The Hungarian government is ramping up its “terrorist” measures; a constitutional amendment that establishes a new state of exception is one of the measures it foresees as necessary to keep the population safe.
The threat of terrorism in Hungary is considered to be low by the UK Foreign Office, the CIA, and Hungary’s Strategic Defense Research Centre. Even the Prime Minister’s chief national security advisor says they have no knowledge of terrorist plots. Despite that, the country has maintained a medium-level terror alert since the Paris attacks in November 2015. Most observers agree that any necessary reforms could be addressed by modifying the measures in the current legal framework. However, in early June 2016, the Hungarian National Assembly will vote on an anti-terrorism bill that will require a sixth amendment to a constitution that is already a patchwork of amendments.
Encryption users put on their guard
Plans to ban encryption software were abandoned after being castigated in the media. However, under the conditions specified in changes to the Act on Electronic Commerce, Internet Service Providers (ISPs) that provide encryption services would be under an obligation to store the metadata of encryption users for a year (along with the contents of their communications in the case of weaker forms of encryption); and if they refuse to share this data with an intelligence agency, they could face a fine of up to 30 000 euro. Troublingly, without the inclusion of proper safeguards, encryption users could be more susceptible to privacy abuse. While the government portal declares that the stored data would only be accessible to the secret services after judicial approval, the Hungarian Civil Liberties Union (TASZ) asserts otherwise: authorisation for such requests under current legislation is conferred not by a court, but by a government ministry.
Maximum privacy for state enterprises
Tucked away in the recesses of the 2017 Central Budget Governance Act are also some provisions that would potentially shield state-owned companies from public scrutiny. According to the proposal up for debate next week, non-disclosure protections of data relating to the assets, functioning and contracts of state companies involved in activities such as central data acquisition and telecommunications management could be exempted from Freedom of Information (FOI) laws for up to 30 years. The grounds for protections are mainly economic. The rationale: the availability of certain kinds of information could threaten the national economy by harming the interests of state companies. However, even the authority responsible for Freedom of Information, not famous for taking a strong stand against government excesses, questioned the exceptions last week, reminding the Parliament’s Budget Committee that the statutory and constitutional basis for restricting access in court, related to legitimate economic interests, does already exist.
“Terror alert”: A new state of exception
The constitutional grounds for invoking a state of emergency currently exist as well. Constitutional provisions stipulate in Articles 48-54 how authorities may respond to armed attacks, industrial disasters and other kinds of imminent dangers to national security. The absence of a clear justification for the amendment is one of the reasons why the establishment of a new form of state of emergency (literally “status of terror alert”, terrorveszély-helyzet) is controversial. According to the draft it would enable measures that would not be subject to ex post judicial control. What constitutes the grounds for invoking this status is not entirely clear either, and this is worrying since it would empower the government, if it felt it was endangered, to summon the National Defence Forces or limit civil rights.
In early 2016, when the proposed text of the constitutional amendment was only accessible to members of parliament under a pledge of secrecy, the Eötvös Károly Institute commented on a leaked copy, arguing that the legal basis for the declaration of a state of “terror alert” lacked the precision that such extensive power would require. It called on the government to conduct an evidence-based assessment of the threats that the country faced and to examine whether its needs could be addressed through parliamentary acts instead. Unlike many of the other dramatic changes to Hungary’s legal framework that have occurred in recent years, multiparty support will now be needed for most of the key measures to become law. And the latest version of the bill has been significantly tempered with this in mind; it now includes measures that would enable the National Assembly to have a say in the matter.
The Hungarian Minister of Defence maintains that the primary aim of the reforms is to protect the population more effectively. Even if he’s right, his reasons for thinking that Hungary would never cross the line into a military dictatorship are not entirely convincing: “We live in an open world”; and with a “multiparty democracy, parliamentary control and the internet” that “could never happen”. In the absence of adequate safeguards designed to discourage a head of state persuaded that this, or any other form of overreach, was necessary, the amendments that are on the table would offer an accommodating legal environment. The fact that “nobody [in the government] would want this” shouldn’t be enough to reassure a population living in a constitutional democracy. That’s what constitutional guarantees are for.
The Hungarian Parliament is About to Enact New Anti-Terror Laws (05.05.2016)
Communication of the National Authority for Data Protection and Freedom of Information to the Parliamentary Budget Committee (only in Hungarian, 09.05.2016)
(Contribution by Christiana Maria Mauro, EDRi Observer)