Center for Fundamental Rights

Overview

Overview of the Legal Background of the Coronavirus Response Act Democracy Prevails in Hungary Despite All

The Coronavirus has profound consequences for life in Hungary. The terrifying 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 and in accord with the respective provisions of the Fundamental Law, the Hungarian government has introduced a special legal order: the state of danger, which entitled the government to issue extraordinary measures in order to tackle the crises. Pursuant to the relevant provisions of the Fundamental Law, the effect of such measures lasts only for 15 days, but the National Assembly is entitled to extend them. In order to do so, the government introduced parliamentary legislation in the form of the Coronavirus Response Act (Act XII of 2020).

As the government leads the crisis management efforts, the opposition engages in petty obstruction, resorts to baseless accusations of executive overreach. However, domestic and international criticism about “eliminating parliamentary control” seems meaningless, as it would be politically illogical for a reigning government to side-line its own two-third majority from decision-making in general. 

In the face of such developments, we find it crucial to highlight some facts regarding the legal background of the Coronavirus Response Act.

First and foremost, the entity which adopted the Bill in question is the Hungarian National Assembly, which has been democratically elected by the Hungarian citizens. Thus, labelling the decision of the parliament as an authoritarian or a dictatorial move clearly goes against the core of the democratic principles to which the critics are referring.

The governing parties (Fidesz and the Christian Democrats) 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. It is just common sense that the adoption of the Act has nothing to do with a possible power grab by the government but aims to respond to the crisis effectively. (Next Parliamentary elections will take place in April 2022.)

Based on the adopted Act, the Hungarian government’s power will remain strongly limited. The government can issue extraordinary decrees for the purpose of preventing, managing and eliminating the human epidemic, and preventing and mitigating its further harmful [Article 2. Paragraphs (1)-(2)]. Extraordinary measures and government actions in other fields of legislation cannot be taken. Similar authorizations by national parliaments are given to several governments in countries around the world. The scope of the Act is fully in line with international practise.

The state of danger is in place until the threat that caused the introduction of the special legal order has ceased to exist (Article 54., paragraph 3 of the Fundamental Law of Hungary). This regulation, too, has been in effect in Hungary since 1990. Based on point 3 above, would it make any sense for the government to keep its emergency powers designed to fight a pandemic after the pandemic is over? Only absurd or malicious, politically-driven allegations could claim that it would.

However, in mind that in most countries a sunset clause is incorporated in the respective legislations on emergency powers, it must be highlighted that there is, indeed, a crucial difference between the Hungarian model and some other practices. In countries where a 30, 60, 90 day or even longer sunset clauses are present in similar laws authorizing those governments to take extraordinary measures, a linked, hidden danger to those acts has also been introduced and activated. Namely, that upon the expiry of the sunset clause and if the epidemic is still ongoing, the respective parliaments may not be able to convene to extend the emergency powers and thus provide governments with effective firepower to handle the crisis (which they would use anyway if the pandemic persisted). Therefore, they may risk a state of constitutional turmoil. The current Hungarian regulation resolves this danger by excluding this very possible scenario soon to be in the headlines elsewhere…

However, in mind that in most countries a sunset clause is incorporated in the respective legislations on emergency powers, it must be highlighted that there is, indeed, a crucial difference between the Hungarian model and some other practices. In countries where a 30, 60, 90 day or even longer sunset clauses are present in similar laws authorizing those governments to take extraordinary measures, a linked, hidden danger to those acts has also been introduced and activated. Namely, that upon the expiry of the sunset clause and if the epidemic is still ongoing, the respective parliaments may not be able to convene to extend the emergency powers and thus provide governments with effective firepower to handle the crisis (which they would use anyway if the pandemic persisted). Therefore, they may risk a state of constitutional turmoil. The current Hungarian regulation resolves this danger by excluding this very possible scenario soon to be in the headlines elsewhere…

The parliament may revoke its authorisation at any time prior to the end of the state of emergency (Article 3 paragraph 2 of the Coronavirus Response Act). The legislation further lays down that the government is required to keep Parliament informed about the measures adopted with a view to eliminating the state of emergency when it is in session; when not in session, the Speaker of the House and the heads of the parliamentary groups are to be informed. (Article 4 of the Coronavirus Response Act). This provision thus keeps a very strong control in the hands of the National Assembly.

Article 54 paragraph 2 of the Fundamental Law of Hungary clearly states that “Under a special legal order, the application of the Fundamental Law may not be suspended, and the operation of the Constitutional Court may not be restricted. These provisions also provide very strong constitutional control over the actions of the government.

Further remarks:

  • The fact that several NGOs, left-wing and liberal politicians and intellectuals are simply ignoring the above-described legal framework clearly indicates that their actions are fuelled by partisan interest and ideological anger.
  • The functioning of a healthy democratic society is not endangered by the ruling parties but by those who spread politically driven, unfounded and malicious propaganda against the democratically elected government of Hungary in the time of this great crisis.
  • We strongly advise all the fulminating fearmongers to study the relevant Hungarian regulation before giving lectures on democracy and creating unfounded and hysterical allegations on the state of rule of law in Hungary. It would save time and energy for all stakeholders to concentrate on the real issues: saving lives, bolstering health-care services, keeping social order and protecting families from the economic consequences of this pandemic. Responsibility starts here. Even for the communists, socialists and liberals