Article originally published on Netherland Helsinki Committee, 22 March 2020 – accessible here

A carte blanche mandate for the Hungarian government with no sunset clause is not the panacea to the  emergency caused by the COVID-19 virus in Hungary. We need strong rule of law safeguards and proportional and necessary emergency measures, not unlimited government rule by decree that can last beyond the actual epidemic crisis.

Background

On 20 March 2020, the Hungarian government submitted a ​Bill on Protection against the Coronavirus (​Bill T/9790​) (“the Bill”) to Parliament, seeking parliamentary authorisation to extend the ​state of danger that it had ordered by government decree from 11 March 2020.1 The government justified its decision to declare a state of danger, which is one of the particular types of special legal order under the Hungarian Fundamental Law, with the need to prevent and mitigate the consequences of the COVID-19 pandemic causing mass infections.

On Monday, 23 March 2020, Parliament will vote whether to allow an urgent vote on the Bill to go forward on the next day, Tuesday, 24 March. A departure from the normal House Rules requires a four-fifths majority of MPs, hence the agreement of at least some of the opposition. If the government is not able to secure support for an urgent procedure, the Bill is expected to be voted in a regular voting procedure eight days later. Because the government has a constitutional two-thirds majority in Parliament, this vote would not require any support by opposition MPs.

The Bill has two pillars of provisions. First, it seeks a parliamentary mandate for the government to rule by decree without a sunset clause or any other provision that would guarantee that Parliament can exercise its role of effective oversight.

Second, the law creates two new crimes. Anyone who publicizes false or distorted facts that interfere with the “successful protection” of the public – or that alarm or agitate that public – could be punished by up to five years in prison. Anyone who interferes with the operation of a quarantine or isolation order could also face a prison sentence of up to five years, a punishment that increases to eight years if anyone dies as a result. Media pluralism has been in decline for years in Hungary, and the relationship between the government and the government-critical press became severely hostile in recent days.

Second, the law creates two new crimes. Anyone who publicizes false or distorted facts that interfere with the “successful protection” of the public – or that alarm or agitate that public – could be punished by up to five years in prison. Anyone who interferes with the operation of a quarantine or isolation order could also face a prison sentence of up to five years, a punishment that increases to eight years if anyone dies as a result. Media pluralism has been in decline for years in Hungary, and the relationship between the government and the government-critical press became severely hostile in recent days.

Summary of concerns and recommendations

In the past decade, we’ve seen that the Hungarian government does not tolerate constitutional limitations on the exercise of its powers. The Bill on Protection against the Coronavirus (Bill T/9790) (“the Bill”) reveals this as well. Hence we hereby put forth our position on criteria for assessing the Bill and related recommendations.

The Bill in the form it has been submitted to Parliament fails to comply with the democratic set of criteria for a special legal order that also derives from Hungary’s Fundamental Law. In our view, it is imperative that the law to be adopted should fulfill the following criteria:

  1. The state of danger to be introduced as a special legal order is not an extra-constitutional situation and should not be allowed to become one.
  2. The special legal order cannot last forever; instead, it should be in place for a limited period of time which, if necessary, can be extended in case the “state of danger” continues to exist.
  3. The fundamental rules of the rule of law cannot be superseded in case of epidemic danger.
  4. Citizens are entitled to fundamental rights protection even in case of an emergency. Theserights may only be restricted in the interest of averting a threat.

Based on the foregoing criteria, we recommend that by way of the particular rules of the state of danger,

  1. Parliament should only grant an extraordinary legal mandate to the government for a predefined period of time,
  2. The scope of persons eligible to initiate a procedure of the Constitutional Court should be temporarily extended so that any member of parliament, or at least the head of parliamentary groups, should be allowed to initiate an abstract constitutional review process,
  3. A short, e.g. three-day time limit should be set for the Constitutional Court to make in-merit decisions about petitions related to the special legal order and individual measures taken thereunder.

Read more details here.

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