How COVID-19 Unveils the True Autocrats: Viktor Orbán’s Ermächtigungsgesetz

—Gábor Halmai, European University Institute

At a conference held at the London School of Economics and Political Science (LSE) in London on 20-21 May 1967, Isaiah Berlin used the term ‘false’ populism, defining it as “the employment of populist ideas for the ends other than those which the populist desired. That is to say – Berlin argues -, their employment by Bonapartists or McCarthyists, or the ‘Friends of the Russian people,’ or Fascists and so on. This is simply the mobilisation of certain popular sentiments – say hostility to capitalism or to foreigners or Jews, or hatred of economic organisation or of the market society, or of anything you like – for undemocratic ends”.[1] 

In my view, Viktor Orbán, Prime Minister of Hungary, is one of those autocrats, whose populism is ‘false’ and only used for populist rhetoric, but its decisive characteristic is authoritarianism. What makes him distinct from non-populist autocrats is the democratic elections through which he came to power in 2010, even though when in government he has changed the electoral law to keep his power.

This was spectacularly proved on 30 March 2­020, when the Orbán government introduced its Enabling Act[2] similar to Hitler’s Ermächtigungsgesetz of 1933. The Act gives dictatorial powers under cover of declaring a state of emergency to fight COVID-19. The Act was needed, because on 11 March the government by its decree declared a ’state of danger’, a special state of emergency regulated by the Fundamental Law in order to get exceptional competences to combat the coronavirus. According to the Fundamental Law, the Parliament is required to authorize the extension beyond 15 days. But the Act violates Fidesz’s own constitution, the Fundamental Law of Hungary enacted in 2011 with the exclusive support of the governing party – and not only because the 15 days deadline had already expired when the law was enacted. Article 53 of the Fundamental Law mentions only natural disasters and industrial accidents, not pandemics. The latter cause of a state of danger is only covered by the Act 128 of 2011 concerning the management of natural disasters. In other words, there was no constitutional authorization either for the decree or for the Enabling Act.

The Act, enacted exclusively with the votes of the governing majority, enables the government to take any measure by executive decree for an indefinite period of time. These measures, which are not tailored to fight the coronavirus, can include suspending or overriding any laws, or simply departing from them, suspending by-elections and referenda as well as the functioning of ordinary courts. The Constitutional Court, which could be the only body to check the government, is allowed to continue to exercise its review power, but it has been packed by loyal pro-government judges since 2013. The Enabling Act inserted two new crimes into the Criminal Code, which will not go away when the emergency is over. Anyone who „claims or spreads a distorted truth in relation to the emergency in a way that is suitable for alarming or agitating a large group of people” can be punished for a term of up to five years in prison. Also, anyone who interferes with the operation of measures that the government takes to fight the pandemic could also face a jail sentence of up to five years. These clearly unconstitutional, disproportionate threats to freedom of expression could silence what is left of a free media and independent civil society organizations in Hungary. Besides the law, governmental decrees enacted after 11 March also contain unconstitutional provisions, the validity of which have now been extended by the Enabling Act. One of those allowed for the army to deploy around 140 state owned and private strategic factories. Neither the Fundamental Law nor the law on the management of natural disasters gives power to the government to make extraordinary rules concerning the army.        

The blanket authorization of uncontrolled executive power will last as long as the ’state of danger’ persists, which will be determined by the government itself. There are legitimate worries about the end of the current emergency power, because the special ’state of emergency caused by mass migration’ introduced in 2015 is still in force even though there are now no refugees in the country. 

Suggested citation: Gábor Halmai, How COVID-19 Unveils the True Autocrats: Viktor Orbán’s Ermächtigungsgesetz, Int’l J. Const. L. Blog, Apr. 1, 2020, at: http://www.iconnectblog.com/2020/04/how-covid-19-unveils-the-true-autocrats-viktor-orbans-ermachtigungsgesetz/

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[1] See To Define Populism, The Isaiah Berlin Virtual Library, Isaiah Berlin 1968, The Isaiah Berlin Literary Trust 2013. 10.

[2] See the translation of the draft law, which was enacted by the Hungarian Parliament at its last session before the emergency power entered into force without any change. The goverment rejected all the amendment proposals submitted by opposition parties, including one which aimed at imposing a 90 days time limit on governmental actions, and the President of the Republic, a founder of Orbán’s Fidesz party, signed the bill within two hours.  https://hungarianspectrum.org/2020/03/21/translation-of-draft-law-on-protecting-against-the-coronavirus/