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Danube Institute President on Epidemic Law: Not the End of Democracy but Lack of Sunset Clause is Worrisome

Hungary Today 2020.04.06.

Talk of the end of democracy is overheated, but the lack of a sunset clause is worrisome, John O’Sullivan, president of the Danube Institute writes in his op-ed for the National Review, responding to historian Anna Applebaum’s tweet in which she asked him and others to try to “justify” the new epidemic response bill that gives special powers to the Orbán government without an exact sunset clause.

“I don’t justify the emergency law as it stands,” O’Sullivan states at the beginning of his piece but then goes into details. He accepts that there are occasions when a crisis is so severe that a government needs emergency powers to deal with it outside the regular law and believes the coronavirus threat is plainly such a challenge. But certain tests are needed, he writes, for supporting it.

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“Is this emergency law within the constitution or a violation of it?” – this is the first important point to check in such a case, according to the president of the Danube Institute. There’s “no doubt that it’s constitutional,” he argues, highlighting that it had been passed by the super-majority that such a law requires.

“Are there safeguards in it?” He found two. First, the constitutional court could reject it in whole or in part, either “today or after the epidemic has receded.” (But since he believes the law is constitutional, this is unlikely to happen.) Second, Parliament can vote to end the state-of-emergency at any time by two-thirds majority. (He also thinks it is unlikely to happen though).

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“Are the emergency powers granted to the government too broad?” He believes “some of them may be,” mentioning the too high (but not unreasonable) fines and prison sentences for breaking quarantine and spreading false rumors. Meanwhile, O’Sullivan points out that those sentences are not imposed arbitrarily; courts will determine them.

“Shouldn’t the legislation have a sunset clause — say, of one year, according to the British model — rather than staying in force indefinitely or until ministers judge the epidemic to be over?” The analyst thinks that it should have, arguing that it is an understandable desire “to protect people’s liberties against overly broad interpretations of emergency prohibitions by over-zealous public officials who themselves feel the hot breath of a public panic at their back.” He says “it would warn ministers that they have power and time — but limited time — to reach prudently considered decisions; it would reassure everyone else that this extraordinary period will end at a known and certain point; and it would therefore lower the political temperature on all sides.” O’Sullivan also believes that without such a clause, the state-of-emergency risks can be self-destructive for the Orban government and therefore damaging to its COVID-19 strategy as international outcry has hit new highs, and some, including Anne Applebaum, are talking about “the European Union’s first dictatorship.” However, the conservative analyst sweeps away allegations by some critics that the rule would suspend Parliament or cancel elections as false.

Detailed Analysis of the “Coronavirus Law” by the Konrad Adenauer Foundation

Commenting on the issue of PM Orbán “ruling by decree,” O’Sullivan argues that during the state-of-emergency, governments rule by decree, and he finds the situation in Germany, France, and Great Britain to be very similar, adding that “the differences between them seem formal and extremely modest.” (Even though in France, the state-of-emergency must be renewed every twelve days, whereas, in the case of Hungary, there is no time limit. On the other hand, he argues, the last state-of-emergency in France lasted two years — from 2015 to 2017).

I don’t draw the conclusion, however, that this means we needn’t worry about the lack of a sunset clause. The longer emergency powers remain on the books, the more tempting it might be for Orbán’s government — or any government — to keep them there.”

But still, the Danube Institute’s president does not think it will happen since it is not in Orbán’s interest as such behavior would bring a “pandemic of hysteria in the international media” and Orbán does not need it as his government already has a two-thirds parliamentary majority “…that enables him to do almost anything he wants within the law and constitution.” O’Sullivan also thinks “there is a sunset clause already” as the Constitution states that when the danger ends, government decrees made under the emergency become invalid.

Concluding his article, O’Sullivan asks Applebaum to take the bet of German journalist Boris Kalnoky who believes that Orbán will close down the state-of-emergency within a few days after Boris Johnson does so in the UK, and challenged those who believe otherwise. John O’Sullivan says he would not take this bet, but if Anne Applebaum “believes her dictator view of Orbán,” then she should.

Read the full and detailed article here.

Another analysis on the much-debated law by the Konrad Adenauer Foundation can be read here.

You can read the English translation of the law here.

In the featured photo: PM Orbán. Photo by Zsolt Szigetváry/MTI

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