On March 30, the Hungarian parliament adopted legislation providing for “emergency powers” to better respond to the COVID-19 pandemic. The international reaction has been quite predictable, with critics of Prime Minister Orbán calling it a “power grab.” As often happens during times of crisis (in this case, a pandemic) people are in the grip of intense emotions—so it behooves us to stand up for the truth.
The new legislation—known as the “coronavirus law”—is really quite straight-forward. It essentially provides for the government to govern by decree until the end of the pandemic. But it neither suspends the constitution nor parliament, as some seem to have suggested, nor does it suspend the Constitutional Court or the workings of the country’s lower courts.
In fact, the legislation is not only constitutional but is the least severe of the ‘states of emergency’ allowed for in the country’s constitution (formally known as the ‘Fundamental Law’). And while it does not have an exact ‘end-date’, parliament does have the power to terminate the law at any time. Depending on the number of coronavirus cases, this means that it could end in June (with an extension until August under a worst-case scenario).
New measures to contain COVID-19
The new temporary law includes various specific measures, including stiff penalties for those who violate quarantine-related restrictions. It also allows the government to suspend certain laws, if necessary. But—at the request of opposition parties—the law also stipulates that any new measures are only applicable in reference to the pandemic. In other words, what the legislation does not include is the power to change everything by decree. Whatever is sought by the Prime Minister has to be related to the pandemic.
Under the law, there can be no popular voting or elections until the end of the state of emergency. This does not affect general elections and solely pertains to possible interim elections. Currently there is nothing scheduled until the general and local elections of 2022—and by then the pandemic (we hope) shall remain only in our memories.
The government says the legislation is an important because without it, any special or extraordinary steps to contain the virus—such as, for example, the closing of the borders—would otherwise have to be re-ratified by law every two weeks. This makes taking action a cumbersome and potentially life-threatening process, particularly during a global pandemic like the one we are facing today. While many objectives could be achieved without the law’s emergency powers, it usually takes at least several weeks to create any given law through parliamentary process. Plus, it is easier to govern this way, particularly at a time when decisions must be made quickly and government agencies need to be nimble.
The constitutionality of the measures
Contrary to what some critics have alleged, the legislation has nothing to do with suspending the constitution; rather, it is strictly based on constitutionality. In fact, the Hungarian constitution allows for six types of ‘states of emergency’ or ‘states of exception.’ The new legislation complies with the conditions for the least stringent of these (while the conditions under the other types of ‘states of emergency’ are far stricter).
In fact, any decrees that may promulgated during the ‘state of emergency’ can be overturned or nullified by action of Hungary’s Constitutional Court. This is not simply a theoretical possibility. The Court’s track record shows that they have remained independent—despite occasional accusations that the Court is ‘Orbán-friendly’—and have, in fact, sent back and nullified many laws during the 10 years of Orbán’s government.
The government’s parliamentary power
Some critics have pointed to the two-thirds majority power that that Orbán’s Fidesz party and the Christian Democratic People’s Party (KDNP) hold in parliament. This, critics assert, gives the government the ability to do many things that a simple, absolute majority cannot—such as alter the constitution, declare an even more strict ‘state of emergency,’ etc. But such claims are part of the liberal opposition’s long-standing efforts—going back to at least 2010—to smear the government of Viktor Orbán as a “dictatorship.”
If the Orbán government had indeed been a “dictatorship” all these years, how can its critics claim that the dictatorship is just starting now, with the declaration of the ‘state of emergency’? Or has the liberal opposition changed its mind about the previous 10 years, reversing themselves, in order to now make such a claim?
I cannot answer such a question. But two things are clear: the power held by Fidesz and KDNP in parliament is a political matter—meaning that their two-thirds majority power was given to them by the people. They have a legitimate mandate. The other fact—too often ignored by Orbán’s critics and the international media—is that from 1994 to 1998, a liberal-socialist coalition government similarly held a solid, two-thirds majority in parliament. It wasn’t a problem for anyone then; so why is it a problem now?
It is worth noting that the normal, every-day work of the Hungarian parliament has continued during the ongoing ‘state of emergency.’ And lawmakers have been drafting legislation and forging new laws that are entirely unrelated to the pandemic. The liberal opposition claims all new legislation stem from decrees issued by the prime minister using his new “emergency powers.” This is blatantly false. Some of them would have been adopted by parliament anyway—without any kind of ‘state of emergency’ powers—simply because of the two-thirds majority held by Fidesz and the KDNP. (An example would be draft legislation requiring that a newborn’s biological sex be registered permanently on identification papers.)
Reducing rumors & “fake news”
The new law to contain the coronavirus has other effects—such as temporarily enhancing the penalty for violating the extant law against the spreading and dissemination of “fake new” and rumors. (In Hungarian, rumors or rémhír are factually wrong statements, “frightening news,” which can cause panic.) Thus, if convicted of spreading dangerous rumors, one can still be sentenced to prison—but now for a maximum of five years rather than three. (However, if a dangerous rumor leads to someone’s death, then the maximum is eight years.)
The law against these kinds of rumors and “fake news” is not new at all; it has been the part of Hungarian law since 2004, when a liberal-socialist coalition governed. Under the new “emergency powers,” however, it has been modified with the addition of a new paragraph pertaining to the pandemic.
To date, as far as I know, it has never been used against anybody. Its usage is quite restricted because it has to be a rumor that is factually wrong. (Mere criticism of someone or something is not sufficient.) It also has to be consciously spread in the presence of a large group of people—which means that if a rumor is inadvertently or unconsciously spread, or if the audience is not a large group of people, it cannot be considered a rumor punishable by law.
What is more—and this is a critical detail ignored by much of the recent media coverage—is that a punishable rumor has to effectively block or prevent state actions against the pandemic. So, if one spreads rumors about something entirely unrelated to the coronavirus—that is, not related to the pandemic—or if one spreads rumors which are related to the pandemic but which do not disable or block the state’s efforts to contain the virus, one’s ‘rumor-mongering’ does not fall into the category of punishable rumors. (It might be, however, punishable under the original 2004 law, which is unrelated to the state of emergency discussed here.)
From a journalistic point of view, the legislation targeting rumors and “fake news” should really be considered a preventive or even a pedagogical measure, as it cannot be used in any realistic or practical sense against the traditional mainstream media (that is, print, online, television, or radio). Rather, it targets other forms of information-dissemination (such as online blogs and other social media).
Of course, “the devil lies in the details,” and some have suggested that the government could use the new law against anybody. This, however, is highly unlikely given that the government has carefully tried to avoid situations that might contribute even further to its already unwarranted international notoriety. In addition, the government also knows all too well that in cases involving media freedom, the courts have usually ruled against the government.
Domestic approval ratings
Although a ‘state of emergency’ sounds frightening, it is not unprecedented during times of global crises. Furthermore, governments around the world—Macron in France, Merkel in Germany, Johnson in the UK—have been seeking similar measures giving them the ability to govern by decree. Hungary is not an outlier.
Additionally, it is worth noting that the government’s public approval rating is increasingly positive. In the context of the current health crisis, Hungarians like how the Orbán government has been handling the situation. Thus, it would be absurd for the government to do what its critics have been saying in recent days: that it is seeking to build a “dictatorship” or something akin. In fact, given its public support, seeking dictatorial powers would be wholly unnecessary, as Orbán and Fidesz can easily win the 2022 elections without any such arbitrary actions (especially if they are successful in overseeing a recovery of the economy).
But there is another reason why, from the outside (particularly from the Anglo-American perspective), Hungary’s approach may strike observers as “heavy-handed”: its lack of a strong, vibrant civil society tradition like in the U.S. (Tocqueville famously wrote about this.) Recall that the political tradition in Hungary is the “fruit” of communist regimes, which repressed civil society.
But it is also worth remembering that in Europe in general, particularly in the East, the relationship between man and the state has always been completely different from that in the Anglo-American tradition. People tend to like and rely on their governments, and often, voters will punish parties which adopt too laissez-faire an approach. While Orbán has sought ways of strengthening the intermediary institutions of society by supporting traditional organizations (like the Scouts), he has also been faithful to the cultural and political tradition of Europe—a tradition that does not disdain the state, provided it is guided by strong values.
Communicating clearly & directly
In some ways, the recent outcry over Orbán’s government and their measures to contain the coronavirus is an outcome of their own efforts to communicate clearly, to both the public at large and the international community, what their intentions are and how they seek to respond to the challenges of today. The experience of Orbán and Fidesz over the past several decades has taught them that they have to communicate everything clearly and directly—because if they do not, they not only lose the battle over public opinion, but they may also lose the election.
It was with the experience of the 2002 elections in mind—when his party lost in spite of four years of governing effectively—that Orbán concluded that they did not put enough effort into communications and outreach. The consequence is that today the government tends to sometimes “overcommunicate” things. The unabashed declaration of a ‘state of emergency’ because of the rapid spread of the coronavirus, and the announcement of draft emergency measures can be seen as just such a case.
Of course, no matter what Orbán does, he will be criticized. Had his government not taken any emergency measures, he would have been criticized for his inaction. Instead, he proposed prudent but necessary measures—and his government has been immediately vilified by the international community—again, despite similar measures being adopted elsewhere.
Two weeks ago, at the end of the parliamentary debate over the emergency measures, Orbán ended his comments with the assurance that after the end of the pandemic, the government would give back to parliament all their authority—adding wryly that the opposition “would then have a chance to apologize [to him].” We’ll see if they have the character to do so. What is clear is that the international community, which long ago made up its mind about Hungary and Orbán, will not be apologizing—and that no matter what the prime minister does, no matter how clearly or often he communicates things, he will always be vilified.