The Truth About PM Orbán's Emergency Bill
Autocratic impulses are the downside of any state of emergency. In Hungary's case, the media's rush to call the end of democracy ignores the bill's fine print.
Get over it: pandemics and democracy just don’t go well together. As far as safety goes, they shouldn’t.
Halting contagion of COVID-19 and mitigating its economic and health fallout takes swift and decisive action that inevitably compromises rule of law and, sometimes, accountability. This has set a reasonably concerned part of the media against the broader public, generally welcoming these exceptional measures as an effort to protect them. Hungary’s experience with COVID-19 has followed this template, much like every other advanced economy but for two nuances that you won’t see covered in the global media’s onslaught on PM Orbán’s otherwise ordinary response.
First, the country’s relatively flat curve. When the Hungarian National Assembly passed a bill Monday extending the state of emergency declared three weeks prior and empowering the government with extraordinary license to battle the virus, the country had a mere 1.55 cases per million. Like most of Central and Eastern Europe, it remains relatively untouched thanks to travel and movement restrictions passed early on, while most other European governments failed to react.
Press reports have cast the power granted to the government as excessive, seemingly in light of this low case count — but this ignores the distinction between mitigation and prevention policies, and their differing potential to avert the loss of life. Already faced with spiking curves, countries such as Spain, Italy, the UK or France were tardively forced into mitigation mode — namely, containing the virus’ spread in order to slow the inevitable rise in cases. Contention is Hungary’s purpose also, but unlike Western Europe, it has a reasonable shot at keeping its curve flat, and this heightens the urgency of its prevention measures, if only because far more lives can be saved if they prove effective. This is reflected in Hungary use of the term state of “danger” instead of the far more common state of “emergency”.
Secondly, the media’s scorn of the emergency bill far surpasses that heaped on other similar transfers of power to the executive in countries such as Israel, the UK and even the US. Clearly, global outlets fretting about the end of Hungarian democracy either haven’t read the bill or have been dissuaded from making a thoughtful analysis of it by their irrepressible hate of PM Orbán.
Yes — the bill allows the government’s COVID-19 response to bypass parliament and can neuter other statues that may slow it down. This is something most every other government is already doing by executive fiat, not having sought enabling legislation and with minimal risk of being challenged in court. On this count, Orbán is blasted for seeking congressional authorization to unilaterally execute policies that most other governments aren’t even bothering to consult their legislatures on. Again, this is ordinary state-of-emergency stuff: the executive needs room to swiftly carry out anti-virus policy without the drag imposed by congressional deal-making.
The bill clearly limits the nature of these measures to being “necessary and proportionate” in battling the virus — a formulation necessarily vague to allow room for policies to meet needs as of now unforeseen. Any language narrowing the executive’s room for unilateral action — to, say, lockdown enforcement, testing requirements and appropriation of funds for hospitals — would have likely kept out other areas that neither parliament nor the executive can reliably foresee will need to be acted upon. Think of Trump squeezing 40.000 ventilators out of a General Motors plant by invoking the Defense Protection Act.
To the bill’s lack of specificity as to which areas within the bounds of anti-virus policy the government is allowed to rule by decree in, the power check will come from Hungary’s Constitutional Court, which will rule as to whether specific policies challenged before it are indeed “necessary and proportionate”. The country’s Constitution — so-called Fundamental Law — is where “states of danger” are allowed for and codified, and it explicitly forbids any executive action that tramples on the Court’s workings and on fundamental rights. Would Orbán seize the opportunity to press ahead with policies that aren’t directly linked to virus mitigation? It’s a possibility, but so can every other leader — at least that bit is being reported on. Anyone who claims to know is pretending, and in Orbán’s case, the global media seems to take a “yes” for granted while failing to report on the ordinary power checks that await him if he does.
Primarily, the media’s fury has been aimed at the bill’s lack of a time limit on the state of danger it prolongs. The Assembly’s two-thirds majority held by Orbán’s party, the conservative Fidesz, dismissed an opposition amendment for a 90-day sunset clause, arguing that Parliament’s ability to lift the state of danger at any point is a sufficient guarantee that it won’t outlast the outbreak indefinitely. This is a crucial point that has been royally ignored by most coverage, when not outright falsified. Consider The New York Times got 180° wrong whom holds the power to reset things back to normal: “Orbán has the sole power to end the emergency”, per Selam Gebrekidan’s reporting. As of this writing, she still hasn’t replaced “Orbán” by “Parliament”.
Meanwhile, the government is still required to regularly inform the Assembly of its policies, or in case they’re unable to meet for virus preventive reasons, a group made up of the House Speaker and the parliamentary group heads. Left-liberal commentators and biased reporters are still concerned that Fidesz’s congressional supermajority will work as a puppet of Orbán’s whims and extend the state of danger beyond the end of the virus — the constant migratory pressures on Hungary’s southern border have led them to extend a similar emergency bill since 2015. But this is selling Fidesz’s diversity of thought and intra-party competition short, and more importantly, it reflects less a concern about the nature of the COVID-19 bill than about the state of Hungarian politics. Orbán owes his hyper-popularity to the people’s sense that he has delivered on his conservative agenda through his 14 years in office — not the norm across the West.
The media’s pile-on has also focused on the bill’s amendments to the criminal code. For breaching lockdown rules, these will punish with up to 3, 5 and 8 years in jail individuals, groups and groups whose unlawful behaviour leads to death, respectively. The measure is dissuasive and not much different in nature to the UK Parliament’s granting of police powers to detain those suspected of being infected, or to the US Department of Justice’s request to Congress for the power to ask federal judges to hold people in detention indefinitely without trial while the outbreak lasts.
Even more triggering of the media’s ire were the bill’s alleged restrictions on free speech, which are nothing more than bans on fake news undermining the government’s efforts against COVID-19. What qualifies as “false” information is not predetermined and will be adjudicated by independent prosecutors when cases arise. Some have described this as an open door to “jailing journalists” — as if that door should ever be closed in the case of actual law-breaking — which is a diversion from the media’s very real responsibility to cover the crisis accurately. That the law may be used by pro-Orbán jurists to muffle negative coverage of his policies is not an impossibility — that, not the bill, would be a real deal-breaker for Orbán’s democratic bona fides. But neither is it that malicious purveyors of fake news may drive gullible readers to, say, threaten public health by breaking the quarantine.
Here’s the bottom line: every government’s effective response to the virus will partly hinge on bypassing democratic norms. This is why states of emergency are encoded in Constitutions. Rule by decree, which is necessary to protect public health in these circumstances, should be limited in scope — only to cases where conventional law presents real drawbacks — and time. It should be Parliament, not the executive, who designs these limits. This has been the case in Hungary, where Parliament remains sovereign to restore normality and the courts remain the last-resort arbiter of whether Orbán’s measures are balanced and actually aimed at tackling the virus.
None of this has stemmed the media’s bile on one of the West’s most popular leaders, but conservatives should wish PM Orbán a successful containment plan — and a return to democratic normalcy when this is all over.
