WEBINAR 8: HUNGARY & POLAND - The Role of Emergency Politics in Autocratic Transition in Hungary

Gábor MÉSZÁROS

23 November 2020

It is almost obvious that Hungary is not a constitutional democracy anymore, but can rather be described as a transitional or hybrid regime. Diverse descriptions of the Hungarian regime are in use, from illiberalism and populism to various types (electoral or competitive) of authoritarianism as well as a form of hybrid regime. For the purpose of my current analysis, I do not have to enter this debate, because the critical element for the constitutional scholarship is the anti-constitutionalist nature of the regime and the lack of the rule of law, which features also became all too evident in Hungary in 2020.

It is difficult to define just exactly when Hungary lost its constitutional democratic nature; however, various expert opinions are available to clarify this issue. One can depict the most critical aspects of democratic backsliding relatively easily, the core element of this blog post is to briefly outline the role of emergency politics in the autocratic transition of Hungary. It is also important to note that the toolkit of emergency politics determines the milestones of ‘autocratic legalism’ in Hungary. As I will show in detail, there are three relevant milestones on the road to diminishing Hungarian constitutionalism.

Abusive Constitutionalism

After the 2010 parliamentary elections, the winning party Fidesz started to reshuffle the Hungarian constitutional order by using both the elements of abusive or populist constitutionalism and the toolkit of emergency politics. It was a truly decisive moment when the Fidesz party achieved the adoption of a new constitution in 2012 (the Fundamental Law of Hungary). However, even before this final legislative step, the Parliament had already weakened the constitutional institutions designed to check the arbitrary power of the government (with the twelve consecutive amendments of the old constitution; among which the most important was the amendment making it possible for the governing party to nominate and to elect the judges of the Hungarian Constitutional Court).

In 1995, the constitution had been changed to require a four-fifths vote of the Parliament to set the rules for writing a new constitution. However, after the elections the two-thirds majority removed this provision with its first amendment of the constitution and the Fidesz Parliament was able to use its supermajority to write a new constitution on its own. It also to be emphasised that after the acceptance of the Fundamental Law the two-thirds majority started to use this ‘foundation as solid as granite’ to strengthen its political power by using a ‘rule by law’ method. This was also the first step of the process which finally resulted in a ‘one-party elected’ Constitutional Court.

The essential element of the first period was that the new Fundamental Law created a sui generis state of emergency chapter, called ‘Special Legal Order’, which contains the descriptions of the state of national crisis, state of emergency, state of preventive defence, unforeseen intrusion, state of danger, and the emergency response to terrorism (as I will show below, this latter chapter was a result of a countrywide campaign against mass migration in 2015). In contrast to the compact regulations, it became evident by 2020 that the government favours the use of so-called emergency measures outside the emergency provisions of the Fundamental Law.

Emergency Legislation

The two elections in 2014 and 2018 resulted again in a two-third majority for the same party. Both elections had been substantially influenced by new election rules, which phenomenon on its own is a sign of ‘autocratic populism’; namely, where the autocrats after a successful democratic election change the electoral law to keep their power, as described in detail by Gábor Halmai.

This was the period when emergency measures started to leak into the regular legal order, a sign of indicating the increasing use of legal means for nakedly partisan purposes. In this way, the law finally became a useful camouflage for the authoritarian government in exercising its power by declaring that everything is formally controlled under the rule of law. During this second period, the government used its supermajority in order to gain more political power via legislation. The hallmark of this period was the practice of the Parliament using ordinary legislation containing extra-legal measures in order to deal with so-called emergencies. Such situation was the newly founded emergency rules called ‘state of migration emergency’ in 2015, which was unknown within the Fundamental Law’s relevant rules. Responding to the mass migration crisis (generated by the conflict in Syria and ongoing conflict in Afghanistan, in particular) the Hungarian Parliament adopted two acts on 4 and 21 September 2015 which enabled to proclaim the “emergency caused by immigration”, without using the Fundamental Law emergency mechanism, which meant that various emergency restrictions could have been used without the constitutional guarantees. This new so-called emergency first declared in September 2015 and renewed at six-month intervals down to the present day.

Consequently, it became possible to use emergency restrictions without constitutional guarantees, and the state of emergency started to leak into the regular constitutional order. This period had also contained the sixth amendment of the Fundamental Law in 2016, with the new chapter called the ‘Emergency Response to Terrorism’ implemented into the ‘Special Legal Order’, although – as I have previously discussed in detail elsewhere – this new emergency framework was unnecessary.

Finally, the Exception Became the ‘Norm’…

The third period can be described as the ‘rule without law’ framework, and culminated in 2020 during the coronavirus pandemic. This year the Hungarian regime has lost its ‘autocratic legalist’ nature because during the enforcement of the ‘state of danger’ the Hungarian government itself was in breach of its Fundamental Law.

With the declaration of the state of emergency in order to handle the situation caused by the coronavirus pandemic in 2020 and with the simultaneous acceptance of the so-called ‘Enabling Act’, it became apparent that the government’s main aim was to hold unconstrained power without even the slightest characteristic of constitutionalism. After the declaration of a state of danger, the Hungarian government issued more than a hundred decrees and also used ordinary legislation to handle the situation.

The most controversial was the above-mentioned ‘Enabling Act’, which was accepted by the two-thirds majority of the Parliament on Monday 30 March and gave the government free rein to govern directly by decree without the constraint of the existing law. It also allowed suspension of the enforcement of specific laws, departed from statutory regulations and implemented additional extraordinary measures by decree in addition to the extraordinary measures and regulations outlined in Act CXXVIII of 2011 concerning disaster management.

However, the ‘Enabling Act’ lacked a constitutional basis. According to the Fundamental Law, it is the government’s authority to issue decrees which may suspend the application of certain laws or to derogate from the provisions of laws, and to take other extraordinary measures. The role of the Parliament is only to give the government authorisation to extend the effect of the decree. There is no constitutional authority for the Parliament to enact new laws concerning the state of danger. Therefore, the Parliament had no authority to accept exceptional laws because the government has its limited power to use extraordinary measures – which are defined in the implementing act – according to the Fundamental Law.

So, let us assume that the Parliament enacts a new law that de facto overwrites the provisions of the Fundamental Law by extending the taxation of the constitution in an act (even if this act also adopted by the same two-thirds majority). In such case, this law is unconstitutional because this act amends the constitution without complying with the formal prescriptions.

It is also important to note that soon after the government had started to use emergency legislation, the Parliament had continuously been in session, and accepted bills which remained ordinary laws after the state of danger was over. Of course, many of these ordinary laws can hardly be regarded as effective responses against the pandemic. Furthermore, various ongoing drafts may have nothing to do with the pandemic and were not justified by the emergency (e.g., the one to ban gender change in the birth register after a person has transitioned from one sex to another as an adult).

These are clear signs suggesting that the threshold between emergency and normalcy has faded. Indeed, one can hardly find any remnant of constitutionality and the rule of law. Without a strict legal framework, it is also possible for the government to give sui generis meaning for various threats and use them as a blank check solely for gaining political advantage.

State of Emergency without a Declaration of Emergency?

The Hungarian Parliament accepted two acts on the 17 June 2020. One act on the end of the state of danger, which is less than one page long, and another one on the transitional provisions related to the end of the state of danger, which was more than 200 pages long. At the first glance, this latter act was to provide a range of technical answers to questions that arose about how to reset deadlines for various legal processes that were delayed when the economy stopped.

However, this act was also an introduction of another kind of quasi-emergency situation called the ‘state of medical emergency’, which was already known in the terminology of the Act of Health, but which, in its previous incarnation under that Act, ensured a more restricted scope of action for the government. According to this modification, the government may declare a state of medical emergency outside the special legal orders framework which was also declared on the same day when the government ended the state of danger.

As we have already seen above, the government used extra-legal measures unconstitutionally and started to abuse emergency politics in order to acquire political and economic benefits. It also to be mentioned that the government dwelled on the practice they used regarding the ‘state of medical emergency’ after the repeal of the so-called ‘Enabling Act’, which means that Hungary is still operating under a state of emergency regime without a formal declaration of emergency pursuant to the Fundamental Law’s relevant chapter. The situation became even more complicated after the declaration of a state of danger again on 4 November 2020, because the two regimes are still in force: the real and quasi-state of emergency are operating simultaneously. 

Conclusion

In the last decade, fictitious emergencies have been used as mere tools in the hand of the Hungarian Government. Now the government has extended an unconstitutional practice that started with the ‘state of migration emergency’ in 2015. Never-ending emergency arrangements are now being built into the ordinary law in order to evade the checks and balances that accompany states of emergency regulated under a constitutional rubric. The barrier between emergency and ordinary rules has started to wither. On the one hand, one may find a compact emergency regime regulated in the framework of the Fundamental Law, on the other hand, there is the nearly unlimited power buried deep within the ordinary legal order (especially in the Health Act).

During the second wave of the pandemic, the government has not declared a state of danger so far. However, the government has started to use the newly enacted method of the so-called ‘state of medical emergency’ which is inserted into ordinary law without the constitutional scaffolding that is supposed to guarantee checks on emergency powers and which ignores the constitution and its various safeguards altogether. This quasi-emergency awards the government an almost unlimited power without constitutional guarantees of the Fundamental Law’s ‘Special Legal Order’ chapter, which means that emergency restrictions could be used without constitutional guarantees.

Here it is to be emphasised that even after nearly five years, the state of migration emergency powers have continuously been renewed up to the present day, although the criteria were not fulfilled for a long period of time, i.e. one can hardly see mass migration in Hungary at all. Therefore, it is a real concern that the ‘state of medical emergency’ will be the next permanent emergency prolonged for an indefinite time.

Gábor Mészáros is a senior lecturer and vice-dean at the Law Faculty of the University of Pécs (UP) in Hungary. His primary research interests are comparative constitutional law, human rights and national security law. He has published several articles on these topics in English and Hungarian and has earned a PhD degree in law in 2017 with the thesis of ‘State of Emergencies in Constitutional Democracies’. His first and latest book, ‘Constitutionality in Crisis?’ (Hungarian, 2018) deals with the most critical issues regarding emergency politics in theory and practice. He joined the UP in 2015 after nearly ten years of legal practising period and professional career at the Ministry of Justice, the National Court Office and the Regional Court of Balassagyarmat in Hungary. Gábor Mészáros is also an editor of Fundamentum, the Hungarian human rights quarterly.