On Sunday 5 April, Prime Minister Orbán signed an emergency government decree in the style of a true statesman, seated in front of the flag, pausing briefly before his pen hit the page. A video complete with English subtitles was posted to his Facebook account, confirming earlier reports that, as a measure against the COVID pandemic, the government had decided to abolish charges on public parking. Such generous support for mobility sounds odd at a time when Hungarians are required to stay at home, with officials expecting infection rates to reach a record high in Budapest, in particular.
Regulating parking charges is a strange achievement for a prime minister who received plenary authorisation to manage the pandemic and its consequences earlier in the week. The Hungarian “Enabling Act” - a label detested by Orbán as it ‘conjures up bad memories’ - has been widely criticised as a power grab. From its inception, the law triggered concerns from the Secretary General of the Council of Europe, the European Commission, 13 national governments and even from within the European People’s Party (EPP). The EPP president, Donald Tusk, is reported to have written: “Making use of the pandemic to build a permanent state of emergency is politically dangerous, and morally unacceptable.”
While the EU’s response has been swift, it is rather too modest considering the threat permanent emergency rule by decree presents to constitutional democracy. Political statements from EU leaders so far have been ever so diplomatic; they do not name Hungary directly and contain not a hint of economic consequences. If experiences of a decade of dialogue on the rule of law are any indication, Orbán is unlikely to be halted by diplomatic reminders about good practice during a pandemic. Last week’s legal condemnation of Hungary’s lack of cooperation in EU migration policy provided further proof that the government can do as it pleases for a long time. After all, the CJEU’s judgment responded to government inaction from 2015. Thus, it is hardly surprising that so far, Orbán is taking a feisty stance, telling his European critics to leave Hungary alone if they cannot help.
If Orbán does not have time even for the EPP’s concerns, how - and why - does he find time to deal with the pricing of public parking in the middle of a pandemic?
The “Enabling Act” grants practically unbridled powers to the Hungarian government to rule by decree for as long as managing the pandemic and its harmful consequences takes. Emergency rule will last until parliament - where the government has a two-thirds majority - ends it. Parliament is kept in place to receive status reports from the government and dutifully process government bills. This semblance of normalcy is preserved in an effort to provide a veneer of constitutional legitimacy to a permanent emergency.
Behind this façade, emergency decrees can - and do - set statutes aside. Some decrees manage the public health crisis along lines familiar from other European countries. Others aim to neutralise even the traces of genuine initiative responding to the crisis that is not directly controlled by the government. In the official reading, such measures challenge the authority of the government. And as Orbán made very clear, he is determined to handle the crisis in the spirit of national unity and cooperation - and without giving in to the opposition.
Sunday’s decree on public parking fees is a way to deprive mayors (whether belonging to the opposition or the ruling Fidesz party) from spending local resources in a manner not approved by the government, for example via replacing lost income or assistance to homeless residents. Parking fees are a major independent resource for local government, especially in Budapest, where the opposition scored well in the 2019 local elections. Another measure announced on Sunday diverts further local government resources; a newly-created disease control and economic rescue fund hauls income from vehicle taxes (a local resource) to a central pot.
These measures demonstrate the utility of executive rule over parliamentary democracy. On 1 April, shortly after the “Enabling Act” went into force, the government tabled a bill in parliament that would have placed mayors under the instruction of government-appointed crisis management officials. As soon as the bill popped up in the publicly-accessible parliamentary database, it attracted serious public disapproval. Instead of relying on its two-thirds majority in parliament, the government decided to withdraw the bill. Four days later, emergency decrees were put in place with more invasive effects.
As the video of the signing ceremony attests, Orbán thrives during the pandemic. In addition to chairing cabinet meetings, he also took to chairing the meetings of the pandemic response taskforce comprised of a significant uniformed presence; from police to immigration, disaster management and anti-terror leadership. When he emphasises that the government’s response is disciplined, secured by the police and the military, he does not simply mean taking advantage of supply chain logistics. In the middle of March this year, the military identified some 139 essential companies and has already took over management of 84 of them. Based on another government decree by the end of March, some 51 of 108 hospitals were put under the direction of a military commander.
Unlimited emergency powers present the most serious risk imaginable to the rule of law and the European constitutional order. Still, despite this very clear and serious risk, ample EU funding is readily available to the Orbán government. As of 18 March Hungary could access €861 million under the Commission’s Coronavirus Response Initiative. And the Hungarian government is clearly ready to boost the Hungarian economy with measures of its own choosing, preferably under relaxed EU investment rules.
Conditioning access to EU funds based on member states’ respect for the founding values of the European Union has never been more urgent - and has never been more achievable. Otherwise, the Union will continue to support a regime that has already demonstrated its commitment to abusing the unlimited emergency powers it arrogated. It took less than a week for the Orbán government to sidestep parliament and supress independent initiative by elected local representatives seeking to save lives in a pandemic. All it took was a few emergency decrees. This conjures up very bad memories indeed.
- Renata Uitz is chair of the Comparative Constitutional Law program at the Central European University (CEU).
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