The Hungarian government terminated the state of danger as of 1 November 2022, and then re-declared as of the same day, referring to the war in Ukraine. This was necessary because the constitutional rules on the special legal order, including the state of danger, have changed as of 1 November. According to expert opinion, the amendment to the Fundamental Law and to related laws served one purpose: to provide the Government with exclusive and effectively unlimited power in any exceptional situation.
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Gábor Mészáros, senior lecturer at the University of Pécs and a Fellow in Law, Ethics and Public Policy at Princeton University analysed in detail the amendments to the Fundamental Law and ordinary laws that affected the special legal order regulation and the consequences of these amendments in a study commissioned by the Hungarian Helsinki Committee. The study concludes that the amendments were intended to provide the Government with exclusive powers in emergency situations. Ostensibly, there are constitutional restraints also in the new system, but in practice, the Government has been provided with a special legal order mandate without any restrictions. There are no adequate guarantees in the regulation to ensure a return to the “ordinary” rule of law once the emergency situation has been dealt with.
The amendment has replaced the previous six special legal order regimes with three from 1 November 2022: the state of war, the state of emergency and the state of danger. The study describes in detail the problems emerging in relation to each of these special legal order regimes. The most important change is that all three new special legal order regimes concentrate power in the hands of the Government: in all three, the Government has become exclusively entitled to issue special legal order laws, i.e. it has the exclusive possibility to rule by decree. The rules continue not to provide for any form of effective constitutional review of the special legal order decrees, and the new statutory rules are too general and thus not capable of imposing any meaningful limit on the extraordinary powers of the Government. In addition, they do not prevent the proliferation of the different states of crisis: the rules of the state of migration emergency and of the state of medical crisis remain intact, which means that they can continue to be applied parallel to any of the three special legal orders regimes. On top of that, the new legal rules also introduce a new institution, the state of national defence crisis.
The full study can be accessed here in English:
Exceptional Governmental Measures without Constitutional Restraints
The Hungarian version of the study is available here:
Kivételes kormányzati hatalom, alkotmányos béklyók nélkül