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GÁBOR HALMAI
obligation to protect Schengen borders against ‘masses entering uncontrollably
and illegitimately’ in the EU.” Besides infringing the rights of the NGOs, the
decision deprives all asylum seekers of the protection of all fundamental rights
by stating that ‘the fundamental rights protection ... clearly does not cover the
persons arrived in the territory of Hungary through any country where he or she
had not been persecuted or directly threatened with persecution. Therefore, the
requirements set forth by Article I Paragraph (3) of the Fundamental Law regarding
the restriction of fundamental rights shall not be applied to the regulation of the
above listed cases’.”> With this the Court denies the core of human dignity: the
right to have rights.
ILLIBERAL TREATMENT OF THE PANDEMIC
No one reasonably disputes that emergency situations, caused by a huge number
of migrants or the coronavirus pandemic require special legal and constitutional
measures even in fool-fledged liberal democratic systems. These measures have to
take into account various aspects, among them economic and health considerations,
which can lead to different balancing outcome between certain legitimate public
interest, like security, public order and public health, and fundamental rights, such
as right to human dignity, right to life, freedom of movement, right to education,
freedom of information and expression, privacy, etc. Even decisions of democratic
legislators and governments potentially reviewed by independent judicial bodies
can lead either to ’under-’ or ‘overreaction’ to migrantion or the pandemic. But
certain illiberal regimes used the crisis situation as a pretext to strengthen the
autocratic character of their systems. In some cases this needed an ’underreach”®,
like in Poland to insist on the presidential election, which was important to
entrench the power of the governing party’s incumbent, despite the health risks.’
Elsewhere on ’overreach’ has served the same purpose, like in Hungary, where an
unlimited emergency power of the government has been introduced after the very
first cases of contagion.”®
24 Hungarian Constitutional Court Judgement of 25 February 2019, Decision 3/2019 (III. 7.)
AB, para. 43.
25 Ibid., para. 49.
?° Seetheterm used by Jonathan Gould — David Pozen, How to Force the White House to Keep
Us Safe in a Pandemic, Slate (6 April 2020), https://slate.com/news-and-politics/2020/04/
nancy-pelosi-white-house-covid-19-supplies.html.
27 Jacub Jaraczewski, An Emergency by Any Other Name? Measueres Against the COVID-19
Pandemic in Poland, Verfassungsblog (24 April 2020), https://verfassungsblog.de/an¬
emergency-by-any-other-name-measures-against-the-covid-19-pandemic-in-poland/.
Gábor Halmai - Kim Lane Scheppele, Don’t Be Fooled by Autocrats! Why Hungary’s
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