The Enabling Act poses a serious threat to the rule of law in Hungary
A statement by Sabine Leutheusser-Schnarrenberger on the situation in Hungary
Read the German version on freiheit.org
Hungarian Prime Minister Viktor Orbán has extended his power in Hungary with a new law. Despite the spread of the new coronavirus: this shouldn’t have happened.
On Monday, the Hungarian Parliament passed the so-called “Enabling Act”. In the future, Prime Minister Viktor Orbán will therefore be able to govern by decree without parliamentary approval. The law does not have a time limit. The Hungarian government claims that the massive spread of the novel coronavirus is the reason for these legislative changes.
No crisis justifies the complete dismantling of democracy. In the shadow of the Corona crisis, Hungarian Prime Minister Viktor Orbán has extended his power even further – thereby undermining democracy, the rule of law and civil rights in Hungary. Even in a state of emergency, citizens are entitled to the protection of their fundamental rights. These rights must never be arbitrarily restricted.
On 20 March 2020, the government in Budapest submitted a Bill on the protection against the coronavirus to the Hungarian National Assembly. The draft seeks to extend the state of emergency that was declared by the government on 11 March.
Changes to Hungary’s Criminal Code
The Enabling Act was approved in the parliament on Monday and allows Prime Minister Viktor Orbán to govern by decree and without parliamentary approval. In addition, it does not include a sunset clause or any other provision that would ensure the parliament’s supervisory role.
The attempt to pass the Bill, by urgent procedure in parliament on March 23rd, failed due to the lack of the necessary four-fifths majority. However, the government re-submitted the Bill on March 30st. In the second round of voting, the Bill required a two-thirds majority – hence exactly the number of MPs that Orbán’s Fidesz party holds in parliament.
The Enabling Act will further amend the Criminal Code: Anyone who publishes “false” or “distorted” facts that affect the “successful protection” of the public – or that alarm or upset the public – could be punished with up to five years in prison.
Deliberately Unclear Wording
The motion is deliberately vague. It does not clarify who decides what “false information” is, what exactly constitutes a “disturbance” of the quarantine or why a state of emergency is required for an indefinite period. From a legal perspective, there is no reason for this Enabling Act.
The law poses a serious threat to the rule of law in Hungary, which may also affect the operation of businesses. The government is currently setting up army coordination groups to monitor the operation of 140 companies in the public and private sectors, which provide important services (e.g. energy and retail trade).
Opposing Pluralism of Opinions Means Promoting a Totalitarian State
The last 10 years have been sufficient proof that the Hungarian government uses and abuses every opportunity to weaken institutions that serve to control its power. It is now doing so again on the pretext of combating the dangers posed by the coronavirus, as if this were not possible by constitutional democratic means. The adoption of the Enabling Act may further intensify the campaign against the opposition and the attacks on press freedom in Hungary.
In Hungary, press freedom and media pluralism have been systematically restricted since 2010, while pro-government media dominates the media landscape. The Enabling Act is another distressing low point in this development. Independent journalists, who were already accused by the government and its loyal media of disseminating disinformation before the crisis, are particularly alarmed.
For this reason, a group of lawyers, including former constitutional judges, has initiated an online petition against the law, which counts already more than 90,000 signatories. Democracy cannot function without free and independent media. In times of crisis, it is more important than ever that journalists can do their job to combat disinformation and ensure pluralism of opinion. Critical voices are enriching. Those who do not want pluralism of opinion want the totalitarian state.
The introduction of a state of emergency, as a special legal order, is not an extra-constitutional matter and must not become one either. Constitutional control over the decision to extend the state of emergency and the measures taken during that period must always be guaranteed. Moreover, the relationship between the Enabling Act and the Fundamental Law must be clearly defined, and a sunset clause limiting the period of the state of emergency must be included. These are simple but fundamental democratic and constitutional principles – from which Hungary has now moved a step away.
Sabine Leutheusser-Schnarrenberger is deputy chairwoman of the Friedrich Naumann Foundation for Freedom and former Minister of Justice in Germany.