Constitutionality and the special legal order. Presentation thesis for the Conference on the 30 Anniversary of the Independence of Ukraine

Main part

extraordinary right constitutionality

The COVID 19 disease and its treatment in the national legal systems raised important questions of constitutionality. In this contribution to the anniversary of the independence of Ukraine, we will remember the importance of constitutionality even in situations of danger and extraordinary threats, natural or human attacks on the society, nature and economy. We are facing this situation now in times of the pandemic, the Covid19 virus that attack almost the entire globe.

According to the Venice Commission, that made a comparative report about the situation of democracy, rule of law, the protection of human rights in times of the pandemic in Europe [CDL-PI (2005) 005rev], the only legitimate aim and legitimate ground for adoption of emergency measures is to help the State overcome an exceptional situation. It is the nature, severity and duration of this exceptional situation which determines the type, extent and duration of the measures that the State may lawfully resort to. Emergency measures should respect certain general principles which aim to minimize the damage to fundamental rights, democracy and rule of law. The measures are thus subject to the triple, general conditions of necessity, proportionality and temporariness.

We will first share some basic information about the structure of the special legal orders and their history in Hungary including the Ninth Amendment to the Fundamental Law that will enter into force in January 2023 that aims to change the present structure of the special legal order.

In the second part of the presentation, we will show the special legal orders in the Fundamental Law and highlight the relevance of constitutional guarantees.

The special legal orders in Hungary

The Hungarian legal system treats the special legal order in the constitutional framework currently in Chapter V of the Fundamental Law. The Fundamental Law says itself that it can not be suspended during the special circumstances, not even in the special legal order. This means that its core basic principles such as the protection of human rights and the separation of powers, the democracy and the rule of law are such rules that have guiding force also in the special legal order even if the related specific norms change.

During the pandemic there were serious debates about the use of the state of danger, about its declaration and prolongation Zoltan-Szente - Fruzsina Gardos-Orosz in Konrad Lachmayer (eds.): Pnademocracy, hart, 2021, forthcoming.

¹ Read about the Hungarian special legal orders in more details in English in Zoltan Szente: The Constitutional Law of Hungary, Wolters Kluwer, 2021.. Changing the constitutional text was not a surprising answer to these constitutional difficulties.

This is a simplified regulation, compared to the current system provided by the Fundamental Law. In the system in force 6 different special legal orders exist in the Fundamental Law as you can read bellow, and the state of emergency is such a legal order that allows the most serious alterations from the normal legal order. The state of danger was introduced at the break out of the Covid 19 pandemic that was created originally for natural disaster and industrial catastrophe and was extended to the pandemic only by the Catasthropne Act (which is not possible constitutionally). The special legal order about the terrorist threat was introduced only as a response to the migration crises that did not touch Hungary seriously.

In the special legal orders the temporality of the situations are guaranteed differently, but it is possible in all special legal orders that the authorised body adopt decrees that can overrule statutory regulations².

Important provisions in the Fundamental Law of Hungary as in effect in 2021 and before, during the pandemic disease.

Common rules for the state of national crisis and the state of emergency

State of national crisis

The National Defence Council shall exercise:

a) the powers delegated to it by the National Assembly,

b) the powers of the President of the Republic,

c) the powers of the Government.

(3) The National Defence Council shall decide: a) on the deployment of the Hungarian Defence Forces abroad or within Hungary, on their participation in peacekeeping, on their humanitarian activity in a foreign operational area, or on stationing them abroad,

The National Defence Council may adopt decrees by means of which it may, as provided for by a cardinal Act, suspend the application of certain Acts, derogate from the provisions of Acts and take other extraordinary measures.

State of emergency

The Hungarian Defence Forces may be deployed during a state of emergency if the use of the police and the national security services proves insufficient. During a state of emergency, if the National Assembly is prevented from acting, the President of the Republic shall decide on the utilisation of the Hungarian Defence Forces and it can issue decrees.

Extraordinary measures introduced by means of decrees shall remain in force for thirty days, unless the National Assembly or, if it is prevented from acting, the committee of the National Assembly dealing with national defence issues extends them. Upon the termination of the state of emergency, such decrees of the President of the Republic shall cease to have effect.

State of preventive defence

In the event of a danger of external armed attack or in order to meet an obligation arising from an alliance, the National Assembly shall declare a state of preventive defence for a fixed period of time, and shall simultaneously authorise the Government to introduce extraordinary measures laid down in a cardinal Act. The period of the state of preventive defence may be extended.

State of terrorist threat

In the event of a significant and direct threat of a terrorist attack or in the event of a terrorist attack, the National Assembly shall, at the initiative of the Government, declare a state of terrorist threat for a fixed period of time, and shall simultaneously authorise the Government to introduce extraordinary measures laid down in a cardinal Act. The period of the state of terrorist threat may be extended

Unexpected attack

In the event of an unexpected incursion of external armed groups into the territory of Hungary, until the decision on the declaration of a state of emergency or state of national crisis, the Government shall be obliged - if necessary, in accordance with the armed defence plan approved by the President of the Republic - to take immediate action using force proportionate to and prepared for the attack, to repel the attack, to defend the territory of Hungary with domestic and allied readiness forces of the air defence and air forces, in order to protect lawful order, life and property, public order and public safety.

State of danger

In the event of a natural disaster or industrial accident endangering life and property, or in order to mitigate its consequences, the Government shall declare a state of danger, and may introduce extraordinary measures laid down in a cardinal Act.

Conclusion: common guarantees for the special legal orders - the preservation of constitutionality

Under a special legal order, the exercise of fundamental rights may be suspended or may be restricted beyond the extent of the ordinary proportionality test. Some fundamental rights are non deraogable also in times of special legal orders such as the human dignity or the right to fair trial or the right to life.

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