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April 7, 2020


Democracy in lockdown

By Kriszta Kovács

  • coronavirus
  • Hungary

On 23 March 1933, the German President, Paul von Hindenburg, acting in accord with Article 48 of the Weimar Constitution, and on the pretext the nation was facing a crisis after an arsonist had set a fire that had badly damaged the Reichstag, the home of the German Parliament, signed a “Presidential Decree for the Protection of People and State.”  

A month later, a subsequent “Enabling Act” allowed the new German government led by Adolf Hitler to issue decrees independently of both Parliament and the President. In effect, it turned Hitler into a dictator.

On 23 March 2020, the Hungarian Parliament debated a piece of legislation so similarly sweeping that some Hungarians informally now call it “The Enabling Act.”

Seizing as a pretext the threat to public health caused by the spread of COVID-19 the vice prime minister and the justice minister of the ruling Fidesz party tabled a draft Act on Protecting against the Coronavirus late on Friday, March 20, in accord with articles 48-54 of the Hungarian Constitution. The act would enable the Hungarian government led by Prime Minister Viktor Orbán to issue decrees independently of Parliament.

On March 30, following an expedited procedure, Hungary’s Parliament passed the law by a two-thirds super-majority vote, in effect turning Orban into a dictator. 

This is not the first time, that Hungarian Prime Minister Viktor Orbán has jumped on a crisis to increase his power. Since returning to office in 2010 (he had led the Hungarian government previously, from 1998 to 2002), Orbán has used countless “crises” to consolidate his hold on power.

For example, in 2011, a parliamentary supermajority justified the adoption of a new constitution with reference to the consequences of the 2008 global financial crisis and the country’s high level of public debt. The ruling majority gave its crisis management policy a constitutional rank: the 2011 constitution contains a debt ceiling, and it deprives the Constitutional Court of its power to review financial laws. These measures remain in effect.

The 2011 constitution, sometimes called Hungary’s “crisis management constitution” contains a detailed set of prescriptions for the state authorities to respond to emergencies. Articles 48–54 provide for special emergency powers in case of an imminent danger of war and external armed attack and in the event of a natural or industrial disaster. It contains an exhaustive list of situations in which the country could be deemed under threat, and it does not provide for the suspension of constitutional rights under any other circumstances.

Several years later, faced with a sharp rise in the number of people seeking asylum in Hungary, Orbán saw another opportunity to expand his power.  Since mass migration was not among the constitutionally listed situations that might justify the introduction of emergency rule, Orbán’s government in 2016 instead used Article 15 (1) of the constitution – “The Government shall exercise powers which are not expressly conferred by laws on another state body” – to declare “a nationwide state of crisis due to mass migration”.

Today, even though the border to Serbia is hermetically sealed and not a single migrant can enter Hungary’s territory, the “state of crisis due to mass migration” is still in effect, because the government keeps renewing it every six months, most recently on 5 March 2020.

Six days later, and once again citing Article 15(1) of the constitution, on 11 March, Orbán’s government declared a “state of danger because of the pandemic.” (The decree also cited the state of danger clause in Article 53, even though this article does not mention a pandemic as a source of danger.)

The decree on the pandemic emergency had an automatic sunset after 15 days without parliamentary authorization. With that deadline looming, Orbán’s government introduced the new Act on Protecting against the Coronavirus.

This new act lacks a sunset clause, unlike The German Enabling Act of 1933 (which was to last four years – it was subsequently renewed twice by the Reichstag). The Hungarian Parliament is still in session, but the act gives the government the power to take extraordinary measures, including suspending or abrogating statutory provisions without parliamentary approval during the crisis. Hence, it is the prime minister – and the prime minister alone – who decides how to respond to the crisis and when the crisis ends.

Orbán’s party argued that without this decree, his government would not be able to properly respond to the crisis: and they pressed Parliament to act as quickly as possible.  

The democratic parliamentary opposition was unified in rejecting the expedited procedure, so the decree expired on 26 March. In the meantime, between 26 March and 30 March, the government and the head of the National Public Health Centre issued new orders on restrictions on movement. In the process, the government itself demonstrated that it could issue the regulations necessary to protect citizens from COVID-19 without granting Orbán emergency powers.

No matter. Since the governing party had a parliamentary supermajority, it was able to pass the Enabling Act on 30 March.

The Enabling Act further decreases the enforceable checks on the executive’s authority. It cancels elections already announced, and all future elections and referenda until the crisis is over. It outlaws the obstruction of epidemiological control and the publication of false or distorted facts that interfere with the “successful protection” of the public. Both crimes are broad enough to be used against critics, and both will remain part of the legal system even when the pandemic is over.

Citing the threat from COVID-19, the Orbán government had already shut down the justice system before it closed down the schools. The only non-governmental state institution which continues in operation is the Constitutional Court.

But this court cannot serve as a check on the government. Cases have to come to the Constitutional Court through the ordinary courts, but since these are all shut down, this avenue is blocked. Certain officials (e.g. the prosecutor general, ombudsman, the government) may ask for constitutional review, but the government is unlikely to ask for a review of its legal measures, and these officials, in any case, have all been picked by Orbán’s government.  

A mechanism does allow one-fourth of the MPs – that is, members of the parliamentary opposition – to bring cases to the Constitutional Court for review.  Unfortunately, the Constitutional Court itself has been packed with Orbán’s political allies. A Parliamentary referral to the court is likely to be futile.

We often hear that extraordinary situations might require extraordinary responses. Indeed, when taking action against the coronavirus, it might be justified to restrict some of our fundamental rights (e.g. the right to assembly, freedom of movement) in proportion with the danger. It might also be justifiable to rationalize the functioning of the democratic institutions, for instance, by limiting public access to court buildings. One can even imagine that the operation of democratic institutions might be temporarily suspended, and the distribution of powers modified in favor of the executive in order to manage the crisis.

Still, as the example of the Weimar Republic suggests, we should be extremely suspicious of all acts that are passed in moments of crisis. 

The Council of Europe’s Secretary-General, the Civil Liberties Committee of the European Parliament, and the UN High Commissioner for Human Rights have all raised concerns about the impact of Hungary’s Act on Protecting against the Coronavirus.

In response, Viktor Orbán has said, in effect, If you cannot help, fine, the least you can do is not hinder the country from defending itself on its own soil. We are at war, and the country is operating on a military plan.

Under Orbán, sharp distinctions between political friend and foe have been repeatedly mobilized to maintain a sense of constant crisis, in which ordinary norms are suspended. The government felt inclined to “wage war” against the financial crisis, against the “illegal migrants”, against the “terrorists” and most recently, against the “invisible and unknown enemy” called the novel coronavirus.

Hungary’s Coronavirus Operational Group consists of many more army commanders in uniforms than healthcare professionals. There is an increased military presence in hospitals: officers are taking part in medical decisions. The military has sent control teams to the country’s strategic companies to “ensure secure operations of key companies in telecommunications, transport and health care”.  

Meanwhile, those in compulsory home quarantine are obliged to post a sign from the authorities (“a red card”) on their door, to warn others that a potentially infected person inside is under disease control observation. Hungarians have seen these signs on doors before: Slovak Prime Minister Igor Matovič, who has condemned the regulation, has compared the red card houses of 2020 to the yellow star houses in Budapest during World War II: a yellow star indicated the residence of a Jew.

In Budapest, people are queuing for guns out of fear that once the pandemic reaches its peak, the state will not be able to maintain law and order.

Orbán himself, despite the dictatorial power he now wields, is proving unable to comfort and reassure the Hungarian people. Instead, the country seems on the verge of a Hobbesian Bellum omnium contra omnes – a war of all against all.

Of course, nobody knows what the future holds. One might think that the similarities with Weimar Germany suggest that Hungary may turn into a totalitarian state. However, there are decisive differences between the two cases. Beyond the crucial differences in the social environment, there are important legal differences: Weimar Germany had a Semi-Presidential system, rather than the Parliamentary system Hungary currently enjoys – though these differences may not matter much in the end.    

Even more important is the difference in the international situation, especially Hungary’s membership in the European Union. Among the conditions for membership in the Union is “the existence of stable institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities.”  So far, the Union has continued to stand by (as it has in the past), even as Hungary’s Prime Minister has assumed dictatorial powers. But Orbán’s latest power grab may give the European Commission no choice but to pursue the remedies at its disposal (even though all of them present serious challenges). 

In any case, recent events in Hungary show how easy it is for a cunning autocrat at the helm of a truly popular political party to subvert an essentially liberal democratic system, destroying it from within.

Kriszta Kovács is Marie Skłodowska-Curie Fellow at the WZB Berlin Center for Global Constitutionalism.


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