“A judiciary must be structured in a manner that ensures the autonomy of individual judges in order to help them withstand pressure. If the structure of the judiciary does the opposite, then the requirement of individual judicial independence is not met.”
“Nowhere else in the world is there a system where the parliament appoints a single person to practice all the administrative powers over the judiciary. This is the fundamental problem with this system.”
– Zoltán Fleck, department chair, ELTE Law School
- In Hungary and Poland the lines between the separation of powers have become totally blurred.
- Hungarian judges are subjected to all kinds of pressure, including political pressure.
- The channels to political pressure within the judiciary became more pronounced with the creation of the National Office of the Judiciary (OBH).
- Hungary’s Constitutional Court no longer supports fundamental rights.
- To the extent judicial independence exists in Hungary, it is limited to civil cases not involving government bodies, ruling party politicians or their family members or supporters, or organized crime.
- Hungary’s prosecution services are politically-motivated and politically-operated.
- Public confidence in the judiciary, as well as the judiciary’s confidence in itself, is particularly low.
- The absence of a free press means public information about the court system is manipulated and distorted.
- Stripped of their autonomy, Hungarian universities are placed under financial pressure.
- Who Hungarian law school students see as “successful jurists” in Hungary today are jurists who carry out orders in a non-rule of law country.
- Hungary’s public education system is not teaching kids to be engaged, active citizens.
These are some of the opinions recently expressed by law school professors Mátyás Bencze and Zoltán Fleck when talking to us about Hungary’s changing political and legal culture.
Mátyás Bencze is a professor at the Debrecen University’s Law School. He also works at the Hungarian Academy of Sciences Center for Social Sciences Institute for Legal Studies. His primary field of research is judicial practice mainly from the perspective of the sociology of law. Zoltán Fleck is department chair at ELTE Law School. His primary areas of research are the rule of law, justice, and judicial independence from the perspective of the sociology of law.
“The system itself is out of balance”
According to Fleck, any conversation about the present situation of the courts must begin with an understanding of the status of the judiciary in the early 1990s just after Hungary’s transition from a one-party state to a pluralistic democracy.
“For a long time after the system change, there was no consensus concerning what kind of administrative model Hungary’s justice system should have in its democracy,” says Fleck. A massive reform took place in 1997 (under the socialist government of Gyula Horn), only to be replaced by Fidesz’s own system in 2011 under the second Orbán government.
The ELTE law school professor says that the main difference between the two systems is that while the system introduced in 1997 operated on a sort of localized model, with the centers of power being distributed among powerful court heads across the various counties in the country, the one by Fidesz in 2011 created a model that “is perfectly aligned with the ideology of the central power area in that it created a massive centralized justice system with many problems.”
According to Fleck, giving parliament the right to choose the administrative head of the court “opened a political backdoor into the highest positions in the judiciary.” He says the political nature of this appointment creates an “imbalance of interests” which, in turn, prevents the National Council of the Judiciary (OBT), elected by a congress of judges, from serving as a counter-balance.
Another problem related to the first, according to Fleck, is that “this overly-centralized model provides no space for any kind of autonomy. In other words, they stripped the other judicial bodies of their significance and, as a result, have dumbed-down the central administration. This is the organizational sociology of this system. Nowhere else in the world is there a system where the parliament appoints a single person to practice all the administrative powers over the judiciary. This is the fundamental problem with this system, not (president of the OBH) Tünde Handó as an individual, not her personality, but the structure of the system itself.”
Bencze says that there is really no ideal model for the administration of courts, but there are optimal models. He says the factors that play an enormous role in determining what kind of systems exist are embedded in the legal and political culture of the country.
“I can see that the [system that was created with the 1997 overhaul of judiciary] which allowed the courts to administer themselves had its problems. But there were also problems in the period between 1990 and 1996, when the court administration was the responsibility of a government ministry,” Bencze says, adding that the subjects we interviewed in our series seem to remember the period between 1990 and 1996 as the “golden era.”
“I don’t understand why,” Bencze says. “I have very different memories. Now we have this system which, from the perspective of efficiency, may be better, but justice systems always have three pillars, and efficiency is only one,” the other two being professionalism, which includes the quality of rulings, and legitimacy, that is, whether the system itself is perceived as legitimate by society.
“We see that a centralized system can produce good results in the field of efficiency. Perhaps more importantly, it would be good if the National Council of the Judiciary had real powers and, as an elected body, could actually act as a control over the [National Office of the Judiciary]. This could perhaps strengthen the autonomy of judges and the system, and it would help facilitate a channel for judges to communicate with [the judiciary’s leadership]. Judges critical of the system have just been elected to the newly-formed OBT. It will be interesting to see how this plays out,” Bencze says.
Fleck is not optimistic about the newly-formed OBT, which he says is too weak.
“It has no apparatus. The apparatus that provides information to decision-makers belongs to the president of the OBH. [Handó] controls it and she is responsible for it. Moreover, the presidency of the OBT rotates and there is no charismatic person who would assume the responsibility of taking on a particular [OBH] decision. The chairmanship of the OBT only lasts for six months,” Fleck says.
By contrast “the president of the OBH, who was appointed by parliament, has vast powers over the administration of the judiciary,” says Fleck. “The problems here are the result of the system itself, and I doubt they will be able to address these problems within this model.”
The problem is that even though OBT members are selected by a congress of judges, they report to mid-level judicial officials appointed by Handó.
“Therefore, it is very hard to separate the OBT members from the system itself….Of course, there are hopes that this new OBT will be different, but experiences show that the OBT has obstructed nothing. You can talk about Venice Commission, strengthening the OBT’s powers, etc., but everything that OBH president [Tünde Handó] has wanted has been pushed through. I’m skeptical and I think that a change in [OBT members] and a change in perspective, now that critics are in the council, does not mean things will necessarily change. There may be conflicts, but [Handó] has found loopholes until now and she will continue to find the loopholes because she has far too much power. I don’t think the OBT will be able to counteract [her office] or act as a counterbalance. The system itself is out of balance,” Fleck says.
Bencze says that he reviewed the previous OBT’s minutes and found that while early on they supported each of Handó’s proposals, later they started to reject some.
“We will be able to empirically measure [whether the new OBT is capable of acting as a control],” Bencze says.
“Judges can be pressured from a lot of places”
According to Fleck, the ability to appoint judicial leaders is the important part of the OBH president’s powers. “To all intents and purposes, the OBH president’s appointees are now everywhere,” Fleck says, adding that while these appointees now occupy many important posts, they somehow ended up turning against Handó later.
“There was an expectation that Handó would be able to defeat the oligarchical and feudal system that existed earlier on in the county courts. She did manage to defeat this system in a certain sense through centralization. On the other hand, she did this by imposing her own centralized system,” Fleck says, one which, in his view, “isn’t really effective.”
“It just doesn’t work well. Not only does it hinder the autonomy of judges and fail to incorporate the collective decisions of the collective judiciary, it is hectic, unpredictable, and it does not have any bureaucratic rationality,” he says.
However, the system makes perfect sense from the point of view of applying political pressure to judges. The question here, Fleck says, is whether judges are capable of withstanding the pressure.
“In a well-functioning rule-of-law country, a judge has many different ways to withstand pressure. In Hungary’s legal culture, and in other post-communist cultures, the judge can only rely on the law itself,” Fleck says, adding that he believes it is harder for Hungarian judges to withstand political pressure today because the channels for exerting political pressure are much more established within the judiciary now.
“As I said earlier, the fact that a political channel exists between the highest official in the judiciary and that person’s appointees means that it is connected toward judges ruling in cases. Even if a judge isn’t summoned to their court president’s office to be told how to rule in a particular case, every judge knows who these people are and what the expectations are. There is a latent naturalness to this form of pressure that I believe is incredibly dangerous,” Fleck says.
“But judges can be pressured from a lot of places. The real issue is whether they have a sufficient amount of autonomy to withstand the pressure, and whether they will be reprimanded if they withstand the pressure.
“In these interviews, the judges talk about being so vulnerable that it makes it impossible or incredibly difficult for them to withstand the pressure. If the pressure comes – through, say, the judiciary – and they try to withstand it, then they can find themselves outside the system because they can be deemed unfit to serve very quickly,” Fleck says. “A judiciary must be structured in a manner that ensures the autonomy of individual judges in order to help them withstand pressure. If the structure of the judiciary does the opposite, then the requirement of individual judicial independence is not met.”
Bencze says one of the big differences today is that judges find themselves under greater public pressure owing to the actions of politicians. “This isn’t only about public opinion being upset about something, which is often the result of the media [blowing these issues up], but the political actors are not doing anything to alleviate this pressure. In fact, political actors often excite the issue further because doing so serves a political interest. They often use very strong and direct language to [criticize] the work of judges.”
Bencze cites several such recent examples of ruling party officials targeting the judiciary with very inappropriate criticisms, such as referring to all judges as “communists.”
“What I’d like to point out is that judges are in a difficult situation now because not only has the judiciary changed as a system and the conditions are different than they are in Western Europe, but also because they do not feel that the judiciary’s leaders are doing everything to fend off such political attacks.
“We hear, ‘Well, yes, we ask the politicians to refrain for speaking in this matter, or to be more considerate,’ but there is no strong, pointed rejection of these attacks that would help judges feel that they are free to continue ruling in accordance with their conscience and the law without there being any problems. When judges hear these attacks, it generates a sense of uncertainty in them,” Bencze continues.
“The lines between the separation of powers have become totally blurred”
Fleck says that while such attacks on the judiciary are much more common in Poland, political systems like those in Hungary and Poland “cannot respect the judiciary” because the political leadership demands a totally unified system.
To illustrate this point, Fleck rhetorically asks: “Who is capable of separating Viktor Orbán, Fidesz, and the National Assembly.”
“They are all the same thing,” he says. “The lines between the separation of powers have become totally blurred. They don’t say that, of course, but the system operates on this form of unity. This is clear from the Fundamental Law — despite it saying that there is a separation of powers. In practice, this is certainly not the case. The courts always play a subordinate role….Every single independent center of power, be it civil society, the Constitutional Court, the judiciary, or anything that is capable of acting in a countering capacity has no place in this form of central power. A western European or American reader would say that they will respect a court’s decision even if they don’t agree with it….[But in Hungary] politicians are no longer ashamed to use a political argument to counter a judge’s ruling. They think that they are right because unelected people, suspicious people, whores of George Soros, and undereducated communists sit there in their building and make decisions while we, the politicians, are the embodiment of the nation!”
Commenting on Prime Minister Orbán’s announcement that he refuses to abide by a European court’s ruling on these grounds, Fleck says: “this is a very primitive understanding of power that is very dangerous.”
“This style of thinking is built on the notion that just because a party received a two-thirds majority, the ruling party’s government is now totally permitted to do whatever it wants and that from now until the next elections, there are no boundaries,” Fleck says. “There are no controls. Civil society and judicial independence don’t matter because the government received permission to do whatever it wants.”
Populist judicial rulings
Bencze says that while he agrees with Fleck’s statements on the structure of the system, “we should not forget that there are many good rulings made by judges that go against what the government wants.” However, he acknowledges that Fleck is right “that the judiciary ought to be in a position to help this be the case so that a judge does not need the moral [courage] to make these kinds of decisions.”
“There is a danger, and I see this tendency, that while there are rulings that are professional and politically neutral, there are cases that involve public opinion, cases that the media projects to the public, and the rulings in these cases show a tendency that I call ‘judicial populism’,” Bencze says.
These “populist judicial rulings,” he says, use language and logic which “do not primarily follow professional considerations or constitutional values, instead they are rendered in a manner to appeal to popular opinion.”
“In a situation like this, where politics manipulates public opinion, this tendency can be dangerous. I am not saying this is the dominating tendency in Hungary, but it is very well documented. As I and others have written, this is a phenomenon that exists in cases involving public opinion,” Bencze says.
Is there judicial independence in Hungary?
Fleck: “I’m certain there is still judicial independence in Hungary, but it’s difficult to say to what extent. On one hand, if only one, two, three, four, or five rulings have been unduly influenced rulings, it is a catastrophe and a scandal. On the other hand, not every judicial ruling was influenced even in the most extreme dictatorships. Even in a totalitarian system, the vast number of judicial rulings are independent because they aren’t politically significant.”
According to Fleck, there is no interference in cases involving lawsuits between average citizens. These cases do not involve the government, the economic elite, the mafia, or political actors.
“But these aren’t the interesting cases,” he says. “In order to measure judicial independence, one should look at cases involving, say, the tax authority, cases involving a political actor, cases involving public disclosure, cases involving the family members of politicians, or cases involving the mafia. These are the kinds of cases where courts are under pressure. And these are the cases where authoritarian systems – or the not rule-of-law countries – fail the test.
“Judges will not be able to render independent decision, and it is common to learn that the judge is afraid, has had pressure applied directly, or has been blackmailed in some way,” he says. “But these cases represent a very small percentage of the total number of cases brought to the courts. What we see from the academic literature is that even in the most darkest years of the Third Reich, there were still independent court decisions. Even during the Stalinist years there were independent and brave judicial rulings, sometimes even in politically-sensitive cases.”
Fleck and Bencze say the justice system in Hungary was clearly under a lot of pressure in very politically-sensitive cases, such as the Rezesova case, the red sludge disaster case, the Zsolt Császy and Miklós Tátrai case, Fidesz’s promise to pursue corruption cases involving previous administrations, the Ahmed H. case, the Curia’s referendum cases, and more.
“Therefore, I think the political pressure clearly worked in these cases,” Fleck says.
Bencze: “The political environment is not favorable to the situation and it often exacerbates these institutional problems, but still, there are signs that judicial independence is still effective.”
Fleck disagrees, saying that “if there are just one or two such cases [verdicts influenced by political pressure], then it’s incredibly difficult for me to say that there exists judicial independence. If it doesn’t exist in one or two cases, it doesn’t exist at all.”
On how judges see their own jobs
Fleck says judges are now working in an environment where freedoms in general – freedom of speech, access to public information – are not as valued as they once were.
“It isn’t only the political environment. The approach to law can also have a very significant impact, whereby the rights of individuals, human dignity, freedom of speech, and political liberties are no longer important. This is a big change from what the situation was in the early 1990s,” says Fleck, adding that the courts – including the Constitutional Court – were much more proactive in protecting the freedom of speech in the years following the system change.
“But these trends are capable of reversing,” Fleck says. “The Constitutional Court no longer supports these fundamental rights, nor does the political discourse.”
According to Fleck, the fundamental rights of individuals have taken a backseat to nationalist collectivist issues such “national sovereignty, national independence, the will of the nation, etc.”
“These are ideologies that lack individual freedom. Consequently, a judge in this setting may feel that a journalist’s rights or freedom of expression are not that important,” he says.
Bencze says his research, as well as the statements made by the judges interviewed by the Budapest Beacon, point at how this problem manifests itself within the judiciary.
“To put it very simply, there are two different perceptions of what a judge’s role is. One is that the judge is the protector of the rule of law. The other is that a judge [must exclusively rely] on the law [to render rulings],” Bencze says. “Speaking to judges, I have often heard that when there is a debate regarding a sensitive issue, the judges refer to themselves in the sense that they are just relying on the law to render rulings.”
According to Bencze, this was the situation with the massive amount of trials that resulted from the laws that were introduced to penalize those who crossed Hungary’s borders unlawfully. He says a lot of judges weren’t troubled by the fact that alleged perpetrators were denied fundamental rights that otherwise guarantee an impartial trial.
“This doesn’t mean they are against freedom, it just means that they were socialized in this kind of a judicial bureaucracy,” Bencze says.
To illustrate how the culture inside the judiciary has changed, Bencze explains that he has researched how judges’ perception on the presumption of innocence has changed. He says he conducted two rounds of research in this field in 2008-2009 and again in 2014-2015. He says that in the second round, judges took the presumption of innocence much more seriously than they did in the first round.
“I spent a lot of time trying to figure out what the explanation for this is because the political climate right now isn’t conducive to these kinds of results. I think it’s education. This is something that is just now developing in education, that it’s a very important fundamental value that must be respected. The students that were taught this are just now maturing as judges,” he says, adding that it took a while for fundamental rights to be taken so seriously.
“Earlier, the idea was that fundamental rights and values were some kind of decoration on top of the legal system, and that the pyramid could not be flipped otherwise it would crumble. There was something of a system change in Hungarian law schools sometime in the mid-1990s, and that’s when these issues started getting much more of an emphasis, meaning that fundamental rights and values are actually important and that they’re not just decorations. I think those who were law school students back then later became significant judges and that perhaps explains [the findings of the study],” he says.
Fleck says his colleagues have found different results when researching freedom of expression.
“There is a trend of deterioration there,” he says. “These are contradictory mechanisms and I am much more critical of the education provided by law schools now.”
“There really was a significant change in how law schools teach. There are a lot of battles with this, but it is still too formalist, still too rigid,” Fleck says. “Daniel Kelemen’s writings often discuss this issue, how Hungary is turning away from Europe’s new legal culture and why Hungary should focus on moving in the European direction. I think Hungary is falling behind in this sense. But it is a very complex issue, that is, how judicial practices in certain areas depend on what kind of institutional understanding.”
Fleck goes on to say that while education certainly plays a role in shaping legal culture, the influence of high courts, like the Curia, in establishing judicial practices set precedence — “and these have enormous influence.”
“A politically-motivated and politically-operated prosecution service.”
“It isn’t our intention to insult the judges, the prosecution, or the legal profession, and while there are many prosecutors who are doing an honorable job, they are simply overwhelmed with work, just as the judges are. The work a lot and they are autonomous, but in the case of the prosecution service we are talking about a very rigid hierarchical system, where the prosecutor general, Péter Polt, can alone decide everything in very significant cases,” Fleck says. “Polt can reassign cases from prosecutors, he can decide whether charges are filed or dropped. It is totally clear from the politically significant cases – and this is something that even a western reader can see – that Polt will not open cases or press charges against his allies, but he will against his opponents, even if there is no evidence to support that.
“The [prosecution service] has really become a political organization — which is a catastrophe professionally. The greatest tragedy is that of those lower in the hierarchy, where the actual prosecutors in charge of cases are, because they work in a system where they are directly subordinate to their boss, the prosecutor general. Here, there’s no questions over whether they can be commanded by their superior. Of course they can commanded,” Fleck says. “There have been a lot of debates whether it is good if there is an independent prosecutor or whether the prosecution service should fall under the government as is the case in western Europe. What we have in Hungary is a hypocritical system because the prosecution service’s spokesman will say there is no problem, that the prosecutor general’s independence is totally guaranteed by the constitution, that it is independent of everything, that it’s accountable to no one, not even parliament. At the same time, we all known that this is a politically-motivated and politically-operated prosecution service.”
Bencze agrees it is true that there is generally very professional work taking place at both the prosecution service and the courts. But, just as in the case of the courts, the independence of prosecutors is also a very serious issue.
“It’s very good that we are discussing [the situation regarding the prosecution service] because when we talk about the justice system, then we often focus on the courts, what the courts ruled and how they ruled. But it is very important to look at what actually makes it to the courts, how the case is prepared, what kind of strategies are used, how prepared the lawyers are, and what the prosecution service actually brings — so much depends on that,” Bencze says.
“The courts render the final decision and that’s why the whip cracks on them,” Bencze says, before adding that there should be just as much – if not more – focus on what is happening inside the prosecution service.
To illustrate the kind of culture that exists inside Hungary’s prosecution service, Bencze recalls a meeting Hungary’s prosecutor general had at the Hungarian Academy of Sciences Legal Institute for Legal Studies a few years ago.
According to Bencze, the prosecutor general was asked about revelations of widespread language certification fraud.
Bencze says the prosecution service dismissed the allegations and did not file charges, but it did use a very mild punishment against those accused. When Bencze’s colleague asked what the professional reasoning for this choice of action was – because the penalty for such a crime would be five years incarceration if convicted – the prosecutor general replied that he couldn’t just line up three hundred accused people in the courthouse. “What would the judge say?” Bencze recalls the prosecutor general saying.
“In other words, the prosecutor general dismissed the allegations. That’s when I told myself that if I commit a crime, I’ll do it with three hundred people because I will get off the hook,” Bencze jokes.
Fleck brings up the recent release of the Black Book, a collection of corruption stories from the 2010-2018 period.
“It’s about enormous amounts of money, an incredible amount of cases, this is a collection that is 150 pages thick. No proceedings were launched in these cases. In other words, no charges were filed. This is highly suspicious because everyone knows about these specific cases but no charges were filed,” Fleck says.
He again raises the Tátrai-Császy case and says it would be important to re-examine the case and what role the prosecution service played in the conviction.
“But there’s another side to this story as well, which is still a problem. The prosecution service always boasts that its conviction rate is above 90 percent, which means that courts convict if the prosecution service files charges. But if they don’t file charges, then the court can’t do anything. I think there’s no risk in me saying that the decision to file or not file charges in Hungary is a politically-motivated decision,” Fleck says.
On trusting the judiciary
“If I wanted to be cynical, I would say that if a ranking official from the judiciary saw what we are discussing, that person would say we are ruining the reputation of the judiciary,” Fleck says, adding that he and Bencze will probably be attacked for saying that there is political influence in the judiciary.
“But the reality is that this is a very sensitive issue,” Fleck says. “What actually gets out to the public about the reputation of the judiciary and how it operates, especially in a country where there is no free press, is suppressed. For the most part, the information that does get out is manipulated and distorted. I would not over-assess public sentiments, whether people generally think that the courts are trustworthy or not, independent or not — these are secondary issues. The important issue here is whether people generally trust institutions, and there’s a huge crisis in this respect.”
Fleck continues: “How the courts measure up against law enforcement or the government in an authoritarian system is almost irrelevant. However, public trust is needed for the courts to operate. Without that, there is no point to discussing this. I think that because we have transitioned into a non-rule of law system, the significance of this issue has decreased. Whether or not there is public trust matters in a democracy, in a rule of law country. Beyond that, it has no significance.”
Bencze also commented on what judges in our interview series said about the public’s trust in the judiciary.
“I tried researching this and I didn’t really find any data on this for the period after 2010. I found one, which is justice measurement by the European Union that has been published every year since 2013. The figures it showed in the first three years were consistently around 3.8 to 4 on a 7-point scale. The metric was changed for the next two years, but the results were generally the same — which was just about right for the trust levels toward Hungarian institutions. So, I don’t know what the perception was toward judges, but based on the numbers I saw, it hasn’t changed. But, as [Zoltán] said, it isn’t particularly relevant,” Bencze said.
Fleck says that the judges we spoke (and judges that he has spoken to) to feel as though the public’s trust in the judiciary has gone down.
“There is a very important distinction here,” Fleck says, adding that the fact that judges feel this way is especially noteworthy.
“This isn’t about public opinion, it’s about how judges personally feel inside the judiciary. They feel as though the public’s trust [in the judiciary as an institution] has decreased. They feel uncertain in this situation, they feel bad. The situation wasn’t good before, but it has gotten worse and this causes them to feel uncertainty. I think the [judges interviewed] emphasized this, as have many judges [that I have spoken to], because – and I’m going to be blunt with this – they really do not feel that they can be trusted. One can’t trust a system that operates like this because even the judges admit what kind of dreadful things are happening within the judiciary,” Fleck says.
Fleck continues by explaining that public and political discourse in Hungary have moved aggressively in a direction that could very well cause judges to feel as though their profession is being dragged through the mud. This, in turn, could be one of the reasons judges look upon their own institution with distrust and uncertainty.
What’s at stake for the legal system after the upcoming election
“It’s hard not to think of politics because what we call the rule of law is ultimately a political issue. Generally speaking, I think what’s at stake is whether there is a chance at rebuilding the rule of law or not,” Fleck says. “Now if there is no chance, then I think the value system and the political practices and relativization of the separation of powers that we discussed earlier will continue. Moreover, it might even become more aggressive and consolidate, and the effects of this will be tragic if we consider the judiciary. Of course, this depends on how big of a victory the political power that does not want the rule of law achieves. There may also be a massive overhaul of the judiciary because right now what we’re doing is analyzing the crisis of the current judicial system. The judges feel it, public opinion is being informed, and the political class knows. What does this mean? If [Fidesz–KDNP] gets another two-thirds, it will make serious changes to the judicial system, and it stands to reason that they will not build more guarantees into it. Instead, it will probably continue down the road of opening up more channels for political influence. That is the bad scenario. A good scenario would be that the rule of law’s system of guarantees would start being rebuilt and then we can debate on what kind of model would best work in the system,” Fleck says.
Bencze says there are really only a few potential outcomes to the election: two-thirds, simple majority on either side, or no side getting two-thirds: “If no side gets two-thirds, then the system we’ve been talking about will continue along this path. Obviously, there will be different emphases depending on which side wins. If the opposition wins, the secretive separation of the administrative courts will probably be reversed because it is decided by a government decree….If the current government wins with two-thirds, they will probably separate the administrative courts. It will be interesting to see whether they keep the existing people or not. If the other side wins with two-thirds, then it’s possible we’ll see the rebuilding of the rule law as [Fleck] mentioned.”
Does political influence seep into the law schools?
“I’m directly affected by this, so I’ll stick to talking only about the teaching,” Bencze says, dodging the question somewhat. “It does not influence the teaching. A law school instructor talks about whatever he/she wants to talk about. There is no pressure there, the instructor is independent. However, there is another issue, an interesting problem, which concerns who can be invited to speak at the law school and who cannot, what is or is not considered to be political.”
“Fine, it’s probably better if I say it because you’ve indicated you’re affected by this,” Fleck says. “What’s happened is that the amendment to the law on higher education made it possible for the government to appoint chancellors who are enormously powerful because they decide what kind of autonomy the universities and departments have. A dean and not even a rector can make decisions on funding. To all intents and purposes, in a financial sense, the autonomy of universities has disappeared. The amendment also did away in large part with the autonomy of the faculty councils, which in turn has had an effect on the selection of deans,” Fleck says, adding that the decision now ultimately rests in the hands of the rector.
According to Fleck, the appointment of a dean – in a case that he knows of – was preemptively decided when the law school’s administration informed the likely candidate that they simply wouldn’t give him the position.
Fleck says the appointment of deans is not unlike the appointment of judges to powerful positions in the Handó-run National Office of the Judiciary. If a strong candidate is not liked by the final arbiter responsible for making the appointment, that candidate will not get the position. Ultimately, when this is done enough times, the faculty starts to see what kind of candidate the administration wants.
According to Fleck, “there are very big differences between Budapest and the countryside in this respect, and it’s very interesting to see what kind of people get appointed chancellor in the countryside as compared to ELTE. But even in Budapest, this works one way at Corvinus and another way at ELTE.”
According to the ELTE law professor there is one shared feature at all the universities, namely that their financial autonomy has disappeared which, in turn, means that the government’s chancellor system has imposed something of a chilling effect on the universities.
“Citing financial reasons, they can simply wind up academic programs, departments, and fields of study,” Fleck says.
Is there hope for law school students?
“Consider what the law school students see. They see the situation, the environment that we are talking about. They see the courts, the prosecution service, the public administration. For these students, what impression do they have of what it means to be a successful jurist? Can a critical jurist be successful? Does the successful jurist follow the ideals of the rule of law? Does a successful jurist support civil society rights defenders? Or is a successful jurist one that carries out orders. So, it isn’t that they tell you what to teach, but it’s very clear to the students that their future job and career depends on whether they can adjust to the system. And this system is not one based on the rule of law. So, we can say all kinds of things, but only 10, 15 or 20 percent of them will hear it, the rest of them don’t care because they are interested what works right now, how they will have to operate in a manner that pays off. This is the greatest calamity that can happen at a law school,” Fleck says.
Bencze says: “I would add that if we weren’t even talking about jurists who understand how this state works, there are other signs that public education isn’t working in a 21st-century manner. Take for instance natural sciences or other subjects that must be learned and practiced because they are practical subjects, subjects that give people a more comprehensive understanding of the world and provide them a form of understanding that makes them more sensitive to problems and helps them recognize manipulation. They don’t teach these. Even though we have only had a few classes what the parliament, the court, and prosecution does, these were thrown [into the curriculum] as totally auxiliary subjects. They aren’t built into the curriculum. You can’t expect much from how this education system is built up.”
Does the education system prepare students to be engaged citizens?
Fleck adds that this problem trickles down to the lower levels of public education as well. Children are not being taught what it means to be a citizen, how to be autonomous while still working with others.
“I send one of my kids to a school [where they actively engage my child] in this manner. So I have a personal experience in this respect and I see the enormous difference. The child opens up, has an opinion, develops a spine, and is capable of sharing an opinion. This isn’t just about whether a kid will know the difference between parliament and the government. It’s about whether the children will end up feeling like they are entitled as citizens to have a say in what decisions are made because those decisions are about them. This is an experience that is lacking in Hungarian culture, and it is something that should have been focused on, especially in education,” Fleck says.
“We just finished a study that investigated how people understand the law and what we found was that in their everyday lives, people swallow transgressions against them, they accept it, and they do not turn to the law. So, this isn’t only about legal institutions, it’s about law in general, it’s about law as a tool to resolve conflicts, a system to compensate for transgressions, about law as something that can help people — this is what has not been enshrined in the minds of people. We accept that our bosses do bad things to us, we accept violence in the family, we accept abuse, we do not turn to the law — and this shows the shocking lack of understanding what it means to be citizen.”