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Hungary declares indefinite state of emergency

Europe is at the epicentre of the COVID-19 pandemic with 65% of the world’s death attributable to the virus coming form this continent. Many European countries have declared a state of emergency, but there seems to be only one country that has attracted public condemnation and apprehension from the European Council for Human Rights and the rest of the world.

Hungary to combat the public health emergency declared a state of danger on 11 March 2020. Constitution of Hungary (‘Fundamental Law’) allows special emergency powers under Articles 48- 54 in case of an external armed conflict, terrorist attack, or in an event of natural, or industrial disaster. The Fundamental Law also permits restrictions on certain categories of rights, with an exception to non-derogable rights. Further, a nationwide lockdown was declared for a period of 2 weeks from 27 March to 11 April 2020.

The Enabling Act gives Carte Blanche powers to the Government

The lockdown was followed by a Bill on Protection against the Coronavirus (Bill T/9790) [hereinafter, ‘The Law’] to extend the state of danger for an indefinite period of time and the decision to suspend elections in the country. The Bill was tabled on 23 March for an urgent vote where the government needed 4/5th majority of Parliament. However, the government decided to pass it through simple voting that merely requires 2/3rd majority in the Parliament. The Bill was enforced on 1st April. According to this law, the Government can exercise powers to “prevent, control, or eliminate” the Pandemic. Prime Minister Viktor Orban has assured that the state of emergency would provide the government with resource to organise self-defence.

However, the law gives extraordinary powers to the government to rule by decree (Executive-Raj) while suspending the working of the Parliament. It is known as an ‘enabling act’ because it removes the requirement of the sunset clause and authorises the government to perform the role of a legislature by decree. Something like this happened exactly eighty-seven years ago in Germany when Reichstag (the German Parliament) passed an Enabling Act on 23 March 1933. The law gave sweeping powers to Hitler to rule by decree. What followed next is history.

The Fundamental Law originally granted the power to the Government to declare a state of danger but it came with a sunset clause. Under Article 53(3), the Government needed a mandate from the National Assembly (the Hungarian Parliament) within a period of 15 days to further extend its rule by decree. Sunset clauses are used to show the transfer of authority and create a cut-off date so that the legal certainty is maintained. However, the present ‘blanket removal’ of the Parliamentary mandate has rendered the constitutional safeguards on overarching powers ineffective.

The government in the shield of the crisis has brought substantive changes in the Criminal Code also through ‘The Law’. Anyone who declares false information or interferes with the quarantine measures of the Government is declared as an offender with imprisonment up to 5 years. The law can only be scrapped by the Parliament where the government, unfortunately, enjoys majority as stated above.

The International Covenant on Civil and Political Rights (ICCPR’) allows restriction on certain human rights during a public emergency that threatens the life of the citizens; however, rights such as the right to life, the prohibition of torture or inhumane treatment, and prospective application of criminal law are non-derogable. Under Article 4 of ICCPR, any restrictions of these rights must not exceed the exigency of the situation, and should not be against the State Party’s obligation under international law. This has been reiterated in the regional human rights instrument, the European Convention on Human Rights (ECHR’).

According to General Comment No. 29, State Parties are required to provide justification for the restrictions on fundamental human rights during the proclamation of public emergency other than in an armed conflict. The U.N. Experts on Human Rights in a recent statement pointed out:

“While we recognise the severity of the current health crisis and acknowledge that the use of emergency powers is allowed by international law in response to significant threats, we urgently remind States that any emergency responses to the coronavirus must be proportionate, necessary and non-discriminatory”.

Further, the Experts maintain that the public emergency must be declared publicly and should be notified to treaty bodies, and the restrictions must not target minority and vulnerable groups. A letter addressed to PM Orban by the Council of Europe expressed its apprehension on the indefinite state of emergency. According to the Council, the lack of a cut-off date on the state of emergency threatens exercise of proportionate restrictions on fundamental rights, free flow of information, and the freedom of press. Any restriction on freedom of press, speech, and expression sends a chilling effect on all democracies around the world. However, drastic the situation is, any urgent restriction on the fundamental rights must conform to Constitution, international standards, and  with the essence of democracy .

Hungary is moving towards Dictatorship with the one-man rule

With the rise of P.M. Orban’s government, the country has become militarised. Hospitals and companies have been taken over by the military. Policies reflecting xenophobia,  homophobia, and anti-immigration have been introduced. Continuing its attempt, the government recently on May 5th decided against the ratification of the International Domestic Violence Treaty [‘Istanbul Convention’] in the Parliament citing it as promoting “destructive gender ideologies” and “illegal migration”. The Istanbul Convention is the world’s first binding instrument that aims to prevent and combat marital rape and female genital mutilation. This comes despite the fact that the rate of domestic violence cases it at an exponential rise in Europe.

One of the most important aspects of this Convention is its extended protection to refugees persecuted over sexual orientation. The government’s approach has been abhorrent in the protection of gender equality and the rights of the refugees and asylum seekers. Hungary had drawn spotlight in 2018 as well when the Court of Justice of the European Union declared its Projective Personality tests conducted on refugees to determine their sexual orientation as devoid of right to human dignity and privacy. Moreover, another discriminatory bill awaits ratification in the Parliament that aims to define Gender as biological sex based on primary sex characteristics and chromosomes. This is likely to outcast transgender people. Previously the government had also introduced a constitutional amendment to define marriage as a union between man and woman, only.

Conclusion: We don’t want a parallel pandemic of authoritarianism

The Constitutional Court can rule out on this law by judicial review but it seems highly unlikely as it’s been a while since the Court ruled against the government. This is due to the amendment brought by the Government in 2018 establishing administrative courts that were responsible to hear cases on human rights violations, asylum cases, and police complaints. This Court is not devoid of political interference as the law minister elects the judges and the presiding judge of the court.

Alternatively, it is possible to suspend Hungary’s membership from EU. This move would require the support of all Member States, but with the presence of the Czech Republic, and Poland, this again seems highly unlikely. As inconvenient as it sounds, but the EU can halt the access to 861 million Euros aid received by Hungary from the Commission’s Coronavirus Response Initiative till the time the government informs with certainty the future of the emergency rule.

More than 13 European countries have expressed their concern in a joint statement over the state of affairs in Hungary, with many human rights organisations such as Amnesty, and Human Rights Watch hinting over the rise of dictatorship in the country. President David of the European Parliament has also asked the European Commission to determine whether the measures of the Government are in violation with Article 2 of the Treaty of the EU. Article 2 maintains that the Union is based on pluralism, non-discrimination, tolerance, justice, solidarity, and equality between women and men.

However, the world is not new to authoritarianism with China leading the chart. Recently, the Apex Court in Hong Kong’s Special Administrative Region declared the anti-mask law as unconstitutional. The law had put a blanket ban on the use of facial covering in any public place irrespective of it being the necessity of the situation. Further, leaders from Venezuela, Brazil, Philippines, and, Israel are indulging in mass surveillance, shoot at sight orders, and potential coup d’état(s).

Nevertheless, carte blanche power is not a panacea at the time of crisis. Media freedom creates accountability on part of the government and guaranteed fundamental rights ensure faith of the people in such testing times. This least should be ensured by the government of Hungary. This year marks the 75th anniversary of Victory Day in Europe, also known as fall of Nazism in Europe. It is a day when humanity regained its value. Let the world not repeat history again!

Authored by: Gursimran Kaur Bakshi, Penultimate Year Student
National University of Study & Research in Law, Ranchi

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