Constitutional amendments and Stop Soros: shifting illiberalism into higher gear in Hungary

After gaining a two-thirds majority in the parliament for the third consecutive term, PM Orbán continues establishing his authoritarian political system at full speed by curbing judicial and academic independence, civil liberties and the rule of law.

Right now, he is turning towards institutions that still enjoy some autonomy. Fidesz wanted to pass the controversial laws as soon as possible mainly for domestic political reasons but probably also because PM Orbán might have hoped that the current government crisis in Germany and the FIFA World Cup might overshadow the news from Hungary. Creating a new administrative court system to curb the independence of the judiciary and measures against NGOs are the most important elements of this package.

Main points

• The most important elements of the legal package approved on June 20 are the creation of an administrative court system - threatening the independence of the judiciary - and introducing more legal tools that can be used against human rights NGOs. These measures are put into a broader, symbolic package that emphasizes anti-immigrationism and the importance of Christianity.
• Thanks to the following events, which unanimously aim at silencing independent voices and tighten Fidesz’s control over the political, social and media sphere, Hungary has taken huge steps once again to distance itself from liberal democracy. Hungary is the only EU member state with such restrictive NGO laws.
  • The “Stop Soros” legislative package approved on June 20, 2018 mainly amended the Criminal Code by introducing “assisting illegal immigration” as an independent statutory definition with a maximum punishment of a one-year prison sentence. The government also plans to introduce a 25% special tax on aid groups which allegedly support migration. These legislative acts clearly aim at hampering the work of certain NGOs.
  • The revealed plan to gain control over a major part of the Hungarian Academy of Science’s funding and the government’s inaction regarding the Central European University aim at limiting academic freedom.
  • The creation of an administrative court system and the new Administrative High Court with the seventh amendment of the Fundamental Law jeopardises the independence of the judiciary and widen opportunities for Fidesz to put pressure on judges.
  • Limiting the right to assembly and freedom of expression and making the protection of Hungary’s constitutional identity and its Christian culture the duty of all state institutions give room for arbitrary decisions and actions by authorities. So does criminalizing homelessness in the name of “Christian Democracy”.
• While Orbán used to be great at finding the right balance between illiberal steps and the necessary concessions, he seems to have lost his inhibitions after gaining his third consecutive two-thirds. The continuing crackdowns on independent social and political actors reveal that the leadership of the European People’s Party (EPP) does not have any tempering influence on PM Orbán. In fact, passing the “Stop Soros” bill before the Venice Commission’s report was completed - it is expected to be published on June 22 - is a clear signal to the international community - including the United States - that Fidesz does not accept any red lines and conditions. While the EPP was reluctant to put pressure on him earlier, by now Orbán has grown “too big to fail”. He is openly threatening the EPP to provide an alternative to it if the group does not follow his approach – even if Orbán’s support for the EPP is questionable.
• Orbán uses the topic of migration as a pretext to gain credit and form new alliances in the EU but his main goal is to secure his authoritarian rule in Hungary and become an influential player at the EU level. Orbán’s platform is not an anti-immigration but an illiberal platform that does not respect the rule of law and norms within the European Union.
• Therefore, Orbán is not interested in a common European solution based on compromise, especially when it comes to the migration crisis. Instead, he is interested in maintaining the problem. He can exploit a crisis-like situation both domestically and internationally by blaming the EU and Berlin for their inability to solve the issue. This strategy of obstruction became clear through the Hungarian government’s veto against the EU-Africa summit agreement, which would have eased the migratory pressure on the EU. Orbán also opposes the plans of the Bulgarian presidency and even an agreement at the upcoming summit of the European Council. As he stated at the press conference following the summit of the V4 and Austria on June 21, “internal political difficulties in some countries” must not lead to “ill-considered haste at a European level”.

Goals of the authoritarian, anti-pluralist and illiberal measures in detail

The measures of the government have the following goals.

1) Wiping out NGOs by criminalising aid to migrants and tax policy measures

• Following the 7^th amendment of the Fundamental Law, the text now states that “foreign populations” cannot be settled in Hungary
• The “Stop Soros” bill aims at hampering the work of certain NGOs by the personal intimidation of their staff. The bill included a new provision entitled “assisting illegal immigration” in the Criminal Code. According to the new regulation, individuals or groups who help migrants arriving to the country illegally or not entitled to international protection in Hungary gain a legal status permitting the individual to stay in the country will be liable to imprisonment. Amongst others, punishable activities include providing and disseminating information materials.
  • According to the draft report of the Venice Commission, a Council of Europe expert body and the Organization for Security and Cooperation in Europe, the new bill “criminalizes activities that are fully legitimate”. In their opinion, the bill is “arbitrary” and vague, it unduly threatens non-governmental organizations (NGOs) and violates European law. The Venice Commission proposed exempting humanitarian aid, advocacy and campaigning activities from criminal sanctions.
• A 25% special tax on “organising immigration” is going to be introduced soon. The tax was included in the original version of the Stop Soros bill submitted in February but the clause was later dropped. The finance ministry said on Tuesday it would reintroduce the proposed tax in separate legislation.

2) Jeopardising the independence of the judiciary by creating an administrative court system and the new Administrative High Court

• The 7^th amendment of the Fundamental Law has introduced the system of administrative courts and the new Administrative High Court. Even though many details are currently unclear, the Administrative High Court will take over all competences of Hungary’s Supreme Court (the Kúria) in administrative cases. Hence, the Administrative High Court will be responsible for appeals against the decisions taken by state authorities concerning – for example – public procurement, civil liberties, complaints against police action, asylum cases and tax decisions. Based on previous experiences with the practice of judicial appointments, it can be expected that the president of the Administrative High Court, who is to be elected by the National Assembly, will be a political appointee.
• The creation of the Administrative High Court undermines the separation of powers and limits the freedom of judges to interpret the law because the Court is entitled to issue binding interpretative guidance on the uniform application of the law. The bill also states that judges’ interpretation of the law should be based first of all on the reasoning attached to the legislation in question. However, these reasonings often include political statements instead of explaining the rationale and necessity of the proposal.

3) Limiting the right to assembly and freedom of expression by giving priority to the right of private and family life and peace at home

• The 7^th amendment of the Fundamental Law includes a provision which can be used to ban demonstrations held in front of politicians’ homes. The amended law states that the right to assembly must not breach others’ right of private, family life and the “sanctity of one’s home”.

4) Limiting academic freedom

• Within the framework of governmental efforts to end the autonomy of independent institutions, the government aims to gain control over the majority of the funds of the Hungarian Academy of Sciences (MTA). According to the government, the move would only aim to correct “the fragmented nature of budgetary resource management” by creating “a unified innovation and science policy.” However, efforts to force the Central European University (CEU) out of Hungary and other examples of cracking down on independent institutions suggest that it is about control over academic research. Another telling sign is that the planned restrictions on the MTA’s autonomy were preceded by attacks in the pro-government media. Just like in case of CEU staff members, the pro-government weekly Figyelő published a list about those who research immigration, “gender theory” and homosexuality in the MTA’s Social Science Institute.
• In case of the CEU, the government is still reluctant to sign the agreement with the state of New York, a prerequisite for the CEU to be able to maintain its functions in Budapest. Should the signing of the treaty not take place in the summer, the CEU would be forced to move to Vienna.

5) Giving room for arbitrary decisions and actions by authorities

• Some of the legislative changes mentioned above clearly create the opportunity for arbitrary decisions and actions by the authorities. These are the criminalisation of aid provided to refugees and migrants and the creation of the administrative court system and the authorisation of the Administrative High Court to issue binding and political interpretative guidance to judges based on the reasoning attached to the draft bills.
• Two further recent changes following the 7^th amendment of the Fundamental Law might have the same effect. The amended constitution declares that the protection of Hungary’s constitutional identity and its Christian culture is a duty of all state institutions; a vague task which is unclear how to fulfil. Additionally, the new version of the constitution prohibits the use of public spaces for habitual residence. Besides being incompatible with international human rights law according to the UN Special Rapporteur on the right to adequate housing, the provision also gives a broad opportunity to law enforcement agencies for taking arbitrary decisions against the homeless.

6) Shrinking space for independent journalism and public advertisement

The transformation of the media market favouring pro-government outlets has continued since the general elections in April.

• The daily Magyar Nemzet terminated its operation right after elections, while the weekly Heti Válasz initiated a bankruptcy procedure and terminated its print edition in the beginning of June. Both papers belong to Lajos Simicska, a former close ally of PM Orbán who became the latter’s fierce enemy in 2015. Today, only Hír TV is left from Lajos Simicska’s former media empire, but even that is expected to be shut down next autumn the latest. Meanwhile, pro-Fidesz media outlets are realising huge profits largely thanks to state advertisement revenues.
• According to media sources, the main advertising agency besides the independent JCDecaux, Simicska Lajos’s Publimont might be purchased by pro-government business circles. Should this happen, Fidesz would have a clear monopoly on the advertising market. This would further limit the access of opposition parties and independent social and political actors to advertisement surfaces in public spaces.