The EU summit in Brussels has brought the attention of the public to the issue of how the European idea should be approached. Is Europe a mere community of countries sharing similar economic interests, or is it more than that? A clear response is still awaited to this question, even if the circumstances arisen due to the COVID-19 pandemic have revealed with unusual clarity the stance taken by the EU member countries concerning the rule of law.
Hungary is definitely not the only country in the world where legislative anomalies tend to happen. Numerous examples show across the world that sometimes, legal provisions are bent to serving political purposes instead of respected as clear limits on political room for maneuver. However, even if this is the case, we are currently experiencing special times as the pandemic forces governments to face an unusual challenge. Governments have to prove that they are able to tackle the problems raised by the global health crisis. Public health care systems are threatened with collapse and the conditions of digital education and remote work should be guaranteed, while the increased need of the general public for information is to be satisfied. Because states all over the world face the same problems to solve, their priorities have become easy to compare. One thing is for sure: No matter what, the priorities of the Orbán Government are unchanged by events.
It has become clear that the Hungarian Government recognizes the second wave of the pandemic as an opportunity to push its own political agenda unchecked. Currently Hungarians are busy with surviving the pandemic. Because the crisis has hit the Hungarian healthcare system heavily, combating the pandemic has become the center of attention among the general public. All the issues that shape our everyday life during normal circumstances now seem less relevant, which is being strongly taken advantage of. In such times, imposing a general ban on exercising the freedom of assembly was easy to communicate as a necessary precaution to combat the virus, while at the same time it provided an excellent chance to pass controversial new pieces of legislation without the risk of public protest. The 9th Amendment to the Fundamental Law passed yesterday is a striking example of this, illustrating what the Hungarian Government is doing - instead of saving citizens’ lives by preventing the breakdown of the Hungarian healthcare system.
It turned out that the most “pressing issue” the Government wanted to handle was the approach taken by the courts in cases concerning public money, which was definitely uncomfortable for the executive. According to mainstream jurisprudence, the courts tend to interpret what constitutes public money quite broadly, which is definitely not favorable if your aim is to pump funds out of the central budget. The recent amendment to the Fundamental Law solves this alleged problem by defining the notion of public funds as the income, expenditure and claims of the state, a definition that is suitable for encumbering freedom of information requests and narrowing down the interpretive leeway of the courts when they decide cases crucial to budgetary transparency. A similar aim appears behind another newly added paragraph that requires a parliamentary supermajority for any legislation concerning asset management foundations fulfilling a public duty. Recently such foundations have begun to serve as “money pits” that absorb public funds under the guise of “public duty”. This amendment ensures that these funds will remain buried long after the Fidesz Government is gone.
One could presume that gender identity or the right to self-identity could be less compelling matters during times of special legal orders such as the state of emergency, but not for the Orbán Government. From now on, the Fundamental Law will include children’s right to a Christian upbringing, a clear violation of the doctrine of state neutrality with respect to religion, and also defines gender identity as corresponding to sex at birth. The amendment also complements already-existing definition in the Constitution stating that a mother shall be a woman and a father shall be a man. According to the explanatory notes accompanying the amendments, it was necessary to enshrine all these provisions into the Constitution because the modern ideological processes present in the Western world pose a threat to traditional core family values, although they fail to explain how such threats cause negative impacts in practice.
During the pandemic, governments should take action to eliminate the danger threatening citizens’ lives. To help maximize the effectiveness of these efforts, governments are vested with special powers that include authorization for enhanced interference with the exercise of fundamental rights and freedoms. This special authorization is not unknown in international law either. Even the European Convention of Human Rights enables the contracting parties to take measures derogating from their obligations under the convention in times of public emergency threatening the life of the nation. However, the sole reason justifying this authorization is the aim of handling the public emergency in question, which means that all derogations may happen just to the extent strictly required by the exigencies of the situation. This special authorization is rooted in trust - the trust and hope that governments will use such authorizations not to serve their own political interests, but to solve the crisis. By passing these amendments to the Fundamental Law targeting the transparency of the state and interfering further into citizens’ family matters, this trust has suffered wound that cannot heal. This violation of the public trust will always be remembered.
(Proofreaded by Gwendolyn Albert)
