The coronavirus and the ‘quarantining’ of Hungarian democracy

Many aspects of normal life have been suspended in Hungary due to the coronavirus, including parliamentary democracy.

A controversial Act to Protect Against the Coronavirus, ostensibly safeguarding Hungary from the ravages of the pandemic, was adopted by the country’s National Assembly and entered into force at midnight on March 30th. The new law has been fiercely criticised by opposition parties, independent parliamentarians, prominent lawyers and others.

An online petition, posted just days before the act was passed, was signed by almost 110,000 Hungarians—including two former ombudsmen, a former judge of the Constitutional Court and a former state secretary. It denounced the proposed legislation as draconian and as serving blatantly political purposes. Noting that the bill would ‘eliminate the last remaining constitutional safeguards from our public life’, the petition cautioned that, by adopting it, the National Assembly would be committing ‘suicide’ and transferring its powers to a government which, as demonstrated in the past, would ‘use them for its own purposes’. The petition warned there was a very real danger that ‘the government wants to use the crisis to seize absolute power’.

Concerns shared

In light of the record of Viktor Orbán regime’s over the past decade in ‘de-democratising’ Hungary, many independent observers, domestically and abroad, share the concerns of the drafters of the petition and Hungary’s opposition parties. Writing in the Süddeutsche Zeitung on March 23rd, a well-placed German commentator concluded—under the headline ‘Democracy under quarantine’—that the prime minister apparently wanted to use the virus threat ‘to radically expand his power: prolong the state of emergency indefinitely, cancel parliament and the separation of powers, govern by decree’.

Although employing more diplomatic language, the secretary general of the Council of Europe, Marija Pejčinović Burić, wrote to Orbán on March 24th, emphasising that ‘the measures which member states take in the present exceptional circumstances of the pandemic must comply with both national constitutions and international standards, and observe the very essence of democratic principles’. Juan Fernando López Aguilar, chair of the Civil Liberties Committee of the European Parliament, called the same day on the European Commission ‘to assess if the proposed bill complies with the values enshrined in Article 2 of the Treaty on European Union and to remind member states of their responsibility to respect and protect these common values’.    

The act almost certainly breaches obligations enshrined in key Council of Europe texts and the TEU. By sidelining the National Assembly, banning elections and plebiscites during the state of emergency declared on March 11th, and vesting virtually unfettered powers in the government for an indefinite period, it has suspended an already deficient Hungarian democracy.

Government by decree

In particular, the act allows ministers to govern by decree for the duration of the state of emergency. Existing laws may be suspended or deviated from at the discretion of the government, which is also free to adopt virtually any decree it considers appropriate—provided that it is ‘necessary’ and ‘proportionate’ and taken ‘for the purpose of preventing, managing, and eliminating the human epidemic set forth in the Decree as well as for preventing and mitigating its harmful effects’ (section 2(2)).

Many commentators are concerned that, in practice, the executive will be free to determine unilaterally whether the criteria set forth in s2(2) have been met. The possibility of meaningful parliamentary scrutiny of decrees or other measures adopted is remote, at best, given the two-thirds majority enjoyed by the Fidesz-KDNP government and that its habitually quiescent MPs will continue to be subject to strict party discipline.

In any event, Hungary’s parliament is poised to suspend sittings for the foreseeable future, allegedly due to the risks posed by the pandemic. In such circumstances, the act merely stipulates that ‘[t]he Government shall provide information on a regular basis … for the Speaker of the Parliament and the heads of parliamentary representatives’ groups—about the measures that are taken to avert the emergency’ (s4). According to Péter Bárándy, who served as Hungary’s minister of justice from 2002 to 2004, its passage means that ‘the National Assembly no longer exists, its functioning is an illusion’.

Judicial oversight of decrees or other measures adopted by the government remains theoretically possible. The act acknowledges the competence of the Constitutional Court and notes that it could hold online sessions (s5). But in practice it is highly improbable that the court—its judges widely viewed as sympathetic to Fidesz—would declare that measures instituted by the Orbán administration were unlawful. As noted by the Princeton scholar Kim Lane Scheppele, with perhaps a touch of hyperbole, ‘the Constitutional Court has been a reliable rubber stamp for Orbán since it was captured in 2013, so no one expects serious constraints on the Prime Minister to issue from those quarters’.

Indeterminate period

The act stipulates that neither elections nor referenda may be held (s6) for an indeterminate period—‘until the end of the emergency’ (s3(1)). This threat to democracy is compounded by the fact that, although Orbán has tried to reassure opposition MPs and others that the National Assembly and not the Government shall decide when the emergency has ended, Fidesz-KDNP’s two-thirds majority in the assembly means that, in practice, the decision will rest with the government.

Crucially, extending the state of emergency for an indefinite period subverts the safeguards built into Hungary’s constitution or Fundamental Law. According to article 53 of this instrument, the government may declare a state of emergency ‘[i]n the event of a natural disaster … endangering life and property, or in order to mitigate its consequences’ and may take ‘extraordinary measures’ in the form of decrees. But such decrees may only remain in force for 15 days ‘unless the Government, on the basis of authorisation by the National Assembly, extends those decrees’.

The Fundamental Law establishes an appropriate balance between the need to act quickly and decisively in the face of a genuine public emergency and the general interest in assuring parliamentary oversight of executive actions—particularly where such actions may involve far-reaching restrictions on, or interference with, fundamental rights or freedoms. By contrast, the  Act to Protect Against the Coronavirus disregards the vital safeguards enshrined in article 53 of the Fundamental Law, in favour of vesting unprecedented and largely unchecked powers in a government which has amply demonstrated  its aversion to basic tenets of constitutional democracy.

New offences

The act has also drawn heavy criticism for creating new criminal offences which could potentially encroach on the freedom of the media to publish or broadcast legitimate reports concerning the authorities’ handling of the epidemic. It provides, inter alia, that ‘[p]ersons who … claim or spread a falsehood or claim or spread a distorted truth in relation to the emergency … commit a crime that is punishable by up to three years of prison’ (s10).

What amounts to a ‘distorted truth in relation to the emergency’ is scarcely free of ambiguity. Would an article interrogating the need for the Act to Protect Against the Coronavirus or questioning the bona fides of those who drafted or enacted it amount to a breach of the provision? Would Hungarian judges accept such a construction? Would prosecutors seek to bring the authors of such stories before the courts?

Uncertainty about the scope of the new offences or how they are likely to be interpreted will almost certainly encourage a climate of caution and self-censorship among those media outlets still free of direct or indirect editorial control by the government and its associates. In her letter to the prime minister, the secretary general of the Council of Europe emphasised that ‘democratic debate in national parliaments, in the media and the internet, as well as access to official information and documents are essential elements of any free and democratic order and of particular importance in crisis situations to maintain trust and confidence within society’.

In a recent briefing document, the respected International Crisis Group warned that there was ‘ample room for political leaders to try to exploit COVID-19’, raising the spectre of unjustifiable delays in the holding of elections and the ‘narrowing of political space’, as unscrupulous and authoritarian governments sought to entrench themselves in power. Fearing that ‘as the crisis goes on, some leaders could order restrictive measures that make public health sense at the peak of the crisis and then extend them in the hope of quashing dissent once the disease declines’, the ICG identified recent developments in Hungary as a potential ‘harbinger of what is to come’.

The coronavirus is taking lives and threatening economies. Of equal import, however, is the fact that the virus—or the reaction to it by certain governments—may deprive citizens of cherished freedoms and the very essence of democracy.