Editor’s Note: We welcome another contribution to our Assessing Emergency Powers During #COVID-19 series, focused on the Brazilian response to the health pandemic. This post gives us detailed insight into issues of transparency, management, accountability and human rights protections in a specific national context, and brings much needed attention to the rights of indigenous peoples facing a myriad of challenges in the context of the pandemic’s many intrinsic and imposed harms. Contributions have covered Italy, Brazil, Poland, the United Kingdom, Nigeria, Mexico (see here), and Colombia.
“With all due respect, I have no time for this,” replied Hungarian Prime Minister Viktor Orbán on March 27, speaking to the secretary-general of his Fidesz party’s European party family. Orbán was responding to the European People’s Party President, Donald Tusk, who had expressed concerns about the Hungarian leader’s envisaged indefinite carte-blanche mandate to rule by decree. If nothing else, Orbán’s reaction should ring alarm bells, as it amply illustrates the Hungarian government’s hostile attitude toward the rule of law.
Hungarians now face a double threat: Alongside the COVID-19 pandemic, we also have to step up the fight against illiberal contagion. The “Enabling Act,” which was passed on March 30 by Parliament, gave the Hungarian government the emergency mandate to suspend the application of and set aside acts of Parliament, and to take other extraordinary measures without a sunset clause. It presents a very real threat to democracy.
We think it’s important to dive into some details of the complex legal framework of the new law, show why we share the alarm that so many have voiced recently, and recommend counteraction against this power-grab.
The government’s legal arguments: well-sounding but not well-grounded
The Enabling Act triggered wide-ranging domestic and international criticism. While hardly anyone questions that declaring a state of emergency was justified, and that the COVID-19 pandemic’s impacts might warrant fast government action in the form of emergency decrees, critics of the Hungarian law have maintained that the special mandate must be strictly time-limited and should contain additional guarantees against government overreach. As usual, the Hungarian government reacted to the practically unanimous warnings by crying double standard and claiming they were politically motivated attacks. Hungarian politicians and ambassadors have been deployed worldwide to explain to their peers and publics abroad how any criticism of the Hungarian measures is unfounded, even “hysterical.” We will take these arguments and show why they are not valid.
“The declaration of the “state of danger” was lawful”: The Hungarian government’s declaration of a state of danger was indeed based on the Fundamental Law, the country’s constitution, and the Enabling Act was adopted in accordance with the procedural norms. Still, we must remember: The original constitutional framework for the “state of danger” was completely reshuffled and its safeguards were removed.
The “state of danger” is one of many special legal regimes set out in the Fundamental Law. The government has the power to declare it in the event of a natural or industrial disaster. It is also the government’s prerogative to terminate it. There are two very important constitutional safeguards against abuses of power by the government in a state of danger. First, the Parliament must decide, in advance, in a special law about what types of extraordinary measures the government may take during a state of emergency (this is the Disaster Management Act of 2011). Second, the decrees adopted on the basis of this parliamentary authorization lapse after 15 days, unless Parliament authorizes their renewal.
The Enabling Act, passed at the end of March, removes both of these safeguards. It authorizes the government to go beyond what is foreseen by the Disaster Management Act, and it gives an indefinite consent for prolonging the decrees, allowing them to be passed in the future without parliament actually knowing anything about what those decrees will prescribe. We can accept that this had a legitimate reason under today’s special circumstances, as the Disaster Management Act does not foresee certain measures that today’s public health crisis might require. For example, a 15-day-long authorization may not be sufficient for a situation that is likely to last many months. However, the fact that existing safeguards might not fit the specific crisis is no reason to ask for a carte-blanche authorization without a sunset clause. On the contrary: When it asked Parliament to let the existing safeguards go, the government should have offered to replace them with different, more adequate guarantees against abuse. This would have helped build public trust, which is a prerequisite for successfully combatting a pandemic. And this is exactly what the critics of the Enabling Act asked for – to no avail.
“The lack of a sunset clause serves the safety of the people”: Government officials argued that a sunset clause poses the risk that if the epidemic is still going on when the special powers expire, Parliament may not be able to convene to extend the emergency measures, resulting in constitutional turmoil.
However, the Hungarian Fundamental Law, itself, offers solutions for the situation when Parliament cannot convene under other special legal regimes. For instance, it prescribes that the president may declare a state of war if Parliament is prevented from taking this decision. Obviously, similar alternative solutions could be introduced into the Fundamental Law in relation to the state of danger. The opposition parties would have, by all probability, supported an amendment to the Fundamental Law that both maintains the government’s capacity to act and introduces the safeguards offered by a sunset clause.
“With a two-thirds majority there is no political reason to weaken parliamentary control”: The Fidesz-led coalition holds a two-thirds constitutional majority in the Hungarian parliament, which ensured the smooth adoption of the Enabling Act. While Hungary is not under a full lockdown at the moment, with the pandemic, unfortunately, some MP’s might be prevented from attending sessions of Parliament, so there’s a theoretical chance that Fidesz’s constitutional majority could evaporate in the next few months with lawmakers confined to their homes. But as long as the Enabling Act is in force, this is not a problem for the government. The law allows the government to set aside – for an indefinite period of time – even laws that normally require a two-thirds majority vote in Parliament. Had the government agreed to a sunset clause, the ruling coalition might have found itself in a situation where it could have been forced to rely on cooperation from the opposition parties – something this government definitely avoids at all costs.
“The Constitutional Court is still in session”: Certainly. However, access to the Constitutional Court is very limited, as very few actors can request a constitutional review of norms without going through long administrative and court proceedings. Moreover, the court has no strict deadlines to deal with most types of cases, which it plays upon in politically sensitive matters.
Two requests were made to the government majority with regard to the Constitutional Court. First, that individual MPs or group leaders should be given the right to ask for the review of emergency decrees, and second, that there should be a strict deadline for the Court to decide on pandemic-related issues. This would have been an important safeguard against the Court delaying a decision on some of the problematic decrees until it is too late to right the wrong (as it happened in the case of the Central European University). These suggestions are certainly not unreasonable – still, the government rejected both.
Good reasons to worry – some first steps under the Enabling Act
Orbán’s government has a track record of disrespecting constitutional limitations and not tolerating checks and balances.
For example, the “state of crisis due to mass migration,” which is a special legal regime allowing – among other things – the unlimited detention of asylum-seekers at border camps, including unaccompanied children over 14 years of age, was first declared in September 2015, and the government has extended it nine times since then. It is still in effect to this very day, although for years, the actual conditions have failed to meet the legal criteria for extending it.
Since April 1, the Hungarian government has adopted over 30 decrees on the basis of the Enabling Act. Many of these decrees are meant to fight the pandemic, but others clearly serve exclusively political purposes meant to weaken the political opposition.
One such measure is a decree adopted on April 6, which amends the annual state budget and creates two large pandemic-related funds by diverting money previously earmarked for different purposes. The change halves the budgetary support to political parties. Some might say that this is the time when everyone, including political parties, must make sacrifices. However, although the cut taken from the parties’ budgets is a mere 0.06 percent of the total fund, it will be a serious blow to the opposition parties – far more serious than for Fidesz whose resources are often hard to distinguish from those of the government itself.
A government ban on imposing parking fees throughout the country, and diverting certain tax revenues from local municipalities to the special funds, will also hit municipalities really hard. This is especially true in Budapest, where the opposition made a breakthrough victory in the October 2019 local elections, and with the highest number of recorded COVID-19 cases. Besides the disproportionate burden that these budget cuts impose on the capital city, the loss of an important source of income will put local governments at the mercy of the government, which, once the crisis is over or even earlier, can target central budget funds to help out Fidesz-led towns and leave opposition-led municipalities behind, thus helping Fidesz to regain popularity at the local level.
The power-grab does not leave us powerless
The Enabling Act is the start of a new era in Hungary: a time of both an epidemiological and constitutional crisis. In Hungary, beyond its human and economic impact, the toll of COVID-19 will also cause major losses to an inefficient healthcare system and an already weakened system of check and balances. The Hungarian power-grab model can be just as contagious as COVID-19 and could inspire government overreach in Europe and beyond.
While many organizations and governments (such as the European Commission, the Council of Europe, OSCE ODIHR, the U.N. High Commissioner for Human Rights, the U.S. Helsinki Commission and 16 EU member states just to name a few) have raised concerns about the Hungary’s Enabling Act, the Hungarian government could easily proceed to a full-fledged illiberal regime amidst the global challenge posed by COVID-19.
Will Orbán resist the authoritarian temptation, as his government is now so keen to argue? And, if not, how do you stop an unlimited appetite for power-grabbing?
First and foremost, it is up to Hungarians themselves to show support for the core values of democracy, checks and balances, and rule of law. Although everyone in Hungary is worried about the virus and the lack of good health care, not everyone is ready to give up their democratic values. Already 110,000 people signed a petition protesting against the Enabling Act.
This is why the Hungarian Helsinki Committee has intensified its work to support people, rule of law, and democracy in Hungary. We are monitoring government measures; are reporting problematic issues to the public, as well as the international community; and are also ready to take legal action where necessary. Now, accessibility of legal information is more crucial than ever before, hence, we are systematically translating the new decrees into plain language that every Hungarian can understand. We have extended our free legal services beyond our long-standing human rights issues to all those who face legal challenges due to the pandemic and the constitutional crisis, including doctors. We have started solidarity actions, such as a fundraising effort amongst our own membership and staff for the benefit of public healthcare workers.
But international attention must also be maintained. Hungary is a member state of the EU, NATO, Organization for Security and Co-operation in Europe, and the U.N. system, all of which are built on respect for human rights and the rule of law. Now is the time for multilateral organizations and their member states to send clear and strong signals whenever democratic values are under threat, such as now in Hungary. They can make use of their powers to help steer Hungary back toward a system where government powers are effectively held in check by independent institutions.
The EU has a particularly important role to take measures against increasing authoritarianism in its own space. EU countries should move on from continuing a fruitless dialogue with the Hungarian government to giving specific and timed recommendations, and should call for introducing a clear sunset clause into the Emergency Law.
The EU should not fund the wrecking ball that a member State takes to its rule of law institutions. Getting the EU back on its feet in the economic sphere after the pandemic cannot reward those who are intent on overriding basic values and freedoms.
We also need a stimulus package for society to be more resistant to the authoritarian contagion. This is the time to seriously invest in critical infrastructure for democracy, rule of law, and human rights within the EU and globally, and increase funds for civil society and independent media that are promoting democratic values and holding governments accountable.
This is all the more important because many feel powerless and defenseless during this pandemic. At such times, the temptation to grant even more power to the powerful in the hope that they will protect us is especially hard to resist. However, in reality, we are neither weak nor powerless. By working toward ensuring that our communities and countries continue to respect democracy and freedom, we can contribute to overcoming the pandemic with the fewest possible losses.