31 März 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 Sa 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 Sa 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 Sa 1 Apr 2017 at 11:15 - Reply

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

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

    @Abzuschaffender

    Victor, is that you?

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

    Near miss. It’s Recep.

  6. Guenther Bitterman Sa 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 So 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 So 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 So 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 by the governing parties.

    „Hungary is not a democracy, at best it is an electoral autocracy. I would use the term gulash-dictatorsip.“

    People could vote Orban out if they wanted, but Hungary is still a dictatorship. Aha…

  10. Bossa Nova So 2 Apr 2017 at 15:19 - Reply

    @ David

    There are no free elections in Hungary and there cannot be as long as Fidesz calls the shots. Let’s try to understand that.

    In 2014 the elections were deemed by OSCE as „free but not fair“ – which was a huge understatement. But saying otherwise would’ve led to an untenable situation, ie. that the EU has a dictatorship in its midst. The EU and other European institutions are also very much interested in pretending that „although there are problems“ all is basically OK.

    But the 2018 elections will be even worse, Fidesz controls most of the media and there’s been propaganda campaigns supporting pro-government narratives and discourses for years. Propaganda, especially smart propaganda works. These days complete lies from the top government people (Orban, ministers, spokesmen) are the norm.

    Based on the more reliable polls (and applying some correction based on past biases) currently about 25% of the entire population (probably less) supports Fidesz.

    But given the election system and the party system (which is also a result of the election system, but also the result of people’s willingness to come out as opposition supporters, financing issues, media situation) this is enough for Fidesz to maintain its power.

    Granted, the opposition should be working harder and should not be as corrupt as it is (Fidesz basically purchased many at some of the opposition parties) but the situation is still such that it is extremely difficult for the opposition to win.

    A new political entrant cannot really grow in popularity because of the constant personal threats, lack of funding (when Fidesz has unlimited funds), people’s fear of openly supporting an opposition party which in rural places is impossible to risk as Fidesz will come after you personally like a mafia, lack of access to media and for a host of other reasons.

    This is how electoral autocracies operate. They maintain the facade of legality and of regular elections (and they indeed have some kind of popular support), but the truth is they are impossible to get rid of in practice (absent revolutionary violence).

    In 1990, just after the fall of communism, even the (former) communists had a national support of 12% (MSZP and Munkáspárt) in Hungary. It’s nothing special that Fidesz too has a popular support base of some 20-25% (and much more of those who go and vote).

    But 75-80% of the entire population oppose or dislike Fidesz, they are just unable to get rid of Fidesz under the present circumstances.

  11. Bossa Nova So 2 Apr 2017 at 15:23 - Reply

    @ bernd

    Pray tell, how would the Fedearl Constitutonal Court have an unlimited power in Germany as does Orban in Hungary?

    FCC’s a powerful institution but Orban is personally – via the prime minsiter’s office – directs the prosecution, the constitutional court, the competition’s office, the national bank, the state audit office and the commandeers the court system which is somewhat less under the control of Orban. I have several friends working in various institutions (including the courts) who regularly get calls (never anything in writing) from the prime minister’s office. How on earth is this similar to what’s in Germany?

    Hungary is like Russia now and you know it.

  12. Bossa Nova So 2 Apr 2017 at 15:31 - Reply

    @ Abzuschaffender

    As it was mentioned these days dictators are smarter. They don’t have to execute people – although one could name 4-5 very strange deaths from the last few years which weren’t properly investigated, let alone solved and all can be linked to various Orban-related shenagigans (eg the candidate for mayoral position at Felcsút which is Orban’s town of birth and personal fiefdom who was killed and others).

    Prosecution is the „knuckle of the Party“ as it always has been prior to 1990. It’s also unfortunately corrupt to the core.

  13. Bernd Lauert So 2 Apr 2017 at 16:35 - Reply

    @ Bossa Nova:

    I think you didn’t quite get what I was writing. I was adressing Bittermans statement that Hungary is a dictatorship because the consitutional judges are party loyalists, meaning they are picked for their affiliation. This is not different from Germany where the judges are also picked by the ruling parties.

    As to your claim that Orban directs the whole state personally I would like to see some proof, hearsay is not enough for me. Also for those deaths that you linked to Orban (again without proof).

  14. Abzuschaffender So 2 Apr 2017 at 21:37 - Reply

    > How on earth is this similar to what’s in Germany?

    Have you ever heard about the public TV and radio services in Germany. Every household is obliged to pay a tax to finance their 10 billion euro budget and they are strongly influenced by the leading political parties CDU and SPD. Merkel gets her primetime audiences without undue questions there. And certainly it is all pro EU, pro Euro and pro „refugees“.
    And they get phone calls too.

    What about the constitutional court? It is dominated by CDU / SPD party affiliates, as once stated by a prussian minister of justice: „Give those judges their full independence – as long as I select them.“

    So yes, we have two parties and not one, but their political content is more or less identical on EU, Euro, NATO and migration.

    And yes, we have a new party with about the same political program as CDU/CSU 15 years back, but certainly they can only be „Nazis“, because they are critical of the Euro and the illegal immigrants.

  15. Bossa Nova Mo 3 Apr 2017 at 12:17 - Reply

    @ Bernd

    You have to believe me to tell you the truth. We can’t have an open debate in court. This is a different forum.

    I’ve been working as a lawyer in Hungary for two decades and have friends (classmates) in various state institutions.

    They tell me stuff. It’s heresay for you, it’s direct testimony for me.

    I also work on cases which regularly involve state actors and I can absolutely tell you their behavior is not independent, they always wait for the directive from Lazar’s office (Janos Lazar being the minister heading the Prime Minister’s office). This is how the system work, everything is subordinate to the Prime Minister.

    You wouldn’t last a minute in the Hungarian legal system.

    As to the strange deaths, again this is not the forum to discuss these instances – those who follow Hungarian media closely know these cases. All I’m saying is that violence is not as common as in Russia, but there’s a tendency of people having disagreements with the government suffering strange, untimely deaths.

  16. Leser Mo 3 Apr 2017 at 15:10 - Reply

    @ Abzuschaffender, Bern Lauert & co
    The article critizes Hungary’s government on various points.

    You compare these points to the state of affairs in Germany – which you don’t like (meaning the state of affairs; I guess you’d say that you like Germany or your idea of Germany very much).

    The logical conclusion, therefore, is that you share the criticism presented in the article, at least in a general sense.

    But strangely, for some reason, I have the impression that you prefer Orban to Merkel, although you apparently don’t like the methods he uses. I wonder why that is?

    No, of course I don’t wonder, because I know why that is: It’s because he doesn’t like foreigners. And the same methods apparently are okay if you’re a racist strongman, but they’re not okay if you’re a non-racist, female chancellor of a working democracy.

    I can understand the frustration about Merkel’s policies. But please, not everything warrants a comment about that. The article here is about Hungary, not about Germany. It’s about democracy, not about refugee policy. And even if one wants fewer refugees or hates Islam or whatever, one should value democracy for its own sake, even if it currently may have led to decisions one doesn’t like.

    Democracy, courts, the rule of law are what allows criticism of government in the first place. One cannot argue against our current system without putting oneself in a pretty funny position: If things were here as in some other pseudo-democracies, you wouldn’t be allowed to post what you posted.

  17. Abzuschaffender Mo 3 Apr 2017 at 21:17 - Reply

    > The article critizes Hungary’s government on various points.

    Yes, and the article invalidates itself when a figure like Juncker is presented as a witness.

    And it invalidates itself when techniques and tricks are presented that are not at all exclusive for the Hungarian government, but commonplace in the supposedly good parts of the EU.

  18. Gerd Gosman Di 4 Apr 2017 at 11:04 - Reply

    @Abzuschaffender

    Alter Falter, beschäftigen Sie sich doch mal ein bisschen mit gängigen Fehlschlüssen, Ihr letzter Kommentar ist ja das reinste Paradebeispiel.

    Wenn Sie es schön aufbereitet haben wollen: https://yourlogicalfallacyis.com/poster

    @Max Steinbeis

    Es ist wirklich zum Heulen, was seit einiger Zeit in den Kommentarspalten dieses Blogs passiert. Ich vermisse sogar den aufmerksamen Leser.

  19. MRBuzas Di 4 Apr 2017 at 15:12 - Reply

    Bless you. @ Bossa nova

  20. Leser Mi 5 Apr 2017 at 17:08 - Reply

    @ Abzuschaffender
    „And it invalidates itself when techniques and tricks are presented that are not at all exclusive for the Hungarian government, but commonplace in the supposedly good parts of the EU.“

    Did the author condone the use of these „techniques and tricks“ in other parts? No. Because the article isn’t about that.

    What you’re doing is known as „what aboutism“ or possibly off-topic-spam in the language of the intertubes:

    A says: „Hitler killed millions of jews.“
    B says: „But non-vegetarians kill and even eat cows! What about that?“

  21. Abzuschaffender Fr 7 Apr 2017 at 10:02 - Reply

    Allegations of so called „whataboutism“ are for the most part whataboutisms in themselves.

    With the critisim on Orban the EU establishment simply introduces double standards: Why are there so few articles about the democratic and legal short-comings of the EU regime by the experts on EU law?

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