In a tweet that has now been followed by more than 100 tweeters, Anne Applebaum says she’s “looking forward to the justifications” for the Hungarian government’s state of emergency law responding to the COVID-19 crisis from Rod Dreher, from “so many others,” and from me. She also speculates on what our justifications might be. Will it be “justified by circumstances”? Or “the people support it”? Or some “whataboutism”?
As Ms. Applebaum has pointed out in The Atlantic magazine, the Danube Institute, of which I’m president, has received funding from the Batthyanyi Foundation, which itself gets money from the Hungarian government. I invite those who think my opinions tainted by this to visit our website, on which we post all our events, to judge if that is so. Ms. Applebaum presumably doesn’t think so because she has just asked me, rather than Viktor Orban, for my opinion. And my response is an eirenic one:
I don’t justify the emergency law as it stands.
As an old classical liberal of a conservative disposition, I accept there will be occasions when a crisis is so severe that a government needs emergency powers to deal with it outside the regular law. The coronavirus threat is plainly such a challenge. If a law granting emergency powers to the government to deal with it is proposed, however, I would submit it to certain tests before supporting it.
The tests are those most people would impose. Is this emergency law within the constitution or a violation of it? And there’s no doubt that it’s constitutional. It was passed by the super-majority that such a law requires. Are there safeguards in it? There are two. First, the constitutional court could reject it in whole or in part, either today or after the epidemic has receded. That is unlikely since all the required constitutional procedures were fulfilled in its passage, but constitutional courts are unpredictable. The second is that Parliament can vote to end the state of emergency at any time by the same two-thirds majority by which it passed the law. I would not entirely rule out that happening if the Orban government were to abuse these powers, but I judge both serious abuse and a parliamentary rebellion against it to be unlikely. Third, are the emergency powers granted to the government too broad? Some of them may be. The fines and prison sentences for breaking quarantine and spreading false rumors, though not unreasonable in themselves when panic and plague are in the air (the latter quite literally), look to me to be too high. But those sentences won’t be imposed arbitrarily; courts will determine them; and the terms of the legislation are tightly written to prevent its being used for political censorship or anything unrelated to the pandemic. So I would urge moderation on the courts and government, and leave it at that. Finally, shouldn’t the legislation have a sunset clause — say of one year on the British model — rather than staying in force indefinitely or until ministers judge the epidemic to be over? And there I think that it should.
My principal reason for wanting a sunset clause arises from a liberal desire to protect people’s liberties against over-broad interpretation of emergency prohibitions by over-zealous public officials who themselves feel the hot breath of a public panic at their back. At present the coronavirus panic is raging throughout the whole of Europe and driving governments to make major decisions on health, economics, and the relationship between them, under pressure. Here’s how Lord Sumption, a former justice of the U.K. Supreme Court, described the situation in The Times of March 30:
Public pressure for action at whatever cost pushes the measures beyond what they can realistically expect to achieve. It may well push them beyond what is worth achieving if the price is the destruction of our personal liberty, livelihoods and sociability. There are dissenting voices, but not many and they are drowned out in a torrent of collective emotion and abuse.
What difference would a sunset clause make? 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. My second reason is that without such a clause, the state of emergency risks being self-destructive for the Orban government and therefore damaging to its COVID-19 strategy. Far from strengthening the government, a state of emergency with no time limit is likely to weaken ministers by enabling their opponents at home and abroad to paint everything they do as a power grab.
The best example of this is Ms. Applebaum’s second tweet:
And there it is: The European Union’s first dictatorship. None of these powers is needed to fight the virus. But they will help distract and deter opposition, especially when it becomes clear that the government has no better plan.
I wonder if Ms. Applebaum knows what’s in the legislation. She attaches her tweet approvingly to another by Balasz Cseko to the effect that Parliament has been suspended, elections canceled, and that Viktor Orban will now rule by decree. In fact, far from suspending Parliament, the emergency legislation keeps it in place and gives it, alongside the constitutional court, greater oversight powers over the government’s conduct throughout the emergency. Nor will local and parliamentary elections be canceled. It would hardly matter if they were, anyway, since the next parliamentary elections are not due for another two years, the next local elections for another five, and the epidemic is unlikely to last so long as to exhaust either period. I imagine the claim refers to by-elections in constituencies that become vacant through death or resignation. These are indeed banned during the state of emergency for the eminently practical reason that there can be no campaigning or even voting when people are prohibited from gathering in large groups or lining up closer than six meters to cast their ballots. It is the third claim that’s most extraordinary, however. I magnanimously concede that the Orban government will rule by decree in this time because a “state of emergency” is the term of art for a government ruling by decree. Macron is already ruling by decree, and both Boris Johnson and Angela Merkel are doing the same in effect, through primary and secondary legislation.
I’m also perplexed when Ms. Applebaum writes that “none of these powers is needed to fight the virus” and that they’re in the legislation to confuse the opposition because the Hungarian government has “no better plan.” Is that true? After all, it has more or less the same plan as most European governments — social distancing, lockdown, quarantine, extreme hygienic care when meeting people, and so on — and these regulations are a direct attempt to halt the spread of the virus. The most draconian loss of freedom under the emergency — requiring people to stay at home except for exercise and shopping — is the same in those countries. If that strategy were to “fail,” i.e., be abandoned because its costs proved too high economically and humanely, Hungary would then doubtless be in trouble, but so would most every other country.
There are alternative plans, of course. Sweden is using one. But they seem to involve heavier risks to life at an earlier stage than the lockdown strategy. That is why most governments have passed either states of emergency or “emergency” laws written in very similar terms. They fear they may be faced by the combination of a continuing pandemic and a growing economic recession, and they want to be able to act quickly and decisively for a limited period to deal with the difficulties — rumors fueling mass panic, the premature breakdown of curfews — this may generate.
That would seem to be some sort of defense for the Hungarian state of emergency, but Ms. Applebaum has already erected a defense against that defense in her first tweet. She mentioned “Whataboutism” as one of the justifications Rod Dreher and I might use for the legislation. She’s implying that such a response would be an irrelevant distraction from Orban’s dictatorial power grab almost as if European countries such as France, Britain, and Germany were not an appropriate standard by which to judge Hungary’s rules on executive power and individual rights. She’s wise to be cautious, because here are a few comparisons.
Merkel’s government may be preparing a state of emergency to loosen restraints on state spending, which in Germany would be a very big deal. Even if she doesn’t go ahead with that, however, she has already imposed most of the restrictions familiar from other countries — a ban on gatherings, reimposing borders, curfews, etc. — under the wide-ranging Infection Protection Act. In addition to these civil restrictions, as Spectator correspondent Constantin Eckner wrote, the Act also “allows the ministry of health to confiscate products, issue sales bans, close production facilities or force companies to change production through a statutory order.” And these powers are of indefinite duration.
France has a state of emergency that lasts for twelve days and which can be repeatedly reimposed. Regulations under it are tougher and more intrusive than under earlier emergencies: People have to stay in their homes except for essential visits outside such as medical appointments or physical exercise.
Like Chancellor Merkel, the U.K. government has not brought in a formal state of emergency, but it has imposed a lockdown, quarantine, and most of the other restrictions through “emergency” coronavirus legislation passed by Parliament. Boris Johnson, a temperamental libertarian, seems to have been pushed into doing so by a panicked public opinion and a Labour Party keener on restrictions than he was. The law gives the government “unprecedented powers” over a wide range of issues — ministers can “rule by decree” despite lacking a formal declaration of emergency — and it now runs for one year with a provision for MPs to debate its workings every six months. After passing the legislation, however, Parliament left for a month, in part because MPs didn’t want to catch the virus in the crowded chamber.
When we compare the Hungarian state of emergency with these three responses on paper, the differences between them seem formal and extremely modest. France’s state of emergency must be renewed every twelve days, for instance, whereas Hungary’s has no time limit. But the last state of emergency in France lasted two years — 2015 to 2017. So how these governments actually implement their wide-ranging powers matters as much as, maybe more than, paper distinctions. And here the record is illuminating and sometimes surprising.
Not perhaps in the case of France, which has a strong record of deference to executive power. On this occasion the rules are both intrusive and firmly enforced. Violators of the household curfew are punished with fines and imprisonment — 9,000 fines were issued in the first few days. Gendarmes demand official proof of a right to leave the home for those found in the streets — it can be downloaded from a government website. They have been seen physically forcing people back into their homes if they don’t have them. And officials have drawn up a list of exercises approved by the state as legitimate reasons for leaving home. So tough restrictions are being firmly enforced.
Germany is entering the “repressive” stage of the coronavirus response quite late and in a less panicked public mood than others because its efficient and wide testing for the virus has held down the number of fatalities to low levels compared with its neighbors. If that changes, which it probably won’t, then both public and official attitudes may harden. So far, however, the German public has been self-disciplined and the police wonderful.
It is Britain that has provided the most alarming picture. In a number of instances, the police have gone well beyond their powers to enforce social distancing and home isolation. In Derbyshire they dyed a lake dark blue in order to discourage urban drivers from visiting it. They have taken to stopping cars at random to inquire if their drivers had a legitimate reason for being out. They told a shopkeeper not to sell Easter eggs on the grounds that they weren’t essential goods. And they forbade a Labour MP from visiting his father — Lord Kinnock, a former Labour leader and EU commissioner — to celebrate his birthday. (His son went anyway.) None of these interventions have any basis in the emergency legislation. They originate from an often neglected streak in the respectable side of the British character, which is a “bossiness” that, though usually held in check by sensible rules and the mockery of others, has been encouraged to express itself by the ruling atmosphere of panic. It has even spread to the nervous libertarian in Downing Street. As Lord Sumption pointed out in his Times article, it is probable that when Boris Johnson told the public in a press conference that they all had to stay at home, he lacked any statutory power to issue such instructions at that point. Sumption draws an important conclusion:
These are not just technicalities. There is a difference between law and official instructions. It is the difference between a democracy and a police state. Liberty and the rule of law are surely worth something even in the face of a pandemic.
How does Hungary compare on that criterion? So far, though Viktor Orban has equipped his government with strong emergency powers, it doesn’t look as if they are being abused at ground level. There is no heavy-handedness on the streets of Budapest. Having enjoyed exercise walks around the city for the past two weeks, I can say two things: the first is that the people of the city are generally staying home (the streets are far less crowded than usual) but that when they go out, they keep the rules like Germans. They take a wide berth when they walk past you, and they keep six meters distant in groceries and pharmacies (which sometimes admit only two people at a time). Maybe that’s why the police are able to interpret their duties in a very relaxed way. There is none of the officious behavior of the British police nor the aggressive tactics of the French. That may change, but that’s how it is now.
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 Orban’s government — or any government — to keep them there. As Sumption (finally) points out:
Governments armed with vast powers are usually reluctant to part with them. The wartime defence regulations, which required the population to “place themselves, their services and their property at the disposal of His Majesty,” had to be renewed annually but were not allowed to expire until 1964.
Other wartime powers were expressed to continue until the government declared the war to be over, which it never did. They continued to be used until the 1980s, when the Scott report exposed this unsatisfactory corner of governmental practice.
Now, I don’t think that will happen. It’s not in Orban’s interest now or later. First, the mere existence of emergency powers is fueling the epidemic of hysteria toward him in the international media. Extending them would make it a pandemic. Second, the constitutional lawyers point out that there is a sunset clause already, but it’s in the Constitution that governs the “state of danger” rather than in the emergency powers themselves. This says that when the danger (i.e., the epidemic) ends, government decrees made under the emergency become invalid. Any attempt by the government to ignore this provision would certainly be appealed to the court which just as certainly would find against the government. And, third, why would Orban risk the obloquy that this dispute would call down on his head? His government already has a two-thirds parliamentary majority that enables him to do almost anything he wants within the law and constitution. A sunset clause wouldn’t remove that practical power, but it would dramatize his commitment to returning to regular constitutional government.
Boris Kalnoky of Die Welt, the best observer of Central European politics in Budapest, has issued a challenge:
If Orban doesn’t close down the state of emergency within a few days of Boris Johnson doing so, Kalnoky will pay out a bottle of Borsodi beer to whoever takes the bet. If Orban does end the emergency, Kalnoky gets the beer. I wouldn’t take that bet. If Anne Applebaum believes her dictator view of Orban, she should.
Well, Anne, are you feeling lucky?