A state in danger - special legal order introduced in Hungary

Unlawful, or at least legally questionable, forms of the Hungarian government introducing and maintaining such special legal situations are not a bolt from the blue. The so-called “state of crisis due to mass migration”, which allows the authorities, inter alia, to block roads, ban or restrain the operation of public institutions, shut down areas and buildings, and restrain or ban the entering and leaving of such places, has been unlawfully maintained since 2016. In light of the unconstitutional situation that still exists and, more generally, the well-documented backsliding of Hungarian democracy, we cannot pretend that the system of democratic checks and balances still exists, that there is an independent Constitutional Court, or that there is any guarantee that would put an end to our fears about the real purpose of the “state of danger” and the “enabling act” in question. From that perspective, this article argues that while efficient action is vital in cases of health care emergency, there is no reason to accept unlimited, anti-democratic authorizations.

Political and social correlations 

The problems related to the “state of danger” and the “enabling act” are primarily of a constitutional nature, but there may be political and social correlations to these acts. The Hungarian government argues that the special legal order, which allows for the suspension of a wide range of fundamental rights, is justified because it is the only way to take urgent measures (to halt air traffic or public transportation, order quarantines in certain areas, restrict usage of public spaces, etc.) in order to counter a danger that is imminent and serious, the virus. This argument is contradicted by the fact that the measures taken by the government so far were imposed under Act CLIV of 1997 on Healthcare and, therefore, were taken without introducing a special legal order. This is evidenced by the fact that the Hungarian Chief Medical Officer issued a normative order on 26 March 2020 containing provisions concerning the entry ban, university closures, and a humanitarian corridor for transit passengers. That legislative instrument was necessary because, under the Fundamental Law, extraordinary decrees issued during the “state of danger” remain in effect for 15 days unless Parliament extends them. The normative order serves to replace expiring government decrees.

Illiberal tailoring 

Without calling into question the seriousness of the situation caused by the virus and the necessity of special measures, authorization of the executive branch to act without essential content limitations is dangerous and cannot be justified. This is particularly the case since, as has also been confirmed by several international bodies, the Hungarian government has tailored the legal framework of the country to its own needs and interests, ignoring the principles of the rule of law. In Hungary, the system of checks and balances has been seen to be increasingly undermined, and the independent institutions of state (e.g., the Constitutional Court) as having been taken over by the governing parties since 2010, and consequently the constitutional limits on government power are not functioning. The “enabling act” gives a parliamentary mandate for the government to rule by decree without a sunset clause or any other provision that would guarantee that Parliament can exercise its role of effective oversight. This means, in fact, that the government has been granted an open-ended mandate to maintain the “state of danger”. This is particularly worrying because a “state of danger” is meant to be terminated if the circumstances based on which it was ordered (i.e., the epidemic) are no longer present. As emphasized by many legal experts, because this should be periodically reviewed, the parliamentary mandate for it cannot be granted for an indefinite period.

The “enabling act” also includes an amendment to the Criminal Code.. This is not the first time the Orbán administration is using the tool of the threat of crime in order to curb opinions that are unpleasant for it. The “enabling act” extends the definition of scaremongering (Section 337 of the Criminal Code) to include a new basis for bringing such a case. Based on this, “during the time of the special order of law, a person who states or spreads an untrue fact or a true fact stretched in such a way as to be suitable for hindering or defeating the effectiveness of protection shall be punished with imprisonment from one to five years for felony.” This definition, with its elastic concept of “effectiveness of protection”, raises considerable doubts with respect to how the criteria of “suitability” for “hindering” or “defeating” that protection are to be formulated. Although, based on the previous practice of the Constitutional Court, it is clear that objective information and the communication of true facts may not be punished even if disturbance of the public peace arises as a result thereof, such a rule of criminal law does not fulfill the requirements of normative clarity and does not clarify the criteria of professional consideration required for judging each case, not even for legislators; but it is, in and of itself, suitable for making it harder for journalists corresponding about the coronavirus and for the civil society organizations monitoring the operation of the state during the time of the epidemic and for intimidating them. The new regulation also poses a threat to the freedom of speech of law-abiding citizens active on social media sites. Even if a judge, being aware of the dogmatic requirements of constitutional and criminal law, might be able to interpret the facts of a case in accordance with the rights of free opinion and freedom of the press, just being threatened with the commencement of a criminal procedure in and of itself poses a serious danger to the operation of the institutions of the free expression of opinion. As the additional basis for the crime of scaremongering, to be introduced newly, is also not a “crime of result”, it is particularly difficult to answer the question as to what the characteristics of the act of “stretching facts”, for example, would be. The judgment as to when an act shall be deemed a rumor suitable for “hindering or defeating the effectiveness of protection” is also uncertain because there is no objective measure for it, either.

In light of the above, it is no exaggeration to say that the “state of danger” and the related “enabling act” are a sign that the exercise of executive power is moving towards an even more threatening type of autocracy in Hungary. However, it is encouraging that more than 100,000 Hungarian people signed a petition against the “enabling act” and certain members of the European Parliament have started to collect signatures against it because, as their petition states, “there is a serious danger that emergency decisions will transform liberal democracies into autocratic systems”. In addition, it has been stated already that the Act on the Protection Against the Coronavirus will be examined by the European Commission as soon as possible.

Written by Dr. Domokos Lazar. He is a legal expert, junior researcher of the Eötvös Károly Policy Institute, Budapest, PhD student at the Doctoral School of Law of ELTE, Budapest, DLA student at Faculty of Social Sciences, ELTE, Budapest. His research field concerns the legal and sociological aspects of populism, state propaganda, moral panic, anti-discrimination and equal opportunities.

Proofreading by Gwendolyn Albert.