How are special legal orders regulated in Hungary and what is the “state of danger”?
The Hungarian constitution currently enumerates six types of special legal order. Of these, the state of danger is the mildest. It has been in the constitution since 1990 and can be introduced in cases of natural disaster or industrial accident. This is the first time a nationwide state of danger has been introduced, however, states of danger on a regional level have been declared on several occasions in times of flood, or contamination caused by industrial disasters.
Can the government impose a special legal order with regard to the current coronavirus epidemic?
Naturally, yes. Similar steps were taken in many countries of the world and the European Union. Since 1990, the government has had the power to impose a state of danger and the details are regulated in so-called cardinal acts, which require the support of two-thirds of the parliament to pass. Since 1996, mass epidemic is named as a cause for the declaration of a state of danger by these Acts. The government’s decree declaring the state of danger was grounded in those.
What can the government do during a state of danger?
According to the constitution, the government declares the state of danger and as a next step introduces emergency decrees to combat the spread of the contagion. Under the constitution, the consent of the parliament was never required for declaring (or terminating) the state of danger. However, the emergency decrees have a 15 day “sunset clause” and will expire at the end of that period unless the National Assembly extends them.
Is this why it was necessary to pass the Coronavirus Response Act?
Yes, through this Act, the National Assembly extended the emergency decrees, so that the steps taken to combat the virus and protect the economy can stay in effect. However, the parliament can withdraw consent to these emergency decrees at any time, even before the state of emergency is lifted. Indeed, it can revoke the entire law.
What would have happened, had the National Assembly failed to pass this Act?
After 15 day from the day they came into effect, all emergency decrees would have expired. This means that all the emergency steps taken by the government would have become untenable, including the steps taken to stop the outbreak, the holiday on loan installments or the tax exemptions introduced to protect Hungarian jobs. As the opposition blocked the fast-tracking of the adoption of the Act, there, indeed, was a few days of legal uncertainty over the weekend.
What does the adoption of the Act mean in practice?
Primarily, that the emergency decrees issued by the government will stay in force. This is necessary to combat the epidemic. The National Assembly remains in session during the state of danger, parliamentary transparency is assured and the Constitutional Court operates undisturbed. The government can deviate from the law; however, the constitution cannot be suspended.
Will press freedom disappear from Hungary once again as it has every day for the last decade?
Of course not. It is, however, true that during an epidemic fake news are especially dangerous and steps must be taken, to prevent their spread. Indeed, several examples of fake news have already appeared on the internet. Therefore, new criminal regulation only for the duration of a special legal order envisions stricter punishments for scaremongering. This does not even apply to misleading opinions, it only applies to those who intentionally spread false or untruthful information, which might hinder the efforts to contain the spread of the virus. An article critical of the government isn’t covered, however a false claim that an entire city might be placed under quarantine is. In the end it is up to the courts to decide what is punishable and what isn’t.
Even if it is legally impossible, might it be in the political interest of the government to “sideline” the parliament?
No. The government has a two-thirds majority in the National Assembly, therefore “sidelining” the parliament would mean “sidelining” the representatives from the governing parties, which would clearly make no political sense. The real problem of those who criticize the Act is actually the two-thirds majority the government enjoys, which they would want for themselves, but do not have.