Today I’m dealing with two interconnected issues: (1) the anti-terrorist surveillance legislation, which was dealt a serious blow yesterday in Strasbourg and (2) the government’s proposal for a constitutional amendment that would introduce a new category of emergencies that could be declared in case of a “situation created by a terrorist threat” (terrorveszélyhelyzet).
You may recall Professor Kim Lane Scheppele’s article titled “The New Hungarian Secret Police,” which appeared on Paul Krugman’s blog in The New York Times on April 19, 2012. In this article Scheppele listed the duties of TEK (Anti-Terror Center), which in her opinion had become Viktor Orbán’s secret service.
TEK now has the legal power to secretly enter and search homes, engage in secret wiretapping, make audio and video recordings of people without their knowledge, secretly search mail and packages, and surreptitiously confiscate electronic data (for example, the content of computers and email). The searches never have to be disclosed to the person who is the target of the search – or to anyone else for that matter. In fact, as national security information, it may not be disclosed to anyone. There are no legal limits on how long this data can be kept.
She ended her article by stating that “it seems increasingly likely that the Hungarian government is heading toward the creation of a police state.”
It was not only Professor Scheppele who found the law governing the activities of TEK frightening but also two Hungarian lawyers–Máté Szabó and Beatrix Vissy–who work for a non-governmental watchdog organization, Eötvös Károly Közpolitikai Intézet. A few months after the publication of Kim Scheppele’s article they filed a constitutional complaint, arguing that these sweeping prerogatives infringed their right to privacy. The Hungarian Constitutional Court dismissed the majority of their arguments. At that point Szabó and Vissy turned to the Court of Human Rights, which yesterday sided with them. The decision stated that the law is so broad that it could be used against “virtually anyone,” trampling Hungarians’ right to privacy. Therefore, the court concluded that the law violated Article 8 of the European Convention on Human Rights. Hungary has three months to ask for the case to be revisited, but the Court doesn’t have to oblige. Considering that it was a unanimous decision, I don’t think there will ever be a second hearing of the case. This is an important case, with broad implications across Europe.
On the same day, on January 12, István Simicskó, the recently appointed minister of defense, called for a “five-party” discussion on security measures that would involve the use of the army in the case of a “terror threat.” Currently there are three situations in which the government can take varying degrees of extraordinary measures: (1) “emergency conditions” (veszélyhelyzet); (2) “preventive defense conditions” (megelőző védelmi helyzet); and (3) a “full state of emergency” (rendkivüli állapot). The government is seeking a fourth emergency category, somewhere between “preventive defense conditions” and “full state of emergency.” It would be called a “state of terror threat” (terrorveszélyhelyzet). To introduce this new category the government needs a two-thirds majority since its enactment requires an amendment to the constitution.
Of the five parties that have their own delegations in parliament only four showed up: Fidesz, the Christian Democrats, Jobbik, and LMP. MSZP’s chairman, József Tóbiás, boycotted the meeting because the party considered the proposed law a government ruse that could expand Viktor Orbán’s already sweeping powers.
Origo published the details of the proposed new category yesterday afternoon. Here are the most important provisions that emerged from this first report.
In the case of a terror threat the army can be used if “the employment of police and the national security forces is insufficient.” The proposal doesn’t specify what “insufficient” means. But that is not the only term that is not explained. It is not at all clear what the government means by “danger of terror.” In Origo’s understanding “one or two unrelated terror threats” wouldn’t precipitate the declaration of a state of emergency, the highest level of extraordinary measures. That’s why the government wants to create a new category of “state of terror threat.”
Let’s stop here for a minute. If I understand it correctly, a single terror threat, which may turn out to come from a crackpot, might warrant the declaration of a state of terror threat. Moreover, terrorism, as defined by the Hungarian government, might not be what most of the world understands it to be. András Jámbor of kettosmerce.blog.hu recalled that in the last two years government politicians used the word “terrorism” to describe a range of activities, including nonviolent political protest. TEK talked about terrorism in connection with two pensioners who were alleged to be plotting to assassinate Viktor Orbán and two youngsters who turned out to be history buffs collecting World War II weapons. Politicians talked about terrorism at the Serb-Hungarian border when migrants threw rocks at Hungarian policemen. The word “terrorism” was used when some of the demonstrators against the internet tax threw old PCs at the headquarters of Fidesz. And it was considered to be terrorism when two activists who protested against the extension of the Paks Nuclear Plant climbed up to the balcony of Sándor Palota to remove the Hungarian and EU flags. In this light, what follows is even more frightening.
Here are the most important provisions of the proposed law: the government could limit and influence media content; it could limit the use of gasoline and other products; it could introduce measures contrary to international agreements at the borders; it could control the internet and the postal service; it could order curfews and forbid larger gatherings; it could decide on the expulsion of individuals. These were the points Origo included in its article. But perhaps the most important provision is that the government under a “state of terror threat” would govern by decree.
Here I would like to quote myself when I wrote about László Kövér’s idea from 2013 when the president of the parliament suggested “governance by decree.” This is what he had to say: “I would find it normal, quite independently from what kind of governments we will have in the next few years, if parliament would lay claim only to the creation of the most fundamental legal guarantees and would otherwise hand over its mandate to the government for the next four years.” When pressed, he explained that this would mean a kind of governing by decree. At that time I wrote:
I doubt that Kövér learned much about modern Germany while dabbling in history. Otherwise he might have been more cautious in advocating governance by decree. It was in March 1933 that an amendment to the Weimar Constitution took effect which gave power to Chancellor Adolf Hitler to enact laws without the involvement of the Reichstag. The act stated that this arrangement was to last four years unless renewed, which subsequently happened twice. This so-called Enabling Act (Ermächtigungesetz) gave Hitler plenary powers and made him the dictator of Germany…. The resemblance between the German Enabling Act and what Kövér proposed in this interview was first picked up by János Avar and seconded by György Bolgár on ATV’s UjságíróKlub last night. It has since been repeated by many bloggers. It is one of the most frightening suggestions I have heard in the longest time.
András Jámbor also pointed out a few more provisions of the proposed constitutional change. “The government could close newspaper offices; it could take over the assets of NGOs; and it could forbid any association with foreigners.”
Jobbik wholeheartedly supports the proposal, and thus there is no question that it will easily pass. LMP was somewhat critical, but Schiffer’s greatest objection was that the declaration of a state of terror threat, as it stands now, depends only on the will of the government. Parliament has no say in the matter. But we could ask from András Schiffer: “What difference would parliament’s participation in the process make under the present circumstances?” He considers the terror threat a serious matter, but he wouldn’t support provisions that limit the movement of people, postal and internet traffic, freedom of assembly, or the entry of foreigners into the country.
MSZP, as I mentioned at the beginning of the post, didn’t attend the meeting, but the socialist leadership can’t decide what the party objects to or what it wants. Initially, József Tóbiás, the party chairman, explained his refusal to attend by charging that the bill was nothing more than an attempt to expand the powers of Viktor Orbán. The next day, however, Zsolt Molnár declared that MSZP is ready to support a constitutional amendment. Tóbiás’s absence only indicated that one cannot put forth a proposal in the last minute. They are ready to continue to negotiate with the other four parties.
I couldn’t find any reactions from the two small parties, Együtt (Together) and PB (Dialogue). DK, however, announced today that it considers the proposal a dangerous power grab with possibly fatal consequences. “Only Viktor Orbán’s imagination would limit what the government could do under a ‘state of terror threat.’” Anyone who assists the government in this endeavor is helping to destroy the last pillars of democracy. That’s why DK finds MSZP’s decision to take part in this process unacceptable.