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8 Theory & Prac. Legis. 171 (2020)
COVID-19 in Hungary and Poland: Extraordinary Situation and Illiberal Constitutionalism

handle is hein.journals/thorceleg8 and id is 171 raw text is: 



THE THEORY AND PRACTICE OF LEGISLATION                            Routledge
2020, VOL. 8, NOS. 1-2, 171-192
https://doi.org/10.1080/20508840.2020.1782109              Taylor & Francis   Group




COVID-19 in Hungary and Poland: extraordinary
situation and illberaI constitutionalism

Timea   Drin6czi    a and  Agnieszka   Bieri-Kacata    b

'Department of Constitutional Law, Faculty of Law, University of Pecs, Pecs, Hungary;
bConstitutional Law Department, Faculty of Law and Administration, Nicolaus Copernicus
University, Torun, Poland



   Hungary  and  Poland have  started their illiberal remodelling in 2010 and 2015
   respectively. Both governments routinely apply the illiberal version of the Rule of
   Law  (illiberal legality), which involves that every situation has the potential to be
   exploited for political gain. Both states opportunistically apply their constitutions
   and  selectively invoke favourable constitutional provisions. And yet, this paper
   claims that the Hungarian  Fundamental   Law and  the  Polish Constitution are
   equipped  with adequate emergency  measures to provide for a proper framework
   for emergency  legislation. In illiberal emergency constitutionalism, Hungary uses
   and  abuses its Fundamental Law, while Poland is disregarding its binding 1997
   Constitution and, at the same time, creates its new invisible illiberal constitution.
   This paper explores how it is done during the current human pandemic crisis by
   focusing on, first, the emergency regimes the constitutions provide for and their
   (non-)application. Second, it compares the operation of the parliaments as the
   Sejm  chaotically passes crisis management   related omnibus  legislation and
   amendments   on the presidential election during the extra-constitutional 'state of
   epidemic'. The Hungarian Parliament operates under the 'danger of crisis'. Yet, it
   still delivers regular legislative activities, as the emergency 'legislation' is done
   through  governmental   decree  as per  the Coronavirus  Act  2020, which  is
   unconstitutional. These phenomena   necessitate an in-depth inquiry about the
   nature, form, and content of the Hungarian and Polish emergency legislation and
   governmental  decrees. It is concluded that, under normal  circumstances, the
   Hungarian  and Polish constitutional measures set for guiding the authorities in
   emergencies  are adequate. In the current political and constitutional setting and
   COVID-19  crisis, the form and the content of some essential Hungarian and Polish
   emergency   measures stay below  standards. It is a further warning sign for the
   European  community   to take Hungarian  and Poland  illiberal constitutionalism
   seriously. Their pushing the envelope will not end by itself.


KEYWORDS   COVID-19; Poland; Hungary; illiberal constitutionalism; emergency; emergency legislation;
socially distant legislation; abuse; misuse; 'danger of crisis'; 'state of epidemic'

1. Introduction

Hungary   and  Poland  have  started their illiberal remodelling in 2010 and  2015
respectively. Both   governments routinely apply the illiberal version of the

CONTACT  Timea Drin6czi ® drinoczi.timea@ajk.pte.hu
© 2020 Informa UK Limited, trading as Taylor & Francis Group

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