The impossible condition in Lex CEU

The rule of law has been replaced by ‘rule by law’ in Hungary but now it is heading towards ‘rule by force’

Petra Bárd
17 October 2017

Hungarian PM Viktor Orbán likens his special approach to diplomacy to a “peacock dance” – presenting a pleasing display to court international partners on the one hand, before hopping on the back foot and showing his voters something completely different. Mr Orbán, and the Fidesz government stand accused of repeatedly undermining the rule of law, is employing this Janus-faced method to great effect with a law aimed at closing Budapest’s Central European University. In Brussels, Orbán reassured European institutions that he was open to dialogue and act according to European standards with regard to academic freedom, whereas back in Hungary the government insists on the law’s validity.

At stake in the dispute is the survival in Budapest of an independent centre of learning which has won international acclaim but has fallen foul of Mr Orbán’s illiberal political project and his personal vendetta against university founder George Soros, a philanthropist promoting the concept of an open society, donating funds to countries to make the transition to democracy. More broadly, the conflict highlights how Mr Orbán’s government bends the rule of law to its narrow political ends; creating impossible conditions for its chosen enemies and exploiting the slow-moving and weak-handed response of EU institutions to avoid legal sanction for violating European values.

Rule by law

The rule of law has been replaced by rule by law in Hungary, meaning that “rules single out particular legal entities chosen on the basis of political (in)convenience and subject these target organizations to special treatment serving arbitrary political aims” – according to constitutional scholar Professor Uitz.

The means to chase out CEU from Hungary have also a veneer of legality. Lex CEU incorporates a number of requirements. One of them obliges foreign universities operating in Hungary to provide educational activities on a campus where they had been accredited. In CEU’s case this is the US. In line with this provision CEU signed a memorandum of understanding with Bard College, with whom it maintained close relations for a long time, and agreed that beyond Budapest CEU professors will also teach courses in New York.

A second requirement is however more difficult to fulfil and also more problematic from the viewpoint of academic freedom. Lex CEU was passed to make sure that foreign universities – and CEU is originally accredited in the US – will only be able to function in Hungary as of the 2018/19 academic year, if the operation is backed up by an intergovernmental agreement between Hungary and the respective other country where its programs are accredited. In case of federal states, where the federation is not allowed to decide on the matter, like in the US, a preliminary agreement needs to be concluded between the federation and the Hungarian government, before a more detailed treaty could be concluded between the state and the Hungarian government. The issue whether CEU could continue its operations in Hungary will thus be at the mercy and the political discretion of two governments – one of which is openly hostile to the university.

Playing for time

Mr. Orbán is most likely playing for time, as time is on the side of the government. Recruitment of students and designing an academic year takes at least a year, therefore it would be rational for CEU to secure its operation in a more welcoming country for the next academic year instead of waiting for the verdict of a hostile government, or ponderous, soft and slow European mechanisms monitoring and enforcing European values to be triggered. But in the very last moment before having to decide whether CEU should stay or go, on the 13th of October the government extended the deadline to comply with the law until January 2019. Since CEU already satisfied all requirements of the law on higher education which were within its control, the new rule is not favouring the university, quite to the contrary. The deadline extension can only be understood as a prolongation of this legal limbo for another 12 months. “It’s as if we’re being slowly strangled,” President and Rector of CEU, Michael Ignatieff said. “A solution is on the table, but every time we get within reach of a solution, the goalposts get moved.” Extending the deadline leaves CEU in total legal uncertainty, and at the same time it greatly benefits Fidesz, which can press on with its anti-Soros, anti-Brussels, anti-CEU rhetoric – a vital tool in the campaign before the parliamentary elections to take pace in the spring 2018.

Rule by force

But even if an agreement was reached between Hungary and the State of New York, I advise against celebration. Many hope that once an agreement is signed, the federal government will welcome or give its blessing on it, which – if international pressure is strong enough – will be acknowledged by the Hungarian government as satisfying the requirements of the law.

But in the US context, education is a state power according to the constitution, and therefore President Trump – even if he was inclined to do so – is not empowered to conclude an agreement on the issue, or would act ultra vires, if he did so. With the Kafkaesque trap the government thus obliges CEU to satisfy an impossible condition.

Once an agreement with the State of New York is reached, three scenarios are possible, all of which lead to Fidesz’ victory.

  1. If President Trump refuses to have a say on the matter of CEU – because he lacks the authority in this matter – the Hungarian government will claim that the law’s requirements are not met.
  2. Should President Trump give his blessing to the international agreement with the State of New York, that might also be unsatisfactory. Lex CEU says that an agreement signed by the federal government is needed, and a blessing is very far from that.
  3. Alternatively, the Hungarian government may declare the blessing to be an international agreement, as it may equally accept that black is white. Fidesz politicians claim that an exchange of letters where US Secretary of Education explains Hungarian politicians that the federation does not possess the power to act in matters of higher education could be accepted as an agreement. But if we celebrate this, we embrace arbitrariness. Mr Orbán’s acceptance of an agreement with the State of New York would not satisfy the law’s requirement and could merely be a stay of execution for the university. The government will be able to revoke this declaration any time equally arbitrarily. Representing harshly opposing views within a short period of time never hurt Fidesz politicians, who are brilliant at explaining their reasons for a volte-face. Just remember that the party, originally with strong anti-Russian sentiments became pro-Putin – and still managed to retain public support.

 

But there is a more general problem with welcoming arbitrariness. Should we accept that the government can declare black to be white, we abandon not only the rule of law, but also a minimum understanding of legality, formal logics, or sanity. This scenario is worse than rule by law: it is rule by force. It means that – as we say it in Hungary – “the stronger dog does the screwing”. This is not the logic of academia and neither is it the way democracy operates.

Epilogue

Moving out of Hungary won’t be the failure of CEU. Instead, it will remind us about the vulnerability of democracies, and the inefficiency of domestic and European mechanisms to enforce the rule of law against illiberal forces. Mr Soros made an attempt to promote the concept of an open society, and yesterday he transferred “the bulk of his wealth”, 18 billion USD to the Open Society Foundations. Freedom-loving citizens can only thank him for trying. The question for the future is whether the EU was ready take up that role now, put a halt to the peacock dance and evaluate Hungarian politicians on the basis of what they are doing instead of what they claim to be doing – or will instead turn its back on the country, create a two-tier Europe, side-lining Hungary and limiting cooperation to economic matters with the black sheep of the European family.

Petra Bárd is Associate Professor at ELTE School of law and teaches human rights, criminology and data protection law. She is Visiting Professor at the Central European University’s (CEU) Legal Studies Department teaching EU constitutional law, EU criminal law, EU human rights law and selected issues in criminology and forensic sciences

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