Hungary’s Enabling Act: Prime Minister Orbán Makes the Most of the Pandemic
Prime Minister Viktor Orbán seized the COVID-19 pandemic to secure unfettered law-making powers for an indefinite period. The formal establishment of parliamentary and judicial oversight helps to repulse criticism. With the absence of meaningful domestic accountability mechanisms, constraint may only come from hard sanctions from the European Union – writes Professor Renata Uitz.
On 30 March 2020, the Hungarian Parliament approved a law authorising the Government to manage the COVID-19 pandemic and its consequences by any means it deems necessary and proportionate. This enabling law followed the Government’s declaration of a ‘state of danger’ (a form of emergency) due to the pandemic on 11 March 2020. Under the enabling act, the Government now has plenary law-making powers to enact decrees that may depart from or suspend existing acts of parliament without meaningful constitutional constraints. While Parliament can terminate the ‘state of danger’ any time, the ruling party (Fidesz) continues to control a two-thirds majority in the house, thanks in large part to a disproportionate electoral system designed by FIDESz themselves.
A day later, the Government invoked its newly acquired powers to extend all previously introduced emergency measures till the end of the state of danger. Another decree resets the terms of judicial operations, introducing e-trials in certain cases and judgments without trial in others. In the meantime, Parliament continues to meet and process Government bills.
The act resembles the German Enabling Act of 1933.
The act resembles the German Enabling Act of 1933, the infamous law that created the legal basis for Nazi rule under the Weimar Constitution, a comparison Orbán sharply rejected as it ‘conjures up bad memories’. In an editorial, Hungary’s Justice Minister, Judit Varga, insisted that the enabling act was part of the Government’s consistent Christian-Conservative policy efforts and explained that it fits the pattern of special measures adopted around Europe in response to COVID-19.
Unlike emergency measures adopted by other European governments, the Hungarian law carries the potential of unlimited executive rule by decree. It presents the most significant risk to constitutional government recorded in recent history. European constitutional actors - the European Commission, 13 national governments, even voices in the European People’s Party (Fidesz’ European party family), have expressed concern over the enabling act.
The key question is: why did Orbán resort to an enabling act that invokes the darkest days of European history when he could have relied on the support of a parliamentary supermajority?
A closer look reveals that the enabling act supplies Orbán with the best of both worlds: the façade of a constitutional democracy (complete with a functioning Parliament and a Constitutional Court) and a workshop where his Government can do as it pleases without fearing effective constraints or controls (from his parliamentary opposition or the public discourse). As with previous illiberal constitutional moves, this one is also played strategically: the Hungarian Government is taking calculated risks, while enjoying the limelight of global politics amid a pandemic.
Delegation without meaningful constraints
The idea of uncontrolled emergency rule by decree is a relatively recent addition to Orbán’s constitutional ambitions. The Fundamental Law of 2011 has intricate provisions on emergency powers, formally called ‘special legal orders’. Once Parliament declares a special legal order, extraordinary measures are selected from a pre-existing statutory framework. The Government can, without prior parliamentary authorization, respond to an immediate foreign attack or a ‘state of danger’ involving a natural disaster or industrial accident.
Initially, the Hungarian government’s response to COVID-19 was handled under the constitutional rubric of ‘state of danger’, through Government decrees adopted for an initial 15-day period, to be extended by Parliament. The Government has also relied on legislation governing the management of natural disasters, including epidemics.
The newly adopted enabling act introduces an alternate legal regime.
The newly adopted enabling act introduces an alternate legal regime. It authorizes the Government to prevent, manage and eradicate the pandemic as well as its harmful consequences. Government decrees may depart from existing legal rules. Orbán emphasized in Parliament that he sought such a broad authorization due to the uncertainties surrounding the epidemic.
The plenary approach of the Hungarian law contrasts with the route followed in, for instance, France where Parliament passed a law on health emergencies authorizing the government to introduce a state of health emergency for up to two months, subject to extension by Parliament. Parliament is to be kept appraised of such emergency measures, particularly those restricting individual liberty, without delay, and may request additional information on the measures. The law also lists a range of special economic measures that the Government can impose.
The terms of the Hungarian law appear to be tailored to the pandemic, yet, on closer reading they are overly vague. It is true that the current pandemic and its duration is surrounded by scientific uncertainty. The delegation of authority, however, covers not only the pandemic itself but also the prevention and management of its harmful consequences, a mandate reaching far beyond the health crisis itself.
The delegation of powers under the Hungarian enabling act is not limited in time.
The delegation of powers under the Hungarian enabling act is not limited in time. Opposition politicians sought to include time limits on the delegation. Orbán told Parliament that he would not accept a time-limited authorization as a matter of principle. He explained that the enabling act empowers Parliament to revoke the authorization any time. But this deviates from good European practice which sets time limits as the default requirement. In an online vote, the Romanian Parliament approved the President’s declaration of emergency for a period of 30 days. Similar time restrictions apply in Italy and Czech Republic.
Indeed, one may get a sense on how long the Hungarian Government expects the need for emergency powers to last from the detailed provision postponing any regular election or referendum until the state of crisis is lifted. As the next regular Hungarian general elections are not due until 2022, the Government appears to expect the need for emergency measures to last for a long time, despite subsequent indications from Minister Varga that the Government expects to hold a general election in 2022, as constitutionally required. Nonetheless, the Orbán government’s soft spot for introducing emergency measures is well-known: it has kept the state of crisis declared in response to mass migration in place since September 2015 (it was last extended in early March 2020), although the statutory conditions for doing so have not been met for a long time.
As a special feature, the COVID-19 emergency decrees have been expanding the public visibility of forces in uniform. In mid-March, the military identified some 139 essential companies and took over management in 84 of them. Based on another government decree as of 31 March, some 51 of 108 hospitals were put under the direction of a military commander. The executive’s active reliance on uniformed corps without ongoing parliamentary oversight is reason for concern about the health of any constitutional regime.
While Orbán has a penchant for granting exclusive crisis management powers to the executive, he appears to be mindful to retain a veneer of constitutional legitimacy. The enabling act includes few formal constraints on the Government’s powers: Parliament can lift the ‘state of danger’ any time and the Government is expected to regularly inform Parliament about the measures adopted. Parliament continues to operate and discuss bills, some related to the pandemic, others pursuing government policy priorities (such as banning the legal recognition of transgender persons or imposing financial constraints on powers of democratically elected mayors). Of course, executive decrees can set aside the laws parliament enacts.
Although the enabling act requires the Government to regularly inform Parliament about its emergency measures, these ex post reports are unlikely to stand in the Government’s way. Instead of strengthening parliamentary scrutiny, keeping Parliament busy maintains a façade of constitutional legitimacy for the Government’s emergency rule.
Constitutional challenges against emergency measures are highly unlikely.
In addition, the enabling act envisions the Constitutional Court providing oversight, but the potency of this mechanism is likely to be moderate. All justices of the Hungarian Constitutional Court were appointed by the current governing coalition. The latest two joined the Court from other high government offices: the president of the National Judiciary Council and the president of the National Competition Authority.
Crucially, constitutional review of emergency measures happens after their adoption and often, in response to their application. Due to existing procedural limitations in the Hungarian context, individuals are highly unlikely to be able to bring a constitutional challenge against emergency measures, especially as ordinary courts are in emergency mode. Also, few courts have been known to conduct robust constitutional review of emergency measures, and even fewer are known to have done so after their constitutional regime took an illiberal turn (as the recent Turkish example demonstrates).
Silencing critics - or curbing misinformation?
Without parliamentary and effective judicial oversight, freedom of expression and media become all the more important in holding the government accountable. Civil society organizations emphasize the significance of monitoring, keeping records of and reporting governmental overreach. This may not be possible, though, as the enabling act makes it a crime to spread twisted, though true information that might undermine the efficiency of efforts against the pandemic.
The government routinely calls out its critics for spreading false claims. A few days before the law was enacted, Minister Varga opened an op-ed on politico.eu with ‘[f]alse claims about a power grab in Hungary are spreading as quickly as the coronavirus’. She said this ultimately to argue that hysterical reaction to the draft enabling law was evidence of European double standards.
On 30 March, she took to Twitter to say: ‘Stop spreading #fakenews about the newly adopted Hungarian #coronavirus act. The authorisation is limited both in terms of scope and time and the parliament may at any time revoke it. Its sole purpose is to #protect human lives.’ If these accusations of spreading false claims are an indication, critical inquiry into and especially disagreement with the Government’s actions run the risk of criminal prosecution, with significant chilling effect on reporting.
The Hungarian government is not alone in trying to curb fake news and the spreading of false information: the Bulgarian President vetoed provisions of a state of emergency law for ‘attacking the last remainders of free speech’. The Romanian law authorizing the government to remove information from the public domain was sharply criticised by the OSCE’s Media Freedom Representative.
Hopes for external constraints
In the absence of effective domestic accountability mechanisms, external pressure becomes critical.
Reacting to the initial debate in the Hungarian Parliament, on 24 March, the Secretary General of the Council of Europe, Marija Pejčinović Burić, called on Orbán to tailor emergency responses in a manner observing ‘the essence of democratic principles’. The concern was quickly brushed off by Orbán: [i]f you are not able to help us in the current crisis, please at least refrain from hindering our defensive efforts’. The government’s spokesperson since repeated the response to concerns of Rupert Colville, the Spokesperson for the UN High Commissioner for Human Rights.
Their attitude does not relieve the Hungarian Government from the duty to request derogation under Article 15 of the European Convention on Human Rights: numerous restrictions on individual liberties as well as adjustments to judicial processes (especially judgments rendered without trial) arguably require such a step.
On 27 March, the European Commission’s Justice Commissioner confirmed the Commission’s interest in the draft enabling law. Subsequently, President of the European Commission, Ursula von der Leyen, criticised the lack of time limits on emergency powers and restrictions imposed on freedom of expression and the media. Her statement did not single out the Hungarian government, or the fact that Hungary was under formal European scrutiny for undermining one of the founding values of the Union. There was also no mention of the extent to which the Commission might condition extraordinary EU financial assistance during the pandemic to respect for the founding values of the Union. This is unfortunate as failing to do so would essentially mean that unlimited executive rule by decree is financed by European taxpayers.
The enabling act permits Orban to surpass the existing constitutional infrastructure by making it irrelevant.
Despite feisty responses to external criticism, in the shadow of calls within the European People’s Party for Fidesz’s removal on 1 April, the Hungarian government withdrew an emergency measure. An omnibus bill (T/9934) proposed an amendment to the act on disaster management to place (democratically elected) mayors under the supervision of (government-appointed) disaster management committees. Amidst growing international criticism, following wide press coverage of the bill and a public outcry in Hungary, the government withdrew the proposal.
There is no guarantee that such an emergency decree would not resurface in a new form: unlike bills tabled before Parliament, there will be no opportunity to mobilize against a decree before it comes into force. This episode involving the mayors suggests that the government is ready for a long game where withdrawing a bill is used to put out concerns about the potential excesses of executive rule. If the last decade of European dialogue about the rule of law is any indication, the Hungarian government will not make a serious reversal on the enabling act unless it runs into hard sanctions.
Until then, the fact remains that Orbán has successfully used the pandemic as a pretext to arrogate unbridled powers. He resorted to a familiar and easily transportable measure: a few lines of statutory language. To silence the opposition, he did not need to disband Parliament or pass a new constitution: the enabling act permits him to surpass the existing constitutional infrastructure by making it irrelevant. Keeping Parliament in place helps deflect attention from the true extent of executive rule by decree, planned to last so long as the consequences of the pandemic endure - according to Parliament dominated by the ruling party.
Renáta Uitz is professor of comparative constitutional law at Central European University, Budapest.