By Csaba Győry
Hungary was one of the first countries in Europe to introduce restrictions in order to flatten the curve of COVID-19 infections.
Policy wise, the restrictions overall were similar to those of other European countries. The legal basis for these restrictions, however, has proven very controversial because of the extremely broad sway it provides the executive, and has received a great deal of attention from EU institutions, scholars, and the press.
This is the conundrum of the Hungarian response to COVID-19: an almost unlimited authorization for the executive to rule by decree, which, at the same time, was used relatively sparingly and in a broadly similar manner as in other EU countries.
The legal basis was a special form of state of exception, regulated in the Fundamental Law (FL) as a “state of extreme danger” (Art 53), which is designed to deal with natural catastrophes and industrial accidents.
Under the FL, the state of extreme danger must be declared by the government (Art 53 (1)). This happened on March 11th. The government is also the party that is authorized to revoke it under the FL (Art 54 (3)).
Following a declaration, the government is authorized under the FL to
“adopt decrees in a state of extreme danger
- to suspend the application of particular laws,
- to deviate from any statutory provision and
- to adopt any further extraordinary measure as defined by a cardinal Act” (Art 53 (2)).
The cardinal act that defines these further extraordinary measures is the Catastrophe Defense Act (“Katasztrófavédelmi törvény”). Cardinal acts require the vote of 2/3 of the members of parliament to be enacted.
Decrees adopted in a state of extreme danger last for 15 days, by default, unless the Parliament authorizes the Executive to extend their validity. The government sought parliamentary authorization for extension via a bill which was voted in by a two-thirds majority on Monday, March 30th and entered into force as the Coronavirus Defense Act on April 1st (also known as the Authorization Act).
The Act itself contained two authorizations: one for the already issued decrees, and a blanket one for the decrees the government might adopt in the future. Both authorizations were without time limit. This combined with the fact that under the FL only the government is tasked with terminating the state of danger, meant, in effect, that the government was given unlimited authorization to rule by decree without temporal, jurisdictional, or other legal restrictions, aside from those limits enshrined in the constitution protecting certain basic rights.
While the jurisdiction of the Constitutional Court over emergency powers remained in place, whether this could constitute a proper judicial review is questionable, even if we disregard the fact that the court is widely perceived to be packed with government loyalists. This is because the FL itself allows more serious rights restrictions in a state of exception than in normal times, and courts generally tend to give more deference to executive decisions in an emergency. Because of this, many feared the authorization would pave the way for a more outright authoritarian rule.
This has not happened so far. The government, though it has arguably abused its powers, has not used them widely to restrict rights beyond what the situation has warranted.
Among others, measures were introduced to enforce social distancing, such as closing museums, public baths, schools and universities, restaurants and bars, and banning gatherings and attendance of sports events. These measures restricted the right to free movement.
A limited curfew was introduced through a ban on leaving home for all but essential reasons, such as receiving medical care, shopping, providing care for family members, and exercising.
The borders were closed for all cross-border traffic except for freight, and an entry ban was introduced for all but Hungarian citizens and legal residents. The decrees also included a 14 day quarantine on those infected with COVID-19, as well as for anyone who had contact with an infected person.
These measures were not particularly strict by international comparison. Hungary scored in the mid-range among European countries in the COVID-19 stringency index developed by the Blavatnik School of Government at Oxford University at the height of the epidemic.
But this does not mean that there were no instances of abuse. The government, for example, used its emergency powers under the Catastrophe Defense Act to take over the management of a company where the state, as a majority shareholder, was embroiled in a legal dispute over management rights with the minority — a clear breach of property rights.
Likewise, the reallocation of tax income from opposition-led local to loyalist-controlled regional governments, also ordered by emergency decree, had more to do with punishing the opposition than with effective pandemic defense.
At the end of May, the government announced that it would end the state of exception by the end of June. However, the government majority plans to transform the content of many of its emergency decrees into normal law, and is also planning to extend the powers of the government to introduce restrictions in the form of a new, sub-constitutional “state of epidemic defense,” to be regulated in the Public Health Act (Egészségügyi törvény”).
All in all, the state of exception evoked to fight the epidemic has not led to an authoritarian power grab. One of the probable reasons for this is that the governing party has a comfortable two-third majority in the Parliament, enough to amend even the Constitution. Thus the state does not need emergency powers to regulate whatever it wants. Whether the emerging new legal frame of epidemic defense will give rise to further abuse will likely depend more on the political regime dynamics and less on the legal frame.
Csaba Győry is Assistant Professor at the ELTE University Faculty of Law in Budapest, Hungary and a 2019/20 re:constitution fellow.