Hungarian Prime Minister Viktor Orbán never lets a crisis go to waste. Friday, he put before the Hungarian Parliament a law that would give him dictatorial powers under cover of declaring a state of emergency to fight the coronavirus. Parliament could vote on this law as early as Monday.

The law creates two new crimes. Anyone who publicizes false or distorted facts that interfere with the “successful protection” of the public – or that alarm or agitate that public – could be punished by up to five years in prison. And anyone who interferes with the operation of a quarantine or isolation order could also face a prison sentence of up to five years, a punishment that increases to eight years if anyone dies as a result.

While the law barring false or distorted facts may appear to be reasonably aimed at spreading malicious disinformation in a crisis, Orbán’s terrible track record on press freedom creates the suspicion that the law is aimed at the last remnants of an independent press in Hungary. It may well even sweep in foreign journalists reporting from Hungary. Already, state-controlled media whose messages echo the government are baying for their independent competitors to be punished for deviating from the party line.

The second new crime would punish those who break mandatory isolation orders or otherwise challenge what the Orbán government is doing to fight the virus. This power could well be used to sweep up anyone who violates a curfew. It is written broadly enough to sweep in critics who challenge whether the government is acting sensibly or even whether a measure that the government is taking has any relationship to the virus at all. It is up to the government to determine what “obstructs” the implementation of its program.

Both new crimes would give the public prosecutor, a firm friend of the prime minister’s, huge discretionary power to detain anyone who challenges what the government is doing in the name of the threat. The Orbán government has a 10-year track record of using prosecutorial power to benefit his friends and hurt his political enemies, so such discretionary powers in the hands of the public prosecutor are especially worrisome.

These two new crimes would not be, strictly speaking, emergency powers. They would be permanent changes to the criminal law. They would not go away when the emergency is over.

Alarming though those new crimes are, the provisions of this law that implicate separation of powers are even more disturbing and would end the appearance of constitutional and democratic government. (The reality of constitutional and democratic government ended some time ago, but appearances were maintained.) Under this pending emergency law, Orbán would govern alone.

The law would give Orbán a free rein to govern directly by decree without constraint of existing law. He could “suspend the enforcement of certain laws, depart from statutory regulations and implement additional extraordinary measures by degree.” (Sec 2.) The law is no more specific than this, implying that any law could be suspended or overridden as long as the emergency continues. In short, it doesn’t matter what any law in Hungary says today. Next week, if this pending bill becomes law, any Hungarian law could be overturned at Orbán’s whim.

The Hungarian Parliament, citing an abundance of caution, has already decided not to meet for the foreseeable future after it finishes this business. What happens when the Parliament is no longer around to hold Orbán to account? This new law spells it out: The government shall provide information about what it is doing to the speaker of the Parliament and the leaders of the parliamentary party groups, but the Parliament may not act to counter any measures taken by Orbán. (Sec. 4). In short, the Parliament will be sidelined by the government in the state of emergency.

The Hungarian Fundamental Law once built reasonable checks into its emergency powers, but those checks would be circumvented by this emergency law. While the constitution requires that the Parliament be able to veto an emergency, the pending emergency law asks Parliament to endorse Decree 40/2020 through which Viktor Orbán first declared an emergency on 11 March, and it also asks Parliament to endorse every other decree that the Prime Minister has or will have issued from his first emergency decree on 11 March through until the moment that the new emergency law is signed by the president. The Parliament would be therefore be writing a blank check that endorses any new decree that the Prime Minister shovels into the National Gazette (Magyar Közlöny) this week. We all need to keep our eyes on that publication to see what new authorizations sneak onto the books in the coming days.

But the crucial point is that Orbán is asking the Parliament in this law for a pre-endorsement of anything he does in a way that makes it much harder for the Parliament to change its mind later. To rein in Orbán’s emergency powers once it has endorsed them, Parliament would have to pass another law overturning this one. Since this is a so-called cardinal law because it affects constitutional provisions, it would have to be passed by a two-thirds vote, but also repealed by a two-thirds vote. And if the Parliament does manage to repeal this law, Orbán’s close political ally, the Hungarian president, could simply refuse to sign it. The emergency provisions in the constitution allow the Parliament to end a state of emergency in a simple resolution. The pending law effectively cancels that safeguard.

(A technical point: In Section 3 of the law, Parliament is given the power in part 2 of that section to withdraw the authorization of the emergency decrees set out in part 1 of that section. And then all of the decrees that the Parliament approved in part 1 are repeated in part 3 with the “blank check” decrees added there, and that provision that the Parliament may not withdraw. Bait and switch.)

Could anyone legally challenge this emergency law or any government action taken under it? As I write, the trial-level courts in Hungary have already been suspended out of fear of spreading the virus, and if the ordinary courts are closed, how can anyone challenge unlawful government action under this law or any other? Though the Constitutional Court is required by the Hungarian Fundamental Law to remain open through an emergency (and the pending law makes much of honoring this “guarantee”), it is hard to see how any case could get to the Constitutional Court unless it goes first through other courts that are already closed. In any event, the Constitutional Court has been a reliable rubber stamp for Orbán since it was captured in 2013, so no one expects serious constraints on the Prime Minister to issue from those quarters. The Constitutional Court appears to put a rule-of-law stamp on this emergency regime, but that is all for show.

It gets worse. For the duration of the emergency no elections may be held. Not byelections if a member of parliament succumbs to the virus. Not local elections even if a local government is dissolved. Not regular elections if the emergency lasts that long. No elections at all. And no referenda either. Democracy is in suspension for the duration.

And the emergency has no end date. The constitution specifies that the emergency must end when the crisis ends, but the determination of that moment is left to the prime minister.

In short, Orbán’s emergency gives him everything he ever dreamed of: The absolute freedom to do what he wants.

Of course, reality does have a way of undermining dreams, and Orbán may find that his are no different.

Governments all over the world are using emergency powers to deal with the very real threats posed by COVID-19. Hungary is more vulnerable than most countries in the developed world because its health system was in a state of near collapse even before this virus appeared on its doorstep. The underfunded and understaffed hospital system may well fall into dysfunctional chaos with even a mild outbreak of this virus in the country. And that would be a real emergency. The threat of coronavirus in Hungary is serious and Orbán no doubt knows that the country is not ready to handle it.

But this emergency law does nothing to strengthen the Hungarian health care system. It does give Orbán powerful tools to use when and if the virus takes a toll in Hungary and the citizens of the country rebel at the avoidable losses that his government should have protected them against. With these new emergency powers, Orbán would have the power to lock down his own population with draconian decrees backed by force. The law hands to Orbán the fully-fledged dictatorial powers he would need in order to cling to office.

March 21, 2020