During the COVID-19 pandemic, Hungary and Poland have progressively slipped further towards authoritarianism. Contrary to expectations that such downturn would be driven by the abuse of emergency powers, the reality is that the impact of “normal time” measures such as ordinary legislation, parliamentary resolutions, and normal time practices might have been even more harmful to democracy, rule of law, and human rights protection. However, this does not mean that emergency powers, be it statutory or by governmental decree, have not decidedly contributed to this deterioration.
In 2020, using pandemic management as an excuse, Hungary’s government implemented emergency governmental decrees to take away property from local governments, a measure which mainly targeted the opposition-led ones. It also restricted access to public information by considerably extending the time limit within which public authorities are required to provide public information, which the Constitutional Court not find unconstitutional in a highly questionable decision in 2021. The extension of the third constitutional emergency by the Parliament as per the Government’s proposal until autumn 2021, amid the vaccination campaign and easing of lockdown restrictions, is used to prevent national and local referenda on questionable governmental investments, such as the opening of a Fudan University branch in Budapest. Similarly, the Polish government, using its newly invented statute-based emergency power that bypassed the Polish 1997 Constitution, disproportionally limited the freedom of assembly and aimed at manipulating the presidential election. While these emergency measures are indeed harmful to democracy, the ordinary legislation adopted during the pandemic – yet unrelated to it – reveals a much more systematic downward trend towards illiberalism.
In 2020, the Hungarian Parliament did not to ratify the Istanbul Convention set to prevent and combat violence against women and domestic violence. Afterwards, by amending that law, the Parliament made it impossible to change the birth sex in official documents. However, this illiberal trend is particularly visible in the education sector. The Hungarian government privatized Hungarian public universities at the beginning of the pandemic, in March 2020. The latest “round” of privatization started in January 2021 without prior and genuine preparation, the involvement of universities, meaningful consultation, nor any impact assessment. This raises crucial questions about the use of public funding: the Parliament is now transferring public money from public universities to private stakeholders sitting in boards of newly privatized universities, without an open competition or a traditional transaction. Additionally, due to the new constitutional amendment (Ninth Amendment to the Fundamental Law of Hungary) adopted in November 2020, it will be tough to access public information on spending public money and management of public assets and reverse the university privatization reform.
The two-thirds majority in the Hungarian Parliament also amended the constitutional definition of family and that of a child’s best interests. The Constitution now defines the mother as a woman, the father as a man, and sex as inborn quality. As a result, it is now going to be impossible for LGBTQ people – and unmarried individuals – to adopt a child. Moreover, the adoption decision has been centralized in the hands of the Minister for Family Affairs and assessed based on the child’s upbringing as framed in Hungary’s constitutional identity and Christian culture. Just in mid-June 2021, the Parliament passed another anti-LGBTQI law banning the dissemination of content in schools and TV shows deemed to promote LGBTQI-related material as a way to allegedly “protect” students under 18 years old. Moreover, the two-thirds parliamentary majority as per the Ninth Amendment to the Fundamental Law defined some causes of emergency more broadly and concentrated all the power in the hands of the executive. This new emergency regime – which is likely to be abused – will come into force in the summer of 2023.
In Poland, one can observe the same trends. The Law and Justice party (PiS) was able to push for illiberal measures through ordinary statutes and procedures and campaigned for the withdrawal from the Istanbul Convention. Similar to the Hungarian government, the party opposed the EU Gender Action Plan and signed the Geneva Consensus Declaration on Promoting Women’s Health and Strengthening the Family, which is an anti-abortion declaration. Poland also adopted other measures deteriorating the rule of law, democracy, and human rights, affecting judicial independence, the role of different chambers of the Supreme Court, and resulting in the abusive initiation of Constitutional Tribunal (CT) procedures, including the petition on the constitutional status of the former ombudsman. None of them have anything to do with emergency powers.
Recently, the Polish government has been abusing its powers to initiate constitutional review procedures before the CT. The majority-members of the lower Parliament chamber, the Sejm, have submitted petitions to the body to secure a deferential decision, and prevent a political debate and a possible defeat in the Sejm and, most importantly, in the Senate, where PiS does not have a majority. They applied this tactic in the abortion case when Bartłomiej Wróblewski, MP from the PiS, initiated a process before the CT, resulting in an abortion ban.
Now, the government acted similarly in connection to the election of the new Ombudsman. The mandate of Ombudsman Adam Bodnar ended in September 2020. Since then, as per the law, he is the acting Ombudsman until the new one is elected and takes office. A new Ombudsman is elected by both the Sejm and Senate. However, in this particular case, the Senate’s consent was highly improbable. Therefore, after proposing the nomination of Mr. Wróblewski – who is called the butcher of human’s rights [rzeźnik praw obywatelskich] due to his involvement in the abortion case – MPs from PiS sent a petition to the CT. The body, contra legem, established that Mr. Bodnar is not a legitimate acting Ombudsman. It gave Parliament three months to adopt new rules to tackle the situation during which the Ombudsman’s office remains vacant after the expiry of the mandate. Thus, the CT facilitated the possible future capture of Ombudsman’s Office by the PiS. Based on its decision, it is highly probable that the new statutory rules will not be designed to seek the consensus of the Sejm and the Senate. This direction of the statutory reform is even more likely now as, on 14 May 2021, the Senate rejected to elect Mr. Wróblewski as Ombudsman.
While the pandemic has definitely played a role in framing Poland’s and Hungary’s political discourse, legislation, and procedures, it has been the “normal time measure”, not the emergency powers, that seem to matter more. This is how some EU member states have progressively slid towards authoritarianism during the COVID-19 emergency, while the pandemic has only been partially used to justify these “normal” illiberal measures.