It’s time to take a quick look at the amendments to existing laws on the army and the police that, in Viktor Orbán’s words, will start a new era in Hungary. The projected date of this new beginning is September 15–that is, if Fidesz-KDNP has its way and four-fifths of MPs present vote for the extended use of the army and the police in the border regions and elsewhere. The amendments, following the usual course in the Orbán era, were proposed by individual parliamentary members. Not surprisingly, they were the same nine Fidesz-KDNP MPs who were the framers of a message, in the form of a parliamentary resolution, to the “irresponsible” western politicians whom they blamed for the immigration crisis: Antal Rogán (Fidesz), Péter Harrach (KDNP), Gergely Gulyás (Fidesz), Bence Tuzson (Fidesz), Szilárd Németh (Fidesz), Sándor Font (Fidesz), Pál Völner (Fidesz), Erik Bánki (Fidesz), and József Attila Móring (KDNP).
These amendments, in the opinion of those legal scholars whom I consulted, “not only violate the principles of constitutionality but transgress new legal limits that may mean the elimination of constitutional boundaries.” At least this is the opinion of the highly respected think tank of legal scholars at the Eötvös Károly Institute. These amendments introduce a new legal concept under the rubric of “special legal orders” which are specified in the Fundamental Law (constitution) of 2011. The introduction of this new concept, the government incorrectly maintains, does not require an amendment of the constitution itself.
According to the document, there are “common rules for the state of national crisis and the state of emergency” (Articles 48-49), which focus on external or internal military emergencies. Article 50 deals with the circumstances under which the army may be deployed–national disasters, for instance. Article 51 specifies a situation described as “the state of preventive defense,” which might occur if Hungary’s army has to be deployed as a result of her obligations as a NATO ally. Finally, Article 52 deals with a situation that arises as a result of an unexpected attack. These are the only defined cases in which the country’s armed forces can be deployed inside the country’s borders and/or certain laws can be suspended. The Orbán government is introducing a new reason for declaring a state of emergency, linked to the number of asylum seekers present in the country.
The amendment refers to a state of emergency induced by “massive immigration.” What does it mean by “massive immigration”? Answer: if more than 500 would-be immigrants ask to be considered for refugee status per month. In August that number was well over 1,000. Or, if more than a thousand transient migrants are in one of the transit zones. Finally, if disturbances break out in any of the camps. By these criteria Hungary has been in a state of emergency caused by massive immigration for quite some time.
A state of emergency can also be declared if the authorities deem that circumstances endanger the security of a given settlement. So, the situation that developed at the Keleti Station would have given the authorities ample cause to declare a state of emergency. By the way, if a state of emergency is declared, it can last for six months or even longer if the authorities consider it desirable.
In a state of emergency the general regulations of legal order are suspended. In this case the MPs who submitted the amendments would give additional legal powers to the army and the police. For instance, a policeman would be able to enter private property without a warrant. An order from a superior officer would suffice to search for immigrants suspected of being lodged on the premises. And many more actions on the part of either the refugees or of “complicit” Hungarians would now be crimes. The military would also have new rights. It would participate in the defense and protection of the borders and in the handling of large masses of migrants. In carrying out these duties, a soldier “will have the right to fire at specific individuals.”
What the Eötvös Károly Institute is stressing is that while “the crisis situation caused by massive immigration” may resemble the situation addressed by other special legal orders, it is not itself specifically covered by the constitution. Therefore, these amendments are not constitutional. Jobbik’s proposal to amend the constitution was “at least more honest.” The Jobbik amendment would have added the concept of humanitarian catastrophe, which would have permitted the deployment of the army for the defense of the borders. Of course, the associates of the Eötvös Károly Institute find both ways of introducing a state of emergency and suspending the normal legal order equally abhorrent. So much so that they consider “anyone–be he a member of the government, member of parliament, president of the republic, member of the Constitutional Court, ombudsman, professional soldier, judge, policeman–anyone who does not try to prevent the introduction and exercise of a quasi-extraordinary legal order or the perfidious malignity of the use of weapons against the weaponless is responsible for the consequences.”
I must say that relatively few analyses have appeared on this frighting piece of legislation. As if all those journalists with law degrees don’t quite grasp the dangers lurking in these amendments–and there are far more dangers than I could cover here. Ildikó Lendvai, who has retired from active political life, though not herself a law school graduate, is keenly aware of the problem. She wrote two op/ed pieces in Népszava on the subject. In her latest, she points out that although these new pieces of legislation are allegedly about the refugees, Hungarian citizens are just as much victims of the state of emergency in the case of massive immigration as are those hapless asylum seekers. It is hard to imagine, she writes, that the people who put those amendments together would be so heartless as to consider rescuing a small child from under the barbed wire fence such a heinous crime that the person who gave assistance deserves a jail term of a minimum of two and a maximum of eight years. There must be some hidden reason behind it. Surely this law, says Lendvai, is also meant to frighten and subdue the citizens of Hungary.