Name of the act/s*

2020. évi XII. törvény a koronavírus elleni védekezésről / Act XII of 2020 on the containment of coronavirus

Subject area

state of danger, special legal order, extraordinary measures, delegation of legislative power

Brief description of the contents of the act

The act extended the application of emergency measures (adopted in the form of government decrees) put in place by the executive after the declaration of the state of danger (a form of special legal order) in the beginning of Mars.

The act authorized the government to regulate any legislative issue related to the outbreak of the pandemic and its consequences by decree without setting any date for expiry.

The act prepared the Constitutional Court for digital operation. Elections and referenda were suspended until the end of the state of danger. The statutory definition of the crime of spreading false information was amended and the violation of the rules of epidemiological confinement was criminalized.

Comment

On 11 Mars 2020, the Hungarian government declared a state of danger (government decree no. 40/2020. (III. 11.)). The government’s constitutional authorization to issue decrees without the approval of the parliament lasted only for two weeks, therefore the governing majority adopted the Act XII of 2020 on the containment of coronavirus (hereinafter: Enabling Act).

The Enabling Act gave practically unlimited authorization to the government to regulate any issue related to the pandemic (even if only indirectly). The parliament continued to operate, but very important legislative measures were regulated by the government instead of the legislature. The constitutionality of both the declaration of the state of danger and the Enabling Act was a matter of controversy because neither the Fundamental Law of Hungary nor the previous jurisprudence of the Hungarian Constitutional Court provided clear guidance. In sum, the government used to the authorization not only to contain the pandemic and mitigate its consequences, but also to put in place some very controversial legislative measures which would have required parliamentary approval.

The state of danger was terminated by the parliament and the delegation of legislative power was revoked on 18 of June 2020. However, the legislature adopted another parliamentary act on the very same day (Act LVIII of 2020 on the preparation for the pandemic and other transitional provisions related to the termination of the state of danger) making it much easier for the government to apply extraordinary legislative measures in case of a pandemic.

Secondary sources/ doctrinal works (if any)

1)     Declaration of the state of danger and the Enabling Act

Uitz, Renáta: Pandemic as Constitutional Moment: Hungarian Government Seeks Unlimited Powers, VerfBlog, 24 March 2020, https://verfassungsblog.de/pandemic-as-constitutional-moment/

Uitz, Renáta: Hungary’s Enabling Act: Prime Minister Orbán Makes the Most of the Pandemic, constitutionnet.org, 6 April 2020, http://constitutionnet.org/news/hungarys-enabling-act-prime-minister-orban-makes-most-pandemic

Kazai, Viktor Zoltán: La Nature Autoritaire du Régime d’Orbán Confirmée par sa Résponse a la Pandémie, JP blog, 6 May 2020, http://blog.juspoliticum.com/2020/05/06/la-nature-autoritaire-du-regime-dorban-confirmee-par-sa-reponse-a-la-pandemie-par-viktor-zoltan-kazai/

Bárd, Petra - Sergio Carrera: Showing true illiberal colours–Rule of law vs Orbán’s pandemic politics, CEPS Policy Insights No 2020-10/April 2020, http://aei.pitt.edu/102726/1/PI2020%2D10_PBSC_true%2Dilliberal%2Dcolours.pdf

Drinóczi, Tímea - Agnieszka Bień-Kacała : COVID-19 in Hungary and Poland: extraordinary situation and illiberal constitutionalism, The Theory and Practice of Legislation (2020), https://www.tandfonline.com/doi/full/10.1080/20508840.2020.1782109?src=recsys

Hungarian Helsinki Committee: Background note on Act XII of 2020 on the containment of the coronavirus, 31 March 2020, https://www.helsinki.hu/wp-content/uploads/HHC_background_note_Authorization_Act_31032020.pdf

2)     Restrictive measures put in place during the state of danger

Coronavirus pandemic in the EU –Fundamental Rights Implications (Hungary), European Union Agency for Fundamental Rights, 4 May 2020, https://fra.europa.eu/sites/default/files/fra_uploads/hu_report_on_coronavirus_pandemic-_may_2020.pdf

3)     Controversial legislative measures during the state of danger

Karsai, Dániel: The Curious and Alarming Story of the City of Göd: How the Hungarian Government misuses its power in their political fight against opposition-led municipalities, VerfBlog, 2020/5/15, https://verfassungsblog.de/the-curious-and-alarming-story-of-the-city-of-goed/

For the brief analysis in English of some controversial measures put in place by the Hungarian government during the state of danger see the Covid-19 news of the Hungarian Helsinki Committee: https://www.helsinki.hu/en/covid-19-news/

4)     Termination of the state of danger and related legislative provisions

Hungarian Helsinki Committee: Explanatory Note for the Bills Terminating the State of Danger and on Related Transitional Provisions, 12 June 2020, https://www.helsinki.hu/en/explanatory-note-for-the-bills-on-terminating-the-state-of-danger-and-on-related-transitional-provisions/

*Act citation /year and number

Act XII of 2020 on the containment of coronavirus

Enacted by

Hungarian National Assembly

Official link to the text of the act

The Hungarian version: http://njt.hu/cgi_bin/njt_doc.cgi?docid=218767.381191

The English translation:  http://njt.hu/translated/doc/J2020T0012P_20200401_FIN.pdf