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As confirmed coronavirus cases in Hungary reached 261 on Thursday, controversy and alarm continued to swirl around a piece of draft legislation that would circumvent parliamentary procedures and grant the government extraordinary powers to rule by decree for the duration of the state of emergency.
The bill, submitted last Friday by Justice Minister Judit Varga, would allow the government to “suspend the enforcement of certain laws, depart from statutory regulations, and implement additional extraordinary measures by decree”. These powers and subsequent decrees would be in force until the end of the state of emergency, effectively suspending the power of parliament for an indefinite period and allowing the government to suspend or override any existing laws.
The bill also proclaims that no elections or referenda may be held for the duration of the state of emergency, including by-elections in the case of the illness or death of members of parliament. (A full translation of the bill can be found here.)
On Monday, a vote was held in Parliament to suspend house rules for the accelerated passage of the bill, but the government was unable to garner the 4/5 vote necessary after all opposition parties in Parliament voted against the measure. In a joint letter written after the vote, the parties declared that they would not lend their support to "Orbán's dictatorship law", but predicted that the bill would pass under normal house rules on March 31 with Fidesz's two-thirds majority.
"We believe in Hungary, but we don't trust the Orbán government," the parties wrote.
According to the Hungarian constitution, emergency decrees may remain in effect for 15 days after which they may be extended by the Parliament on an individual basis. This new draft legislation, however, states that all existing or future emergency decrees could potentially remain in force until the end of the state of emergency, giving the government carte blanche authorization to make, and extend, decrees at will. Because the government itself is authorized to extend the state of emergency indefinitely without parliamentary approval, the new law would vest it with the exclusive authority to maintain the legal conditions necessary for it to rule by decree for an indefinite period.
According to Princeton professor Kim Lane Scheppele, the law requires a two-thirds vote for passage because it affects constitutional provisions, and also requires a two-thirds vote to be repealed. Fidesz's two-thirds majority in parliament makes such a repeal unlikely, however, unless Fidesz MPs receive the green light from Viktor Orbán.
CRISIS AD INFINITUM
The language of the bill declares that the government is authorized to take extraordinary measures to prevent and mitigate the consequences of the COVID-19 pandemic. The latter provision is important, because it allows for the potential extension of the state of emergency to a time far beyond the end of the spread of the virus. Hungary, like countries around the world, will be dealing with the financial and economic consequences of coronavirus for years to come. Theoretically, the government could argue that despite the virus no longer representing a threat to public health, the state of emergency must remain in force to allow the government to implement measures meant to assist in economic recovery, the management of unemployment, the provision of goods and services, etc.
According to the constitution, the government is required to lift the state of emergency at the time that the crisis passes. If it does not do so, a legal argument could ensue over what does or does not constitute an emergency, at which point the dispute would need to be adjudicated by the Constitutional Court which would have the ultimate say in whether the state of emergency could remain. While the Constitutional Court represents a potential check in the balance of powers, it should be noted that all 15 of its justices are Fidesz appointees.
It is perhaps instructive to note that Hungary has been under a so-called "crisis situation caused by mass immigration" since 2015. Initially passed in response to the arrival of large numbers of refugees in that year, this legal order allows the government to make certain extraordinary decrees without parliamentary consultation. The crisis situation must be renewed every six months with a parliamentary vote, which Fidesz has faithfully achieved with its two-thirds majority every half year for the past four years despite the dramatic drop in refugee arrivals. It is not unimaginable, therefore, that the coronavirus state of emergency could be maintained long after the epidemic has passed.
On Tuesday, Council of Europe Secretary General Marija Pejčinović Burić wrote a letter to Viktor Orbán expressing her concern that "an indefinite and uncontrolled state of emergency cannot guarantee that the basic principles of democracy will be observed and that the emergency measures restricting fundamental human rights are strictly proportionate to the threat which they are supposed to counter."
In a written response, Orbán asked the secretary general to study the text of the bill and examine similar legal practices in other states.
"If you are not able to help us in the current crisis, please at least refrain from hindering our defensive efforts," Orbán wrote.
Two new crimes are outlined in the bill. The first makes it a crime to "obstruct prevention of the epidemic", including obstructing or disobeying government-issued quarantine or isolation orders, which could result in up to five years in prison or eight years if anyone dies as a result. This would apply to those confirmed or suspected to have coronavirus or known to have been in contact with an infected person, and would also apply in the case of a mandatory home quarantine, isolation or curfew order by the government, as have been introduced in numerous EU countries including Hungary's neighbors Serbia and Romania.
The second new criminal offence applies to anyone who "spreads a falsehood or claim [...] or spreads a distorted truth in relation to the emergency in a way that is suitable for alarming or agitating a large group of people". Spreading claims or distorted facts that "interfere with the successful protection of the public" could also be punished by up to five years in prison.
This provision has aroused particular alarm among journalists and critics of the Hungarian government's record on press freedom, who argue that the law could be used to suppress or create a chilling effect on independent media as they report on the coronavirus and the government's management of the crisis. The broad language of the law grants the government and prosecutor general extraordinary discretion in interpreting its purview.
Recent attacks on independent journalists in government and pro-government media have only added to anxieties over the bill. In an article for Mérték Media Monitor, Ágnes Urbán noted recent calls in pro-government media outlets for the jailing of journalists for their reporting on the crisis. (In an article for InsightHungary last week, 444's Péter Magyari responded to such incitement against the independent media.)
"We're going to solve this crisis without you"
Seven-party negotiations over the contents of the bill took place in Parliament on Monday where opposition parties offered to approve the legislation if it contained a "sunset clause" allowing for its expiration after 90 days. They argued that while they support the extension of emergency powers, they would not vote for legislation which would grant the government unlimited authority.
The Fidesz-KDNP governing coalition refused to make modifications to the bill.
"There is no precedent anywhere in Europe for what you're asking," Párbeszéd caucus leader Tímea Szabó said. "Mr. Prime Minister, it looks like you are still fighting against the opposition and not against the virus."
Speaking from the floor of Parliament, Viktor Orbán urged the opposition to vote for the bill, but promised that the emergency measures would be approved with or without their support:
"We are glad for the cooperation, we're thankful if you support us, we will gladly accept advice and encouragement...but we're going to solve this crisis without you. If you don't vote for this bill now, we're still going to solve it without you."
After the vote for an accelerated procedure failed, government and pro-government media accused the opposition of "sowing chaos", "perpetrating a crime against the people", and being "the murderers of the Hungarians". Fidesz caucus leader Máté Kocsis posted a list of MPs that voted against the resolution on his Facebook page.