Center for Fundamental Rights

Q&A on the Hungarian political situation on the coronavirus-pandemic

Q&A on the Hungarian political situation on the coronavirus-pandemic

Do you feel that the bill proposed by Hungarian government is necessary?

Taking the health-, social- and economic effects of the pandemic into account, the executive branch needs to implement countermeasures the most effective and prompt way it is possible. The declaration of the state of danger, the extraordinary decrees upon it, and the bill approving and prolonging the scope of those decrees serves this very goal.

Constitutional rules applying for state of danger as a special legal order are largely the same since 1990. The government (and only the government) is allowed to declare and terminate ‘state of danger’ and ‘may adopt decrees by means of which it may suspend application of certain acts, derogate from the provisions of acts and take other extraordinary measures’. But while the declaration (and termination) needs no consent from the legislative body, the mentioned ‘extraordinary decrees’ shall remain in force only for 15 days, unless the parliament extends those decrees. The bill in question would itself serve for fulfilling the latter point.

The government’s intention with the proposed, but rejected accelerated procedure was to adopt the bill on Tuesday in order to keep some extraordinary measures in effect – as the ’15 day period’ will expire in the forthcoming days. But while the adoption of the bill needs a two-third majority, for which governing parties have sufficient votes, the acceleration procedure would have required four-fifths of the MPs, so some support from the leftist-liberal parties and from their fresh partner, the previously anti-Semitic and radical Jobbik. But those parties refused to act so, so as a result of their confused and short-sighted behaviour some extraordinary decrees will cease to have effect this week, while the parliament will only be able the have a final vote on the bill next Monday or Tuesday. Those decrees introduced the so-called Coronavirus Operational Group – the highest state body dealing with the effects of the pandemic –; ban on arrivals and border closures; reorganization of teaching in higher education; quarantine for arriving Hungarians with a suspect of infection; expulsion of foreign individuals not cooperating with authorities when in quarantine etc.

Although there will be a few days’ “gap” between the expiration of those measures and the adoption of the bill, there are legal possibilities for the government to somehow overcome this problem – and at the end of the day, the bill itself will pass next week. But what is for sure is that the opposition puts some of the crisis measures already introduced in danger as well, causing at least a legal uncertainty.

That is not entirely true. The question of when the epidemiological situation warrants the introduction or the lifting of the state of danger is not a legal question in the same way as determining when the country ‘faces an imminent threat of armed attack by a foreign power’ isn’t. Control and oversight are provided, naturally, by the parliament as it can and will convene during this special legal order as well. According to the bill, it indeed does not put a time limit on how long the government can extend the extraordinary emergency measures, but parliament can withdraw its consent to any and all of these at any time when it is in session with quorum. Indeed, the indefinite nature of the Bill is necessary because of the danger, clearly to be avoided if possible, that the spread of coronavirus might prevent the parliament from sitting.

That is the legal side of the story, but there is a political problem with the argumentation of the opposition. While it is clear that in a state of danger a government can introduce measures ‘against’ the pandemic more easily, Fidesz and Chrisitan Democrats enjoy a supermajority in the parliament. Why would the Orbán-government intend to ‘turn off’ its own majority from political decision-making for the long run?

That is the legal side of the story, but there is a political problem with the argumentation of the opposition. While it is clear that in a state of danger a government can introduce measures ‘against’ the pandemic more easily, Fidesz and Chrisitan Democrats enjoy a supermajority in the parliament. Why would the Orbán-government intend to ‘turn off’ its own majority from political decision-making for the long run? 

According to recent polls, more than 90% of the Hungarians support the declaration of state of danger due to the pandemic and the introduced extraordinary decrees. Public support is indeed high for the announced economy-protecting measures (tax-exemption for SMEs, moratorium on pension contributions, capped health insurance premiums, termination of rental contracts and place a moratorium on rental price increases), leaving HUF 3,600 (EUR 10 billion) with the people this year.

In general, special legal orders all over the Western world serve as a legal basis for states to act against an external or internal attack with the most effective way they can. Usually such kind of an unexpected threat or impact (armed military or terror attack, organized coup or an invisible enemy, a virus) causes abnormalities in the everyday operation of the state and society. As such, state actors should use extraordinary tools as well to combat the ‘enemy’, to handle the unforeseen situation – in order to protect social order and public interest (e.g. public health). To do so, general interest – which is more than just the ‘sum up’ of each and every person’s interest – should precede individual rights temporarily, so for example fundamental rights may be suspended or may be restricted (e.g. quarantine vs. right of free movement or right of assembly; state oversight over critical infrastructures vs. right to private property etc.). This is not in ‘centralisation’ in political terms, but the needed steps to overcome a crisis and to find the fastest way back to ‘normality’.

We cannot speak about ‘NGOs’ in general when it comes to politics: more than 70,000 legal entities are registered as NGO in Hungary, and only 20-30 of them participates in everyday politics regularly (as my institution, the Center for Fundamental Rights do so, although we do not define ourselves as an NGO on purpose, but as a conservative legal think-tank).

Those ‘NGOs’ criticising the current government – and politics of the Right in general and Western-wide – are mostly part of the open society network. Some of them are financed by those foundations, some of them just share the ideological views of Popper, Habermas or Soros. This itself is not a problem of course, but they mislead the public as they masquerade themselves as ‘independent, objective, neutral, civic’ entities, while they clearly have a very specific ideological background. And in the eyes of supporters of open society, individual human rights always precede anything else, including social order or public interest as well. As such, a special legal order with the restriction or suspension of rights is truly their nightmare, as it is the antithesis of liberal democracy.

As far as I know, most EU-countries introduced some type of special legal order or state of emergency, including France, Italy, Spain, and the Central-European states as well. According to my knowledge, UK’s parliament will have a vote on state of emergency this Thursday. You should keep in mind, that regulations on extraordinary legal measures vary all around Europe, the relevant constitutional declarations diverge in their clarity and length. Sometime it is not even called a ‘special legal order’: for instance the French government introduced the hotly-contested reform on the pension system bypassing the parliament in early March, because the French constitution allows it, if the government survives the vote of no-confidence.