Pandemic as Constitutional Moment

Late in the evening on Friday, March 20, 2020 the Hungarian government tabled a short bill to install rule by executive decree for an indefinite period. The bill enables the government to take any measure to prevent and manage the COVID-19 outbreak and its consequences. The bill sets no date for expiry or parliamentary review mechanism for the plenary executive powers granted: the regime remains in place until Parliament revokes it. 

At the same time the bill envisions that Parliament may not be able to meet due to the pandemic, while it prepares the Constitutional Court for digital operation. Elections and referenda are suspended till the end of the crisis is declared. The bill also seeks to extend the application of emergency measures already in place, amends the definition of the crime of spreading false information and makes violating the terms of epidemiological confinement a crime. 

The official reasons for the bill present it as an unique Hungarian response to a challenge without a known cure, in a situation when each nation is to become the master of its very own Sonderweg. Indeed, the official reasons say that the proposed measures may „appear unusual and alien” and as such require cooperation and discipline to implement. Civil society organizations protested against the bill in a joint statement, and thousands signed an online protest letter. 

The proposed measures are far from unique. One does not have to suspect Schmittian shenanigans around every corner to find that a bill that authorizes executive rule via decrees without any procedural or substantive limits in the midst of an open-ended crisis looks just like the Enabling Act (Ermächtigungsgesetz) of 1933.

The Hungarian bill was debated in Parliament on a snowy Monday, March 23, 2020. Hungary had 167 confirmed cases of COVID-19 at the time. Parliament met in its usual hall, with only a few MPs wearing face masks. PM Orbán himself took the floor to give gravity to the occasion, calling for 133 brave persons to do what it takes. He argued that it would be pointless to impose a time limit on governmental action in the enabling act, as the only thing we know for sure is that we will be in worse shape in 90 days than at present.

Passing the enabling bill itself will take 2/3 majority in Parliament, votes PM Orbán controls. Passing the bill as a matter of urgency, however, would require a 4/5 majority, including votes from the opposition. Despite PM Orbán’s insistence a motion for urgent parliamentary processing failed on Monday, March 23. Yet, as several voices on the government side made clear in the press: the enabling bill will easily pass next week with 2/3 majority.

Meanwhile PM Orbán has finally created for himself a constitutional moment, one where he can use the tools of constitutional democracy to access unrestrained powers to save the nation. This move should be a major concern for friends of constitutional democracy around the globe: in the midst of a global pandemic and a looming global economic crisis, PM Orbán may well be on route to kick start a genuine constitutional pandemic. 

The Fundamental Law Meets COVID-19

The Hungarian Fundamental Law has famously elaborate provisions on emergency powers. 

In 2011 its drafters envisioned multiple crisis scenarios under the rubric of ‘special legal order’ (Articles 48-53) to mark temporary departures from constitutional normalcy due to unforeseen events. The default logic is to let Parliament declare the befitting type of special regime before emergency measures are taken. As an exception the government can respond without prior parliamentary approval to an unexpected foreign attack (Article 52) and a ,state of danger’ (Article 53), and deploy measures prescribed beforehand in an act of parliament.

So far the Hungarian government’s response to COVID-19 has been handled under the constitutional rubric of ,state of danger.’ This scenario enables the government to adopt decrees in response to a natural disaster or industrial accident for an initial 15-day period, to be extended by Parliament. As Article 53 of the Fundamental Law does not mention epidemics or pandemics, formally the government has relied on legislation concerning the management of natural disasters that covers epidemics (Act 128 of 2011, Article 44(c)(ca)).

The government declared a state of danger on March 11, 2020 (40/2020 (III. 11.) Korm. decree). Emergency measures adopted so far include restrictions on foreign travel, banning students from university premises and closing public schools (while switching to digital classes), shorter opening hours for stores and restaurants, a wide range of fiscal measures (including moratoria on household mortgage and loan payments and various types of tax relief) as well as preparation for the national management of strategic industries through military oversight. Measures in the health care sector initially focused on isolating confirmed cases and containment through self-isolation. The first consignment of medical equipment ordered by the government especifically for COVID-19 response arrived from China on March 23, 2020. 

With the end of the initial 15-day period of the ‘state of danger’ approaching and no cure to COVID-19 in sight, PM Orbán stumbled upon a potential constitutional moment. This took rummaging through the box of emergency powers one more time, until it served up a trusted classic: an enabling act with access to unconstrained powers in the middle of a global crisis. 

The COVID-19 Pandemic as a Constitutional Moment

Exactly a decade ago, following his surprise landslide electoral victory PM Orbán tried to seize the momentum and manufacture a constitutional moment: he liked to talk about a revolution that happened at the voting booth. Still, the phrase was too twisted to catch on. Other attempts to freeze the constitutional moment into an object of veneration – first as a prominently framed Declaration of National Cooperation, and then turning the Fundamental Law into a display object – quickly soured into paltry gestures. 

To make things worse, the Fundamental Law’s emergency provisions also turned into a source of memorable disappointment in the summer of 2015, when the government was in search of a robust response to what it called a ‘crisis of mass migration.’ At the time the Orbán government did not have a 2/3 majority in Parliament, and the opposition would not grant it unilateral counter-terror powers. In June 2016 the resulting Sixth Amendment to the Fundamental Law inserted ’threat of terror’ as a new type of special legal order (Article 51/A), to be declared by Parliament on the initiative of the government. The amendment of the Fundamental Law targeting illegal migrants succeeded only after the 2018 elections when the government regained its 2/3 majority (Seventh Amendment, Article XIV, as amended).

By that time the Hungarian government has driven European constitutional actors into a bottomless dialogue on the founding values of the Union, among them the rule of law. Along the way the Fundamental Law was degraded from a political symbol into a technocratic bargaining tool. As the next potential grand emblem for his political project in 2018 PM Orbán started to invoke the vision of Christian democracy, as an advanced iteration of illiberal democracy. In this reading Christian democracy has a strong nativist flair, with a focus on familiar ties and kinship.

In this context it is hardly surprising that since early 2020 the Hungarian government chose to treat the COVID-19 outbreak as a public order issue, playing down the public health dimensions of the epidemic as long as it could. Responses continue to emphasize the foreign origins of the disease, from pointing to foreign students and Hungarians bringing it home from abroad. The idea that the military has to be involved with securing the continuing operation of strategic industries (both public and private companies) has been present from the outset (1101/2020 (III. 14.) Korm. resolution, point 3, 1109/2020 (III. 18.) Korm. resolution). The government has repeated that 140.000 police and military personnel are at the ready to secure public order.

The Hungarian enabling bill marks a genuine constitutional moment that is happening right before our eyes. On March 23, 2020 PM Orbán stood in Parliament to say that if the plenary authorization was for only 90 days, he did not want it at all. The pandemic is his perfect storm: it enables him to pursue his political ambitions in their purest form and it provides an opportunity for the formal removal of any remaining roadblocks in his way — at a time when constitutional constraints inconvenience many politicians and governments around the world.

One does not have to be a paranoid tyrannophobe to recognize that a blanket authorization of unconstrained executive powers presents serious risks to the rule of law and constitutional government, especially during a raging epidemic. Unconstrained regulatory powers can of course be used in moderation (exactly as one never really has to finish that whole bar of chocolate). The lack of any meaningful formal and substantive limitation on the nature and purpose of the powers conferred raises well-founded suspicions in the case of any delegation of powers. It is hard to imagine a measure that presents a more serious threat to constitutional democracy than the recent Hungarian enabling bill.