The Hungarian government declared a “state of danger” (veszélyhelyzet), a special legal order regime for the first time on 11 March 2020, more than three and a half years ago, with a reference to the coronavirus outbreak. The “rule by decree” system has been maintained ever since, with only a few months of intermission. This has allowed the Government to override any Act of Parliament via emergency government decrees overnight, and the Government has been taking advantage of this possibility by issuing hundreds of emergency decrees. Among these, there are many that had nothing to do with the ground for the state of danger (previously the pandemic, presently the war in Ukraine), but served the Government's political purposes instead.
In the meantime, upon the Government’s proposal, the governing majority transformed the constitutional and statutory rules of special legal order regimes, further increasing the Government’s unjustified, excessive powers. Amnesty International Hungary, the Eötvös Károly Institute, the Hungarian Civil Liberties Union and the Hungarian Helsinki Committee have repeatedly drawn attention to the rule of law and fundamental rights problems in this regard. However, their comments have not been taken into account by the Government, and the criticisms made by international organisations earlier were not heeded either.
The NGOs most recently raised their concerns when the state of danger was extended again this spring, pointing out that the current rules of the state of danger violate international standards as well. The Government rejected this opinion and the proposals made, and the only reason it provided was that they “do not fit in with government policy” and “are contrary to the legislator’s intent”.
Under a draft law put to public consultation in early October 2023, the state of danger would be extended again for a further 180 days, until 23 May 2024. The Ministry of Justice attached only one sentence to the draft law as a “reasoning”, which the NGOs consider to be in breach of the law.
The human rights defenders continue to argue that the entire regulatory framework governing the state of danger needs to be reconsidered. They therefore reiterated their previous criticisms in an opinion submitted to the Government in the framework of the public consultation, and drew attention to the following problems once again:
The overly broad and general rules provide the Government with a “carte blanche” mandate to override Acts of Parliament, and do not impose any meaningful constraints on the subject matter and content of emergency government decrees.
The 9th Amendment to the Fundamental Law cemented the bad practice developed during the pandemic via the so-called “Authorization Acts” of the Parliament not exercising automatic and regular oversight over individual emergency decrees. By no longer requiring the Parliament’s approval to keep emergency decrees in force beyond an initial 15-day period, the Government received a practically unrestricted authorization. This also deprives Members of Parliament of the opportunity to contest individual decrees publicly in the Parliament.
The effective and swift constitutional review of the emergency decrees is not ensured. For example, no deadline is prescribed for the Constitutional Court to decide on complaints regarding emergency decrees.
Since 1 November 2022, the Government can declare the state of danger initially for 30 days. Following that, the Parliament can authorize the Government to extend the state of danger, for a maximum of 180 days per occasion. This 6-month time span is too long as it is, but what is even more worrying is that there is nothing to stop the Government from maintaining, with the help of the governing majority, its “rule by decree” powers for any length of time, even for the full parliamentary term.
The rules continue not to prevent the Government from maintaining, in parallel with the state of danger, other “states of crises” not included in the Fundamental Law, such as the “state of crisis due to mass migration” (tömeges bevándorlás okozta válsághelyzet).
In their opinion submitted to the Ministry of Justice, the NGOs also made concrete proposals for the reform of the special legal order regime. They argue that, as a minimum, these should be implemented in order to ensure that our fundamental rights are protected also during the special legal order and that the emergency decrees serve the interests of the society and the people, not the Government.
The joint opinion of Amnesty International Hungary, the Eötvös Károly Institute, the Hungarian Civil Liberties Union and the Hungarian Helsinki Committee is available here in Hungarian.
For an overview of the issue in English, see the Hungarian Helsinki Committee’s paper from February 2023 here.