”Enabling act” in Hungary: uncontrolled government power, threatened press

The Hungarian parliament adopted a new bill about the defence against the coronavirus (Act XII of 2020) on 30 March. It was promulgated the same day. The bill was sponsored by the governing parties, who are in the comfortable position to produce the necessary two-third majority for passing any law. The law is referred to as “enabling act” because its main aim is to equip the government with the uncontrolled opportunity to rule by decrees. Neither the scope of the rule by decree nor the duration of this special legal order is defined in the law. Therefore, several observers found the law to be the basis of the uncontrolled power of the government. The law does not contain any rules on  digital human rights, but it limits the general space of expressing critiques of government action, both online and offline. This is the case for journalists but also bloggers and Facebook users. The long-term consequences of the law on digital human rights is unpredictable. 

Interestingly, the  Hungarian constitution (Basic Law of 2011) regulates more cases than the special legal order. One of these cases is the state of danger (Article 53), that empowers the government to issue decrees to suspend the application of certain laws or derogating from the provisions of laws, and to take other extraordinary measures. The special legal order also enables the suspension of exercising fundamental laws. However, the constitution defines two limits on the government’s power. Firstly, the possible set of emergency measures should be defined in the form of an act, and secondly, the decrees remain in force for 15 days, except if parliament authorises the government to extend the effect of the decree. This means that the parliament may only approve the extension of the effect of decrees that were passed at time of approval. The Basic Law makes the extension for more than 15 days possible, too, but this approval cannot be seen as an unlimited empowering of the government for ruling by decrees. 

Based on these rules, the Hungarian government proclaimed the state of danger with the decree Nr. 40/2020. (III.11.) on 11 March, and it has also passed several decrees in connection with the pandemic. These decrees have no unjustified impacts on the fundamental rights yet. However, the act XII of 2020 infringes on the constitutional frame. According to the law, the government has only to inform the parliament about the measures taken, and all decrees retain their effect until the end of the state of danger. When that end is, will be decided upon by the government, as the Basic Law prescribes. As a result, the government has an unlimited power up to the suspension of the exercise of fundamental laws, including privacy, freedom of expression and freedom of information. There is currently no information about legislative plans by the government. It is also important to clarify that the Hungarian parliament is not suspended. It can pass laws,  but the power of the government is not limited by these acts.

As mentioned above, the act XII of 2020 amended the Criminal Code (act C of 2012) as well. This amendment directly affects digital human rights because it restricts freedom of expression. The crime “Scaremongering” (§ 337) has been complemented by a new type of behaviour : any conduct of publishing or spreading a false or distorted statement which endangers or derails the successfulness of the defence during a state of danger is punishable by imprisonment from one to five years. This amendment is meant to control the spreading of false information, but practically, it can have a much broader impact on free speech and free publishing. Firstly, it is unclear what the notion of “successfulness of the defence” means, and thereby how it can be endangered or derailed; these success indicators can be defined by the Orbán government arbitrarily. The notion of “distorted statement” provides endless space for interpretation too. The government can for example interpret it for limiting the publishing of any information it wants to keep secret, even if the information is true, but in the given context of publishing it contradicts the government’s narrative. Secondly, even if the courts will interpret the rule in light of freedom of expression, the chilling effect can stop some journalists and citizens from publishing the truth that is critical of the government.

At the European level, there is a procedure in progress against Hungary because of the fact that the country is persistently breaching the EU's founding values since 2018. The governing party Fidesz was suspended from the European People’s Party fraction in the European Parliament,  based on the same grounds. These prove that the power concentration in Hungary is not a new phenomenon. 

The new legal situation demolishes the remaining control over the government. The critiques of the unlimited power are heavy, both in Hungary and at European level. Opposition parties and NGOs express their objections and analyses, but the governing parties are not ready to discuss the measures. The coronavirus crisis further prevents people from demonstrating, and the EU from reacting with stronger financial restrictions.