Democracy in Lockdown

on march 23, 1933, an act was adopted in nazi germany, in response to the "crisis" of the Reichstag building fire, to enable Hitler to issue decrees independently of the Reichstag (parliament) and the presidency. Article 48 of the constitution of the Weimar Republic made this act possible. Eighty-seven years later, on March 23, 2020, the Hungarian parliament debated a piece of legislation so similarly sweeping that Hungarians now informally call it the "Enabling Act." Seizing as a pretext the threat to public health caused by the spread of COVID-19, government members tabled a draft act on protecting against the coronavirus in accord with articles 48–54 of the Hungarian constitution. The act enables the government led by Prime Minister Viktor Orbán to issue decrees independently of the parliament.

EMERGENCY POWERS UNDER THE HUNGARIAN CONSTITUTION

This similarity might be only a strange coincidence, but it is not the first time that Prime Minister Orbán has jumped on a crisis to increase his power. Since returning to office in 2010 (he had led the Hungarian government previously, from 1998 to 2002), Orbán has used countless "crises" to consolidate his hold on power (Kovács 2016).

For example, in 2011, a parliamentary supermajority justified the adoption of a new constitution with reference to the consequences of the 2008 global financial crisis and the country's high level of public debt. The ruling majority gave its crisis management policy a constitutional rank: the 2011 constitution contains a debt ceiling, and it deprives the Constitutional Court of its power to review financial laws. These measures remain in effect.

The 2011 constitution, sometimes called Hungary's "crisis management constitution," contains a detailed set of prescriptions for the state authorities to respond to emergencies. Articles 48–54 provide for special emergency powers in case of an imminent danger of war or external armed attack and in the event of a natural or industrial disaster. It contains an exhaustive list of situations in which the country could be deemed to be under threat, and it does not provide for the suspension of constitutional rights under any other circumstances.

Several years later, faced with a sharp rise in the number of asylum-seekers arriving in Hungary, Orbán saw another opportunity to expand his power. Since mass migration was not among the constitutionally listed situations that might justify the introduction of emergency rule, Orbán's government in 2016 instead used article 15(1) of the constitution—"The Government shall exercise powers which are not expressly conferred by laws on another state body"—to declare "a nationwide state of crisis due to mass migration" (decree 41/2016).

Today, even though the border with Serbia is hermetically sealed and not a single migrant can enter Hungary's territory (Inotai 2020), the "state of crisis due to mass migration" is still in effect because the government has renewed it every six months, most recently on March 5, 2020.

DECREE ON THE PANDEMIC EMERGENCY

Six days later, on March 11, 2020, once again citing article 15(1) of the constitution, Orbán's government declared a "state of danger because of the pandemic." (Decree 40/2020 also cited the state of danger clause in article 53 even though this article does not mention a pandemic as a source of danger.)

The decree on the pandemic emergency included an automatic sunset after 15 days without parliamentary authorization. With that deadline looming, Orbán's government introduced the new Act on Protecting against the Coronavirus (Hungarian Spectrum 2020). Officials argued that without the decree on the pandemic emergency, the government would not be able to properly respond to the crisis, and they pressed the parliament to act as quickly as possible.

The democratic parliamentary opposition was unified in rejecting the expedited procedure, so the decree expired on March 26. In the meantime, between March 26 and March 30, the government (decree 71/2020) and the head of the National Public Health Center (decision of March 26) issued new orders on restriction of movement. In the process, the government itself demonstrated that it could issue the...