Professor Kim Lane Scheppele drew our attention to the relevant threats to Hungarian constitutionalism because of the events in the Hungarian Parliament on 29 March 2020. She expressed her opinion that the Act on Protecting against Coronavirus would give the Hungarian Government and personally for the Prime Minister dictatorial powers. This is probably the bitter end of a long-lasting period of abusive constitutionalism which started with the use of tools of constitutional amendments and replacements[1] and would mean the fading of the rule of law and constitutionalism in Hungary.
Soon after the official declaration of the first infections by the new coronavirus, the Government declared a state of emergency using the Article 53 of the Fundamental Law by the Decree 40/2020 (III. 11.). This Article allows the Government to declare a state of danger and to introduce emergency measures – defined in an implementing act – in case of a natural or industrial disaster endangering lives and property or in order to mitigate the consequences thereof. During a state of danger, the Government may issue decrees empowered – under an implementing act – to suspend the application of certain laws or derogating from the provisions of laws, and to take other extraordinary measures. This decree of the Government shall remain in force for fifteen days only, except the Government – on the basis of authorization from Parliament – extends the effect of the decree. It also seems evident that upon the termination of the state of danger the decree of the Government should cease to have an effect. It is more or less clear that the Fundamental Law is granting the opportunity to declare this kind of state of emergency and the implementing act is responsible for regulating the relevant emergency measures which can be used in a state of danger.
According to the Fundamental Law, there are only two relevant cases that would result in a state of danger: natural and the industrial disasters. This means that human epidemic is not involved in the listing of the constitution, although the relevant implementing act, the Act CXXVIII of 2011 on emergency management and the amendment of certain relevant laws extends the cases by the “other dangers” phase in Article 44, which makes possible to declare a state of danger in order to protect the health and life of citizens when a human epidemic jeopardizes human life and property and causes mass infections. Therefore, this Act overwrites the Fundamental Law’s specification of the relevant cases and enables the declaration of a state of danger by using a provision of the Act instead of the Fundamental Law. From the point of view of the Fundamental Law, this provision is unconstitutional.
If we accept that governments can wield extra-legal powers in times of emergency, and if we disregard the unconstitutionality mentioned above, there is still one more serious problem of the Hungarian Government’s extra-legality. Namely, the ordinary legal system has various options to prevent and control the spread of infectious diseases and epidemics and to increase human and social resistance to infectious diseases. According to the Title 6 (Epidemiology) of the Act of 1997 on Health – in order to implement the above-mentioned objective – the health authority may limit the rights of individuals to exercise personal liberties, may limit the rights of patients, may mandate natural and legal entities as well as unincorporated entities to tolerate or take the measures defined in the Act if the health service declares mandatory epidemic management measures that may limit the rights of patients.
The constitutional concerns have become even more complicated after the acceptance of the “Enabling Act”[2] by the 2/3rds of the Parliament on Monday 30 March. The Act has also been signed by the president in two hours without a veto which clearly reflects on the condition of the so-called Hungarian constitutionalism. The Act of 2020 on Protecting against the Coronavirus created two new crimes, gave the Government a free rein to govern directly by decree without the constraint of existing law and the opportunity to suspend the enforcement of certain laws, departed from statutory regulations and implemented additional extraordinary measures by the degree in addition to the extraordinary measures and regulations set forth in Act CXXVIII of 2011 on emergency management and the amendment of certain relevant laws. Therefore, this bill gives unconstrained power for the Government, and especially for the Prime Minister.
I’d also like to draw attention to the fact that this act has no constitutional entitlement. 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 authorization for the Government to extend the effect of the decree. There is no constitutional authority to enact new laws in relation to the state of danger. Therefore, the Parliament has no authority to accept exceptional laws because the Government has its limited power to use special measures according to the Fundamental Law. So, if the Parliament enacts a new law that de facto overwrites the provisions of the Fundamental Law, it is simply unconstitutional because the act amends the constitution without complying with the formal prescriptions. Using exceptional measures without relevant authorization of and delegating these unconstrained powers to the Government without strict limits means the death of constitutionalism and the rule of law. It is even more frustrating that this process evokes concerns in a very narrow part of our society. The Hungarian constitutionalism is dead. Its funeral has been cancelled due to the lack of interest.
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References:
[1] See David Landau: Abusive Constitutionalism, 3 April 2013, 47 UC Davis Law Review 189 (2013); FSU College of Law, Public Law Research Paper No. 646. Available at SSRN: https://ssrn.com/abstract=2244629.
[2] The english translation of the law can be find here: https://hungarianspectrum.org/2020/03/21/translation-of-draft-law-on-protecting-against-the-coronavirus/.