A few days ago I wrote at some length about the Orbán government’s attempt to limit democratic freedoms under the guise of an unspecified terrorist threat that can be declared unilaterally by the government whenever it feels that such a move is warranted.
To introduce such “a state of terror threat,” the constitution must be amended, for which the government party needs a two-thirds majority in parliament, which it no longer has. Therefore, on January 12 István Simicskó, minister of defense, called a meeting of all five parliamentary parties, which the socialists boycotted. LMP and Jobbik did attend, however. András Schiffer expressed his misgivings about the proposed law, his greatest objection being that the declaration of a state of terror threat would depend exclusively on the will of the government. On the other hand, Előd Novák, whom Jobbik delegated to represent the party, was enthusiastic. When Origo’s reporter asked him about the extraordinary powers granted to the government in the amendments, he lightheartedly remarked that in a state of emergency “one cannot be too squeamish. That is the natural order of things.”
Between January 12 and January 19, however, something happened. It looks as if the Jobbik leadership was less elated about the proposed amendments than Novák initially was. Indeed, Novák dramatically announced on his Facebook page that although the document he received from the ministry of defense has been made secret for thirty years, he is ready to face three years of jail time. He cannot remain quiet. Here is proof that the government is planning to introduce a police state any time it claims the need for such measures.
This morning Ádám Mirkóczki, the spokesman for Jobbik, announced on Hír TV that his party agrees that the government should have wider powers in case of a terror threat, but it cannot accept the present proposal that gives the cabinet the exclusive right to identify the existence of a terror threat. They will not support governance by decree. They will not sign a blank check. Moreover, they insist on a four-fifths majority to pass the amendments. Both Népszabadság and Magyar Nemzet triumphantly announced that “the government’s proposal failed.” Indeed, even with Jobbik support, Fidesz would not have a four-fifths majority.
According to Gergely Gulyás, Fidesz stands by its original proposals, but its representatives are ready to negotiate a possible decrease in the duration of the state of terror threat.
Here is the English translation of the document that was officially made public by Előd Novák. It contains both the wording of the amendments and a detailed exposition of what the vague words in the constitution actually mean in reality.
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Sixth modification of the Hungarian Fundamental Law
The following subheadings and the following 51/A. Article are inserted into the Fundamental Law:
(1) The Government can proclaim terror threat-situation in an event of significant terror threat or in the case of a terrorist attack, and it can introduce extraordinary measures defined in cardinal law.
(2) The Government can issue decrees in a terror threat-situation that according to regulations defined by cardinal laws – can suspend the application of certain laws, deviate from certain legal provisions, and it may take other extraordinary measures.
(3) The Government regulation (1) and (2) shall remain in force for sixty days, unless the Government – under the authorization of the National Assembly – extends the scope of the regulation.
(4) For the National Assembly’s (3) paragraph decision, two-thirds vote of the present Members of Parliament is needed.
(5) The Government informs continuously the President of Republic and the National Assembly standing committees that have relevant responsibilities and powers about the measures taken in the time of terror threat situation.
(6) The Hungarian Defense Force may be used during the terror threat-situation, if the use of the police and national security agencies are not enough.
(7) The Government’s decree is repealed if the terror threat situation ceases to exist.
(1) This modification of the Fundamental Law shall enter into force on the first day of the month following its promulgation.
(2) This modification of the Fundamental Law is accepted according to the Fundamental Law’s Article 1. Paragraph (2) Point (a) S) article Paragraph (2) by the National Assembly.
(3) The consolidated text of the Fundamental Law after this modification of the Fundamental Law entered into force shall be published immediately in the Official Gazette.
The security environment of the transatlantic region, including Europe and Hungary has fundamentally changed since the creation of the Fundamental Law. New type of security challenges have appeared in the world that cannot be answered by the previous same special legal answers given to classical interstate threats sufficiently and in accordance with the requirement of necessity-proportionality. The special legal order rules of the Fundamental Law create a logically closed system for the classical challenges. In this system the state of national crisis answers the classical war threat, the state of emergency answers the fundamental threat of the state or social order from inside, the state of preventive defense ensures the preparation of a coming war, the unexpected attack situation answers a situation when an external armed force attacks the country. This system provides more and more authority to the government according to the severity of each situation. The new type of security challenges cannot be implemented fully into this system.
Taking into account the security situation nowadays, this modification serves the goal of supplementing the special legal authority for the prevention and management of the new type of security challenges of terrorism, given that these types of – armed and unarmed – threats have intensified in Europe.
For Article 1.
The purpose of the amendment is to give the government powers to immediate action in the case of terror threat – including armed or cyber threats as well – with the National Assembly’s post factum confirmation. With this amendment the prevention or elimination of these new types of security challenges does not require the introduction of the state of preventive defense that was designed for war time emergency or the introduction of state of emergency that was designed for managing an internal crisis. The latter two special laws include the systematic modification of governmental operations and the ordinary life of a citizen; which in a state of emergency situation involves fundamental legal order changes as well.
The terror threat and certain attacks do not require the introduction of state of emergency, because the immediate management of these problems could be handled by the Government with the option of extraordinary measures. In contrast, the introduction of the state of emergency is needed, if more serious attacks happen that massively threaten the life and property safety, or the constitutional order of the state is endangered fundamentally. In the case of these types of extended threats the state of emergency seems to be justified, where the President of the Republic has the decision-making powers, and the operation of the state has system-wide changes, it opens a broader extraordinary executive power in order to ward off the threats.
The regulation of terror threat-situation follows technically the regulation of emergency, with an additional overhead warranty. For the prolongation of the Government’s regulations, the Fundamental Law requires a qualified majority, and regards to the nature of the situation the Government has a permanent obligation to provide information to the President of the Republic and to the National Assembly.
The promulgation of terror threat-situation provides for the Government quick intervention opportunity to deviate from the regulations concerning the public administration, Hungarian Defense Force, law enforcement, national security agencies. In addition, it provides opportunities for the Government to introduce measures that have an effect on the everyday life of an ordinary citizen proportionately to immediate threats, with providing continuous information to the President of the Republic and to the National Assembly at the same time. The terror threat-situation does not necessary require the use of the Hungarian Defense Force, but it provides an opportunity for that. The Government can decide on the usage of Hungarian Defense Force at the same time, when it promulgates the terror threat-situation. Additional warranty condition is that the deployment of Hungarian Defense Force can be used if the Government evaluates the usage of the police and civil national security services are not sufficient to handle the situation.
For Article 2.
It includes the enacting regulation.
Terror threat-situation modification of certain laws
The XXXIV. law on Police from the year 1994.; 1. § Paragraph (2) Point 9. is replaced by the following:
[The police in the Fundamental Law, in this law and based on an act in other regulations among defined crime prevention, public administration and law enforcement responsibilities]
“9. Shall carry out the law enforcement tasks delegated to it in time of state of national crisis, state of emergency, state of preventive defense, terror threat-situation, unexpected attack and in time of emergency, furthermore in time of state of national crisis and in case of unexpected attack participate in capturing and unarming the people who crossed the state border armed or with weapons,”
The CXXV. Law on national security services from the year 1995.; 9. § Point b) is replaced by the following:
[The national security services]
“b) shall carry out the tasks delegated to them in time of state of national crisis, state of emergency, state of preventive defense, terror threat-situation, unexpected attack and in time of emergency;”
The CXIII. Law (hereinafter: Hvt.) 36. § Paragraph (1) Point f) which is connected to homeland defense and Hungarian Defense Force and measures in time of special legal order is replaced by the following:
(The Hungarian Defense Force shall carry out the following tasks with the right to use weapons)
(1) The Hvt. 64. § Paragraph (1) is replaced by the following:
“(1) The operational regulations and measures are defined by this chapter in time of state of national crisis, the state of emergency, state of preventive defense, terror threat-situation. The national measures in accordance with the NATO Crisis Response System can be used independently, and in consort with other extraordinary measures. “
(2) The Hvt. 64. § Paragraph (4) is complemented by the following:
(The Government can introduce)
“c) in terror threat-situation measures according to the 78/A. §
(3) The Hvt. 64. § Paragraph (5) is replaced by the following:
“(5) Where this part mentions regulations, it means extraordinary measures introduced by the Hungarian Defense Council in time of state of national crisis; the President of Republic in time of state of emergency; the Government in time of state of preventive defense, terror threat-situation and unexpected attack. Any conflicting legislation with these does not apply.
The Hvt. is complemented with the following 46/A. sub-heading:
“46/A. Extraordinary measures that can be introduced in time of a terror threat situation.
78/A. § The Government may order in compliance with the Fundamental Law Article 51/A Paragraph (2)
- obligatory publication of agreed and coordinated information, official resolutions for public service broadcasters
- stockpiling, regulating and restricting the circulation of products, energy sources, consumer goods that are important for the protection of the country
- the replenishment – with simplified procedure – and overwork of important positions in public administration, defense management, the Hungarian Defense Force and law enforcement organizations
- the simplification of management system in certain sectors of public administration, the modification of regulations – administration period, authority, jurisdiction and scope of cooperation – of public administrative institution’s work schedule, and public proceedings.
- restrictive regulations on frequency management and broadcasting, and order introduction of special modes
- necessary restriction of air traffic in the Hungarian air space and airports
- the employment of the Hungarian Defense Force, and law enforcement forces and equipment to protect the country and the critical infrastructure of public services
- the limitation of ownership rights and locking interests of other states, natural persons, legal persons, and organizations without legal persons that threatens the security of the country
- cumulating special reserves, speeding up purchases of imported goods, export restrictions, introduction of commercial quotas, suspension of public procurement
- introduction of special counter terrorism measures
- tightening the traffic control on state borders regardless of any international regulations and conventions
- the use of alert levels for citizens as well
- the use of special access control procedures and technical control in public institutions and public places
- the tightening rules, introducing conditions or denying, personal or vehicle entry into buildings and facilities of public administration, Hungarian Defense Force, law enforcement and other organizations that contribute to defense. The traffic’s evacuation, limitation or diversion on their approach routes’
- the searching of individuals or vehicles in the above mentioned objects and approach routes, in addition finding and destroying unattended things with unknown origins
- making rules for service time – differently than the procedure in time of peace – concerning the Hungarian Defense Force’s operative military units and official cadres of law enforcement agencies
- increased control of the internet, letters, baggage and mail traffic
- the restriction of residence in certain parts of the country, and subjection it to a permit
- curfew in the affected settlements with determination of the exact time period
- prohibition of organizing events and demonstrations in public spaces
- the use of rooms, studios, broadcasting stations, equipment, and facilities of radios, TV-s and other mass communication institutes, unbundling or ignoring them for use.
- the suspension, limitation and controlling of postal and electronic communication services, furthermore the use of telecommunication and information technology networks and equipment, and the unbundling or ignoring the use of electronic communication equipment
- the limitation of road, rail, water or air vehicles in certain parts of the day and in certain places (routes), or prohibiting their transport temporarily in all over- or some parts of the country
- requisition or limitation of the usage of repair capabilities, stations, airports and storage units in order to ensure the road, rail, water and air transports, and perform transport services in expenses of the vehicle owner
- the limitation or prohibition of entry of foreigners
- the limitation or prohibition of contact and communication with foreigners and foreign organizations, institutions
- an obligation to non-Hungarian citizens that stay in Hungary to report themselves to authorities, and the Government may introduce limitations on their stay
- that traveling to, across, or out of certain parts of the country is possible only with a permit
- that the population in certain part of the country has to evacuate for a necessary time, and at the same time the Government appoints a new place of residence for them
- the use of regulations different from the rules on public finances, implementation of appropriation transfers between budget categories, suspension of execution of certain expenditure appropriation, fulfillment of expenditure not included in the law on the central budget, requirement of extraordinary payment obligations, establishment new type of fines, changing the rate of payment and fine obligations, elimination of exemptions and discounts.”
The Hvt. 80. § is complemented with the w) point:
(In the application of this act and legislation concerning national defense)
“w) application: participation in time of state of emergency and terror threat-situation in elimination of violence.”
This Act shall take effect on the first day of the month following its publication.
This Act considered being a cardinal law based on the Fundamental Law Article T) Paragraph (1), Article 45. Paragraph (5), Article 46. Paragraph (6) and Article 54. Paragraph (4).
The act is aimed to implement the sixth amendment of the Fundamental Law about homeland defense and the Hungarian Armed Force, in addition to implement the modification of the CXIII. Law (hereinafter: Hvt) on measures in special legal order from 2011. The regulation expands to the XXXIV. Law on police, from the year 1994. (hereinafter: Rtv.), and to the CXXV. law on national security services (Hereinafter: Nbtv.) and supplements them.
For the 1. §
The constitutional appearance of the terror threat-situation made necessary the supplementation of Rtv. concerning special legal order. The amendment serves this purpose.
For the 2. §
The constitutional appearance of the terror threat-situation made necessary the supplementation of Nbtv. concerning special legal order. The amendment serves this purpose.
For the 3-6. §
For the Hungarian Defense Force, the sixth amendment of the Fundamental Law is necessary to carry out tasks in a terror threat-situation. The deployment of the Hungarian Defense Force has to be expanded to this special legal order besides the state of emergency, in favor of making every other regulation concerning the national defense interpretable.
The Proposal contains the Hvt. 46/A. sub-heading supplementation with the terror threat-situation. The Hvt. new 78/A. § contains in detail – within the cardinal law regulation framework of the Fundamental Law – what kind of measures are in the scope of the Government’s authority.
For the 7. §
The section contains a giving effect provision
For the 8. §
The section contains a cardinal clause.
January 22, 2016