(May 26, 2020) On March 29, 2020, Hungary’s National Assembly adopted a special legal regime aimed at “mitigating the consequences of a natural disaster or industrial accident endangering life and property” and preserving the governability of the country in case the National Assembly is not able to meet because of the COVID-19 pandemic. The new law, Act XII of 2020 on the Containment of the Coronavirus (English translation), entered into force on March 31, 2020.
Provisions of the Act
The act empowers the government to rule by decrees during the declared state of danger, suspend the application of certain laws, and “take other necessary extraordinary measures.” (Act § 2.) Decrees are to remain in force for 15 days but can be extended until the end of the state of danger. (Fundamental Law of Hungary art. 53(3), Apr. 25, 2011, as amended.)
The National Assembly retains right to withdraw the authorization before the end of the state of danger. (Act § 3(2).) The government is obliged to inform the National Assembly or the parliamentary leadership regularly about measures taken to eliminate the state of danger. (§ 4.)
The act specifically addresses the work of the Constitutional Court, stating that it will continue to function during the emergency, although some procedural requirements can be lifted and the justices may participate in court hearings remotely using electronic means of communication. (§ 5(3).) All elections and referenda during the state of danger are suspended, and local elected bodies are to continue their activities for the duration of the state of danger even if their term of service expires. (§ 6.)
The new law amends the Hungarian Criminal Code, adding special punitive measures for violation of the COVID-19 quarantine rules and distribution of fake news concerning the coronavirus. According to the newly introduced amendment, a person found guilty of failing to comply with measures for containing the spread of COVID-19 may be sentenced to a prison term of up to five years. If such a violation results in the death of another person, imprisonment for up to eight years is prescribed. (Act § 10, adding § 322/A to the Criminal Code.) The new law also amends another section of the Criminal Code with a provision stating that “[a] person who, during the period of a special legal order and in front of a large audience, states or disseminates any untrue fact or any misrepresented true fact that is capable of hindering or preventing the efficiency of protection is guilty of a felony and shall be punished by imprisonment for one to five years.” (Act § 10, replacing § 337 of the Criminal Code.)
Prime Minister Victor Orbán emphasized in parliament that he had sought such broad authorization due to the uncertainties surrounding the epidemic.
Expedited Procedure Requested by Government for Adopting the Act
On March 20, 2020, the Hungarian government submitted to parliament the Bill on Protection against the Coronavirus (Bill T/9790), seeking authorization to extend the state of danger that it had ordered by government decree on March 11, 2020, and requested that this legislation be passed in an urgent manner. If the parliament had agreed to pass this legislation through expedited procedures, the vote on this act would have been scheduled for the following day. According to the parliamentary rules, such a departure from the normal procedure would require the approval of a four-fifths majority of members of parliament (MPs) and the consent of at least some of the opposition MPs. However, the bill ended up being voted on using the regular voting procedure eight days later. Because the government has a constitutional two-thirds majority in parliament, this vote did not require the support of any opposition MPs.
The act was widely criticized by opponents of the government both within and outside of parliament, as well as by representatives of civil society and international organizations. Over 100,000 Hungarian citizens protested against the act in Hungary’s first ever online demonstration.
Amnesty International Hungary, the Hungarian Helsinki Committee, and the Commissioner for Human Rights of the Council of Europe have argued that the bill does not meet the constitutional requirements for a legal emergency order. They are particularly concerned about measures that might be taken by the government that could jeopardize the democratic rights of citizens. As David Vig, Amnesty International’s Hungary director, stated, “[t]his bill creates an indefinite and uncontrolled state of emergency and gives Viktor Orbán and his government carte blanche to restrict human rights. This is not the way to address the very real crisis that has been caused by the COVID-19 pandemic.”
On May 15, 2020, Prime Minister Orbán stated that he expects that, at the end of May, the government will be able to “return to Parliament the special mandate it was given due to the coronavirus epidemic.” He also defended the government’s decisions as being in accordance with the special legal order that had given authorization to the government and the prime minister to swiftly adopt grave and difficult measures necessitated by the epidemic.