Bernard Rorke on the latest horrifying developments in Budapest.

Hungarian Premier Viktor Orbán has just marked ten years in power with the most audacious assault on democracy that the European Union has ever witnessed. Under the cover of the Coronavirus, Hungary’s Parliament voted on Monday by a two-thirds majority to give the ruling party the power to rule by decree without any time limit. Dutch liberal MEP Sophie in’t Veld declared that “Viktor Orbán has completed his project of killing democracy and the rule of law in Hungary.”

As if to prove the MEP’s point, late on Tuesday evening, the deputy prime minister turned in a bill of new proposals, the bulk of which are unrelated to the pandemic. One measure designed to curb the powers of municipal authorities and mayors, many of whom hail from opposition parties, was hastily withdrawn by Wednesday afternoon.

In an email to the Guardian, Budapest’s left-green mayor, Gergely Karácsony issued a stark warning that caused the regime to pause: “If soldiers, policemen and Fidesz delegates have to decide on local government issues they do not even know or understand and have five days to do so, we are losing precious time in saving lives. If this proposition is accepted it could cause the death rate to rise.”

The other provisions in the bill make it clear that rule by decree means time to settle scores, including an attack on the rights of transgender people. This bill will replace ‘gender’ with ‘gender at birth’ in the civil registry, and make the entry unalterable. According to Pink News, “The effect of this is that Hungarian citizens will be unable to change their gender legally, a significant rollback of rights in the eastern European country.” The explanatory memorandum states: “Given that completely changing one’s biological gender is impossible, it is necessary to lay it down in law that it cannot be changed in the civil registry either.”

Orbán will be encouraged by the sounds of silence from Brussels, and not unduly perturbed by President of the European Commission Ursula von der Leyen muted reaction. She made no mention of Hungary, and confined herself to a bland statement stressing the “utmost importance that emergency measures are not at the expense of our fundamental principles and values.” The center-right European People’s Party was similarly circumspect and avoided any direct criticism of the regime’s latest move towards elective dictatorship.

Orbán’s spokesman Zoltán Kovács described the extraordinary measures as “congruent with the treaties and the Hungarian constitution”, claimed the law upheld EU values, rule of law, and press freedom and accused critics of being misinformed. Justice minister Judit Varga, made similar claims about the limited and proportionate measures and warned journalists not to “distort” facts, a crime that can now land purveyors of ‘fake news’ in jail for up to three years.

Regime claims that these extraordinary measures are somehow unexceptional in the time of the virus are plainly absurd. The law which allows for rule by decree is open-ended, rule by decree amounts to an effective abrogation of human rights, with the suspension of parliament, a ban on elections and referenda. The law, which makes it a criminal offense to spread false information “that may cause unrest”, or “thwart efforts to protect people from the spread of the virus”, is clearly designed to intimidate critical journalists, activists and academics. These measures are truly exceptional but hardly unique, as legal professor Renata Uitz, Professor of Comparative Constitutional Law at the Central European University noted:  

“One does not have to suspect Schmittian shenanigans around every corner to find that a bill that authorizes executive rule via decrees without any procedural or substantive limits in the midst of an open-ended crisis looks just like the Enabling Act (Ermächtigungsgesetz) of 1933.”

It is a measure of the bare-faced effrontery of the regime that they even labeled the new law ‘the Enabling Act.’ From the US, presidential candidate Bernie Sanders described Orban’s move as an example of how “authoritarian leaders have used moments of crisis to seize unchecked power”. This law has nothing to do with saving lives in the midst of the pandemic – opposition politicians were prepared to give the government extraordinary powers if the bill was amended to place 90-day limits on governing by decree. Orbán was just not interested, for this was his moment – while the continent is beset by crisis – to assume power without constraint.  As legal expert Kim Lane Scheppele put it: 

“With these new emergency powers, Orbán would have the power to lock down his own population with draconian decrees backed by force. The law hands to Orbán the fully-fledged dictatorial powers he would need in order to cling to office.”

As Carl Schmitt, the crown jurist of the Third Reich, infamously phrased it: “sovereign is he who decides on the exception”, the exception being that moment to step outside the rule of law in the public interest. Ten years after Orbán swept to victory with a two-thirds majority in the polls, and proclaimed that the “revolution in the polling booths” had “established a new regime, the regime of national unity”, the sovereign has chosen his moment well.  

Over those past ten years, a crude nativist politics combined with state capture, deep corruption and the steady dismantling of checks and balances has proceeded apace, while the EU effectively stood by and gaped. Without any hindrance from the Union, the regime attacked press and academic freedoms; waged hate campaigns against minorities, refugees and migrants; harassed civil society groups and demonized legitimate opponents as traitors and enemies of the nation.

For ten years, the European Commission and the European People’s Party, by inaction and collusion respectively, have facilitated the construction of an illiberal, authoritarian regime inside the European Union. Failure to take resolute action against the Union’s first elective dictatorship will render von der Leyen’s already compromised right-leaning Commission as unfit for purpose, and leave it stripped of any credibility to pose as guardian of the EU treaties.