No more red lines left to cross: The Hungarian government’s emergency measures

The extraordinary moment of the covid-19 pandemic calls for extraordinary measures, but some European leaders seem to have taken it as carte blanche to expand their powers. And none more so than Hungarian Prime Minister Viktor Orbán. True to its long track record of weakening democratic institutions and upending checks and balances, the government he leads has once again entered the spotlight by passing what its critics dub an “empowerment law”. This unprecedented emergency legislation gives the government virtually unlimited power to rule by decree and, in doing so, deepens widespread concern about the direction in which Hungary is headed.

In mid-March, the government declared a so-called “state of danger” to counter the consequences of the pandemic and to protect the health and lives of Hungarian citizens. This legal order remains in force until it is revoked by the government, which could initially rule by decrees that expired after 15 days unless parliament prolonged them. However, arguing that such a condition could hamper the fight against the virus, the Orbán government tabled a bill to circumvent the 15-day limit and introduce further special measures. On 30 March, the two-thirds parliamentary majority of the governing coalition of Fidesz and the Christian Democratic People’s Party, supported only by the far-right Our Homeland Movement, passed the legislation, which entered into force the next day.

This gives the government a great deal of flexibility to suspend or alter any existing legislation and introduce new measures by decree, provided that it can portray its actions as management of the crisis and its consequences. Decrees that were in force on 30 March, and those that are subsequently adopted, can theoretically remain in place until the government declares the end of the state of danger. At the same time, the validity of the empowerment law is not tied to the special legal order and needs to be revoked separately, after the government ends the state of danger. This stipulation is unclear and raises questions about the intention behind the law. While the government is technically correct to argue that parliament can revoke the legislation, the governing parties’ two-thirds parliamentary majority and the ban on elections (including by-elections) during the state of danger ensure that this is no check on executive power. The Constitutional Court continues to function but, having been packed with judges loyal to the government, the body provides no genuine oversight.

The empowerment law also amended the criminal code: the courts can now hand down prison sentences to those found guilty of spreading false information that could cause panic or hamper the effectiveness of measures designed to fight the pandemic. In light of the government’s hostile attitude towards criticism and scrutiny from the media and civil society groups, many fear that the government could abuse these loosely worded measures to silence its critics.

The Constitutional Court continues to function but, having been packed with judges loyal to the government, the body provides no genuine oversight

Given the decline in Hungarian democracy in the past decade, the European Union’s ongoing Article 7 procedure against Hungary, and Fidesz’s suspension from the European People’s Party (EPP), these measures have alarmed the Hungarian opposition and other European countries alike. The controversy prompted the opposition to propose a time limit on decrees and to suggest mechanisms that would make it easier to place governmental measures under the control of the Constitutional Court. Yet parliament dismissed all such amendments. The governing parties argued that time limits are unreasonable because it is unclear when the crisis will end – despite the fact that such uncertainty did not prevent the British Parliament or the French National Assembly from placing six- and two-month limits on crisis management legislation respectively.

The majority of Hungarians support prolonging emergency measures until the end of the crisis. Nonetheless, eventual consultation on upholding the measures would have provided at least some accountability, which is particularly important at a time when the population is otherwise divided on whether to trust the government. According to the latest Eurobarometer poll, 48 percent of Hungarians trust the government, while 46 percent do not.

The government could have compromised on a time limit with the option of extension should parliament only be able to convene virtually – as the opposition suggested such an amendment. Instead, the government’s refusal to accept any limits on the measures has created an unparalleled form of open-ended rule. However, this should come as no surprise. Orbán thrives on crisis – manufactured or real – by portraying himself as a strong leader who is fighting for his country. He is at war with an invisible yet powerful enemy, the coronavirus. Simultaneously, he is waging war on an opposition that might have just started to find its footing again after making gains in municipal elections last October. Having pushed through a bill that the opposition could not possibly support, the government is now portraying its political rivals as an obstacle to crisis management and a threat to the population’s safety.

Yet, sooner or later, the war against the virus will come to an end. The government will likely then declare an end to the state of danger. The key question concerns what happens in the meantime – and what consequences this will have on the system of governance, rights, and freedoms in the long term. To protect the remnants of Hungary’s ever-declining democracy and those who stand up for it, there needs to be close scrutiny of the government’s decrees, measures, and all legislation parliament seeks to pass under the guise of crisis management. As the operation of the courts is now suspended, and the Constitutional Court’s capacity to provide oversight is in doubt, domestic and international actors who provide such scrutiny will require greater support than ever.

EU institutions and Fidesz’s sister parties in the EPP need to keep a sharp eye on developments in Hungary, to resolutely and immediately evaluate their effects and constitutionality. Should the Hungarian government introduce measures that limit or undermine rights and freedoms beyond the immediate need of crisis resolution, this should swiftly and decisively factor into decision-making on both the Article 7 procedure and Fidesz’s membership of the EPP. Messages of concern don’t work with Orbán. EU institutions and Fidesz’s sister parties need to unequivocally and urgently raise the prospect that they will suspend Hungary’s voting rights in the EU and expel the party from the EPP. Orbán has no more red lines to cross.

Zsuzsanna Végh is an associate researcher at ECFR.