Overview of the legal background of the current Hungarian debate on the Coronavirus Response Bill and the state of danger
The Coronavirus has profound consequences for life in Hungary. The examples of Italy, Spain and many other countries clearly demonstrate that stopping the contagion and saving lives requires extraordinary measures. Reacting to this grave crisis, the Hungarian government has introduced a special legal order: the state of danger, issued extraordinary measures in order to tackle the crises, and initiated parliamentary legislation in the form of the Coronavirus Response Bill. The Bill is not only needed to extend the government’s competences, but to extend the scope of the special decrees on border closures, entry and travel bans, quarantines, on-line education in universities etc. As the opposition refused to support the ‘accelerated approval’ of the bill, the Parliament will only be able to vote on it early next week, while the effect of those mentioned extraordinary measures and decrees will expire this week, so restrictions protecting public health will be lifted in the forthcoming days.
As the government leads the crisis management efforts, the opposition engages in petty obstruction, resorts to baseless accusations of executive overreach and to name-calling in the shape of referring to Prime Minister Orbán as a “dictator”. Domestic and international criticism about “eliminating parliamentary control” seems meaningless, as it would be politically illogical for a reigning government to “switch off” its own two-third majority from the decision-making in general.
In the face of such developments, we find it crucial to highlight some facts on the legal background of the current situation and debate on the Coronavirus Response Bill and the state of danger in Hungary.
- Legal framework
- First and foremost, in Hungary, it is the Fundamental Law which defines the conditions and the basic legal framework for introducing all forms of special legal order. These provisions were present in the earlier Constitution of Hungary.
- Article 53 and 54 regulates the special legal order that is applicable for the current situation and has been invoked., i.e. the state of danger.
- Article 53 (1) clearly states that it is the Hungarian government who has the right to declare a state of danger, meanwhile Article 54 (3) adds that it is also the Hungarian government who can terminate it. Both two actions are implemented by a decree issued by the government. This has been the case since the regime change.
- It is important that based on the current legislative framework, the decree on the introduction of the state of danger does not come with “a sunset clause”. The state of danger is in place until the government decrees that the threat that caused the introduction of the special legal order has ceased to exist. [(Article 54., paragraph 3)]. This regulation, too, has been in effect in Hungary since 1990.
- Therefore, the Hungarian National Assembly has no right to interfere with the decision on the state of danger. It falls squarely within the competence of the government. Extending the state of danger by the National Assembly is thus conceptually impossible. The state of danger can be introduced and terminated only by the government, and it cannot be “extended” by any entity, including the National Assembly. However, the Coronavirus Response Bill, proposed by the government, contains a passage explicitly enabling the National Assembly to determine that the conditions for the declaration of the state of danger no longer exist.
- However, and this might have caused some miscomprehension, the Fundamental Law of Hungary describes a “sunset clause” of 15 days, which does apply, but only to the emergency decrees issued during the state of danger. The extension of such decrees beyond 15 days requires the approval of the National Assembly [Article 53 (3)].
- The government aims to extend the measures it has introduced in the last 2 weeks in order to tackle the spread of the Coronavirus and with that in mind, it initiated legislation (Coronavirus Response Bill) in the Hungarian National Assembly. But time constraints meant that the government wanted to pass the Bill through an extraordinary parliamentary procedure (see II).
- The emergency decrees issued during the state of danger have a very different legal status to the imposition the state of danger itself. So far, there have been several such emergency decrees.
- The Coronavirus Response Bill introduced by the government has several crucial elements: It confirms the steps already taken by the government during the state of danger: locking down the borders, school reorganizations, economic stimulus, etc.
- Due to the unstable and unforeseeable situation, this bill does not put a time limit on how long the government can extend the emergency measures. The goal behind this section is that in the case of a pandemic of such virulence, we must bear in mind that at certain period of the epidemic the National Assembly may find it difficult to form a quorum, and may not be able to sit in session. At the same time, it is the responsibility of the government and (should be) of all representatives to keep the crisis-management effective and provide all the necessary legal means for the government in this process.
- However, it is crucial to emphasize, that the National Assembly will sit during the state of emergency as well and if it can form a quorum it can withdraw its consent to any and all of the decrees that have been extended at any time.
- A government decree introduced the state of danger on March 11th and then issued further decrees on emergency steps to combat the threat of the virus. These latter measures will only be in force for 15 days, unless the government, with the consent of the National Assembly, extends them.
- On Monday, March 23rd the National Assembly took a vote on deviating from the House Rules when debating the Coronavirus Response Bill. It would have been crucial to garner the necessary support of 4/5th of the MPs in order to allow the National Assembly to adopt this Bill on Tuesday, March 24th. The opposition voted against it and thus the accelerated procedure was defeated. As a result, the Bill can only be adopted on March 30th through a procedure called urgent debate. The Bill itself requires a 2/3rd majority to pass.
- The governing parties have the necessary seats in parliament to pass the Bill, but not for deviating from the House Rules which would have been necessary for fast-tracking the process.
- Three of the decrees – on defining the role of the Operational Corps (the body heading the response to the pandemic) in advising and helping the work of the Prime Minister; on closing the border to foreigners, on digitalizing higher education; on imposing quarantine for citizens coming home from foreign countries where they might have been infected; on suspending non-essential court hearings; ordering the digitalization of schools, kindergartens and nurseries – will “expire” the earliest; on March 27th and 30th.
- The Coronavirus Response Bill can only be adopted on March 30th and there will be a few days’ “gap” concerning the above-mentioned decrees. As a result of the irresponsible actions of the opposition there is legal uncertainty regarding the applicability of the above decrees in that period. The government is working on how to resolve the situation.
- It was irresponsible of the Hungarian opposition to sabotage the quick adoption of the Coronavirus Response Bill and thus to put the implementation of the extraordinary measures at risk. Due to their actions, which are clearly driven by partisan political considerations, some steps taken by the Hungarian government to combat the spread of the disease might be suspended, thus the emergency measures taken to protect the health of Hungarian citizens could be at risk.
- In order to mitigate the adverse consequences of the opposition’s stubborn irresponsibility the government requested the cooperation of the effected institutions (universities, municipalities, et.) to maintain the efforts established in the decrees and asked the authorities participating in the management of the crisis to issue the necessary rules as a stopgap measure for the period in question, until the Coronavirus Response Bill is passed on March 30th. Naturally, these solutions offer a far less solid legal background than what the emergency decrees themselves provide.
- The accusations of “dictatorship”, coming from the opposition and several left-liberal NGOs, are difficult to understand for another reason as well: Fidesz and the Christian Democrats (KDNP) already have a two-thirds majority in the Hungarian National Assembly. So, dismantling the parliamentary system with such a strong majority would make no sense at all from a political point of view. Why on earth would the government ignore a parliament where it has a 2/3 majority or try to exclude it from the decision-making process?
- The fact that opposition parties and several NGOs are simply ignoring the above-described legal framework and that their arguments in the current situation are evidently going against common-sense, clearly indicates that their actions are fueled by partisan interest and ideological anger.
- The fact that these NGOs and opposition parties recklessly push their political agenda even during these times of grave crisis, is yet another sign of how incapable they are of putting aside political differences and of acting in a responsible manner. It seems they would rather occupy themselves advancing their own political agenda even at a cost of risking the successful implementation of the measures designed to safeguard the health of Hungarians.
- The functioning of a healthy democratic society, in which all political players bear prime responsibility for all citizens is thus not endangered by the Orbán government, but by those who spread the above-mentioned, politically driven, unfounded and malicious propaganda.