Tag Archives: state of terror threat

The Orbán government’s proposed amendments

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.”

police state2

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.

♦ ♦ ♦

Sixth modification of the Hungarian Fundamental Law

 

Article 1.

The following subheadings and the following 51/A. Article are inserted into the Fundamental Law:

Terror threat-situation

Article 51/A.

 (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.

Article 2.

 (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.

General Explanation

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.

Detailed Explanation

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.

 

  1. year…law

Terror threat-situation modification of certain laws

  1. §

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,”

 

  1. §

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;”

 

  1. §

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)

            “f) application,”

  1. §

(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.

 

  1. §

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)

  1. obligatory publication of agreed and coordinated information, official resolutions for public service broadcasters
  2. stockpiling, regulating and restricting the circulation of  products, energy sources, consumer goods that are important for the protection of the country
  3. the replenishment – with simplified procedure – and overwork of  important positions in public administration, defense management, the Hungarian Defense Force and law enforcement organizations
  4. 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.
  5. restrictive regulations on frequency management and broadcasting, and order introduction of special modes
  6. necessary restriction of air traffic in the Hungarian air space and airports
  7. the employment of the Hungarian Defense Force, and  law enforcement forces and equipment to protect the country and the critical infrastructure of public services
  8. 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
  9. cumulating special reserves, speeding up purchases of imported goods, export restrictions, introduction of commercial quotas, suspension of public procurement
  10. introduction of special counter terrorism measures
  11. tightening the traffic control on state borders regardless of any international regulations and conventions
  12. the use of alert levels for citizens as well
  13. the use of special access control procedures and technical control in public institutions and public places
  14. 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’
  15. the searching of individuals or vehicles in the above mentioned objects and approach routes, in addition finding and destroying unattended things with unknown origins
  16. 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
  17. increased control of the internet, letters, baggage and mail traffic
  18. the restriction of residence in certain parts of the country, and subjection it to a permit
  19. curfew in the affected settlements with determination of the exact time period
  20. prohibition of organizing events and demonstrations in public spaces
  21. 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.
  22. 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
  23. 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
  24. 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
  25. the limitation or prohibition of entry of foreigners
  26. the limitation or prohibition of contact and communication with foreigners and foreign organizations, institutions
  27. an obligation to non-Hungarian citizens that stay in Hungary to report themselves to authorities, and the Government may introduce limitations on their stay
  28. that traveling to, across, or out of certain parts of the country is possible only with a permit
  29.  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
  30. 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.”
  1. §

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.”

  1. §

This Act shall take effect on the first day of the month following its publication.

  1. §

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).

 

GENERAL EXPLANATION

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.

 

DETAILED EXPLANATION

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

 

Toward a police state: the government’s latest effort at limiting democratic freedoms

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.

The arrow points to Hungary which is a happy island of low terror threat

The arrow points to Hungary, a happy island with a low terror threat

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.