response to thegovernment’s referendum question. Altogether the fines add up to 24.000 EUR: theleaders of the campaign, Háttér Society for LGBTQI rights and Amnesty InternationalHungary were fined approx. 8.000 EUR each. The NEC found that encouragingvoters to cast invalid ballots amounts to an abuse of rights, as it defeats the purposeof 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 illiberalChristian democracy. The Hungarian government has already provided ampleproof of its ability to listen and learn: (i) it seized the opposition’s idea of holdinga referendum on election day, (ii) it relies on the legal activism of private citizenswho seek to suppress participation in public affairs and (iii) public authorities deploythe language of human rights to silence dissenters. It remains to be seen how farthe Hungarian government is willing to go in following the Russian playbook onsuppressing public participation in politics, on gradually moving from shrinking toclosing civil society space.Super Sunday: national elections + referendumOn Sunday, April 3, 2021 Viktor Orbán’s Fidesz party won a 2/3 majority in theHungary’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% (with1.9M 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 (57mandates). The third largest force in parliament is a newly founded extreme rightfraction: 6% of the popular vote (0.3M) yielded 6 seats in Parliament. In sum: Fideszhas 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 pollssuggested a much closer race.Despite the defeat of the opposition, the mood among civil society actors was stilljubilant: the government’s referendum initiative to protect children from LGBTQIinfluences failed. The referendum questions posed by the government and approvedby Parliament in November 2021 urged voters to consider the following:- 1 -• Do you support subjecting minors to sessions on sexual orientation in publicschools without parental consent?• Do you support the promotion of sex change treatments [properly: genderconfirmation surgery] for minors?• Do you support subjecting minors without any restriction to sexually explicitmedia content that may affect their development?• Do you support making available to minors media content that depicts sexchange [properly: gender confirmation surgery]?In a legal sense the referendum on child protection measures was completelysuperfluous. The Hungarian Parliament has already adopted a law to shieldchildren from so-called LGBTQI+ propaganda in June 2021. This law implementsa constitutional amendment adopted in December 2020 that makes it a stateobligation to ensure the education of children according to their biological sex atbirth, in line with the values of Hungarian constitutional identity and Christian values(Article XVI(1)). It also entrenches the heteronormative definition of marriage in theFundamental Law (Article L(1)), clarifying that “the mother shall be a woman, thefather shall be a man.” The European Parliament called the “child-protection” lawstate-sponsored discrimination on the very day it entered into force. In December2021 the Venice Commission found the very title and several provisions of the law toviolate European and international human rights standards.The campaign lead by civil society organizations appears to have convinced some1.7M voters to cast invalid ballots, rendering the referendum unsuccessful. [Inaddition, some 0.3M votes were cast against the government’s initiative.]The success of the campaign against the government’s referendum initiativewas no small feat. According to the OSCE’s preliminary report on the April 2022elections, „[t]he referendum legal framework is largely inadequate for the conductof a democratic referendum and does not provide for a level playing field forreferendum campaigns.”From illiberal adaptation to authoritarian learningThe government’s referendum campaign was the perfect illustration of the flexibilityand 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 electionday. Rather, the government seized an opportunity that was first spotted by theopposition. The removal of the ban on holding a referendum on election days wasproposed by the opposition in the fall of 2021, at a time when the not-yet-unitedopposition was in search of a message, a strategy and a leader. In the summer of2021 – in the midst of the pandemic – the government floated the idea of holding areferendum in support of its ‘child-protection’ measures to fight back to Europeancondemnation. The opposition decided to counter this initiative by a referendum tochallenge the government’s plans to build a new campus for the Fudan University’sBudapest campus. When this idea got some traction among opposition supporters,- 2 -opposition MPs moved to remove the statutory ban on holding referenda on electionday.In an unexpected turn of events, the government agreed, and in November 2021Parliament unanimously gave green light to holding a referendum on electionday. Shortly afterwards Parliament approved the government’s questions on childprotection, while the opposition had to take to the streets and collect 200.000signatures (as required by law, for putting a popular initiative on a referendum). Thesignatures were collected by mid-January 2020, too late to be put on the ballot onApril 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 anythingthat 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 ballotsstood 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 isa matter of concern for the European Commission. The Hungarian governmentis rather keen to mobilize citizens against private behavior that the governmentdisapproves of. The ‘child protection law’ is meant to be enforced as a consumerprotection 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 havebeen published with a warning about its abnormal content. The Association ofHungarian Publishers and Book Distributors was genuinely uncertain about theirobligations under the law.The complaint against the referendum campaign of the civil society organizationswas filed by a private citizen on April 6, 2022 – i.e. three days after the results ofthe election and referendum were made available. Such civic-mindedness suggeststhe outsourcing of the suppression of dissent to private citizens. As a result, a newlayer of control is installed over the public square, after law enforcement and digitalsurveillance dissenters also encounter private vigilance – reinforced by 2/3 majorityin parliament.(iii) The NEC’s justification of its fines (in Hungarian) is presented in human rightsterms. The NEC found it problematic that the civil society organizations urged votersto engage in a form of civil disobedience, thus violating the principle of exercisingfundamental rights in good faith and according to their purpose [18-19]. Borrowingthe concept of abuse for rights from civil law [32-33], the NEC emphasized thatencouraging voters to cast an invalid ballot violates the constitutional purpose ofpopular initiative [34]. Although the NEC said that voters may choose to cast aninvalid ballot [35-36], urging them to do so in a public campaign divests a referendumfrom the very purpose of enabling the people to express their will on a legislativeproposal [37]. That the ‘child protection law’ has already been cast into law and inforce did not seem to affect the reasoning of the NEC.- 3 -The affected NGOs can now turn to the Kúria against the decision of the NEC. In anunrelated case where an opposition candidate was found to violate election rules forcalling voters to cast invalid referendum ballots on Facebook, she argued before theKúria that under the Fundamental Law voters are free to decide whether and howthey 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 legalargument – as under the Fundamental Law only acts of parliament, governmentdecrees, ministerial decrees etc. qualify as legal norms (Article T(2)), while theFundamental Law is the foundation of the legal system (Article R(1)), but not a legalnorm itself.The Kúria’s decision in this unrelated case does not predict the outcome of thecomplaints against the referendum campaign of civil society organizations in theKúria and then in the Constitutional Court. The NEC’s and the Kúria’s appetitefor creative legal argument is certainly noteworthy: these decisions illustrate themalleability of constitutional and human rights arguments when deployed by the legalmachinery of an illiberal (hybrid) regime.It remains to be seen how far the Hungarian government is willing to take its fightagainst civil society in its fourth consecutive term of building an illiberal Christiandemocracy. The Russian example of gradual restrictions (leading ultimately to theliquidation of the human rights center Memorial in December 2021) is a well-chartedpath. While the Venice Commission has expressed serious reservations aboutdemonizing civil society organizations through designating them as foreign agents,and the CJEU has also expressed concerns about the chilling effect of rules thatseek to deter the financing of NGOs from abroad (C-78/18), the applicable humanrights standards are far from clear. Since March 2017 the ECtHR has communicateddozens of cases against Russia’s targeting civil society organizations as ‘foreignagent.’ The fate of these communicated cases is in somewhat of a limbo sinceRussia’s exit from the Council of Europe. In the meantime, the Russian playbookand the gaps in the existing legal framework provide numerous options for an illiberalregime interested in suppressing participation in public affairs – in closing civilsociety space.- 4 -

From Shrinking to Closing Civil Society Space in Hungary

https://intr2dok.vifa-recht.de/servlets/MCRFileNodeServlet/mir_derivate_00012288/From_Shrinking_to_Closing_Civil_Society_Space_in_Hungary.pdf

From Shrinking to Closing Civil Society Space in Hungary

Abstract

Similar works

Full text

Available Versions

<intR>²Dok