Since COVID-19 affects the entire globe, from China through the Ivory Coast to Argentina, governments all over the world have implemented emergency rules to save as many lives as possible. No one, not even members of parliaments, governments, royal families, football teams, or celebrities are immune to the spread of the Chinese coronavirus. News about new infections and quarantining public figures pop up frequently on the internet. This is the first pandemic for a considerable period of time and it is certainly the cause of the biggest change in our way of life our generation can recall.
The coronavirus crisis is an enormous challenge—physically, mentally, emotionally, and economically. Fortunately, constitutions include clauses for such crises—and it should no surprise that those clauses should be invoked.
The United States, Italy, Spain, the United Kingdom—and several other EU member states—just to mention a few democratic countries, all passed emergency decrees and legislation. Hungary followed in line with a number of these measures: or, to be clear, Hungary was one of the few countries that introduced countermeasures at the right time, fast and effective enough to slow down the spread of the virus.
In Great Britain, legislation will see parliament close for four weeks this month. It also guarantees extraordinary competences to the British government’s cabinet ministers, bypassing parliament, deviating from normal procedure. The government has never passed such measures during peacetime before, and they could be in effect for up to two years.
In France, the government also introduced a state of emergency in mid-March, and President Macron did not limit himself exclusively to taking measures against the pandemic crisis. Moreover, just a short while ago (before the state of emergency measures) he also pushed through his explicitly unpopular pension reforms in a rather “draconian” way, bypassing the parliament in early March. In addition, France also declared a state of emergency in November 2015, following the Bataclan terrorist attacks, with a range of restrictions on civil rights, and the measures lasted more than two years until November 2017.
The “anti-terror law” with which Macron replaced the emergency decree allowed an “[e]xpansion of the executive government’s powers in order to deal with a public disaster or a serious threat to public order” and also allowed “prefects or the Minister of the Interior to limit or prohibit traffic in certain places, to prohibit certain public assemblies, to temporarily close certain public spaces, to requisition private property or services, to prohibit certain persons from staying in French territory, to put people under temporary house arrest, and to issue “administrative” search warrants”—for two whole years.
The mainstream media, incurious about these facts, decided rather to throw dust into the public’s eyes and once again “worrying” voices for the future of democracy are predominantly focused on Hungary. The reasoning behind these allegations—formulated, apparently, without any factual knowledge of the new law—is the same as it has always been when directed at Hungary (e.g., in time of the migration crisis four and a half years ago) with only some details and circumstances altered. “Constitutional coup,” “Sweeping Powers To Hungary’s Orban,” “blatant power grab” that “marginalizes the Hungarian Parliament”—these are just a few of the all too common accusations.
Presidential candidate and Senator Bernie Sanders (I-Vt.) tweeted, “authoritarian leaders have used moments of crisis to seize unchecked power. Hungary’s Orban is the latest example.” “Hungary will be indefinitely ruled by executive fiat,” worries Senator Jim Risch (R-Idaho). And “coronavirus kills its first democracy,” says an alarmist headline in the Washington Post.
All but a few statements echoed the same sentiment and signaled the same scruples. Among those publishing more sober analyses, however, has been Francesco Giubilei, an Italian political scientist writing for the Italian right-wing daily Il Giornale. On his blog, Giubilei writes that the Hungarian coronavirus law doesn’t give unlimited powers to the Hungarian government since it lays down that the Parliament can withdraw the authorization if it intends to do so. Although many tend to ignore this, “measurements of the Fundamental Law cannot be suspended, the work of the Constitutional Court cannot be curtailed” due to the Hungarian laws, not even in a state of emergency, wrote Giubilei.
England-based Hungarian sociologist Frank Furedi points out the absurdity of how the mainstream Western media draws parallels between Prime Minister Viktor Orbán and Adolf Hitler, who built his autocratic empire in 1933 when the Reichstag gave him the green light to run amok by passing the “empowerment law.” Today’s Hungarian government simply does not need this kind of extraordinary granting of power, especially when compared to other European countries, as it already has the exceptional democratic legitimacy to tackle the current health crisis.
Even so, the Hungarian executive branch still replies to the parliament. The institutions guaranteeing the rule of law in Hungary have not stopped working.
We shall not neglect the fact that the Hungarian parliament, in which the governing alliance gained a two-thirds majority in 2018 (for the third time in a row) with free and fair general elections, passed the act to authorize the executive power to continue its job to tackle pandemic and its consequences—amid the opposition’s irresponsible filibuster. The parliament’s move is in line with Hungarian constitutional regulations, which—since 1990—empower the government, and only the government itself to declare and terminate the state of danger, but tie the government’s extraordinary decrees to parliamentary approval after 15 days. This “first the executive, then the legislative” method is known all over Western civilization when it comes to declaring special legal orders, and a very similar procedure was used in France, Spain, and Portugal in the past weeks.
And of course, as those legal orders—such as the state of emergency—are introduced as a response to abnormal situations endangering the operation of state and society (things like the threat of war, terrorist attacks, or an epidemic) exercise of fundamental rights may be suspended or restricted. Extraordinary times need extraordinary measures: this is true for all restrictions on ordinary rights during the outbreak whether in the United States or France or Italy or Hungary.
Now, what does the “controversial” bill actually say?
The Act on the Protection Against the Coronavirus extends the extraordinary measures of the government under the “state of danger” and authorizes the government to introduce additional ones explicitly and exclusively “to prevent and respond to the human epidemic of COVID-19”—pertinent to the epidemic defense. It does not, however, dissolve the National Assembly as it—according to the constitution—may and can sit during the state of danger. Moreover, the legislation itself was needed as the Hungarian constitution stipulates that in the state of danger the government may adopt extraordinary decrees only and exclusively as provided for by an act approved by the two-thirds majority of the parliament.
It’s not “without limits,” so clearly it’s not a golden ticket for every political endeavor, nor a shift towards “dictatorship” or “autocracy” as many would have us believe. First of all, its focus on extraordinary measures is very clearly “to prevent, treat, eradicate and remedy harmful consequences” of the ongoing human epidemic that we are fighting against.
Secondly, the law does not allow the government to “rule by decree for an indefinite period of time.” The parliament may revoke its authorization pertaining to the effect of the extraordinary decrees, and—as it will be in session in the forthcoming period—it can withdraw the entire act any time, even before the end of state of emergency.
In the meantime, the Constitutional Court remains operational, and the government is still obliged to answer to parliament, which has all legal instruments to do the “usual” legislative work itself. Should the parliament not revoke its authorization or not withdraw the act itself, government regulations are only in effect until the end of the state of danger, as it is referred to in the Hungarian constitution. Therefore the legal force of the law depends merely on practicalities and not legalities.
One should also add that domestic and international criticism about introducing a “rule by decree” and “eliminating parliamentary control” seems meaningless as it would be illogical, given the circumstances, for our government to do that. As mentioned before, the governing parties own a stable two-thirds majority in the parliament winning all elections since 2006, including national, local and European ones. Dismantling the parliamentary system with such a strong majority or curfewing the powers of the legislative branch would make no sense at all, especially from a purely partisan point of view. Why on earth would the government seek wilfully to ignore a parliament where it already has a strong influence or try to exclude it from the decision-making process?
Last but not least, the government may exercise its power to the extent necessary and proportionate to secure the objective pursued against the danger it tackles—citizens’ health, life, property, rights, and to maintain the stability of the economy in connection with the virus. Well, are they? According to the vast majority of Hungarians, they sure are. Based on the figures of a recent poll conducted by Hungarian think tank Nézőpont Intézet, “90 percent of all Hungarians” who are actually living in the country, and “94 percent of pro-government and 80 percent of anti-government voters agree that the state of emergency that has introduced the emergency law in Hungary should be prolonged.” On the question of how long, nearly 60 percent of Hungarians “would authorize the cabinet to introduce special measures until the end of the epidemic,” and 72 percent agree with the “specific tightening of the penal code.”
The majority of Hungarian citizens comprehend the gravity of this situation and fully abide and cooperate with government measures. As a result, the growth in the number of new cases in Hungary is still gradual, not exponential.
But will press freedom disappear from Hungary, as our critics have been saying it will every day for the last decade?
Of course not. It is true, however, that during an epidemic fake news becomes especially dangerous and steps must be taken to prevent its spread. Indeed, several examples of fake news have already appeared on the internet. Therefore, new criminal regulations that apply only for the duration of a special legal order envisions stricter punishments for scaremongering. This does not even apply to misleading opinions, it only applies to those who intentionally spread false or untruthful information which might hinder the efforts to contain the spread of the virus. An article critical of the government isn’t covered. But a false claim that an entire city might be placed under quarantine is. In the end, it is up to the courts to decide what is punishable and what isn’t.
Taking all these into account, it’s quite destructive and cynical to pull out the very same criticisms from the magic hat of liberal populism time and again, and to cry over “the death of democracy in Hungary” when similar measures are taken in other democracies all over the world, in the West and East alike. Such criticisms are full of hot air!
Naturally, no reasonable person prefers a state of emergency. Nevertheless, every constitution takes states of emergency into account. These measures have nothing to do with dictatorship. These are far from normal times—everywhere. We are fighting to “flatten the curve” and save the lives of thousands of Hungarian men and women endangered by the lethal effects of the virus. At “times of danger,” when human lives or property are at risk, laws are born relatively fast, because fast is our only option to handle this situation in a responsible manner.