31 March 2017

Legally sophisticated authoritarians: the Hungarian Lex CEU

On 28 March the Hungarian government tabled an amendment to the Act on National Higher Education in Parliament. Even though the draft is formulated in normative terms, the only targeted institution is the Central European University (CEU), founded by George Soros, one of the main enemies of the Viktor Orbán’s ‘illiberal state’. Michael Ignatieff, former professor of Harvard University’s John F. Kennedy School of Government, current president and rector of CEU assessed the draft as a discriminatory political vandalism, violating Hungarian academic freedom. Here I do not want to deal with the clear ideological and political motivations of the action of the current Hungarian Prime Minister, a that time liberal recipient of Soros’s financial support during his studies in Oxford three decades ago.

I want rather focus on the behavior of a contemporary authoritarian (or dictator, as Jean-Claude Juncker, the President of the European Commission once greeted him). As William Dobson argues is his book, The Dictator’s Learning Curve, “today’s dictators and authoritarians are far more sophisticated, savvy, and nimble that they once were”. They understand, as Orbán does, that in a globalized world the more brutal forms of intimidation are best replaced with more subtle forms of coercion. Therefore, they work in a more ambiguous spectrum that exists between democracy and authoritarianism, and from a distance, many of them look almost democratic, as the leader of Hungary, a Member State of the EU, does. Their constitutions, as the Fundamental Law of Hungary, often provide for a division of powers among the executive, the legislature, and the judiciary – at least on paper. They are also not particularly fearful of international organizations. Even a threat of foreign or international intervention and criticism can be a useful foil for stirring up nationalist passions and encouraging people to rally around the regime, as for Orbán, who claims to protect Hungary to became a colony of the EU. If necessary, they use the most refined European discourses, for instance about national constitutional identity, as the Orbán government did in order not to take part in any European efforts to solve the refugee and migration crisis. And as opposed to previous dictators of the old good times of totalitarian regimes, who just closed up organizations they did not like, without any scruples, today’s authoritarians take advantage of formalistic legal arguments against their enemies. The Russian authorities in the fall of 2016 revoked the educational license of the European University in St. Petersburg following unscheduled checks in the buildings referring to several violations against regulations, such as lack of fitness room and an information stand against alcoholism.

Similarly, the new draft law of the Hungarian government also uses legal tricks to force CEU to cease operation in Budapest. Such a clearly unacceptable requirement would be to open an additional campus in the State of New York. This wasn’t a condition in 1995, when CEU, holding a charter from the New York State Education Department, received its license to operate in Hungary from the Ministry of Culture and Education. Like other international universities chartered in the US, CEU does not maintain any academic or other programs in the United States. Moreover, in 2004 Hungary promulgated a special law on the establishment of Közép-európai Egyetem (KEE) as a Hungarian university, which was accredited by the Hungarian Accreditation Committee together with ten graduate and doctoral programs of the CEU as programs of KEE. Ever since the university has a dual legal entity, as KEE and CEU, but it is one university with only one campus, one academic staff, senate and rector, the latter appointed by the President of Hungary. According to the new law Hungarian universities could only deliver programs of European universities and not of countries from the OECD (including the US), therefore KEE, the Hungarian university could no longer deliver its single set program with CEU, which was allowed under the current law. 

The amendment if passed would make it impossible for CEU to continue its research and teaching activities, including its highly ranked comparative constitutional law LLM and SJD programs. This violates scientific freedom in Hungary, which on paper is still part of the Hungarian Fundamental Law. In the absence of an independent constitutional court in Hungary, the only domestic ‘remedy’ which one can imagine in an authoritarian regime is that the ‘wise leader’ graciously withdraws from his plan.


SUGGESTED CITATION  Halmai, Gábor: Legally sophisticated authoritarians: the Hungarian Lex CEU, VerfBlog, 2017/3/31, https://verfassungsblog.de/legally-sophisticated-authoritarians-the-hungarian-lex-ceu/, DOI: 10.17176/20170401-102552.

21 Comments

  1. Abzuschaffender Sat 1 Apr 2017 at 08:33 - Reply

    So we are certainly all glad that the EU commission and its president would never even dare to apply “legal tricks”:

    Not in the case of the massive tax refugee program Juncker established in his Luxemburg tax heaven for big corporations.

    Not in the case of the illegal Greece bailout, explicitly prohibited by EU law – “this would be clearly illegal”, Prof. Matthias Ruffert, FAZ, 20.01.2010.

    Certainly not in the gigantic government bond purchase program of the ECB under Mario Draghi, blatantly violating the ECB mission statement.

    And definetly not when Anglea Merkel unilaterally broke the Dublin Accord on September 4, 2015.

    As a matter of fact Orbán did participate in the solution of the illegal migration crisis: He build a fence to control the border in Hungaria, which dramatically reduced the illegal migration to Hungary in full accordance with the Dublin Accord.

    What did the EU do to solve the problem? Lead by the genious Angela Merkel they employed a scheme designed by a dubious Soros-sponsored organisation, called ESI. The scheme outsourced to Turkey the building of the fences and defence of the borders that the morally superior EU leaders so wholeheartedly wanted to avoid.

    Erdogan seized the momentum and turned his country into an islamistic authoritarian regime, sacking and jailing tens of thousands public officers, judges and politicians with the EU leaders on stand-by and Angla Merkel praising till this very day the great Turkey deal.

    “Europe’s leaders are living in a dream world with no clue about the dangers and scale of the problem, while denying that the “refugees” are migrants . These migrants are not coming our way from war zones but from camps in Syria’s neighbours… So these people are not fleeing danger and don’t need to be scared for their lives,” – Victor Orban

  2. Laurent Pech Sat 1 Apr 2017 at 10:26 - Reply

    An excellent post on the latest episode in Orban’s consolidation of its one-party autocratic regime. This is done in plain sight without much if any criticism from key EU actors and national governments.

    Multiple reports have documented the systemic, repeated and intentional attacks on the rule of law since Hungary’s FIDESZ party gained power in 2010 (see recently http://democracy-reporting.org/?dri_publications=5-facts-on-the-state-of-hungarys-democracy).

    The situation may have been different had the Commission and the Council – and let us not forget the current moral failure of the EPP –
    show less pusillanimity (pusillanimity which we see now being repeated as regards Poland). It is not as if they were not warned repeatedly about increasing authoritarianism and rule of law backsliding in the EU. In the words of the European Parliament in December 2015:

    4. Stresses that Parliament has repeatedly called upon the Council to react to worrying developments in Hungary; …
    5. Believes that Hungary is a test for the EU to prove its capacity and political willingness to react to threats and breaches of its own founding values by a Member State; deplores the existence of similar developments in some other Member States and considers that the inaction of the EU may have contributed to such developments, which show worrying signs, similar to those in Hungary, of the rule of law being undermined; believes that this raises serious concerns as to the ability of the Union to ensure continuing respect for the political Copenhagen criteria once a Member State has acceded to the Union;

    8. Reiterates the call on the Commission to activate the first stage of the EU framework to strengthen the rule of law, and therefore to initiate immediately an in-depth monitoring process concerning the situation of democracy, the rule of law and fundamental rights in Hungary, including the combined impact of a number of measures, and evaluating the emergence of a systemic threat in that Member State which could develop into a clear risk of a serious breach within the meaning of Article 7 TEU

  3. Bernd Lauert Sat 1 Apr 2017 at 11:15 - Reply

    Damn those dictators! Now they don’t even behave like dictators any more!

  4. Goran Sat 1 Apr 2017 at 14:15 - Reply

    @Abzuschaffender

    Victor, is that you?

  5. Abzuschaffender Sat 1 Apr 2017 at 18:52 - Reply

    Near miss. It’s Recep.

  6. Guenther Bitterman Sat 1 Apr 2017 at 21:31 - Reply

    Evolution also applies to dictatorships. They learn and adapt. And when they fail, another will learn from such failure and do things a bit differently, a bit smarter and so will last longer. Hungary’s government is full of lawyers, the top echelon of the Party (ie, Fidesz), including many of the oligarchs are almost all lawyers. It’s only natural that they will use their legal know-how to maintain or, in this case, increase their grip on power.

    I think scholars should not refrain from using the term dictator just because the system does not resemble Stalin’s or Mugabe’s or Stroessner’s or Montt’s.

    Orban is a dictator, he has absolute power within Hungary and to the extent he does not, it was his conscious decision the allow a minimal constrain on himself (eg, the constitutional court is basically a cangoroo court made up almost entirely of party loyalists, the prosecution is more heavily an instrument of politics than anytime during communism from 1960-1990).

    But such minimal constraints are allowed to exist only in order to be able to claim that there are still checks on power. Their relevance in practice are zero.

    Hungary is not a democracy, at best it is an electoral autocracy. I would use the term gulash-dictatorsip. It is a bit less violent than its Russian counterpart just as Kadar’s system under communism was less aggressive than that of most of his peers in CEE. But strange deaths do occur from time to time and the possibility of changing the government via elections is minimal (which is not to say that the opposition should not try its best to somehow attain a change in power, to the contrary it should toughen up instead).

  7. David Sun 2 Apr 2017 at 00:31 - Reply

    So the question one has to ask is why this regime was voted in and stays so popular? As in Poland, this seems to be what the voters/people want. You can’t blame Soviet tanks or coups. It’s up to the people to topple their own dictators. Venice commissions only demonstrate the weakness and weak legitimacy of the EU.

  8. Abzuschaffender Sun 2 Apr 2017 at 08:01 - Reply

    In order to make historic comparisons, you should start to get basic historic facts right. Wikipedia offers a great deal of support here.

    “the prosecution is more heavily an instrument of politics than anytime during communism from 1960-1990.”

    As a matter of fact, communism lasted from 1949 until 1989 in Hungaria with thousands of people being executed and tens of thousands being imprisoned for political reasons.

    Where are Orban’s executions? Where are the thousands of political prisoners?

    ” just as Kadar’s system under communism was less aggressive than that of most of his peers in CEE.”

    Kadar was responsible for at least 400 executions. If you can credibly report on a single execution under Orban, I might consider your comparison to be not utter non-sense.

  9. Bernd Lauert Sun 2 Apr 2017 at 12:40 - Reply

    @Bittermann:

    “I think scholars should not refrain from using the term dictator just because the system does not resemble Stalin’s or Mugabe’s or Stroessner’s or Montt’s.”

    That’s convenient. Let’s stretch the meaning of ‘dictator’, but please keep the negative connotation.

    “Orban is a dictator, he has absolute power within Hungary and to the extent he does not, it was his conscious decision the allow a minimal constrain on himself (eg, the constitutional court is basically a cangoroo court made up almost entirely of party loyalists”

    With that logic, Germany is a dictatorship because the judges of the Federal Constituational Court are effectively voted in b