The Orbán government adopted 104 state of danger decrees so far, some of them were pandemic-related in their name only

The Hungarian government used the Covid-19 pandemic to obtain an extremely broad mandate to adopt exceptional measures by enacting governmental decrees that derogate from the acts of the Parliament.

Under Article 53 of the Basic Law (the Constitution of Hungary), the government is entitled to issue such decrees to fight the consequences of a natural disaster if a state of danger is formally declared by the Government. However, the Constitution itself limits the scope of these decrees for fifteen days, unless the Government, based on authorisation by the National Assembly, extends those decrees.

Under the Act on the protection against disasters, the content of the decrees was also limited to explicit emergency measures such as restrictions on the movement of citizens.

The Government had declared state of danger for the pandemic on the 11th of March, but on the 30th of March – right after the end of the 15-day time limit of the first emergency measures – the Parliament adopted the Act XII of 2020 on the containment of coronavirus. The act had significantly broadened the latitude of the government: the 15-day time frame was de facto lifted (the Parliament had given preliminary consent for all future governmental decrees in the Covid-19 state of danger), while the Government was entitled to issue state of danger decrees for any regulation topic.

One such decree is only required to be “in order to guarantee that life, health, person, property and rights of the citizens are protected, and to guarantee the stability of the national economy, to the extent necessary and proportionate to the objective pursued”.

The Orbán government adopted 104 state of danger decrees so far (as of mid-May), whereas 92 of them was published after the Coronavirus Act. A significant number of the measures was only indirectly linked with the pandemic, such as the fiscal and financial measures to protect the economy, while some of them – like the ones stripping off local municipalities (in general or by even naming them) from some of their powers and incomes – were pandemic-related in their name only.

It would be unfair to say that the Coronavirus Act was directly aimed for misuse, but it certainly gave room for it, as the current government had never been shy to reach until (or over) the constitutions limits of its powers.

However, most of the decrees were also not promptly applicable by their nature, so Parliament – which was constantly in session from the beginning of the pandemic – would have been in the position to regulate the wide range of matters in the decrees, from the special rules on judicial proceeding to the limitations of GDPR rights and access to information during the state of danger.

There were fears among the opposition that the complete lack of time limits for the emergency measures in the Coronavirus Act would lead to an overly long emergency legal order. Governing party Fidesz stressed out that the government is required to lift the state of danger once the crisis is over, a move the prime minister was announced to consider by the beginning of June.

The way of switching back to normal legal order is still a key question in this regards, as a large number of the governmental measures of the last weeks were either explicitly or implicitly designed to stay in place for a longer period, so a regulator (hopefully the Parliament) has to decide on their fate.

Written by Tibor Sepsi. Photo credit: Orbán Viktor / Facebook.