Dr. Péter Hack is currently teaching as associate professor with habilitation at the Eötvös Loránd University of Science (ELTE), Faculty of Law. His primary fields of research and expertise are criminal procedural law, the structure and functioning of criminal jurisdiction, transitional justice, and rhetoric. He is Head of the Department of Criminal Procedures and Correction at the ELTE University and of the Workshop of Criminal Law in the Bibó István College of Advanced Legal Studies. He has been founder of Transparency International, the Hungarian Helsinki Committee, and the Hungarian Association of Criminal Law.
Lawyr.it: What is – or could be – the broader context of the recent law that has become known as “Lex CEU” and what line of past and potential future tendencies does it seem to fit into?
P.H.: The policy of the government elected in 2010 is characterised by a remarkably stronger belief in central state control than decentralised decision-making. At the same time, it is a unique controversy that Brussels is being accused of exactly the same intentions and measures which the government is putting into practice now: local governments have been deprived of the majority of their powers, their autonomy has been reduced extensively, the independence of the institutions of public education has been undermined. The same striving can be observed in the sphere of higher education as well, especially with regards to the introduction of the position of chancellors, which significantly destructed the financial possibilities and autonomous management of the institutions in question. Practically, it has made it impossible for universities to be self-financing on a market basis, while the government has constantly been strengthening and promoting the position of colleges of religious affiliation and increasing the sum of tuition fees in the case of public universities.
Lawyr.it: More specifically, with regards to the present legislation, to what extent can it be viewed as a regulation aimed directly at eliminating the functioning of the Central European University?
P.H.: Basically, the legitimate side is that the ideology of the current government is undoubtedly ambiguous with the mentality and system of values represented by the CEU and the Open Society Institute due to its founders and the government cannot be obliged to accept these views. Nevertheless, in the past weeks the government made it obvious that it was having a campaign against György Soros and the CEU. Therefore, every statement suggesting that these regulations are not targeting specifically the CEU is highly questionable and untrue as the background rhetoric is completely clear. Besides, this can be inferred from the method of solution for the conceivable problems. If the objective would seriously have been to find settlement, they would have negotiated with the university (and the Rectors’ Conference) to achieve mutually acceptable agreement. In addition, they could have consulted with the Hungarian Academic of Sciences about the potential impacts of the regulation on the Hungarian academic sphere and the opportunities of Hungarian researchers. It has to be noted that this has a vast capacity to worsen the situation of Hungarian academics on an international level and decreases the possibilities of researchers in terms of cooperation.
Lawyr.it: What are your views regarding the procedural aspects of the adoption of the legislation?
P.H.: A set of procedural guidelines is an integral part of the concept of the rule of law. There are also certain established rules aimed at regulating certain situations and conditions, such as foreseeability and predictability, which were neglected in the present process. Also, there are merely ideological grounds and justification for the regulations, which are insufficient basis of legislation. Besides, in 1995, the abolition of the so called Bokros-provisions by the Constitutional Court – also welcomed by the members of the now governing party – was exactly based on the fact that it didn’t provide satisfactory time for preparation for the subjects of the law.
Lawyr.it: What is your opinion on the justification provided by the government, pertaining to certain problems in the functioning of the institution? Can legislation be considered the appropriate way of solution for the situation?
A.S.: It remains unclear until today what these problems actually are. What the government is now stating as criteria – that the CEU should organise educational programme in the United States as well – was not a precondition before, so this could not serve as proper basis of the Educational Office’s criticism. Based on the laws pertaining to its activity, there may have been a lack of fulfilment of certain data provision obligations, however, the new legislation does not include any rule concerning this issue. It is especially difficult to understand why the changing of the established legal provisions is the reaction to the potential problems. With reference to the substantive part of the present law, it is problematic that the future of the institution is vested in decision-makers on whom the university can have no influence at all. Therefore, its existence becomes dependent on the agreement between the government of Hungary and the United States.
Lawyr.it: Can it be considered that the CEU has been having certain benefits that other Hungarian universities were lacking in, so the provisions could be a way of balancing this inequality?
P.H.: The problem of the Hungarian universities is not the existence of the CEU, but their own shortcomings and inadequacies in terms of infrastructural conditions, as well as the appreciation and salary of university lecturers. The CEU has a remarkable advantage in this regard. The professors can teach and research at one place, without being forced to take two or three jobs simultaneously to be able to establish their financial background. Besides, without a system of “mass education”, the quota of students per lecturers is a lot lower that can lead to training of higher quality. The situation of the Hungarian universities will clearly not get any better without the CEU. Quite the opposite: those students who are now attending the CEU will either go to where the university would be set up again or would attend other Western-European universities where they can attain education of a more advanced level.
Lawyr.it: After the procedural concerns mentioned already, could the unconstitutional nature of the regulations be declared on the basis of their content?
P.H.: I believe that the unconstitutional nature of the provisions can in fact be established from a merely substantive perspective. This is because the real objective of the government is obviously to eliminate certain values, a liberal way of thinking and philosophical approach represented by the CEU. If we accept this as a fact, the next question is whether it has the right to abolish those systems that go against its own views. If we accept this, there would practically be no legal certainty at all, as any other governmental party would have the right to act in the same way.
Lawyr.it: When it comes to the probable way of declaring the law unconstitutional, what kind of perspectives and expectation may we have in connection with the decision of the Constitutional Court?
P.H.: It is worth mentioning that in 2010 the practice according to which the members of the Court could only be elected based on the consensus of the political sides and parties ceased to exist. In 2016, the final step on this road was that only those nominees could get into position who enjoyed the support of the present government. At the same time, as reflected in the survey of the Berlin Institute, a dramatic turn occurred in the Court’s decision-making tendencies. Previously, the statements of the Court went against the intentions and viewpoints of the government in 80% of the cases. However, since the aforementioned shift, its verdicts were favouring the government in 70% of the cases. So, if you had put up this question ten-fifteen years ago, I would have said that these provisions would most probably not stand the test of the Court. Now, there is a feasibility of 70% that the interests of the government would gain preference and that the Court would not find a basis of violation.
By Krisztina Petra Gula
This interview has been published in Lawyr.it Vol. 5 Ed. 2. All references used can be found at the end of that issue.