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Hungary's emergency powers law, which gave the government sweeping powers, was introduced to fight the COVID-19 pandemic. But in an interview with DW, legal scholar Gabor Halmai said he fears the law is here to stay.
On March 30, the Hungarian Parliament, dominated by Prime Minister Viktor Orban's Fidesz party, approved a bill granting his government emergency powers. It was signed into law shortly after. The so-called enabling act lets Orban rule by decree, in an effort to stem the COVID-19 pandemic. The new law has no expiry date, and makes it easy for the executive to sidestep parliament.
In mid-April, the European Parliament issued a statement saying the new measures were "incompatible with European values." The European Commission, the EU's executive branch, has threatened Budapest with legal action. Orban insists the law is essential as part of the government's coronavirus response.
So far, Brussels has not taken any legal steps. On Thursday, EU Values and Transparency Commissioner Vera Jourova reiterated that the EU Commission was concerned and that it is daily "assessing whether we can take legal action.''
DW spoke with Gabor Halmai, a constitutional expert, on the dangers of the law and the EU's calls for action.
DW: The EU has thus far decided not to act against Hungary's much criticized enabling act, and Prime Minister Viktor Orban recently demanded an apology from his critics. In a letter to the European People's Party (EPP) [from which Orban's Fidesz has been suspended — Editor's note] he speaks of a "baseless, unprecedented attack and disinformation campaign against Hungary." Was the initial outcry about the law unjustified?
Gabor Halmai: In early April, Vera Jourova gave an interview criticizing the Hungarian government about Hungary's failure to comply over the last decade with the EU value of rule of law. At the same time, she emphasized that she does not see any immediate way to challenge the enabling act. The Hungarian government took this as an opportunity to attack its critics. Now Jourova seems to have changed her mind. In a recent interview, she said she sees a lot of inaccuracies and dangers in the law and in the governmental decrees enacted through it. The Hungarian government reacted very angrily and is now criticizing Jourova, as well as all the people who were against the law from the start.
What could the EU do if it eventually decided to act against Hungary?
There are a lot of legal possibilities. There is no actual reason for the European Commission not to start an infringement procedure regarding Article 2 of the Treaty of the European Union. That would mean accusing Hungary of violating the basic values of the EU. After 10 years, Hungary is no longer a democracy. It does not comply with the basic values of the EU. The problem is not the lack of legal instruments, but the lack of political will.
The Hungarian government, and particularly Justice Minister Judit Varga, has criticized the use of "double standards." Varga claims that in the current coronavirus crisis other states are also governing with emergency laws and restricting basic rights. How does the Hungarian law differ from the emergency laws of other countries?
Some issues are unique to Hungary, and cannot be compared to measures in any other EU member state or any other country in the world. The Hungarian law violates the Hungarian Constitution in many ways — a constitution which, by the way, was approved in 2011 only with the votes of the current government. The law was not only unconstitutional, but also unnecessary. The Hungarian legal system provides a sufficient basis to deal with the coronavirus. So even if the Hungarian government argues that 20 EU member states introduced emergency laws, the Hungarian one was simply not necessary. It is only there to give the government unlimited power without a time limit.
Read more: Coronavirus: A stress test for democracy
Halmai is a professor for comparative constitutional law and was formerly chief adviser to the president of the Hungarian Constitutional Court
What measures has Orban's government taken so far using the law?
Since early April, over 80 decrees have been issued. An early one changed the labor law, abandoning all protection for employees. One of the most recent examples is a decree that suspends EU data protection regulations. Furthermore, all hospitals and about 150 state and private companies have come under military control. These organizations' leadership can only make business decisions with the approval of military personnel. The government even changed one company's entire management by decree. This has not happened in any other EU member state and is a blatant violation of both Hungarian and EU law.
Government officials have repeatedly stressed that the Hungarian Parliament could withdraw the emergency powers law at any time. However, the governing coalition controls the majority of the seats in parliament. How could Parliament repeal the law?
The Hungarian government's argument is very tricky. I do not remember any occasion in the last decade in which parliament voted against any important government proposition. That means there is no chance that this parliament, led by Fidesz with its two-thirds majority, will oppose any government measures. And to revoke the law, a two-thirds majority is needed. So even if the current government were to lose its supermajority due to by-elections and or the death of a lawmaker — which I certainly do not wish for — the law could not be revoked.
Could Hungary's Constitutional Court intervene to ensure that the government does not exploit its new powers even further?
Other democratic countries in the EU have checks and balances beyond the parliament, which may not be able to control the government: there are constitutional courts, supreme courts or presidents. In the case of Hungary, all the members of the Constitutional Court are nominated and elected by Fidesz. They never rule against the government on any serious political issue. The president is one of the founders of Fidesz, and a good friend of Orban. He signed the enabling act in only two hours. That's how long it took him to investigate whether the law is politically and constitutionally acceptable. How would this president oppose anything this government does?
The emergency powers law is supposed to apply only for the duration of the coronavirus crisis. However, no one knows when the crisis will end. Orban has already spoken of a second wave in autumn. Is the law here to stay?
It is. Let me remind you: In 2015, during the migration crisis [when hundreds of thousands of asylum-seekers and migrants traveled through Hungary], the government introduced an emergency migration law. It is still in effect, even though there are no migrants in Hungary anymore and the borders are closed. The government has extended this law every six months, most recently in early March. So I do not see any guarantee that this emergency situation will end when the pandemic does.
Gabor Halmai is a professor for comparative constitutional law at the European University Institute (EUI) in Florence, Italy. From 1990 to 1996 he was the chief adviser to the president of the Hungarian Constitutional Court.
This interview has been edited and condensed for clarity.