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Rule of law: Hungarian government’s emergency Covid-19 legislation draws sharp criticism

Polly BotsfordMonday 11 May 2020

The Hungarian Parliament passed an emergency law in late March that allows the government of Prime Minister Viktor Orbán to rule, in effect, by decree. The legislation – which contains measures to combat the Covid-19 pandemic – does not set a time limit for the country’s state of emergency to end.

The move has been widely condemned by human rights groups and described by Ursula von der Leyen, President of the European Commission, as of particular concern.

Supporters of Orbán’s Fidesz party claim the law is a necessary consequence of the threat to public health created by Covid-19. Critics argue that even emergency laws must have constitutional and legal limits. The original decrees passed earlier in March were only valid for a period of 15 days, but the passing of the emergency legislation means they are extended indefinitely.

In contrast, the United Kingdom’s Coronavirus Act 2020 (the ‘Act’) includes very wide powers pertaining to social distancing and other measures but lasts for six months only. At the six-month point, the UK Parliament will decide whether or not to extend the powers introduced by the Act.

Orbán is turning this into a piece of theatre and he is the puppet master

Sophie in ’t Veld
Member of European Parliament

The measures introduced by Hungary’s emergency legislation are significant in their scope. Without an effective check on their application, there are concerns that the law will be used in ways that serve to entrench Orbán’s position in power. For example, one provision punishes individuals found to have intentionally spread false information about the virus with jail terms of up to five years. Commentators say this could become a tool to suppress criticism of the government.

Some emergency laws passed in other countries have more stringent safeguards. Italy, for instance, has introduced new legislation that imposes restrictions on the public, but this legislation contains a built-in limit, requiring any restrictions to be proportionate to the risk. In order to establish what the risk is, the Italian government must take advice from a scientific committee.

Perhaps most concerning is that Hungary’s emergency law enables Orbán to delegate the country’s legislative power to himself. Dr Joelle Grogan is a senior lecturer in law at Middlesex University, and is currently running a symposium on Covid-19 and states of emergency. She summarises Orbán’s new-found position as being able to ‘make, create and amend law – and without limit, oversight or end. This is a violation of the most basic idea of the rule of law: that no man should be above the law.’

Sophie in ’t Veld, a member of the European Parliament from the Netherlands and part of the Parliament’s Committee on Civil Liberties, Justice and Home Affairs (LIBE), agrees. She tells Global Insight: ‘Orbán is turning this into a piece of theatre and he is the puppet master.’

LIBE has set up a working group to monitor the effect of emergency laws and policy within EU Member States and institutions on democracy, the rule of law and fundamental liberties. ‘Governments are taking exceptional measures, from new police powers to new health data apps, and we need to monitor these actions,’ explains in ‘t Veld.

The IBA’s Human Rights Institute (IBAHRI) highlighted in a statement in late March that Hungary’s actions are in breach of the rule of law and international standards, including the United Nations-adopted Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights.

The IBA President, Horacio Bernardes Neto, commented: ‘The Covid-19 pandemic is a global health crisis requiring urgent domestic and international co-operation, but it must not be used as a veil to undermine basic human rights and democratic values.’

Beyond Hungary, other states have taken advantage of the fact that public gatherings pose a significant public health threat as a means to ban legitimate protest. In Algeria, for example, the government has banned street protests over fears of the virus, bringing to an end long-standing demonstrations aimed at achieving democratic reform. In Delhi, a ban on large gatherings has effectively outlawed protests against the Indian government’s controversial new citizenship rules.

Basic democratic processes may also be under threat. Many countries have had to postpone elections in light of the pandemic, including in the United States, where 15 states have suspended their primary elections.

Other elections may go ahead despite public health concerns. Poland is debating whether to hold its presidential election, scheduled to take place in May. It is proposed that – should the election go ahead – all voting will be carried out by post. Poland’s main opposition party has called for the vote to be cancelled.

‘Some [countries and states] are acting perhaps more recklessly by having no change to their election schedules but not introducing any protective measures,’ says Grogan. This is ‘forcing the electorate to choose between their democratic right to vote, and the health of themselves, their family and their community.’

Governments are harnessing the language of ‘war’ to rally the public to support the drastic measures that are needed to ‘fight’ Covid-19. But this, argue Grogan and others, should not be a pretext for exceeding powers at the expense of civil liberties. ‘Democracy, rights, and the rule of law are framed as in opposition to public health, not guarantors of it,’ says Grogan. ‘We hear increasing rhetoric of “war” and “wartime” to encourage support of measures that are objectively unjustifiable in the context of Covid-19.’

Perhaps most concerning is how difficult it may prove for regimes to hand back the powers that they have given themselves. ‘There is a well-grounded fear that as governments like Hungary adopt unrestricted emergency measures to manage the crisis, many will be loath to relinquish these new powers when the crisis is over,’ says Baroness Helena Kennedy QC, Director of the IBAHRI.

‘Worldwide commitments to uphold democracy, rights and the rule of law will be irrevocably and irreparably damaged,’ believes Grogan.