How Misuse of Emergency Powers Dismantled the Rule of Law in Hungary

Abstract

The Hungarian government has been utilising emergencies to expand its political power instead of upholding constitutionalism and the rule of law. This strategy has given the government almost unlimited power to enact emergency decrees, even when the state and the population are not in immediate danger. The ninth amendment to the Fundamental Law of Hungary has raised concerns about the government's use of emergency powers, granting the executive branch even more authority during exceptional times by allowing the government to prolong the ‘state of exception’ indefinitely and maintain pandemic-related emergency measures to respond to potential consequences of the war in Ukraine. As a result, the executive body has been able to exert significant political control without proper parliamentary oversight.

1. Introduction

There have been many characterisations of the Hungarian regime recently, all driven by the concern that the country's commitment to liberal democracy, the rule of law and constitutionalism has changed (and is still changing) in a negative direction.¹ It is far beyond the scope of this article to present all of these (legal, political, sociological, and so on) theories, but throughout the history of autocratic regimes, abusing emergency powers stands out as a common denominator.² The government began to abuse such powers in 2015 by passing emergency measures as seemingly ordinary, quotidian legislation;³ this process ultimately culminated in a permanent state of exception by 2023.⁴

As I will show in this article, the misuse of emergency powers not only dismantled the rule of law in Hungary but also downgraded the importance of the emergency paradigm, as the primary function of the latter is to restore the legal order that existed before the declaration of the state of emergency.⁵ After the ‘autocratic revolution’⁶ the Hungarian government pursued a combination of emergency measures and rule by law. As such, the law was manipulated into an instrument of government action.⁷ This approach resulted in a situation where – rather than uphold the rule of law and protect the rights of individuals – the constitution serves the government's interests.

The centrality of the rule of law to the functioning of healthy constitutional democracies is evident.⁸ Many scholars have tried to define the rule of law. One of the most remarkable explanations is that by Krygier, who first posited whether it is necessary for the rule of law that the law rules;⁹ he dubbed this notion the ‘force of law’. This ‘force of law’ understanding of the rule of law parallels arguments about the importance of the universal application of the law – the ‘supremacy of the law’ – and is a further development of the principle of equality before the law. The direct link between the rule of law and the supremacy of law could mean that while the rule of law needs formal provisions, the mere existence and use of the law by themselves are not sufficient.¹⁰ For my analysis, I assume that the rule of law also manifests equality before the law. It may be used as a formula for expressing that the law of the constitution is a consequence of rather than the source of individual rights.¹¹ According to Hayek, equality before the law leads to the conclusion that ‘all men should also have the same share in making the law’.¹² Legal certainty is a crucial aspect of the rule of law; legal certainty connotes the idea that laws should not be easily amended, thus fostering confidence in the legal system and promoting freedom. In short, laws are a necessary precondition for ensuring that individuals can rely on a stable and predictable legal framework.

Although during the twentieth century the rule of law emerged as a modern western concept and became part of the European constitutional traditions of most of the EU member states,¹³ the role of the concept in post-communist member states was slightly different. After 1989, in the Central and Eastern European area, the rule of law had a specific importance compared with the evolution of the rule of law in western countries. The rule of law here became a marker of the states’ democratisation and constitutional development, and it soon emerged as a guideline to measure the state of constitutionalism and democracy.¹⁴ Despite efforts to democratise Hungary and promote the rule of law, legalism has persisted in the country. This presence is likely to be more significant than in any other post-communist nation.¹⁵ At the constitutional level¹⁶ the concept the of rule of law has been firmly established, but the Hungarian government erroneously equates it with formal legality. This fallacy could be the driving force behind its actions, including amending the Fundamental Law and the creation of new ‘legal’ emergencies, which ostensibly allow the government to exercise emergency powers whenever it deems necessary.¹⁷ However, we must acknowledge that the misuse of emergency powers poses a threat to the rule of law, even if formal legality at the constitutional level appears to be intact.

The central theme of this article is the perpetual state of emergency in the Hungarian constitutional framework and its implications for the constitutional doctrine of the nation. Of particular concern is the misuse of this state of emergency, which has resulted in a significant erosion of the rule of law and democratic norms. I will consider whether the notion of unlimited emergency power is consistent with the rule of law, in general, and the Hungarian Fundamental Law, in particular. Contrary to the Hungarian government's view, I will argue that the pandemic-related emergency powers – in effect from 2020 until 2022 – were used contrary to the idea of the constitutional state of emergency and especially to the rule of law because the rule of law presupposes the absence of broad discretionary authority of rulers, and they must govern by the established law instead of making their own. It should also be mentioned that, according to the emergency paradigm, governments (or those who receive the temporary but substantially almost unlimited constitutional emergency powers) can use legislative or constitutional authority to address a real threat effectively. In accordance with the rule of law, however, it is not allowed to use this ‘dictatorial’ power permanently, or to abuse exceptional situations as reasons for implementing new emergency powers into the legal order and realising the emergency powers within the normal legal order.

2. From a normalcy/emergency dichotomy to normalising emergencies

2.1. Emergency powers without a constitutional state of emergency: The ‘state of migration emergency’

The (mis)use of emergency powers started with a countrywide campaign against mass migration. In 2015, the Hungarian government declared a state of migration emergency in response to the crisis.¹⁸ This allowed the government to use emergency restrictions by bypassing the ‘state of emergency’ chapter of the Fundamental Law (‘Special Legal Orders’).¹⁹ It should be noted that this chapter includes various constitutional guarantees,²⁰ but under a state of migration emergency these restrictions on emergency powers are ineffective. Although regular constitutional checks by the Hungarian Constitutional Court would have prevailed, the already packed Court is no longer an effective judicial body in the country.²¹ Previously, the government's two-thirds majority amended the relevant act on migration²² by declaring a ‘state of migration emergency’ to address the migration crisis. The government has extended this so-called emergency at six-month intervals, but the emergency has never become a ‘state of emergency’ under the framework of the Fundamental Law's relevant ‘Special Legal Orders’ chapter. As a result of the amendment to the Asylum Act, the government can declare a state of migration emergency by way of decree, on the recommendation of the Interior Minister, upon the initiative of the national chief of police and the head of the refugee authority, if the conditions described in the Law are met.²³

According to the applicable provisions, the conditions underlying the state of migration emergency are to be continually monitored by the national chief of police and the head of the refugee authority. If the conditions for declaring the ‘state of migration emergency’ no longer apply, they shall request the Interior Minister to make a recommendation to the government to abolish the decree. The Minister shall present the proposal to the government, and the government must address the issue without delay and annul the government decree if the conditions for declaring the emergency no longer apply. The government decree will remain in force for no more than six months, except if the government extends the effect of the order, which can be done only if the conditions for declaring the ‘state of migration emergency’ continue to apply at the time of an extension.²⁴ Although the conditions underlying this special emergency regime have not applied for years, the Hungarian government has renewed it at six-month intervals to the present day;²⁵ not only is this problematic at the constitutional level, but such action contradicts the Act itself.

Under this emergency regime – compared with a non-emergency asylum rule – asylum applications must be submitted in person before the refugee authority, exclusively in the transit zone. The person seeking asylum is not entitled to reside or to receive authorisation to reside in the territory of Hungary. The refugee authority shall designate the transit zone as the compulsory place of confinement for the person seeking asylum if the non-contestable decision or the ruling for transfer under the Dublin process becomes operative. An accelerated procedure is used, and the deadline for challenging the findings of the refugee authorities is shorter (three days instead of eight). Although the mentioned rules are mainly procedural issues, other essential restrictions could be effective under this emergency regime. For example, the police can stop and deport foreigners from Hungary who are staying unlawfully if captured within eight kilometres of the border. During a ‘state of migration emergency’ this rule can be used without limitation.²⁶ It even ensures that the armed forces can be deployed to maintain the security of the border with the possibility of using weapons.

2.2. The emergence of ‘rule by decree’ and the importance of the Covid-19 pandemic

In the wake of the initial outbreaks of the novel coronavirus in 2020, the government implemented a state of danger (veszélyhelyzet) by invoking the Fundamental Law's emergency chapter; it also authorised Enabling Acts, granting the government broad authority to manage the Covid-19 pandemic.²⁷ The unconstitutional situation related to the Enabling Acts seemed to change when the government terminated the state of danger during the pandemic outbreak in June 2020. However, the Parliament simultaneously accepted two laws: one rescinded the parliamentary confirmation of the state of danger; the other amended the ‘state of medical emergency’ provisions in the Health Act.²⁸ The new regulation of ‘state of medical emergency’ (‘egészségügyi válsághelyzet’), like the previously mentioned ‘state of migration emergency’, was included in the Hungarian legal system as an ordinary law without the presence of constitutional scaffolding to guarantee the control of emergency powers, which would be applied when the emergency powers under the Fundamental Law were in effect.²⁹ Furthermore, the newly amended provision of the Act provided that the operation of all institutions, programmes or activities that could promote the spread of the epidemic might be suspended, giving the government the power to use special epidemic measures.³⁰ On 17 June 2020, a few days after the first state of danger was terminated, the government declared this new so-called ‘emergency’.

On 4 November 2020, when the second wave of the pandemic spread through Hungary, the government declared the second state of danger, which was effective until 8 February 2021;³¹ the ‘state of medical emergency’ was still in effect and, soon after (on 11 November 2020), a new Enabling Act³² was also passed.³³ This again gave the government the power to rule by decree³⁴ without further parliamentary oversight. However, this Act stated that the government's extraordinary powers were limited to 90 days. This was in response to international criticism of the first Act in that the Act gave almost unlimited power to the government for an undefined period.³⁵ According to the former paragraph (3) of Article 53 of the Fundamental Law – effective in 2020 – a state of danger gave the government the power to issue emergency decrees³⁶ that could be in effect for a maximum of 15 days, unless each decree was renewed explicitly by the Parliament. So, in November 2020, a two-thirds majority of the Parliament gave its blanket endorsement to any future decree that the government issued for 90 days without requiring parliamentary approval.³⁷ Finally, the Parliament also lacked authority to prolong the state of danger itself. However, according to the former text of paragraph 3 of Article 53 of the Fundamental Law, the Parliament might authorise an extension of the emergency decree(s) instead of the declaration of the state of danger itself. Upon the expiration of the 90 days, the government declared a state of danger again (for the third time within one year)³⁸ on 8 February 2021, but this ‘new’ state of danger simply renewed the restrictions of the former decrees.³⁹ Shortly after, the Parliament accepted a new (Enabling) Act,⁴⁰ which – like the previous pandemic-related emergencies – gave almost unlimited power to the government to rule by emergency decree until 22 May 2021. Before the end of the 90-day effect of the law, on 19 May 2021 the Parliament accepted an amendment to this Act which again pushed back the sunset clause of the original Act. According to the modification, the emergency measures were to remain in force until September 2021.

Despite the state of danger being prolonged for more than three months, the government dissolved nearly all emergency restrictions during the summer of 2021.⁴¹ On the Kossuth Radio programme Good Morning Hungary on 21 May 2021, Prime Minister Viktor Orbán anticipated that after 5 million people were vaccinated many restrictions would be lifted, including the obligatory, universal outdoor mask-wearing restrictions and the curfew.⁴² The Orbán government amended the sunset clause of the latest Enabling Act on 30 September 2021. This amendment extended the duration of the Act itself, along with all the emergency restrictions already declared, until 1 January 2022. Additionally, the state of danger was further prolonged until the summer. It is important to note that despite the current ‘state of medical emergency’, these actions were taken within the legal framework of the Enabling Act and its provisions.⁴³ Although the pandemic-related state of danger was still in effect during the summer, preventive measures, such as the universal mask-wearing restrictions, were introduced only in mid-November 2021, when the fourth wave was already spreading through the population and the mortality rate started to reach the same numbers as had been seen in March.⁴⁴ Not to mention that before the autumn, Government Decree No 457/2021. (VII. 3.) made explicit exemptions from emergency restrictions (most notably from the limitation of the right to assembly) to legalise various mass events such as the fireworks and commemorations for the founding of the state, the 52^nd International Eucharistic Congress in Budapest, the FEI Driving European Championship for four-in-hand, or One with Nature (the World of Hunting and Nature Exhibition) which, according to government sources, was attended by 616,000 people.⁴⁵

Until the Parliament amended the Fundamental Law to ensure the possibility of declaring a state of danger to respond to a humanitarian catastrophe or war in a neighbouring country, it became the practice of the government, with its two-thirds majority in the Parliament, to amend and therefore extend the effect of the latest Enabling Act initially by three but later by five months. This would also mean that the government gained free reign to rule by decree without the obligation to declare a state of danger repeatedly. The authoritarian government relied heavily on emergency decrees to exert its control, even in situations unrelated to the pandemic. For instance, it employed this tactic to enforce caps on food and fuel prices, extending their reach beyond what is legally permissible.⁴⁶ It is worth noting that the constitutional basis for maintaining the state of emergency was the global Covid-19 pandemic, not any underlying economic issues.

After the start of the war in Ukraine and the incremental lifting of pandemic-related restrictions worldwide, the government found a further opportunity to prolong the practice of rule by decree. Before that, however, in December 2020, in the midst of the pandemic, while the population was preparing for an exceptional holiday period burdened with restrictions, the Hungarian Parliament adopted the ninth amendment to the Fundamental Law by the government's supermajority.⁴⁷

2.3. Amending the Constitution in the middle of the pandemic

The situation was peculiar because the chapter in the Fundamental Law on ‘Special Legal Orders’ was effective at that time as a result of the state of danger, so a retrospective rewriting of the chapter was possible only with a later date for entry into force. The subject of the amendment is not surprising; in recent years, it had become a regular practice for the government to use a crisis for political ends in some form. This is how the state of migration or medical emergency, which uses the former legal regime as an analogy, is introduced into the ordinary legal order. By the end of 2020 – when the number of those infected with the coronavirus reached and, in some cases, exceeded 5,000 per day in the country⁴⁸ – the government, by making use of the state of danger,⁴⁹ had laid the foundations of permanent rule by decree.⁵⁰ However, by (ab)using its two-thirds majority, the supermajority had rewritten the rules of the state of emergency chapter of the Fundamental Law.

To assess the reasons for the new regulation (which entered into force earlier, on 1 November 2022, instead of the initially planned date of 1 July 2023, because of the adoption of the Tenth Amendment to the Fundamental Law on 24 May 2022⁵¹), it is essential to reflect on the public law situation prior to the amendment. As mentioned earlier, the Parliament adopted the Ninth Amendment to the Fundamental Law at the end of December 2020, when the pandemic was heavily affecting the country. Yet what could be the reasons behind a government that considers the country to be a constitutional democracy transforming the special legal order rules that are currently prioritised amid a global crisis? There are two possible explanations – and, of course, the two may be linked. On the one hand, it is essential to underline that the application of emergency regimes – provided that the Constitution contains such rules – is not, by definition, part of normal day-to-day governing (if it were to become that, it would already be a major sign of an autocratic transition, as was the case of the Weimar Republic). Therefore, primarily when an emergency regime is enacted for the first time to address a real crisis, it is natural that shortcomings may arise which could not have been foreseen during the codification process. Of course, it can and should be disputed whether a practical anomaly or dysfunction arising from a constitutional rule requires a constitutional amendment. On the other hand, it is also possible that this practical experience opens up new possibilities for an autocratising regime, which seeks to assert its extraordinary powers through regulatory actions, based on ‘autocratic legalism’.⁵² As I will show below, I believe both scenarios can be considered in the context of the Ninth Amendment to the Fundamental Law.

According to the general explanatory memorandum for this amendment, the new regulation (reform):⁵³

[R]ealises the reform of the constitutional regulation of the special legal order, clarifying the constitutional obligations related to defence and security, the related rights of the Parliament through changes in the forms of special legal order, the national referendum subjects, the constitutional regulation pertaining to the Hungarian Defence Forces, and the decision-making related to military operations.

The explanatory memorandum also confirms the reduction in the number of constitutional emergency regimes – which was indeed high by international comparison⁵⁴ – by half, so that the amendment aims to create a ‘more modern and effective system, which can better adapt to the changing security environment and builds on the experience of crisis management in recent years’, while also incorporating additional guarantees. Furthermore, the detailed explanatory memorandum states that the systemic overhaul aims to ensure transparency and gradualness in a modern way, adapted to the changing security environment, and with additional guarantees. However, in apparent contradiction of the principle of gradualness and the aim of providing additional guarantees, as of 1 November 2022 the government is the sole legislator in the case of all emergency regimes – that is, the government solely is entitled to issue decrees in extraordinary situations (rule by decree). This development is not so surprising, given the government's clear objective during the coronavirus epidemic to extend the scope of its rule by decree as much as possible.⁵⁵ The detailed explanatory memorandum also contains a very important additional statement – namely, in a crisis there is a need for rapid, operational, legal and politically responsible decision making. Additionally, in accordance with the suggested modification, the government has the capacity to enact such measures with the utmost efficiency within the confines of the domestic constitutional framework.

As mentioned above, the new amendment reduced the number of special legal orders and placed the government as the sole body to act when an emergency occurs.⁵⁶ However, the most controversial issue was that the newly accepted amendment rewrote the rules of the state of danger, the state of emergency, which was in effect during the acceptance of the new regulation. Several of the seemingly few amendments are worth highlighting. First and foremost, following the amendment, the state of danger can no longer be declared in ‘the event of a natural disaster or industrial accident endangering life and property’ but rather in the event of ‘a serious incident endangering life and property’, with natural disasters or industrial accidents being only examples of the latter.⁵⁷ This change is more than a textual clarification as the government can now, in practice, react to any event that seriously endangers the safety of life and property by means of this special legal order regime (that is, it is not conditional on the occurrence of any event in that it can also be introduced for purely preventive purposes). This, in line with the method described above, seeks to strengthen the government's emergency powers in terms of taking remunerative measures. Perhaps also drawing on the experiences (and the criticisms) of the state of danger declared during the coronavirus epidemic, the Fundamental Law now provides for the extension of the state of danger as an emergency regime itself rather than the government's state of danger decrees. Accordingly, a state of danger may be declared for 30 days,⁵⁸ but the government may extend this period based on authorisation by a two-thirds majority vote in the Parliament, provided that the conditions for its declaration are still met. At the same time, the Fundamental Law no longer provides that the government's state of danger decrees remain in force for only 15 days if the Parliament refuses to authorise the government to extend its effect. However, there is still no objective time limit for the extended state of danger.⁵⁹ Thus, parliamentary control over state of danger decrees⁶⁰ – which has not been functioning in practice anyway, but which previously provided a certain guarantee under the Fundamental Law – has been abolished and the carte blanche authorisation of the government to issue extraordinary decrees has become possible under the revised Fundamental Law.

Perhaps the contradiction between the recent crisis management and the content of the explanatory memorandum has become clear also to the readers of this article. Recent experiences – including the government's rule by decree under the state of danger regime, the misguided and ill-timed introduction of restrictive measures, the initial downplaying of the threat posed by the coronavirus, and the abuse of the law during the weeks and months when Hungary was leading worldwide in mortality per capita – have confirmed a level of incompetence and legal and political irresponsibility on the part of the government.⁶¹

This amendment was intended to guarantee exclusively governmental power over crisis management under the Fundamental Law. Naturally, such an amendment would be a clear enough sign of autocratisation; as such, the legislature covertly passed this law by making other modifications concerning the ‘Special Legal Orders’ chapter of the Constitution. Considering these ‘special legal orders’ serves no purpose other than to cement the extraordinary power of the government.⁶²

In the following sections I will show the state of danger in practice through a unique example, particular to a humanitarian catastrophe or war in a neighbouring country. This example provides ample evidence of the government using emergency powers in violation of the rule of law.

2.4. The evolution of constitutional emergencies: From a pandemic-related state of danger to the state of danger responding to the war in Ukraine

The Fidesz-Christian Democrats coalition won the parliamentary elections on 3 April 2022, resulting in another two-thirds majority in the Parliament.⁶³ Soon after the victory, the government started to prepare the Tenth Amendment to the Fundamental Law, which was accepted by the Parliament and entered into force on 24 May 2022. This amendment re-regulated the rules of the state of danger by adding a humanitarian catastrophe or war in a neighbouring country as a prerequisite for a state of danger. The amendment stated that before declaring a state of danger because of an armed conflict, war or humanitarian catastrophe, it is vital that the exceptional situation in the neighbouring country is real and could have a severe economic and humanitarian effect on Hungary. Although the wording of the new provision does not refer to economic impact, it can easily be understood that the emergency measures would be mainly economic-related restrictions. Therefore, even before the pandemic-related state of danger ended on 1 June 2022, the government had declared a state of danger on 25 May 2022, but this time used the new ‘humanitarian catastrophe’ category.⁶⁴ Following this declaration, the Hungarian Parliament again gave a blanket endorsement for the government to rule by emergency decree until 1 November 2022 by accepting Act VI of 2022 on Humanitarian Catastrophe in a Neighbouring Country, which entered into force on 8 June 2022.⁶⁵ Although the Ninth Amendment in December 2020 modified the ‘Special Legal Orders’ chapter of the Fundamental Law (which entered into force in November 2022), the new state of danger rules also includes that a state of danger may be declared upon a humanitarian catastrophe or war in a neighbouring country.⁶⁶

Enacting a state of emergency in response to a humanitarian crisis in a foreign country is unique in modern constitutional democracies. Moreover, deviating from the constitutional emergency provisions to impose an emergency regime is even more uncommon. In this regard it is noteworthy that the government, following the declaration of a new state of danger, issued several emergency decrees which had no relation to the humanitarian situation at hand. Rather than addressing other issues, these decrees were implemented to deal with a growing economic and fiscal crisis.⁶⁷ In response to the ‘humanitarian crisis’, the government has issued almost 200 emergency decrees, which include economic measures such as price controls; state control over certain companies; revised regulations on electricity, natural gas and oil supply; and special measures on important raw materials such as wood.⁶⁸ Governmental Decree 197 of 2022 on Extra-Profit Taxes has been a topic of much debate lately.⁶⁹ The government extended the effect of this emergency decree until 2025 (with Governmental Decree 206 of 2023 on 31 May) instead of linking it to the duration of the state of danger.⁷⁰ It remains to be seen if the war in the neighbouring country will last long enough to necessitate such a lengthy extension. The emergency decree orders various companies to pay additional taxes retroactively from January 2022. During normal times, imposing retroactive taxes would be unconstitutional; it would also go against the rule of law (and legal certainty) outlined in Article B of the Fundamental Law.⁷¹ Neither the recently amended Article 53 of the Fundamental Law nor the Catastrophe Act grants the government the authority to suspend general constitutional principles, even under a state of emergency. Article 54(2) of the Fundamental Law states that the application of the law cannot be suspended during a state of danger. In such situations the government can only issue decrees authorised by the Act of Catastrophe to suspend specific laws, make exemptions from laws, and take other extraordinary measures. It is worth noting that the war in Ukraine began after January and, as mentioned, the emergency decree requiring companies to pay extra-profit taxes from January was issued under the state of danger stipulated in the new framework of the Fundamental Law, in response to the humanitarian crisis caused by the war.⁷² This means that the government again acted outside the constitutional order and even contrary to the ‘Special Legal Orders’ provisions by retroactively using the emergency regime to tax various companies. Under the framework of the new state of danger rules, the practice of ruling by decree accelerated and, within a year, the government issued almost 200 emergency decrees to bypass Parliament and to suspend the application of specific laws or to derogate from the provisions of laws.⁷³ Of course, with a two-thirds majority in the Parliament, the government could have used ordinary legislation and implemented the relevant measures in statutes rather than emergency decrees; the packed Constitutional Court would have approved these had they been laws. However, circumventing parliamentary oversight accelerates decision making: there are no ‘disturbing’ questions from the opposition, and the risk of possible exposure to these measures is absent.

3. Conclusion

During normal times, legality constrains political judgments for those who govern through the law. In theory, authority based on the legality of the law (and the people's belief in the legality of the rule of law) also means that lawmakers may expect that the law, with its authority, can rule without severe concerns from the populace because they respect the absence of arbitrariness of this law in conformity with legality.⁷⁴ However, unexpected acts of violence or protracted crises are exceptional situations, which can pose a challenge not only for the state and society but also for the ordinary legal order. It is also difficult to determine, on the one hand, whether it is sufficient to address the situation under the regular the legal order, and, on the other hand, if not, from which exact point in time and for how long it is possible to apply the special restrictions of rights. However, suppose some kind of ‘sovereign’ has the authority to violate or even suspend the law to preserve the state during an emergency. As Schmitt argued:⁷⁵

He (the sovereign) decides whether there is an extreme emergency as well as what must be done to eliminate it … he stands outside the normally valid legal system, he nevertheless belongs to it, for it is he who must decide whether the constitution needs to be suspended in its entirety.

This reflects the essential question of legality under exceptional times. Crises may provide the executive body with the power to enact emergency decrees that would, under normal circumstances, fall within the scope of the legislative power,⁷⁶ which illustrates the constant threat of how emergencies can damage democratic values nowadays.⁷⁷ It does not mean that the executive cannot exercise discretionary powers. However, there should be constitutional limits to ensure the legality of these actions and prevent the abuse of executive power.⁷⁸ Modern constitutions have procedural requirements and substantive restrictions to fulfil this task. These restrictions become more critical when the executive acts under an emergency regime.

Throughout the years, many scholars have discussed the place of the state of exception within a constitutional order. The most remarkable debate to describe the relationship between the constitution and exception unquestionably occurred during the Weimar era. Hans Kelsen's Identity Thesis⁷⁹ focused on state subordination to the legal order and can be understood as a modern concept of the rule of law. Even before his emigration, Kelsen – a neo-Kantian and a student of Rudolf Stammler – had already established the foundations of the theory known as the ‘pure theory of law’. This was based on the idea of a hierarchical normative order in which one can eventually reach the basic norm, the ‘Grundnorm’, which does not need a higher norm to validate it. According to Kelsen, the Grundnorm is simply presupposed and can be understood as the historically first constitution, which should be obeyed by everyone. His theory basically eliminated all extra-legal elements from the law.⁸⁰ So, in Kelsen's understanding, the law would be universally valid for all situations.⁸¹

Contrary to Kelsen, Schmitt stressed that ‘all law is situational law’⁸² and highlighted the importance of the sovereign's decision. The exceptional situation raises the opportunity for the ‘sovereign’. The exception, which is ‘more interesting than the rule’,⁸³ is the moment of the ‘sovereign’ who can decide and distinguish friends from enemies. As Schmitt asserted, to understand the nature of the rule of law and juridical order, we have to understand sovereignty, which is possible through the exception.⁸⁴ For Schmitt, the sovereignty of men is more important than the sovereignty of law.⁸⁵ His ideas on the sovereign decision are very relevant to the current topic: ‘for a legal system to make sense, a normal situation must exist, and he is sovereign who definitely decides whether this normal situation actually exists’.⁸⁶ In Hungary, constitutional guarantees and the temporality of emergency powers are formally there. Still, the main motivations behind using emergency powers were not to preserve the democratic order and values through maintaining extra legality for a limited period. Instead, exceptional measures were used to establish a new legal and political order, where rule by decree is the defining legal mechanism. As we have experienced over the past few years, emergency measures support political ambitions in Hungary rather than serve to protect adequately against a real threat. Today, we can hardly figure out which actions taken by the government are ‘ordinary’ and which are ‘emergency’ measures.⁸⁷ It also seems that this story is not just about the misuse of emergency measures but is more likely about the abuse of the rule of law.

This style of emergency government even lacks the substance of ‘exceptionalism’, which is based on the claim that ordinary rules can hardly apply during exceptional times. According to Lazar, responsibility and responsible government mean that political leaders act on behalf of their citizens⁸⁸ and not solely for their political benefit. With the various emergency regimes, the Hungarian government can wield unlimited power without parliamentary control by pointing to the threat of mass migration, an epidemic, or an undefined humanitarian crisis. In this way, ‘the dictator’, after suspending the existing legal order, has finally started to act outside the constitution. As I have shown, emergency powers are used in an abusive manner. The aim of emergency decrees is not to handle a valid crisis but instead to bypass parliamentary scrutiny by maintaining a model of rule by decree.

Recently, the government used emergency decrees contrary to its one-party constitution, as seen during the Covid-19 pandemic, and even amended the Constitution to maintain the opportunity to rule by decree. Albeit there are institutional guarantees and formal emergency rules implemented into the Constitution, the executive, on the one hand, addresses the crisis contra legem in that it acts contrary to the constitutional emergency rules; on the other hand, the executive uses new emergency laws that are unequivocally unconstitutional. Emergency powers used by the Hungarian government in recent years have also ‘crossed the threshold’.⁸⁹

Unfortunately, legality and the rule of law no longer constrain executive power in Hungary; instead, formal legality has become a tool for strengthening executive power. Although, during the last 12 years, the Hungarian government has maintained a convenient two-thirds majority in the Parliament, which enables amendment of the Fundamental Law of Hungary solely by the governing parties, it uses this power to ensure the possibility of ruling by decree without adequate parliamentary control of these actions. Therefore, the Hungarian government uses emergency powers contrary to the rule of law. However, it is not the exact same situation we experienced during the Weimar era before the Second World War. At that time, the ‘sovereign’ created a lawless void and acted outside the law. Now, the Hungarian government uses the law but with opportunistic variability, and it has changed so often that one can hardly track its trajectory. The motivation is clear: day-to-day political needs have overturned the importance of constitutional democracy and the rule of law. However, as described by Fuller, ‘a law that changes every day is worse than no law at all’.⁹⁰ The emergency powers in Hungary change the law every day.