MTA Law Working Papers

A Jogtudományi Intézet műhelytanulmányai

Tímea Drinóczi: Hungarian Abuse of Constitutional Emergency Regimes – Also in the Light of the COVID-19 Crisis

This paper belongs to a wider project I have been conducting with Professor Agnieszka Bień-Kacała on illiberal constitutionalism. Therefore, this paper has two distinct but interrelated and unevenly discussed focuses: how the emergency power can be abused even in a constitutionally well-equipped emergency regime (primary focus), and whether the actual abuse and misuse of these powers have effectuated any changes in Hungarian illiberal constitutionalism until 30 April 2020 (consequential result). The constitutions of the Central and Eastern European (CEE) region, including the Hungarian Fundamental Law, exemplify a judicial or constitutional model for emergencies and emergency powers. This paper claims that Hungary could exemplify how to be constitutionally well equipped to deal with emergencies and still able to abuse them. It concludes that the abuse and misuse of constitutional emergency regimes, in Hungary, have two layers: the actual abuse of emergency powers, be those extra-constitutional (the “crisis situation caused by mass migration” since 2015) or (partially) non-constitutional (COVID-19 crisis, 2020), and the abusive regulation of emergencies and powers (2015, 2016, 2020) by bypassing constitutional procedures and resorting to secrecy, including the non-transparency of decisions and vague drafting. The paper holds the view that – as long as we do not see what the Government does at the end of the COVID-19 crisis and how all the emergency measures and other illiberal actions taken in and before 2020 add up – Hungary continues with its illiberal constitutionalism.