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PUBLIC
JURIST
JUNE ISSUE 2020
TRIUMPH OF ORBÁN'S ILLIBERAL DEMOCRACY?
THE LAW AND POLITICS OF 2020 CORONAVIRUS ENABLING ACT OF HUNGARY
DR. ANTAL ATTILA
PROFESSOR ATTILA ÁGH
PROFESSOR TÍMEA DRINÓCZI
PROFESSOR UMUT KORKUT
PROFESSOR MATTHIJS BOGAARDS
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programme at The University of Hong Kong. It is a non-partisan interdisciplinary publication that
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in 1977 as the quarterly magazine of the Association.
EDITORIAL STATEMENT
The views expressed in the various articles represent those of
the authors and not the Government and Laws Committee,
The University of Hong Kong, the BSocSc (Govt&Laws) & LLB
Programme, the Department of Politics and Public Administration,
and the Faculty of Law at the University of Hong Kong
HONORARY EDITORIAL
ADVISORY BOARD
Professor Eliza W Y Lee
Director (PPA), BSocSc (Govt&Laws) & LLB Programme, HKU
Dr. Eric C Ip
Director (Law) BSocSc (Govt&Laws) & LLB Programme, HKU
Dr. Peter S C Chau
Deputy Director (Law), BSocSc (Govt&Laws) & LLB
Programme, HKU
Professor Richard Cullen
Visiting Professor, Faculty of Law, HKU
Dr. Nicole Scicluna
Honorary Lecturer, Department of Politics and Public
Administration, HKU
Dr. Krzysztof Sliwinski
Associate Professor, Department of Government and
International Studies, HKBU
Dr. Anna Dziedzic
Associate Director, Centre for Comparative and Public Law,
Global Academic Fellow, Faculty of Law, HKU
PROLOGUE I
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JURIST
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PROLOGUE II
The coronavirus pandemic is not only a public
health crisis. Its brutal effects on our lives
have also been manifested in numerous other
ways, including sabotaging world's economy,
devastating our social and mental health
and threatening the very survival of many
political institutions that we had claimed as
quintessential to modernity and far from
fragility. One of such institutions is democracy.
COVID-19 has prompted a lot of governments
around the world to enact emergency measures
that drastically expand executive power
and curtail freedoms in the name of disease
prevention, and Hong Kong is no exception.
Of course, emergency legislations themselves
are not novel to legal systems globally and are
of course not inherently detrimental to the
healthy functioning of democratic institutions.
What matters is whether adequate checks and
balances are similarly instituted to pre-empt
the improper and disproportionate deployment
of emergency measures that may create
irreversible harm. This very much depends on the
existing democratic institutions, whether they
are healthy enough to withstand such affronts.
Against this background, it should not come as
a surprise to many that threads of news reports
lamenting that further democratic backsliding
started to appear since February as leaders of
countries which already possess a track record
of de-democratisation have capitalized on this
opportunity to further weaken democracies.
One most prominent example is Hungary.
Prime Minister Viktor Orbán, with the help of
Parliament which his Fidesz party occupies a
supermajority of seats, passed an Enabling Act
in late March which indefinitely suspended
Parliament and allowed him to rule by decree
until the law is revoked. The sweeping powers
conferred, as critics noted, push Hungary
further to the category of autocracy. Although
the government has announced its intention
to withdraw the Act in late May, longlasting
consequences are nonetheless anticipated as
substitution bills are also put in place.
Against this backdrop, contributors in this issue,
many of them coming from Hungary themselves,
discuss the causes, characteristics and impacts
of the emergency legislation in Hungary and
beyond. They include Dr. Antal Attila, Professor
Attila Ágh, Professor Tímea Drinóczi, Professor
Umut Korkut and Professor Matthijs Bogaards.
The Government and Laws Committee thanks all
our authors and wishes an enjoyable read for all
our readers.
PREFACE
from the EDITORIAL BOARD
EDITORIAL BOARD
Editors-in-Chief
Mr. Trevor T W Wan, BSocSc (Govt&Laws) & LLB III Ms. Grace Y C Mak, BSocSc (Govt&Laws) & LLB III
Ms. Amy W Y Wan, BSocSc (Govt&Laws) & LLB II
Associate Editors
Ms. Candice L Y Chen, BSocSc (Govt&Laws) & LLB II Mr. Anfield C H Tam, BSocSc (Govt&Laws) & LLB I
Mr. Frederick H H Leung, BSocSc (Govt&Laws) & LLB II Mr. Bosco P Y Chan, BSocSc (Govt&Laws) & LLB I
Mr. Isaac C N Ng, BSocSc (Govt&Laws) & LLB II Mr. Jasper S C Jung, BSocSc (Govt&Laws) & LLB I
Ms. Nydia K Y Yeung, BSocSc (Govt&Laws) & LLB III Ms. Scarlet Y C Wong, BSocSc (Govt&Laws) & LLB I
Ms. Vivian L S Wong, BSocSc (Govt&Laws) & LLB I Ms. Natalie Y Y Suen, BSocSc (Govt&Laws) & LLB I
PROLOGUE III
SUBMISSIONS OF ARTICLES
Public Jurist welcomes articles typically of 500 – 2,500 words long, preferably using
the APA reference style and typed in Microsoft Word format. Undergraduate and
postgraduate students, as well as scholars from all disciplines are welcomed to
submit articles for consideration. Should you have any enquiries, please contact
the Public Jurist Editorial Board at glchku6810@gmail.com
5
11
19
CONTENTS
AN INTERVIEW WITH DR. ANTAL ATTILA
Senior Lecturer
Institute of Political Science, Faculty of Law, Eötvös
Loránd University
THE NEW EU MEMBER STATES IN THE
MIDST OF THE CORONAVIRUS CRISIS
THE AUTOCRATIC ORBÁN REGIME
IN HUNGARY AS THE WORST CASE
SCENARIO
Professor Attila Ágh
Professor, Institute of Political Science, Corvinus
University of Budapest
HUNGARIAN DEMOCRATIC BACKSLIDING
IN LIGHT OF THE RECENT EMERGENCY
CORONAVIRUS LEGISLATION
Professor Tímea Drinóczi
Professor, Faculty of Law, University of Pécs
PROLOGUE IV
HUNGARY CORONAVIRUS EMERGENCY
LEGISLATION 2020
Professor Umut Korkut
Professor in International Politics, Glasgow Caledonian
University
DE-DEMOCRATIZATION IN
HUNGARY: EMERGENCY RULE AND
AUTHORITARIANISM
Professor Matthijs Bogaards
Visiting Professor, Department of Political Science,
Central European University
REVIEW
ACKNOWLEDGEMENTS
5
11
19
25
31
37
38
INTERVIEW 5
DR. ANTAL ATTILA
SENIOR LECTURER
INSTITUTE OF POLITICAL SCIENCE, FACULTY OF LAW,
EÖTVÖS LORÁND UNIVERSITY
AN INTERVIEW WITH
Antal Attila is a senior lecturer at
Eötvös Loránd University, Budapest
and a public policy expert at Corvinus
University of Budapest. He holds a PhD
in political science and his dissertation
concerns Hungarian environmental
and energy democracy. In 2013 he was
named a Climate KIC scholar.
Antal Attila has been teaching Political
Thought since 2010 at Eötvös Loránd
University Faculty of Law Institute
of Political Science. His main courses
are: Political Science, Energy and
Environmental Policy and Hungarian
Politics. Between 2010 and 2016 he was
a legal adviser at a leading Hungarian
NGO (Energy Club Public Policy
Institute) concerning environmental
and energy policy. From 2016 he was
named coordinator of Workshop for
Social Theory at Institute of Political
History.
His research fields are political thought,
ideology, populism, environmental
and energy law/policy, environmental
democracy, social/environmental/
climate justice, constitutions and
constitution-making, political and legal
constitutionalism.
In an interview with Radio Television Hong Kong
earlier this January, Hungarian Foreign Minister
Péter Szijjártó defended the various measures tak-
en by Prime Minister Viktor Orbán that are widely
perceived to be authoritarian as reflecting the
“will of the Hungarian people” (RTHK, 2020). He
cited the 2/3 parliamentary majority of the Fidesz
as well as it attaining 53% of the vote in the last Eu-
ropean Parliament elections within the EPP bloc.
Do you think his claim is true at all, and whether
the “will of the people” can justify Viktor Orbán’s
authoritarian tendencies?
I do not think so. This is a classical and direct mis-
understanding and misrepresentation of political
majority, representative democracy. Let’s start
with the main problem of liberal democracy, this
political regime underestimates the “voice of the
people” and overrates the constitutional institu-
tions. The authoritarian populism (AP), as I propose
in my last book (The Rise of Hungarian Populism:
State Autocracy and the Orbán Regime, Emerald
Publishing, 2019) that the Orbán regime can be
characterized with AP, is about the rehabilitation
of the people and several scholars argue that these
kinds of regime are not considered much the con-
stitutional framework. I am arguing that the situa-
tion is much more complicated and the AP regimes,
on the one hand, are constantly manipulating with
the representation of the people’s will (that is hap-
pening in Hungary and that is why Orbán defines
himself as the custodian of the will of the people);
on the other hand, the constitutional rules are
crucial for AP. The Orbán regime’s Fundamental
Law, came into force in 2012, has been modified
several times because of political reasons referring
INTERVIEW 6
Minister of Foreign Affairs and Trade of Hungary Péter Szijjártó appearing on RTHK current affairs
programme "The Pulse" in early 2020 (Source: RTHK)
the interest of the people. In fact, according
to AP regimes the will of the people is far not
constitutionally dened, but the political leader
maintains it according to daily political interests
and this politically prescribed agenda is to be
constitutionalized (in this line the Orbán regime
enacted into the Constitution the criminalization
of homelessness, the definition of marriage as
relationship of a man and woman).
There is wide academic consensus that the EU
has become what Professor Petra Bárd from
the Central European University described as
a “paper tiger” in face of Orbán’s tactics (The
Atlantic, 2020). Commission President Ursula
Von Der Leyen failed to even mention Hungary
in her statement of concern regarding the use
of emergency powers in fighting the corona-
virus pandemic. Are there any tools left of the
EU, other than invoking Article 7 TEU “nuclear
option” which is almost certain to be blocked
by countries like Poland, that can function as an
eective deterrent to Viktor Orbán?
I am convinced that there are two fundamental
reasons why the EU can hardly take an action
against the authoritarian threats raised by the
Orbán regime. First, it is to say that the EU is in
deep political and moral crisis, not just because
of the COVID-19 crisis, but the pandemic situa-
tion deepened the overlapping crises. The EU
was not able to give a coherent answer to the
refugee and moral crisis, the main cause behind
here is the hypocritical attitude. On the one
hand, the Orbán’s European fortress position,
which says Europe must be locked down and
protected from the refugees, was criticized on
the surface, on the other hand, this narrative
has been accepted by the main European states
and the EU as well (take a look at the EU-Turkey
deal in conjunction with the refugees camps
maintained and used as a blackmail by the Er-
doğan’s regime). The second thing is the neo-
liberal nature of EU as an economic community.
There are several critiques, one of the most
INTERVIEW 7
There is an embedded neo-
liberal structure inside of
the Orbán regimes and the
state favors the internation-
al business interest and the
regime was able to crate a
national bourgeoise class
which cooperates with the
international players.
significant elaborated by Wolfgang Streeck, on
the neoliberal structure of the Eurozone and the
EU itself. In this sense, due to the lack of politi-
cal sovereign the EU is highly dominated by the
most powerful member states’, especially Ger-
many, and neoliberal interest. That is why the
capitalism can be operated in an authoritarian
way on the (semi)periphery of the EU. Orbán
recognized this peerless political instinct and he
was able to create an emerging authoritarian
populist regime based on multinational compa-
nies’ nancial interest. During the last ten years
the German automobile companies got unprec-
edent state aids and a new Labor Code has been
accepted which represents the employer inter-
est. Due to these factors, whilst the European
institutions criticized
heavily the Orbán regime,
we could never expect
meaningful results from
it. Moreover, the nature
of the challenge raised by
the Orbán regime is polit-
ical, at the same time the
EU was about to give a
legal answer to this.
Viktor Orbán’s version
of illiberal democracy is
said to have served as
a good model for other
aspiring authoritari-
ans in the region, such as the Czech Republic.
How likely is Hungary’s authoritarian turn go-
ing to spillover to its neighbouring countries
in Central and Eastern Europe, especially the
post-communist states, not to mention Poland?
There is a worldwide revolt against liberal de-
mocracy, on the one hand, the authoritarian
populists recognized that the capitalist structure
do not need to be based on liberal democracy,
on the other hand, left populism has always re-
garded it as a system serving capital interests.
As I proposed here, Orbán is one of those who
recognized that the fail of liberal democracy
opens space for market-based autocracy in the
(semi)periphery. It is to say that not the Orbán
regime is “prototype model” for hybrid regime
or autocracy, but there is a “authoritarian mo-
ment” of our time and several political leaders
are able to catch this moment. Nevertheless,
the Eastern European counties seem to be much
more vulnerable in the light of these authori-
tarian tendencies. This is far not because of the
“authoritarian personality” (after Theodor W.
Adorn and his colleagues) of the voters, but the
failed regime changes which put a huge burden
on these societies and these countries are highly
subordinated to the exploitative system of capi-
talism.
You are an expert in
populism, in particular
the deployment of Euro-
sceptic and anti-migrant
sentiments by Viktor
Orbán’s government. Do
you think his playbook
has been successful over
the past few years, and
why?
Yes, this is a tremendous
success. Of course, there
is a massive political sup-
port behind the regime,
but the price such a poli-
tics based on hate politics
is being paid by an entire society. The Hungarian
society is full of anger, hopelessness and Orbán
is playing with these feelings and seeks to inu-
ence on nationalist sentiments embedded into
historical grievances. Meantime, the Hungarian
public health system and the universities is suf-
fering from the regime neoliberal agenda, pri-
vatization, austerity. This is remarkable that the
Hungarian remained silent despite deteriorating
public services. It is to say that COVID-19 crisis
showed, the regime can only be maintained by
an open autocratic turn.
INTERVIEW 8
You wrote that under Viktor Orbán’s there is a
new form of “post-modern nationalism which
is based on discursive ght for sovereignty, but
at the same time sacrifice it in the context of
neoliberal capitalism”. Can you explain this a
little bit?
As I proposed earlier, it is a misunderstanding
that the Orbán regime is fighting for national
sovereignty. Orbán faced that national sover-
eignty in the globalized capitalism is an imago,
at the same time he crated such a regime which
discursively (fighting against international cap-
ital, migrant and refugees, everyone who can
endanger our way of life) distributes to the peo-
ple the pretense of sovereignty. It seems to be
quite eective, but most importantly it does not
endanger the capitalist interest. There is an em-
bedded neoliberal structure inside of the Orbán
regimes and the state favors the international
business interest and the regime was able to
crate a national bourgeoise class which cooper-
ates with the international players.
In a podcast with UCL, Dr. Sean Hanley argued
that authoritarians like Viktor Orbán is harness-
ing public health and economic crisis like the
coronavirus pandemic to institute a form of
technocratic populism. In gist, the government
attempts to justify the use of authoritarian tac-
tics by appealing to technocratic governance,
public good and managerial competencies ex-
hibited by illiberal governments rather than
the nationalist appeal. Do you agree the coro-
navirus outbreak is engendering an alternative
form of autocratisation based on the claim to
technocratic expertise on top of nationalist ap-
peals, or is it part of the authoritarian playbook
all along?
The Orbán regime has found a way to capi-
talize on the pandemic situation. Contrary to
the assessment of other commentators, the
coronavirus did not bring about or even nalize
the authoritarian turn. Rather the conditions
of authoritarian rule pre-existed the crisis and
were certain to define how the government
would respond to the crisis. There is no ques-
Prime Minister Viktor Orbán shook hands with European Union Commission President Ursula von
der Leyen before the outbreak of the coronavirus pandemic (Source: European Commission)
INTERVIEW 9
For readers who are interested in learning more about Dr. Antal Attila's research
output, they are encouraged to visit http://www.antalattila.hu/
tion that by enacting the Enabling Law (Act XII
of 2020, came into force 31 March 2020), which
grants absolute power to the Prime Minister,
the Orbán regime has irretrievably become an
authoritarian political system. Orbán has found
a way to advance political aspirations that do
not serve to tackle the pandemic, but to build a
post-pandemic Hungary in his image. The regime
has already started to implement its political
agenda under the cover of epidemiological mea-
sures: stripping powers from mayors (which was
eventually withdrawn);
forcing the continuation
of a contested construc-
tion investment project
in Budapest; escalating
the cultural war through
tightened control of
the theatres; classifying
public data and making it
difficult to enforce free-
dom of information; con-
tinuing to systematically
clamp down on academic
freedoms at state uni-
versities; nancially plun-
dering the opposition parties and municipalities;
and denying state recognition of gender transi-
tion, to name but a few examples. That is to say,
Orbán is trying to manage the coronavirus crisis
politically, because his aim is to consolidate pow-
er, deepen neoliberal reforms and ensure that
the state of exception remains in the post-pan-
demic world.
The crackdown on the free and independent
media, often labeled as “Soros’ propagandists”,
as well as wide discretion granted to the pros-
ecutorial office in going away the opposition
had undoubtedly led to a chilling eect on the
Hungarian civil society. An opinion poll conduct-
ed in March however revealed the majority of
Hungarian citizens are in favour of more draco-
nian measures in combating the coronavirus,
even if it comes at the cost of democratic safe-
guards (Visegard Insight, 2020). How would you
evaluate the role of the Hungarian citizenry and
civil society in face of increasingly authoritarian
turn of Viktor Orbán?
Before the COVID-19
crisis the Hungarian civil
society was attacked and
suppressed for ages and
the pandemic situation
put this even more com-
plicated. The Enabling
Act put literally Hungari-
an society into a political
quarantine. The situation
is extremely paradox,
because social uprisings
on the streets will weak-
en efforts to control the
pandemic, but without
a strong protest movement the permanent En-
abling Law will define the post-pandemic situa-
tion. This is the greatest danger of the current
moment: through the Enabling Act Orbán will
be able to maintain a state of emergency even
when it is no longer required. The politics of aus-
terity in the eld of state health system and the
universities has already started, the Hungarian
workers got remarkable few helps from the gov-
ernment in this unprecedent circumstance. The
social resistance can only be prevented with a
more open system of authoritarian tools. It will
dene the future of the regime how the Hungar-
ian people will react in this situation.
This is the greatest danger
of the current moment:
through the Enabling Act
Orbán will be able to main-
tain a state of emergency
even when it is no longer
required.
ATTILA ÁGH 11
PROFESSOR ATTILA ÁGH
Professor, Institute of Political Science, Corvinus University of Budapest
The triple crisis in the new EU member states
The outbreak of coronavirus crisis
has brutally discovered the deep
contradictions of the Old World Order
and the new situation with the emerging
New World System has made necessary new
and again the reconceptualization of the world
system. In the spring of 2020 there has been
a conceptual turn in social sciences with the
whirling of the new issues and terms that has
indicated a revolutionary change in the mindset
of the populations. After the decades of the
hyper globalization the triple crisis has erupted
consisting of (1) the socio-economic crisis of the
global production system with the reinforced
inequalities that has become counterproductive
in both economic and social respects; (2) the
ecological crisis by the over-loading and fatally
damaging the human environment; (3) joined
Attila Ágh is Professor at Corvinus
University of Budapest Institute of
Political Science. His major research
interest is comparative politics as
Europeanization and “linkage politics”,
i.e. the relationship between the
external and domestic factors in the
Hungarian and East-Central European
developments.
THE NEW EU MEMBER STATES IN THE MIDST OF
THE CORONAVIRUS CRISIS
THE AUTOCRATIC ORBÁN REGIME IN HUNGARY
AS THE WORST CASE SCENARIO
ATTILA ÁGH 12
finally by the recent coronavirus crisis with
its roots also in the social and personal over-
connectedness by the excessive globalization.
All the three crises have developed their own
sub-system with its internal logic of workings,
and at the same time they have been closely
interwoven forming an interdependent system
that has reached the stage of the common and
cumulated systemic crisis.1
Altogether, due to the increasing negative
effects of the excessive globalization, the
coronavirus crisis (COVID-19) has drastically
displayed the overload of the global socio-
economic and ecological systems in the
present form of the
global capitalism. This
excessive globalization
has been an over-driven
process throughout the
world, across the global
chains of production
and service, trade and
transport, including the
tourist industry. These
long chains and networks
damaged the ecological
system “outside” and
the social system due
to the human over-
connectedness “inside”.
This unprecedented
triple or cumulated
crisis has manifested
the inherent structural
tensions of galloping
globalization, and its
inner contradictions
have proved to be the
imminent danger for
the future of mankind. The triple crisis has
revealed not only the vulnerability of the poor
and fragile states and/or populations around the
world, but also that of the developed countries
after decades of deindustrialization and over-
reliance on the global networks of production
1 This paper is a short summary of my current long
analysis entitled as “The triple crisis in the emerging New
World System: The autocratization of the NMS in the EU”,
written recently in the midst of the coronavirus crisis.
and services, trade and transport, in the spirit
of the high profit-seeking and the fetish of
consumerism.2
The deepening Core-Periphery Divide has also
been an obstacle to the EU crisis management
in the present triple crisis, since the crisis has
sharpened the dependency relationships
between the West and East within the EU.
The derailed European integration of the new
member states has transformed the East
into the global semi-periphery of the Core
as the cheap labour extension of Western
economies and societies as I have described
in my recent book (Ágh, 2019). Therefore, the
Core-Periphery tensions
cannot be removed
without reforming its
internal relationships
within the EU, by
stopping the excessive
neoliberal marketization
in NMS. This reform
has to include also the
recognition of regional
specificities, given the
historical delay of NMS
to elaborate a special
road of EU integration
without giving up the
basic requirements of
the mainstream EU
development.
Due to their lopsided
modernization, the
NMS have much more
vulnerability in the
coronavirus crisis, since
these weak countries
are more open to the global changes and their
transitory social structure are more fragile due to
their half-way EU integration with the precarious
position of the large mass of the new losers in
the economy paralysed coronavirus crisis. The
2 The new generation of scholarly literature has
condemned the excessive neoliberal globalization and it
has shown as the main reason of the triple crisis (see e.g.
Rodrik, 2020).
Due to their lopsided mod-
ernization, the NMS have
much more vulnerability
in the coronavirus crisis,
since these weak countries
are more open to the glob-
al changes and their tran-
sitory social structure are
more fragile due to their
half-way EU integration
with the precarious posi-
tion of the large mass of
the new losers in the econ-
omy paralysed coronavirus
crisis.
ATTILA ÁGH 13
triple crisis has taken place in an extreme form
in the weaker in EU member states, where the
neoliberal type of the EU integration has led to
the social disintegration and political decline as
the “death” of democracy. The divergence of
the NMS regional development from the main
line of EU’s progress has rather characteristically
cumulated in the negative features of these
global processes mentioned above because
both the socio-economic structure and the
public health system has been in these countries
much more vulnerable than in the developed EU
member states. The disempowerment of NMS
in the EU and the social recession of new losers
in the NMS countries is still an ongoing process.
After the outbreak of the triple crisis this special
aberration of the socio-political development
has become more evident in the international
scholarship and media. It has been regularly
mentioned that Hungary is “the poster boy” of
the authoritarian system in Europe: “To see how
a modern democracy can die, look at events
in Europe, especially Hungary, over the past
decade.” (Krugman, 2020).3
The new type of autocracy of the Orbán regime
in Hungary
The major trend of the critical analysis on the
new member states has recently focused on the
backsliding of democracies. The NMS are the
losers in the triple crisis in the socio-economic
aspect, moreover as a “self-inflicted wound”,
their political elites have been using the crisis for
the political power games: “some governments,
such as in Hungary, where the state of
emergency could be extended indefinitely, are
taking advantage of this to strengthen their
power and reduce political freedoms.” (Maurice
et al. 2020: 5). No wonder that after the
outbreak after the coronavirus crisis there has
also been an eruption of the critical literature
on Hungary as the worst case scenario in the
triple crisis with the worst decline of democracy
3 The latest Nations in Transit Report has noticed the
general decline of democracy in NMS and Hungary has
received the worst score in this region (Freedom House,
2020: 25).
or the “autocratization” process, using with
the term of the V-Dem Institute. The Orbán
regime has become ill-famed as a “Potemkin
democracy” that looks like a democracy from
outside and from a distance, but its seemingly
democratic institutions are just a paravan of the
autocratic political system. Therefore, Hungary
has most often been discussed in the fields of
politics and rule of law, although the deepening
social recession in Hungary has also come to
the surface during the present triple crisis in the
education, health and innovation, or in general
in the public service, the civic security and media
freedom.4
The Hungarian case therefore has been very
much exposed in the international literature
about the coronavirus crisis, at the same time
it has to be emphasized that the introduction
of the state of emergency has been a global
process. Accordingly, the V-Dem Institute has
described the Pandemic Democratic Backsliding
at the global level by constructing the Pandemic
Backsliding Risk Index with four types: Green
Law Risk, Orange Medium Risk, Red High Risk
and Black Closed Autocracy. The V-Dem Institute
has also established democratic standards for
emergency situations and outlined the new rules
for the democratic process during the pandemic.
The theoretical foundation of this ranking has
been given in the paper of Lührmann and Rooney
(2020) in the paper entitled as Autocratization
by Decree: States of Emergency and Democratic
Decline. Basically, they have argued that some
political leaders have recently abused the
emergency situation by introducing excessive
measures and keeping these provisions in
place after the situation improves. As the most
characteristic case, the Institute’s rankings
paper (Lührmann et al. 2020) has mentioned
on the front page that on 30 March 2020 the
Hungarian parliament ceded extensive powers
to its Prime Minister, Viktor Orbán, enabling his
indefinite rule by decree in the Enabling Act.
4 From the avalanche of the recent papers, essays and
blogs on the socio-economic developments see Scheiring
(2020), on the cultural life Kováts and Smejkalova (2020)
as well as Kováts and Zacharenko (2020) and on the media
freedom the recently issued report in CoE, 2020: 41-42).
ATTILA ÁGH 14
The story of the ill-famed Enabling Act
For the general presentation of the NMS case
it deserves to deal with the Enabling Act for
two reasons that will be presented below in
very short summaries. First, although this Act
concerns directly Hungary, but it indicates
also the general tendency in NMS and beyond.
Second, this rampant violation of rule of law
has wider implications in the entire society,
including the media freedom and cultural life. It
has been explored for instance in the analyses
of Bárd and Carrera (2020), Hegedűs (2020a,b),
Kovács (2020) and Scheppele (2020), described
as follows on in great outlines.
Kim Scheppele is an eminent expert of the rule
of law violations in the new member states
who has discussed their entire legal historical
trajectory since the 2010s. In the recent analysis
of “Orbán’s Emergency” she has focused on
the latest developments of the rule of law
violations through their condensed legal form
in the Enabling Act. This Act “would give him
dictatorial powers under cover of declaring
state of emergency to fight the coronavirus
…The law hands to Orbán the fully-fledged
dictatorial powers he would need in order
to cling to office.” Notably, “The Hungarian
Fundamental Law once built reasonable checks
into its emergency powers, but those checks
would be circumvented by this emergency law.”
This analysis put the emphasis on the contrast
between the current emergency legislation
in the democratic countries and its Hungarian
“dictatorial” case: “In short, Orbán’s emergency
gives him everything he ever dreamed of:
The absolute freedom to do what he wants.
… Governments all over the world are using
emergency powers to deal with the very real
threats posed by the COVID-19.” This contrast
leads already to the wider implications of the
coronavirus crisis. Scheppele has pointed out
that the tough situation in Hungary is “the
product of Orbán regime in the last decade:
Hungary is more vulnerable than most countries
in the developed world because its health
system was in a state of near collapse even
before the virus appeared on its doorstep.”
(Scheppele, 2020:1-2)
The analysis of Bárd and Carrera goes along this
line opening up for the wider legal and political
implications of the Enabling Act for the society
as a whole in the Orbán’s “pandemic politics”,
since “Even if a policy measure has been found
to be ‘effective’ in responding to a public health
need, the wider ramifications must also be
considered for it to be deemed ‘legitimate in a
democratic society’, chiefly on its impacts on
the rule of law and human rights.” As they have
pointed out, in general and also in the particular
Hungarian case: “Pandemic does not create
autocracies. … The pandemic has just made the
shift towards authoritarianism more visible.”
(Bárd and Carrera, 2020: 2-3). The authors have
concluded about the “rogue government” in
Hungary that “The novelty of the ‘Enabling Act’
is that through it, the Hungarian government has
abandoned even the semblance of democracy.”
Finally, Bárd and Carrera have suggested that
the EU has to end “the absurd situation of
supporting autocracies in violation of EU values
out of EU funds.” (Bárd and Carrera, 2020: 6,9).
Along the same line, Kovács (2020: 2-3) has
described this “lockdown of democracy” in
Hungary, in which the checks and balances
have been decreased further because the
midterm elections and referenda have also
been cancelled. Moreover, new rules have
been introduced to curb the remaining free
press by criminalising the publication of “false
facts” about the crisis management for the
“successful protection” of the public. She has
drawn attention to the fact that “Under Orbán,
Hungary has become a deeply militarised
country” and the “war rhetoric” has gone
through the history of the Orbán regime. It
has reached its peak in the management of
the coronavirus crisis, since “The Coronavirus
Operational Group consists of more military than
healthcare professionals.” Accordingly, “The
strong man image Orbán” is trying to convey
the message that the government has been able
“to comfort people and integrate society. On
ATTILA ÁGH 15
the contrary, all of his political steps have had
the effect of paralysing public services, turning
people against each other and weakening the
cohesiveness of society.”
Finally, the “reports” of Hegedűs on the
recent crisis have underlined that the “state of
danger” situation in Hungary has belonged to
the very nature of the Orbán regime because
the Enabling Act is only the peak of the state
of emergence legislation since 2015 when it
was first introduced with the reference to the
migration crisis and it has been prolonged by the
two-third majority of Fidesz. By now, according
to Hegedűs (2020a: 3) “Hungary has reached
a point where the democratic appearance of
the regime has evaporated.” This is indeed a
new “state of danger” also for the EU, since
there are similar developments present in the
NMS region as well. The EU has to counter “the
autocratization trends” in NMS, since “The
deterioration in democracy and rule of law in
Central and Eastern Europe has been alarming
for some time and coronavirus pandemic can
make it much worse.” (Hegedűs, 2020b: 3).
The NMS “recovery” from the coronavirus crisis
On the Europe Day, 9 May 2020 with the official
celebrations and declarations the Conference
on the Future of Europe symbolically began.
Anyway, the ongoing EU crisis management of
the coronavirus crisis started in the May 2020
as a gradual process of “recovery” in Europe.
This situation has reached a turning point by
shifting the focus from the health care issues
to the relaunching of the economy, despite the
obvious conflicts between the two fields by the
threat of the second wave of crisis due to the
too early start in the economy as well as by the
neglect of “social distancing” in the personal
contacts.
Paradoxically, the new member states
have suffered less from the direct health
consequences of this crisis than most of the
older member states, but the socio-economic
consequences might have been more severe
for them, although the accounts have not yet
completed, the final data will be delivered
in September 2020 (Eurofound, 2020). For
the social inequalities in Europe in general –
Summit of the leaders of the Visegrad Group consisting of NMS (Czech Republic, Poland, Hungary
and Slovakia) (Source: Hungary Today)
ATTILA ÁGH 16
including the health inequalities – the case of
the migrant or cross border workers has been
the most shocking story during the coronavirus
crisis. The migrant workers from NMS have been
counting millions in the West and they have
been employed not only in the industrial and
agricultural production, but mainly in services,
first of all in the health care service. Thus, the
coronavirus crisis with the closed borders has
caused a “care crisis” in the West, the health
care system in the developed countries has
cope with the coronavirus crisis, but the skilled
manpower has been missing on other fields of
health care, first of all for the care of elderly
people. Strangely enough, the rich Western
countries in their crisis management has made
an exception with the large group of the Eastern
care workers – and also with the seasonal
workers in agriculture -, since in the midst of the
coronavirus crisis, at the time of closed borders,
they have been carried by planes and trains to
the countries concerned. This absurd situation
indicates the health inequality between the old
and new member states from a different angle.
This action demonstrates a serious capacity or
resource transfer of ten thousands of the skilled
manpower, doctors and nurses from East to
West, which can shed light on the process how
and why the NMS have become “health desert”
to a great extent.
The coronavirus crisis management has also
produced new disadvantages in the economic
competitiveness for the NMS. The richer
countries, first of all Germany, in order to
relaunch their economies have given much more
state support for their firms than the poorer less
developed countries that has increased the built-
in advantages of their enterprises. In such a way,
the gap of the international competitiveness
between the old and new member states will
increase that may create new socio-economic
problems and internal tension in the EU. All in
all, however, despite the old and new tensions
between East and West under the tremendous
pressure of the triple crisis the EU can use this
opportunity for the European Renewal, since
this crisis situation has reached a turning point.
The Report of the European Policy Institutes
Network (EPIN) has stated: “It is a ‘moment of
truth’ that will define whether the EU was just
a single market or a political project where the
human factor is prioritised over economics. …
the EU should now take the lead in coordinating
the exit strategies across Europe. Public support
for greater EU competences in dealing with
this public health emergency should encourage
member state governments to put more energy
into finding ways of sharing both the benefits
and the burdens of EU membership.” (Russack,
2020: 2-3). Thus, there is a chance that the EU
member states will transform themselves under
the pressure of the triple crisis into the “social-
ecological states” and accordingly the EU will
initiate a new type of green globalization.
Postscript
Hungary has recently been in a process of the
hectic authoritarian legislation, the Enabling Act
was just one of them. The Orbán government
has decided to give it up in the present form
under the pressure of the international protest,
but its content has returned in several new Acts.
References
Applebaum, Anne (2020) Creeping
Authoritarianism Has Finally Prevailed: In
Hungary, the pandemic was just an excuse,
The Atlantic, 3 April 2020, https://www.
theatlantic.com/ideas/archive/2020/04/hungary-
coronavirus-just-excuse/609331/
Ágh, Attila (2019) Declining Democracy in East-
Central Europe: The Divide in the EU and Emerging
Hard Populism, Cheltenham: Edward Elgar, p.
320
Bárd, Petra and Sergio Carrera (2020) Showing
true illiberal colours – Rule of law vs Orbán’s
pandemic politics, CEPS, https://www.ceps.
eu/download/publication/?id=27224&pdf=
ATTILA ÁGH 17
PI2020-10_PBSC_true-illiberal-colours.pdf
CoE, Council of Europe (2020) Annual report on
the media freedom, https://rm.coe.int/annual-
report-en-final-23-april-2020/16809e39dd
Eurofound (2020) Living, working and COVID.19:
First findings – April 2020, https://www.
eurofound.europa.eu/sites/default/files/ef_
publication/field_ef_document/ef20058en.pdf
Freedom House (2020) Nations in Transit 2020,
https://freedomhouse.org/report/nations-
transit/2020/dropping-democratic-facade
Hegedűs, Daniel (2020a) Orbán uses coronavirus
to put Hungary’s democracy in a state of danger,
The German Marshall Fund, 26 March 2020, http://
www.gmfus.org/blog/2020/03/26/orban-uses-
coronavirus-put-hungarys-democracy-state-
danger
Hegedűs, Daniel (2020b) The EU and United
States must refocus on Central and Eastern
Europe after the coronavirus democracy threats,
Transatlantic Take, http://www.gmfus.org/sites/
default/files/The20EUandUnited20StatesMustR
efocusonCentralandEasternEurope
Kovács, Kriszta (2020) Hungary’s Orbanistan:
A Complete Arsenal of Emergency Powers,
VerfBlog, 2020/4/06, https://verfassungsblog.
de/hungarys-orbanistan-a-complete-arsenal-of-
emergency-powers
Kováts, Eszter and Katerina Smejkalova (2020)
East-Central Europe’s revolt against imitation,
IPS, https://www.ips-journal.eu/regions/europe/
article/show/east-central-europes-revolt-against-
imitation-4205/
Kováts, Eszter and Elena Zacharenko (2020)
How Fidesz and PiS exploit the cultural
war, IPS, https://www.ips-journal.eu/topics/
european-union/article/show/how-fidesz-
and-pis-exploit-the-culture-war-4312/?utm_
campaign=en_779_20200501&utm_
medium=email&utm_source=newsletter
Krugman, Paul (2020) American Democracy
May Be Dying, New York Times, 9 April 2020,
https://www.nytimes.com/2020/04/09/opinion/
wisconsin-primary-democracy.html
Lührmann, Anna et al. (2020) Pandemic
Backsliding: Does Covid-19 Put Democracy at
Risk?, V-Dem Institute, https://www.v-dem.net/
media/filer_public/52/eb/52eb913a-b1ad-4e55-
9b4b-3710ff70d1bf/pb_23.pdf
Lührmann, Anna and Bryan Rooney (2020)
Autocratization by Decree: States of
Emergency and Democratic Decline, V-Dem
Institute, https://www.v-dem.net/media/
filer_public/31/1d/311d5d45-8747-45a4-b46f-
37aa7ad8a7e8/wp_85.pdf
Maurice, Eric, Ramona Bloj, Stefanie Buzmaniuk,
Cécile Antonioni and Catherine d’Angelo (2020)
Covid-19: European Responses, a complete
picture, Foundation Robert Schuman, https://
www.robert-schuman.eu/en/doc/actualites/
covid19-26032020-en.pdf
Rodrik, Dani (2020) Globalisation after Covid-19:
my plan for a rewired planet, Prospect, 4 May
2020, https://www.prospectmagazine.co.uk/
magazine/dani-rodrik-globalisation-trade-
coronavirus-who-imf-world-bank
Russack, Sophia (ed.) (2020) EU crisis response
in tackling Covid-19: Views from the member
states, European Policy Institutes Network (EPIN),
https://epin.org/wp-content/uploads/2020/04/
EU-crisis-response-in-tackling-Covid-19.-
Views-from-the-Member-States-5.pdf?mc_
cid=76d87a666b&mc_eid=ba1d4fbb60
Scheiring, Gabor (2020) Health, inequality and
democracy in the light of the Corona crisis,
The Progressive Post, 23 April 2020, https://
progressivepost.eu/spotlights/health-inequality-
and-democracy-in-the-light-of-the-corona-crisis
Scheppele, Kim (2020) Orbán’s Emergency,
Hungarian Spectrum, 21 March 2020, https://
hungarianspectrum.org/2020/03/21/kim-lane-
scheppele-orbans-emergency/
TÍMEA DRINÓCZI 19
PROFESSOR TÍMEA DRINÓCZI
Professor, Faculty of Law, University of Pécs
Tímea Drinóczi is Professor at the
Faculty of Law of the University of
Pécs (ORCID nr. 0000-0002-7657-
3572, drinoczi.timea@ajk.pte.hu). Her
research interest covers Comparative
Constitutional Law, European
Constitutional Law, Constitutional
Theory, Comparative Legisprudence.
She co-edited Rule of Law, Common
Values, and Illiberal Constitutionalism:
Poland and Hungary within the European
Union (2021, Routledge).
At the beginning of June 2020, it is still
dicult to assess what exactly is going
on in Hungary in terms of democratic
backsliding. It is even truer when the
constitutional emergency declared in 11 March
2020 is planned to be terminated in mid-June
and a newly created statute-based emergency,
which leaves less power at the Government, is
to be introduced until the end of the year. There
are mainly three positions. The rst is that of the
Government, which argues that all the emergen-
cy governmental measures have been necessary
and constitutional. Critics say that the COVID-19
pandemic was used by the Government, more
precisely the Prime Minister, to seize unlimited
power to govern – which is viewed as a sign of a
totalitarian regime.1 The third opinion dismisses
1 Gábor Halmai and Kim Lane Scheppele, “Orbán is Still
HUNGARIAN DEMOCRATIC BACKSLIDING
IN LIGHT OF THE RECENT EMERGENCY
CORONAVIRUS LEGISLATION
This latest version of this paper was
nalised as of June 8 2020.
TÍMEA DRINÓCZI 20
neither of these findings. It merely claims that
Hungary still demonstrates illiberal constitu-
tionalism2 at work,3 which, undoubtedly, has re-
ceived new impetus or generated “accelerative
measures” during the pandemic. As a result,
the accelerated backsliding of Hungary could
reach a point where the existence of authori-
tarianism cannot be denied. Nevertheless, the
slipping into authoritarianism is, most probably,
a gradual process, and it can only be precisely
determined whether
it has happened retro-
spectively. That is why
this short piece can only
embark on identifying
four of these stimuli that
have caused further de-
terioration of the Rule of
Law, democracy, and hu-
man rights protection, as
compared to the already
hollowed-out substantial
constitutional democracy
– which is called illiberal
constitutionalism.
Illiberal constitutionalism, as it has been devel-
oped in Hungary and Poland, is viewed as the
functioning of a public power that upholds the
main constitutional structure but lacks a nor-
mative domestic constitutional commitment to
constraints on public power, even while, to a
certain extent, it remains within the boundaries
set by EU law and politics, as well as internation-
al minimum requirements. In these states, all
elements of constitutional democracy, such as
the Rule of Law, democracy, and human rights,
are observable, yet none prevails in its entirety.
Illiberal constitutionalism is not the opposite of
the Sole Judge of his Own Law”, Verfassungsblog, 30 April
2020, available at: https://verfassungsblog.de/orban-is-
still-the-sole-judge-of-his-own-law/
2 Drinóczi, T., & Bień-Kacała, A. (2019). Illiberal Constitu-
tionalism: The Case of Hungary and Poland. German Law
Journal, 20(8), 1140–1166.
3 Tímea Drinóczi and Agnieszka Bień-Kacała, “Illiber-
al Consti tutionalism at Work The First Two Weeks of
COVID-19 in Hungary and Poland”, Verfassungsblog, 31
March 2020, available at: https://verfassungsblog.de/illib-
eral-constitutionalism-at-work/
liberal constitutionalism and does not equate to
authoritarianism; it departs from the former and
tends towards the latter. Thus, constitutional
democracy still exists, but its formal implemen-
tation outweighs its substantial realization. As
the last ten years show, in Hungary, “illiberal le-
gality”4 means the hollowed-out European Rule
of Law, which accentuates the instrumental and
opportunistic use of domestic law in both leg-
islation and the application of the law. Another
characteristic is the weak
constraint that the Euro-
pean Rule of Law wields
over domestic public
power, because it merely
requires the implemen-
tation and application
of EU law, i.e. both the
values and the acquis.
Illiberal democracy in
this context means the
formal, manipulated, pro-
foundly majoritarian and
non-inclusive democracy
in which constitutional
institutions, such as elec-
tions, electoral rights and principles, representa-
tion and accountability, and the central tenets of
democratic law-making, are, to a certain extent,
misused, abused, or neglected. The illiberaliza-
tion of the human rights regime, which could
also have a constraining eect, is a much slower
and more gradual process than the remodeling
of the Rule of Law and democracy. First, the
positive obligation of the state to provide an
adequate legislative and institutional framework
for human rights protection is considerably
weakened, which is then followed by decreases
in the importance of human rights protection,
sensitivity to human rights violations, and toler-
ance towards “otherness”. It is accompanied by
attacks on politically and economically sensitive
rights like media freedom, academic freedom,
and the right to assembly.5
4 Tímea Drinóczi, “The European Rule of Law and illiberal
legality in illiberal constitutionalism: the case of Hungary”,
MTA Law Working Papers, available at: https://jog.tk.mta.
hu/uploads/les/2019_16_Drinoczi.pdf
5 Freedom House, “Freedom in the World 2020: Hunga-
As the last ten years show,
in Hungary, “illiberal le-
gality” means the hol-
lowed-out European Rule
of Law, which accentuates
the instrumental and op-
portunistic use of domestic
law in both legislation and
the application of the law.
TÍMEA DRINÓCZI 21
This is the context in which the Government
declared the constitutional emergency, called
“state of danger”.6 It asked for and received an
unconstitutional unlimited authorization in the
Coronavirus Act 2020,7 based on which it start-
ed to govern by emergency decrees without
any meaningful parliamentary oversight by a
completely functioning Parliament. All of these
matters t into the logic of illiberal constitution-
alism,8 the role model of which is the Corona-
virus Act. This Act satisfies the Government’s
understanding of the Rule of Law, i.e. illiberal
legality: it partly implements the partisan con-
stitution but does not comply with the rule on
temporal parliamentary supervision of govern-
mental emergency measures. Observing this
rule would have been just the pretence of over-
sight, as the Government has a supermajority in
Parliament, but it would have shown willingness
to cooperate with the opposition, which does
not t in with the idea of an autocratic populist
leader. The elimination of oversight has made
democratic control impossible during this crisis,
which is also another example of how an illiberal
democracy is conceptualized in Hungary. The
Coronavirus Act also amends the Criminal Code
by creating a new crime concerning spreading
“false information” during an emergency. This
ambiguously formulated rule, reportedly, was
enacted against “fake news”, but it could have a
chilling eect on journalism and academia. If this
latter happens, this Act and its practice will also
exemplify the relativization of human rights.
While, with the termination of the emergen-
cy, the Coronavirus Act will be withdrawn, the
amendments to the Criminal Code stays, but the
introduced new crime can only be “committed”
during a declared “state of danger”.
ry”, available at https://freedomhouse.org/country/hunga-
ry/freedom-world/2020
6 Tímea Drinóczi, “Hungarian Abuse of Constitutional
Emergency Regimes – Also in the Light of the COVID-19
Crisis”, MTA Law Working Papers, available at: https://
jog.tk.mta.hu/mtalwp/hungarian-abuse-of-constitutional-
emergency-regimes-also-in-the-light-of-the-covid-19-crisis
7 Hungarian Spectrum, “Translation of Draft Law “On
Protecting Against the Coronavirus””, available at: https://
hungarianspectrum.org/2020/03/21/translation-of-draft-
law-on-protecting-against-the-coronavirus/
8 Supra note 4
The other three “accelerative measures” appear
in emergency governmental decrees. These are
the designation of “special economic areas”,
the suspension of rights of data subjects – as de-
termined in the GDPR (2016)9 and the Hungarian
data protection and freedom of information Act
(2011)10 – and making timely access to public in-
formation impossible.
The Government issued an emergency decree
designating a part of an opposition-led town,
where the Samsung plant is located, a “special
economic area”. This territory became con-
trolled by the county municipalities (where the
governing party has a majority) instead of by the
municipal government (Göd). This designation
has tax and ownership implications as well: it
will be the county, instead of the city, that col-
lects taxes and gains ownership of properties
previously owned by the town. Critics say that
there are at least two political intentions behind
this measure, which pretends to assist the de-
fence against the economic effects of the pan-
demic. First, it is used to render the operation
of the opposition-led town impossible.11 Second,
the Government wants to support Samsung
even against the opinion of residents. This sup-
port could be contrary to the EU law on direct
state support,12 and even to the EU temporary
measures on state aid during the pandemic.13
9 ‘Regulation (EU) 2016/679 of the European Parliament
and of the Council of 27 April 2016 on the protection of
natural persons with regard to the processing of personal
data and on the free movement of such data, and repeal-
ing Directive 95/46/EC (General Data Protection Regula-
tion)’ (2016) Ocial Journal L119, p.1
10 Act CXII of 2011 on the right to informational
self-determination and on the freedom of
information, available at: http://njt.hu/translated/doc/
J2011T0112P_20190426_FIN.pdf
11 Dániel Karsai, “Let’s not fool ourselves either! Some
remarks on Professor Halmai’s and Professor Scheppele’s
blogpost”, Verfassungsblog, 27 April 2020, available at:
https://verfassungsblog.de/lets-not-fool-ourselves-either/
12 European Commission, “State aid: Commission
opens investigation into proposed public support for
Samsung plant in Hungary”, 14 October 2019, available at:
https://ec.europa.eu/commission/presscorner/detail/en/
IP_19_6078
13 European Commission, “State aid rules and
coronavirus”, available at https://ec.europa.eu/
competition/state_aid/what_is_new/covid_19.html
TÍMEA DRINÓCZI 22
This measure is about to be transformed into a
statute – still during the emergency. This exer-
cise is not unique: it happens with the rules tak-
ing away the revenue of vehicle tax from local
governments. At rst, it served the ght against
the coronavirus; now, as a part of the budget
bill, it is a “legitimate” contribution of local gov-
ernments to the state budget. Both the reasons
and the pretence of the Government t into the
logic of illiberalism. Bypassing EU law shows the
ever-weakening power of constraint of EU law,
and the opportunistic use of the law (illiberal
legality) and disregarding the opinion of locals
and the opposition, and the principle of local au-
tonomy, indicates an even worsening tendency
to disrespect democracy.
Another emergency decree suspended the right
to data protection and made it extremely diffi-
cult to access information. Its antecedent was
yet another emergency decree, which entitled
the Minister for Innovation to have access to
personal data that are needed for fighting the
coronavirus. The new decree makes this autho-
rization unlimited by eliminating the rights of
the data subject, and makes it impossible to get
timely information about any decisions. Both
decrees indicate a hostile attitude toward fun-
damental rights, especially in a crisis when both
rights (data protection and freedom of informa-
tion) are essential, notwithstanding the possible
need for some limitations.
During the crisis, the “the data protection and
freedom of information decree” does not allow
authorities, including courts, to take actions for
the enforcement of the rights of the data sub-
ject under GDPR and the Hungarian Act. Thus,
the right to consent to data processing, the right
to rectication and erasure, and the right to re-
striction of processing are suspended. Access to
public data is more dicult than it was previous-
ly. The authorities have 45 days, instead of the
previous 15 days, to comply with a data request,
if it is probable that providing the data within
15 days would threaten their ability to perform
tasks required because of the emergency. This
deadline can be extended by an additional 45
days, instead of the previous 15 days.
The Hungarian constitution (Fundamental
Law, FL) allows emergency decrees to suspend
statutes and derogate from their provisions.
However, it does not mention the possibility of
suspension of and derogation from EU law. Nev-
ertheless, the logic of the emergency regime is
to provide for a legitimate chance to respond
to challenges while not observing rules that
Hungarian Constitutional Court (Source: MTI)
TÍMEA DRINÓCZI 23
have been adopted during “normal times” for
“normal behaviours”. From this perspective,
suspension of EU law, which is, according to the
FL, a “generally binding rule”, just like statutes
but not a “statute”, could be justified. This ar-
gument would, however, be quite weak. There
does not seem to be a clear answer from a EU
law perspective on the suspension of EU law by
Member States in a declared emergency. There-
fore it might be better to have a look at the hu-
man rights aspect of the issue. The constitution
allows for irregular restrictions of fundamental
rights. In emergencies, the exercise of most of
the fundamental rights may be suspended or
restricted beyond the extent (necessity and pro-
portionality) specified in the FL. The Hungarian
constitutional emergency regime is informed by
the principle of necessity and proportionality. It
should be applicable for human rights deroga-
tions as well, even if the constitution expressis
verbis does not require the observance of this
principle in the provision that allows for the sus-
pension of rights. In the case of data protection
and freedom of information, it is doubtful if the
emergency measure is necessary and propor-
tionate at all.
These restrictions are applicable only during
the constitutional emergency and are to be
withdrawn by the termination of the “state of
danger”. Nevertheless, the rule on the suspen-
sion of rights does not only raise the issue of
unconstitutionality but unconformity to EU law,
as well, and shows the attitude of illiberal consti-
tutionalism towards human rights.
The continuous operation and the actual be-
haviour of the packed Constitutional Court (CC),
which is ensured by the FL and the implement-
ing Coronavirus Act, also leaves us puzzled – but
maybe not surprised. It still delivers decisions,
but when an emergency related submission
arrives, it does not move fast. The rule came
into effect on 31 March, on 7 April an advocate
requested the CC to decide on the constitution-
ality of the criminal conduct of spreading “false
information”.14 His constitutional complaint was
14 https://www.facebook.com/daniel.karsai.355/
posts/10157877679272931
assigned only on 11 May. The CC discussed it on
26 May, but delivered no decision; a new round
will, reportedly, be needed to reach a decision.
On 15 May, Göd requested the CC to examine
the decree on the designation of “special eco-
nomic areas”. They alleged the violation of the
right to property, similarly to the “vehicle tax”
case, which was submitted on 13 May by ¼ of
the Members of Parliament. The assignment of
these cases took a week.
Enforcement mechanisms such as the CC are in
place, unaffected by the COVID-19 pandemic –
they operate according to the law. The law did
not dictate an accelerated procedure during an
emergency. So there is no legal possibility for
fast(er) decision-making on the pandemic-relat-
ed issues, even though the CC is able to decide
within even two weeks. This operation of illiber-
al legality could also accelerate the Rule of Law
backsliding.
It is concluded that we need to look, with an
open mind, at the whole picture that provides
for the social, political, and legal context in
which the COVID-19 crisis is being managed –
which is illiberal constitutionalism. This assess-
ment could change, however, by the actual end
of the pandemic or the year 2020, depending on
the synergy of all the measures taken. There are
already clearly identiable “accelerative factors”
that cannot be ignored. The question remains
whether they still exemplify the business-as-usu-
al operation of illiberal constitutionalism or have
already led us to the antechamber of authori-
tarianism. As regards the latter, however, we
need to know how the CC will decide in the men-
tioned cases. If it supports the Government, and
the Government will misuse its power during the
statute based emergency or continue its illiberal
legislative practices, the European communi-
ty, of which Hungary is a member, should take
these changes more seriously than ever.
UMUT KORKUT 25
Since its 2004 enlargement to the East,
the European Union has faced major
crises including the global financial
crisis in 2008, the abrupt increase in
the number of irregular migrant arrivals in 2015,
and finally the coronavirus crisis in 2020. These
crises have waged survival tests for political
leaders. While many western democracies faced
economic vulnerabilities, increasing populism,
challenges to political systems, and see electoral
defeat of incumbent leaders, the leaders of neo-
authoritarian states are looking for ways to
PROFESSOR UMUT KORKUT
Professor in International Politics, Glasgow Caledonian University
Umut Korkut is a Professor in International
Politics at Glasgow Caledonian University.
Professor Korkut serves Political Studies
Association (PSA) as Trustee and
International Lead, the International
Political Science Association (IPSA)
as Executive Committee Member and
coordinates three EU funded projects
at GCU. He is interested in how political
discourse, aesthetics and visual imagery
create audiences, following this theoretical
interest across various empirical fields
central to European politics such as gender
and politics, populism and migration. This
piece received funding from the EC Horizon
2020 funded research project: Demos:
Varieties of Populism and Democratic
Efficacy in Europe.
HUNGARY CORONAVIRUS EMERGENCY
LEGISLATION 2020
This project has received funding from
the European Union’s Horizon 2020
research and innovation programme
under grant agreement No 822590. Any
dissemination of results here presented
reflects only the consortium's (or, if
applicable, author's) view. The Agency is
not responsible for any use that may be
made of the information it contains.
UMUT KORKUT 26
2011 have so far allowed Orbán to manipulate
crises in a way to discursively present Hungary as
a pillar of stability in Europe. This has served his
claim for moral leadership even if morality and
legitimacy of his executive role lack confluence.
Orbán has also exploited public insecurities
facing either increasing number of irregular
migrant arrivals earlier or the coronavirus crisis
recently to establish a knowledge-regime that
require swift but authoritative executive action.
Joseph’s (2006, 13 in Reyes 2011, 784)
elaboration on the persuasive nature of political
discourse sheds light on the Hungarian context.
Persuasive political discourse allows politicians
to present their goals as their audiences’ goals
while “the inspiring orator can lead a people,
or rather mislead them, into believing that the
narrow self-interests of the governing party
are actually the interest of the people as a
whole”. In this understanding, “the hierarchical
assumption of leadership embodied in a single
person at the apex of a unitary organization”
is replaced by change agency for a broad range
of collaborators and co-creates “a shared vision
towards which they work” (Mabey and Freeman
2010, 513). The coronavirus crisis provided Orbán
with a chance to set the parameters of a shared
vision to fight against the virus while presenting
himself as the sole change agency to face the
upcoming challenges. Discursively and amidst
enfeebled accountability structures including the
media, Orbán has assumed his crisis leadership
once again.
Similar to the financial crisis (Korkut 2012) and
during the time of the abrupt increase in the
number of irregular migrant arrivals to Europe
in 2015 (Gyollai 2018), during the coronavirus
crisis as well Viktor Orbán sought to regulate the
everyday narrative around the crisis situation.
What is remarkable this time, however, was how
his government received a rule by decree power
from the Hungarian Parliament effectively
indefinitely in March 20201 in order to enhance
1 Német Tamás, Pintér Luca and Presinszky Judit,
“Megszavazta az Országgyűlés a koronavírus-törvényt,
Áder pedig ki is hirdette”, Index, 30 March 2020, available
at: https://index.hu/belfold/2020/03/30/koronavirus-tor-
weather the crises by bolstering their leadership.
As an example, the sudden increase in the
number of irregular migrant arrivals to Europe
in 2015 made extreme right politicians such
as Salvini in Italy and Le Pen in France central
actors of European politics while it challenged
the leadership of Angela Merkel in Germany.
Finally, the coronavirus pandemic and the health
and economic crisis hitting Europe is posing
increased challenges to almost all incumbent
political leaders.
It is interesting to draw parallels between
the three crises, i.e., financial, migration, and
coronavirus, that hit the EU, and Viktor Orbán’s
ascendance to power and entrenching his total
control of Hungary. There seems a pattern
as to how Orbán carved a leadership role for
him by appealing to public insecurities that
such crises have fostered amongst the general
population. This short article follows this pattern
to understand how leaders can manipulate
particular crisis contexts to consolidate their
leadership via both formal institutions and
strategic discourses, and entice the public
opinion to their support amidst crises. To this
extent, it reflects on the coronavirus crisis but
takes into consideration the institutional and
discursive construction of leadership amidst
crises. The article investigates how leaders
stimulate the processes by which their followers’
understanding of the world is produced (van
Leuuwen 2007, 95) during crises. The theoretical
foundation of the article relies on leaders’
social knowledge production, legitimation, and
inculcation of such knowledge among their
followers (van Leuuwen 2007; Reyes 2011) to
foster collective rationality.
The Hungarian Prime Minister Viktor Orbán has
carved out his leadership since 2010 amidst three
crises at the detriment of democracy in Hungary.
In response to the coronavirus crisis as well,
Orbán pursued a self-made moral leadership
to manage crisis governance. The enfeebled
institutional accountability due to weakened
judiciary and parliamentary oversight due to the
earlier constitutional changes in Hungary after
UMUT KORKUT 27
Orbán’s crisis leadership. Given the two-thirds
control over the Parliament by Fidesz and the
dominance of Fidesz-appointed judges at the
Constitutional Court, basically the legislation
delivered the country to Orbán fully without
any checks and balances. In order to guarantee
continuity of control in the Parliament, the
Fidesz also introduced a clause that whilst the
crisis situation continues there can be no by-
election or referendum2. This was an attempt
to hinder the Hungarian opposition from any
attempts to tarnish the parliamentary control
of the Fidesz government and won against
the government thanks to building electoral
alliances3.
veny_koronavirus_szavazas_parlament/
2 Fábián Tamás, “Tisztázunk mindent a koro-
navírus-törvényről”, Index, 23 March 2020, available at:
https://index.hu/belfold/2020/03/23/koronavirus_felhatal-
mazasi_torveny_szajbarago/
3 Umut Korkut, “The new mayor of Budapest has shown
us how to defeat authoritarian populists like Viktor Or-
ban”, Independent, 14 October 2019, available at: https://
www.independent.co.uk/voices/populism-brexit-or-
ban-hungary-budapest-mayor-boris-johnson-a9155226.
html
After two months of emergency rule, Orbán
signalled that he is now ready to relinquish his
extraordinary powers at the end of May 2020,
and his government is looking to shift from
“crisis governance” to play “a modest role
in pandemic preparedness” according to the
government spokesperson Gergely Gulyás4.
There are some, who may consider this a sign
of well-functioning democracy in Hungary5.
However, if we approach his crisis governance
amidst the pandemic and particularly his
discursive style, we can grasp the legacy of
the rule by decree will leave in Hungary. The
discursive construction of his crisis government
involved anti-western discourses with praises
of technocratic governance at the expense
of democratic accountability structures. It is
4 Biró Marianna and Presinszky Judit, “Gulyás Gergely:
Szerény jogkörei maradnak a kormánynak a járványügyi
készültség idején”, Index, 28 May 2020, available at:
https://index.hu/belfold/2020/05/28/kormanyinfo_frissulo_
osszefoglalo_csutortok_koronavirus_veszelyhelyzet/
5 Andreas Stefanovszky, “Letter: In defence of Orban’s
pandemic policies”, Financial Times, 20 May 2020, available
at: https://www.ft.com/content/6f91af5e-f963-46c1-b0b2-
12f0818675cf
Prime Minister Viktor Orbán met with Charles Michel, President of the European Council (Source:
Council of the European Union)
UMUT KORKUT 28
important to note that even when the rule by
decree is annulled, these two discursively and
institutionally ordered governance mechanisms
will remain latent in Hungarian public
philosophy.
The rule by decree received in March 2020
showed Orbán’s pragmatism and how his party
could exploit the health panic in the country
at the face of the coronavirus crisis. It also
presented him with a chance to regain his party’s
control over politics
in the aftermath of its
relative weakening at
the 2019 local election6.
Finally, an important
point to make is that how
a political machine such
as Fidesz that has always
claimed legitimacy by
popular election and its
capacity to represent the
Hungarian nation thanks
to two-thirds majority
has exploited crises to
entrench an executive
rule for the PM. Orbán
followed a similar
strategy during the self-
declared “refugee crisis”
as well when faced with
the sudden increase
in the number of irregular migrant arrivals to
Europe in 2015. The Hungarian government
then declared a “state of crisis due to mass
migration” giving unfettered powers to the army
and the police to quash any unrest7. This self-
defined extraordinary situation enhanced the
government’s sway later over the third sector
organisations active in migrant integration field
and controlled everyday narrative sometimes by
6 https://www.google.com/search?client=sa-
fari&rls=en&q=2019+hungarian+local+elec-
tions&ie=UTF-8&oe=UTF-8
7 Daniel Gyollai, “Hungary – Country Report Legal & Poli-
cy Framework of Migration Governance”, Working Papers
– Global Migration: Consequences and Responses, May
2018, available at: http://uu.diva-portal.org/smash/get/
diva2:1248319/FULLTEXT01.pdf
circulating its own fake news8. One more thing
to note is that the Hungarian legislation used
the term of “state of emergency”9. Recently,
the Czech Republic as well turned to state of
emergency top face the coronavirus crisis10.
Yet, the Hungarian decree came with severe
punishment clauses. Under its provisions,
intentionally spreading false information
about the virus will be punishable by a prison
sentence of up to five years11. The Hungarian
false information clause remained very vague
suggesting punishing
rumour and alarming
news, and also raising
questions regarding what
happens to those that
share these “rumours”.
In fact, two people were
taken into custody for
raising rumours with
their Facebook posts12.
Furthermore, the
discourse around
the Hungarian crisis
governance facing
the coronavirus was
embellished with anti-
western tones. At the
outset of the crisis,
Orbán stated that the
coronavirus crisis has
8 Umut Korkut, “Hungary sanctions: don’t expect Viktor
Orbán to back down after parliament vote”, The Conversa-
tion, 13 September 2018, available at: https://theconversa-
tion.com/hungary-sanctions-dont-expect-viktor-orban-to-
back-down-after-parliament-vote-103128
9 Supra note 2
10 “3 ülkede daha koronavirüs nedeniyle olağanüstü hal
ilan edildi”, Anadolu Agency, 16 March 2020, available at
https://www.aa.com.tr/tr/dunya/3-ulkede-daha-koronavi-
rus-nedeniyle-olaganustu-hal-ilan-edildi/1767279
11 Valerie Hopkins, “Orban handed power to rule by de-
cree in Hungary”, Financial Times, 30 March 2020, available
at: https://www.ft.com/content/4dc85972-e917-4c8d-9db1-
8e72400b9e8a
12 Pálfi Rita, “Már két embert is elvittek a rendőrök
Facebook-poszt miatt a rémhírterjesztési törvényre hi-
vatkozva”, Euronews, 14 May 2020, available at: https://
hu.euronews.com/2020/05/13/mar-ket-embert-is-elvittek-
a-rendorok-facebook-poszt-miatt-a-remhirterjesztesi-tor-
venyre-h
The enfeebled institutional
accountability due to
weakened judiciary and
parliamentary oversight
due to the earlier
constitutional changes in
Hungary after 2011 have
so far allowed Orbán to
manipulate crises in a way
to discursively present
Hungary as a pillar of
stability in Europe.
UMUT KORKUT 29
exposed the EU’s “weaknesses” and failure
to help in times of need13 and justified his anti-
western tone with a trope that “help does
not really come from here”. Alleging the EU’s
institutional structures with deficiencies in
responding to the crisis, he continued “there are
times when you can’t be polite” and “he made
it clear to EU “squeakers” that now is not the
time to “reason” with legal, theoretical issues
because there is an epidemic, lives need to be
saved”. He continued to say that “the high-
salaried EU epidemiology office staff” i.e., the
European Centre for Disease Prevention, failed
in January and February months to prevent
the pandemic in Europe14. Instead, Orbán
chose to endorse the Chinese credentials of
the fight against the coronavirus. Him and the
Chinese Ambassador to Budapest met a Chinese
plane with medical supplies at the Budapest
Airport earlier in the crisis while the Hungarian
media provided the images of Orbán and the
Ambassador of China meeting each other with
elbow greetings to emphasise the conviviality
between the two regimes15.
13 Lili Bayer, “Viktor Orbán criticizes EU’s coronavirus cri-
sis response”, Politico, 27 March 2020, available at: https://
www.politico.eu/article/coronavirus-viktor-orban-criticiz-
es-eu-crisis-response/
14 “Szombattól érvényes kijárási korlátozást vezet be a
kormány”, hirado.hu, 27 March 2020, available at: https://
hirado.hu/belfold/kozelet/cikk/2020/03/27/kijarasi-korla-
tozast-vezet-be-a-kormany
15 “Videóból derült ki: fontos döntéseket hoz Orbán Vik-
tor és az akciócsoportok”, Portfolio, 25 March 2020, avail-
To coclude the Hungarian case shows how
amidst the crisis, rather than ensuring the
accountability of their decisions, governments
can exclude parliamentary control over their
course of action. In fact, this exclusion imbued
with anti-western discourses in the case of
Hungary aimed to demote an accountability-
oriented response style to the pandemic in
order to promote technocratic governance as
the most effective means. This is the reason why
while Orbán may now be relinquishing the rule
by decree the legacy of his response will remain
and qualify how governments can fight crises
“successfully”.
References
Gyollai, D (2018) “Hungary-Country Report Legal
& Policy Framework of Migration Governance”
RESPOND Working Papers Global Migration: Con-
sequences and Responses, available at, http://
uu.diva-portal.org/smash/get/diva2:1248319/
FULLTEXT01.pdf
Joseph JE (2006) Language and Politics.
Edinburgh: Edinburgh University Press.
Korkut, U (2012) Liberalization Challenges in
Hungary: Elitism, Progressivism, and Popu-
lism. Palgrave Europe in Transition: The NYU
European Studies Series.
Mabey C and Freeman T (2010) Reflections on
leadership and place. Policy Studies 31(4): 505-
522.
Reyes A (2011) Strategies of legitimization in
political discourse: From words to actions. Dis-
course & Society 22: 781-807.
Van Leeuwen T (2007) Legitimation in discourse
and communication. Discourse & Communication
1(1): 91-112.
able at: https://www.portfolio.hu/gazdasag/20200325/
videobol-derult-ki-fontos-donteseket-hoz-orban-vik-
tor-es-az-akciocsoportok-422010
The discursive construction
of his crisis government
involved anti-western
discourses with praises of
technocratic governance at
the expense of democratic
accountability structures.
MATTHIJS BOGAARDS 31
DE-DEMOCRATIZATION IN HUNGARY:
EMERGENCY RULE AND AUTHORITARIANISM
PROFESSOR MATTHIJS BOGAARDS
Visiting Professor, Department of Political Science, Central European
University
Matthijs Bogaards is a visiting professor
in the Department of Political Science
at the Central European University. He
joined from Jacobs University Bremen,
where he was full professor of Political
Science. A graduate from Leiden
University, the Netherlands, Matthijs
has studied and worked abroad for
the past twenty years, earning a PhD
in Political Science from the European
University Institute in Florence, Italy.
Is COVID-19 the first virus to kill a
democracy? Recent events in Hungary,
where prime-minister Orbán has been
ruling by decree since March 2020, seem to
suggest so. Typical for this pandemic, the virus
has proven most lethal in a patient that was
already ill, critically ill according to the many
critics of Hungary’s steady de-democratization
since Orbán returned to power in 2010.1 Earlier
developments have been analyzed elsewhere,
this contribution will examine the past two years
leading up to the present.2 The key question
1 Recent qualifications include “Caesarian politics”
(Sata and Karolewski) and “tyranny”, defined as a regime
in which “a single person (generally male) decides
everything that happens in a country and nothing can
happen against this person’s will” (Heller, p.2). See: Sata,
Robert and Ireneusz Pawel Karolewski, 2020, “Caesarian
Politics in Hungary and Poland”. East European Politics,
36(2), 206-225; Heller, Agnes, 2019, “Hungary: How Liberty
Can Be Lost”. Social Research, 86(1), 1-22.
2 Bogaards, Matthijs, 2018, “De-Democratization in
Hungary: Diffusely Defective Democracy”. Democratiza-
MATTHIJS BOGAARDS 32
is what the emergency law and subsequent
legislation mean for the state of Hungarian
democracy. Concretely: is Hungary a defective
democracy, an electoral authoritarian regime, or
an autocracy?
Table 1 provides an overview of Hungary’s
scores on the main dimensions of democracy
as recorded by the bi-annual Bertelsmann
Transformation Index (BTI).3 The starting year
is 2009, one year before Orbán returned to
power with a landslide electoral victory that
gave him the qualified majority in parliament to
unilaterally adopt a new constitution. The last
tion 25(8), 1481-1499.
3 Available at: https://www.bti-project.org/en/meta/
downloads.html.
year for which the BTI has data is 2019. As can
be seen in the second column of table 1, the BTI
indicators are organized by type of democratic
defect. Following the German political scientist
Wolfgang Merkel, we can distinguish between
four types of defective democracy: exclusive,
illiberal, delegative, and tutelary.4 If there is
a problem with voting rights, free, fair and
competitive elections, or political participation
rights, than this points to an exclusive
democracy. If civil rights are not fully protected
and the courts do not guarantee equal access
and treatment, we are dealing with an illiberal
4 Bogaards, Matthijs, 2009, “How to Classify Hybrid Re-
gimes? Defective Democracy and Electoral Authoritarian-
ism”. Democratization, 16(2), 399-423.
Table 1: Defective democracy in Hungary: Quantitative indicators (Sources: Own compilation based
on BTI data and methodology described in Bogaards (2018))
Legend: Dem. = democracy in consolidation, Defect. = defective democracy.
MATTHIJS BOGAARDS 33
There can be no electoral
authoritarianism without
elections and these have
been suspended. For now,
at least, “Orbán governs as
a dictator”.
democracy. If horizontal accountability
mechanisms do not work properly, normally
because the executive is overly powerful, this
indicates a delegative democracy. Finally, if the
power to govern is restricted by non-democratic
actors, often the military, then we have a
tutelary democracy, also known as a democracy
with reserved domains.
Different from the defective democracies
described previously in the comparative politics
literature, Hungary exhibits defects in all four
respects, making it a “diffusely defective
democracy”. The only
criterion where Hungary
still has full marks is
effective government,
which is correct for the
moment, but utterly
misleading in case the
opposition would come
to power. The Fidesz-
controlled parliament
has adopted a variety
of institutional barriers
that make it difficult
to change policies and
institutions without the kind of super majority
Orbán’s party has been enjoying in the past
decade. These measures include the excessive
use of cardinal laws that need a qualified
majority to be changed, the introduction of new
organs that can sabotage the next government,
and the appointment of ruling party loyalists
to key positions for unusually long tenures. In
other words, Orbán has already tied the hands
of the next government.5
Judged by the overall BTI score, Hungary in
2019 was still a “defective” democracy (6-7.99)
not a “moderate autocracy” (4-5.99).6 But this
is not the whole story. Democracies can stop
5 See the detailed BTI country report, available at:
https://www.bti-project.org/content/en/downloads/
reports/country_report_2020_HUN.pdf.
6 However, if Hungary is downgraded on the criterion
of effective government control, then most likely the
overall score would recode the regime as a “moderate
autocracy” since 2019.
being democratic in multiple ways. For each
indicator in table 1 there is a separate threshold
below which a country is considered autocratic.
For elections the tipping point is a score lower
than 6, for the others a score lower than 3.
Because recent elections in Hungary have been
free, but not fair, Hungary is on the edge. On all
other indicators, there still seems to be a safe
distance. But that was before the government
used the pandemic to award itself emergency
powers. What is the situation now?
In March 2020, prime minister Orbán asked
parliament for
emergency powers to
battle the pandemic and
the resulting economic
crisis. The two-thirds
majority of the ruling
party, in alliance with
the small Christian
Democratic People’s
Party (KNDP), duly
voted to marginalize
itself, allowing the
government to rule by
decree. There is no time
limit to the emergency powers, though a two-
thirds majority of parliament could conceivably
at any time change or repeal the enabling act.
It is doubtful that the process and outcome are
constitutional or that there ever was a need for
this kind of drastic measure.7 What interests
us here is how the emergency powers and
subsequent government action might affect
the quality of democracy using the framework
introduced above.
Table 2 provides some examples of the impact of
Orbán’s handling of the pandemic on the state of
democracy in Hungary. The information shows
that at least six out of eight criteria are affected
and three out of four types of democratic
defects. Orbán has used his emergency power
to issue over one hundred decrees by now. Only
7 Hegedüs, Daniel, 2020, “Ungarns Autoritärer
Notstandstaat: Machtergreifung durch
Pandemiebekämpfung”. Osteuropa, 70(3-4), 33-48.
some measures can be highlighted here. First,
the military was called in to run hospitals and
what the government termed key companies.
Tellingly, “the Coronavirus Operational Group
consists of many more army commanders
in uniforms than healthcare professionals”.8
Second, “in Hungary these days, the trial-
level courts are effectively closed – or rather
selectively opened depending on whether
Orbán wants them to be”.9 This also makes it
unlikely the Constitutional Court, in any case
packed with Fidesz loyalists, will get new cases.
Third, the concentration of all legislative powers
in the executive has undone any separation of
powers. Whether parliament takes back control
is in the hands of the government and its ruling
party. This fact alone pushes Hungary into the
realm of electoral authoritarianism. Sadly, even
that qualification might be too generous. There
can be no electoral authoritarianism without
elections and these have been suspended. For
now, at least, “Orbán governs as a dictator”.10
8 Kovács, Kriszta, 2020, “Hungary’s Orbánistan: A
Complete Arsenal of Emergency Powers”. Verfassungs-
blog, available at: https://verfassungsblog.de/hungarys-
orbanistan-a-complete-arsenal-of-emergency-powers/.
9 Halmai, Gábor and Kim Lane Scheppele, “Don’t Be
Fooled by Autocrats”. Verfassungsblog, available at:
https://verfassungsblog.de/dont-be-fooled-by-autocrats/.
10 Ibid.
At the end of May, the Hungarian government
introduced two bills in parliament aimed to
succeed the enabling act.11 The new legislation
would allow the Chief Medical Officer,
appointed by the government, to request the
government to declare a “state of medical
emergency” that gives the government even
more unlimited decree power than the first
enabling act. Parliament is not even asked after
the fact to turn executive decrees into proper
laws, but sidelined altogether. The government
itself decides whether it wants to renew the
emergency at six-month intervals and whether
it deems the country safe for elections. The
government thus appears to continue its
practice of “fluid legislation”, meaning that
“whenever the government ran into a legal
obstacle, the leadership did not modify the
intended policy but instead it changes the laws
to serve day-to-day politics”.12 The result is
“autocratic legalism”.13
11 Halmai, Gábor, Gábor Mészáros, and Kim Lane
Scheppele, 2020, “From Emergency to Disaster”. Ver-
fassungsblog, available at: https://verfassungsblog.de/
from-emergency-to-disaster/; “Never-Ending Story? Rapid
Analysis of the Bills T/10747 and T/10748”, available at:
https://www.helsinki.hu/en/never-ending-story/.
12 Miklóssy, Katalin, 2018, “Lacking Rule of Law in the
Lawyers’ Regime: Hungary”. Journal of Contemporary Eu-
ropean Studies, 26(3), 270-294, this quote at p.278.
13 Scheppele, Kim Lane, 2018, “Autocratic Legalism”.
The University of Chicago Law Review 85(2), 545-583.
MATTHIJS BOGAARDS 34
Table 2: How Orbán's Handling of the Pandemic Affects the State of Democracy (Source: Own
compilation based on sources quoted in the text)
MATTHIJS BOGAARDS 35
Military police officers on patrol in Budapest (Source: AP)
In conclusion, for most years after Orbán’s
return to power in 2010, Hungary has been a
defective democracy. The government’s resort
to emergency rule following the pandemic
has now pushed the regime over the treshold
to authoritarianism. As long as elections are
suspended, Hungary has to be regarded as an
autocracy. When elections are possible again,
Hungary will have moved into the category
of electoral authoritarianism.14 This is without
precedent in the European Union, which has a
proud tradition of democracy promotion abroad
but so far has shown less resilience to de-
democratization among its own members.15 It is
too early to tell how permanent the damage of
the emergency powers to Hungarian democracy
14 Levitsky and Way date this regime change earlier, but
that is mostly because their typology does not include
diminished subtypes of democracy, making it more
likely that regimes that fall short of liberal democracy
are classified as “competitive authoritarian”. Levitsky,
Steven and Lucan Way, 2020 “The New Competitive
Authoritarianism”. Journal of Democracy, 31(1), 51-65.
15 Kelemen, R. Daniel, 2020, “The European Union’s
Authoritarian Equilibrium”. Journal of European Public Poli-
cy, 27(3), 481-499.
will be, but there is little reason for optimism:
“In Hungary, the regime has done and will
continue to do everything possible to make
itself irremovable”.16
16 Kornai, János, 2016, interview published in Hungar-
ian Spectrum, available at: https://hungarianspectrum.
org/2016/12/29/vulnerable-democracies-an-interview-with-
janos-kornai/.
MARCH ISSUE 2020
PUTIN'S PROVIDENT PLAYBOOK
This symposium on 2020 Russian Constitutional Amendments
brings together global scholars from Russia and beyond and
attempts to unearth the meanings of these amendments.
Contributors include Professor Richard Sakwa, Professor
Eugene Huskey, Professor Sanjay Kumar Rajhans, Mr. Punsara
Amarasinghe and Dr. Emil Avdaliani. Associate Professor Alexey
D. Muraviev, Associate Professor of National Security and
Strategic Studies at Curtin University, Western Australia was also
interviewed on the implications of the amendments towards the
geopolitical strategies of Russia as well as prospects of Russian
Democracy, among other topics.
REVIEW 37
APRIL ISSUE 2020
BATTLING THE CORONAVIRUS
This issue of Public Jurist explores the political and legal
implications brought by the novel coronavirus, both domestically
and internationally. Illuminating insights are offered from
interviews with Professor Lai Ching-lung, Chair of Medicine and
Hepatology at the Li Kai Shing Faculty of Medicine, The University
of Hong Kong, and Dr. Hon. Pierre Chan, Legislative Council
Member for the Medical functional constituency. Moreover,
remarkable articles from renowned scholars, namely former
European Commissioner for Health (2013-2014) Dr. Tonio Borg,
Professor Markus Kornprobst, Dr. Stephanie A. Strobl, and Dr.
Sylvester Chima, explore the global significance of COVID-19.
LATEST ISSUES OF PUBLIC JURIST
MAY ISSUE 2020
THE WORLD TRADE ORGANISATION
This issue of Public Jurist explores the role and authority of the
World Trade Organization (WTO) in an increasingly polarizing
international political landscape, including delving into Hong
Kong, China, and the United States. The issue features in-
depth discussions from interviews with Mr. Stuart Harbinson,
former permanent representative of HKSAR, China to WTO, and
Professor Julien Chaisse, celebrated scholar on international
economic law. Renowned scholars Dr. Ge Chen and Dr. Steve
Charnovitz contributed illuminating commentaries on the WTO’s
legacy and future.
ACKNOWLEGEMENTS 38
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ACKNOWLEDGEMENTS
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