[Blog post] Democracy in times of crisis: The state of emergency in Hungary

In this blogpost, PhD researcher at the Asser Institute Marina Bán analyses how the introduction of a state of emergency in Hungary due to the Covid-19 pandemic may contribute to the ongoing decline of democracy and the rule of law in the country. She argues that the latest measures to address the crisis are potentially in conflict with the standards of international human rights standards.

By Marina Bán

On 30 March 2020, the Hungarian parliament introduced a bill declaring a state of emergency justified by the crisis caused by the Covid-19 pandemic. It constituted one of the strictest measures any democratic country has attempted to impose on its citizens, immediately drawing the ire and criticism of the international community. As the political situation in Hungary is already engulfed in a debate around the deterioration of democracy and the rule of law, many has considered this law as yet another step on the road towards an authoritarian system. The two most aggravating provisions of the bill are its lack of time limit and its restrictions regarding rumor-mongering and spreading of false information amidst the pandemic. 

Indefinite state of emergency
The Fundamental Law of Hungary thoroughly regulates the imposition of a state of emergency in its articles 53 and 54. In a state of emergency, the government is allowed to govern through decrees, staying in force for 15 days each, and can coordinate the emergency through a cardinal law as well. The Fundamental Law itself cannot be suspended, the constitutional court and the parliament continue their work (the parliament may legislate in non-emergency-related matters). As several governmental decrees were supposed to expire in late March, the aforementioned law has been proposed to deal with the crisis. However, in contrast to decrees, the law does not set an expiration date, leaving the decision as to how long a state of emergency and special measures may stay in force to the government. This clause can be regarded as giving the Hungarian government carte blanche to exercise unchecked power for an indefinite time. The parliament may revoke the law, but since the government possesses a 2/3 majority, such a safety clause is fairly meaningless. The overextension of governmental powers in a state of emergency is not worrisome without reason. The Hungarian government has already imposed a state of emergency once, in 2015, justified by the refugee crisis, which has not yet been revoked.

Spreading false information
Another problematic aspect of the law encompasses its clause on the imposition of fines and prison sentences for rumour-mongering and spreading false information related to the pandemic. Unnecessary censorship has been cited as one of the biggest concerns in times of crisis, and the Hungarian government has engaged in attacking journalists and NGOs for criticising their conduct in various policy areas. This clause strengthens the fear that it may be used against those who articulate legitimate criticism on the governmental response to the pandemic and on the deficiencies of the Hungarian healthcare system in dealing with the influx of new patients. 

Consequences
The fear around the Hungarian government taking advantage of the coronavirus pandemic to strengthen its authoritarian tendencies is not unfounded. Just hours after the introduction of this emergency law, the deputy prime minister presented parliament with another package of propositions, containing several dubious measures unrelated to the crisis. The most contentious among these measures are bans on legal gender recognition, while others regulate and expand governmental interference in the administration of theatres, universities and controversial construction projects, among others. These tendencies, coupled with the threat of prison sentences to those protesting and criticising such measures, have prompted the international community to condemn efforts to respond to the pandemic through undermining of the rule of law. Some MEPs went so far as to propose to the European Commission to initiate an additional Article 7 procedure against Hungary, in protection of the remnants of democracy and the rule of law in the country.

A crisis situation such as the Covid-19 pandemic may require the introduction of special measures. The restriction of some fundamental rights can be justified and tolerated to contain the situation. However, instead of using the crisis to gain and entomb its power, the Hungarian government ought to address it with necessary and proportionate measures.

Since September 2016, Marina is a PhD Candidate at the Asser Institute. She is working on her PhD entitled ‘Historical Memory and the Rule of Law’, under the supervision of Prof. Dr Janne Nijman and Dr Ulad Belavusau. Her research is part of the research project ‘Memory Laws in European and Comparative Perspectives (MELA)’, organised with the financial support of a grant from HERA (Humanities in the European Research Area). This project falls under the Asser's research strand Human Dignity and Human Security in International and European Law which adopts as its normative framework a human rights approach to contemporary global challenges, inter alia in the fields of counter-terrorism, especially with regard to the topic of foreign (terrorist) fighters, international and transnational crimes, new technologies and artificial intelligence, and historical memory.