"Two Souls to Struggle With . . ."
The Failing Implementation of Hungary's New Minorities Law and Discrimination Against Gypsies

Timothy William Waters and Rachel Guglielmo

Institute on East Central Europe
Columbia University

March, 1996

In 1993, Hungary passed Act LXXVII on the Rights of National and Ethnic Minorities. ₁ The law contains some of the most sweeping and extensive provisions for minorities found in domestic European law. Moreover, the law and its preamble provide a legal and philosophical rationale for the protection and integration of minorities that is extraordinarily progressive, not only fulfilling the principles of human rights law, but also expanding the existing definition of human rights. The act establishes a broad and inventive set of minority rights that are both individual and collective; minority autonomy is enshrined as both a collective right of nations and an integral element of the state. We will examine this law first as it represents an important advance in current conceptions of minority protection, and then turn to the equally important, but often neglected, question of how the law has in fact been implemented.

Many countries in the West and in the former socialist bloc exhibit an outward "normalcy" that human rights grassroots organizations and scholars are often unable to penetrate: political killings do not occur, courts function, rule of law prevails, and human rights groups are not subject to harassment. This seeming normalcy masks a more pervasive level of human rights violations, however. Entire peoples and classes may be systematically excluded from the social, political, cultural and economic life of the state, in violation of their fundamental human right to full participation in one's society.

Hungary's Gypsies ₂ are one such people: despised, misunderstood, and isolated from the mainstream society. Although Gypsies constitute five percent of the population, ₃ they are almost entirely absent from middle and higher education, ₄ the professions, political and social life, and cultural life. Most Gypsies live in effectively segregated housing and their unemployment rate approaches 60 percent nationally -- and almost 100 percent in many rural areas. Public opinion about Gypsies is overwhelmingly negative, and assimilation into the majority society is limited. Although there are thirteen recognized minorities in Hungary, most are relatively small and assimilated; the Gypsies, however, due to their low economic and social position and high birth rate, are the only minority whose status is viewed as a major question for the state. In fact, the debate over passage of this law centered principally on the Gypsies, as it had been widely acknowledged that they would be the principal object of any minority law.

Law LXXVII/1993 is a model that could go far to bridge the gap between minority, state, and majority. It holds out the promise of a rapprochement between majority and minority populations, and between Hungarians and Gypsies in particular. Its full and uncompromised implementation would represent a significant improvement in the human rights situation of the country's Gypsies.

However, the practical application of LXXVII/1993 has not approached the standards laid out in the law. Hungary was not required by its international obligations to develop such an extensive and generous law -- a lower standard of protection would have been in accord with commonly accepted norms of state behavior. However, having done so, it ought to fulfill those promises to its minorities. In fact, the Hungarian state and its local governments have not only disregarded the provisions of their own law, they have also in many instances (most especially in which Gypsies are involved) actively worked to undermine those rights, to relegate Gypsies to a status well below that accepted in international law, and to deny Gypsies even those basic human rights which Hungarian law accords to all its citizens.

This paper is divided into three principal sections: Part I examines the philosophical and political principles formally underlying Hungary's new law, which constitute a radical break with past rationales and justifications for the treatment of minorities that have permeated the thinking of both the West and the socialist countries. Part II examines the stated provisions of the law itself, laying out what the law says it will do, and Part III reports on the real failures and refusal of the Hungarian authorities to implement the system of minority self-governments for Gypsies.

I. Liberal Individualism and/vs. Collectivism

I can well imagine a person who belongs to a minority. . .and who takes a very active role in his minority community, but at the same time he is a member of a Liberal party in the given country. I think this figure would be an East-Central European Faust, who has two souls to struggle with. ₅

Liberal individualism asserts that adequate protection of the rights of individuals will ultimately render national disputes, and even national distinctions, irrelevant. The Hungarian position, by contrast, mandates specific and active intervention by the state to protect and foster national communities as nations. The concern voiced by Western governments when Law LXXVII/1993 was adopted was that such an active interest in the trait of nationality could quickly turn into active interest in suppressing other nationalities.

Yet, why is the same process not identified in the alternative program? The principles of classical liberalism often operate in such a way that they guarantee not true individuality, but an individuality synonymous with the identity of the majority. The traditional insistence on absolute non-discrimination in practice means that everyone is free to be a member of the majority nation: its language is the state language, its holidays are observed, and its history is taught. ₆ Naturally, the formal liberal system does not call for or even intend a `national coup,' and all UN documents have sternly phrased clauses on the right to a nationality and the free exercise of identity. ₇ However, these very clauses in effect sanction and allow for the assertion of a national principle, because mere protection against discrimination is not sufficient against the powerful thrust of a majority society's will. It is nearly inevitable that, given no structured alternative, the majority nation will come to identify its interests with those of the people and the state.

Liberal individualism has failed most egregiously in the areas of language and education. The liberal individual perspective values equal access to education for individuals as the highest goal, and thus mandates absolute equality in education. It has traditionally seen minority language instruction as linguistic ghettoization, because those who do not speak the majority language well will not have access to society's benefits. There is compelling force in such logic; it has operated on generations of immigrants in the country that developed liberal individualism into a state religion until the 1960s. The ironic reality is that, in non-immigrant countries, one group might be inherently disadvantaged because the "state language" is also a national language -- another nation's language.

Liberal individualism sees a single language as an operational necessity, ignoring the internal imbalances it creates, because according to this view, language is pure medium: anyone should be able to walk into a government office and petition his elected representatives, and what language is used is of secondary importance. Yet, inevitably, the operational language chosen will be that of the majority; the "pure medium" becomes a carrier of content, the nation as the state.

The Minorities Law was intended both as an internal legal document and as an instrument of foreign policy. Unlike the Basic Treaty with Ukraine, which secured the rights of Ukrainian Magyars and the integrity of the Trianon borders in one document, LXXVII/1993 was drafted in an internal process, not dependent on a quid pro quo from any other country. Rather, it was formulated as part of the necessary democratization of Hungarian society. ₈ The Hungarian government was well aware of the international consequences of its own stance on minorities; it was also at great pains to make sure its neighbors knew that its internal policy should have extraterritorial consequences. The Hungarian government saw the law as having "great importance and influence beyond Hungary's borders and [contributing to] the development of legal guarantees based on the most noble European values." ₉ In short, Hungary fully hoped that its new and generous minorities policy would serve as a model for countries with Magyar minorities. At a Council of Europe meeting, then Foreign Minister Géza Jeszenszky responded to Western concerns about Hungary's new approach to minority rights, saying that

in Hungary's interpretation, discrimination and xenophobia are not directed against individuals. On the contrary, individuals suffer because they belong to a given group or community. Such collective discrimination can only be acted against in a collective way ₁₀

Jeszenszky aimed his comments at Romania and Slovakia, which had recently been admitted to the Council of Europe -- his immediate intent was to pressure those states to improve their treatment of minority Hungarians. What is interesting, however, is that in order to achieve this goal, Hungary was willing to adopt a collective definition of rights within its own borders. The provisions of the final draft reflect this goal; indeed, they may be understood as subordinate to it.

In part, Hungary is able to experiment with new forms for minority relations because it faces no serious territorial threat. Hungary's minorities are dispersed, have fairly small populations, and are well-assimilated. ₁₁ As mentioned above, the major exception is the Gypsies. Yet even Gypsy groups, were they to press for greater autonomy, would face severe structural and demographic limitations. Despite their great numbers, the Gypsies do not have a geographic base in which they constitute the majority. The relative disunity and disorganization of the Gypsy communities also militates against the likelihood of or the need for extensive autonomy.

In this context, the Hungarian government's decision to develop self-governing cultural and educational authorities as an integral part of the state apparatus seems a logical, yet radical choice. Ultimate territorial sovereignty remains with the state, whose functional integrity is not threatened. The rights which nationalities enjoy are defined as constituent elements of the state; their existence is a distinct element of the "power of the people" upon which sovereignty is based, ₁₂ and cannot, by definition, be a threat to the state.

This is a subtle distinction, which reveals a fundamental shift away from the traditional liberal formulation. Rather than declare that the state's authority derives "from the people," without distinction as to the nature of those people, LXXVII/1993 specifies that those people may well belong to nations. Rather than declare all people equal and ban discrimination based on race, religion, or ethnicity, the law identifies and emphasizes minority members who "hold Hungarian citizenship and who differ from the rest of the population in . . . mother tongue, cultures and traditions." ₁₃ What is of interest here is that a minority member's status is defined by two distinct elements: 1) his Hungarian citizenship, and 2) and his identity as a member of a nation or ethnic group, which is defined as "a basic human right which individuals and communities are equally entitled to." ₁₄ The Hungarian formulation is thus a fusion of the classical liberal "civic" definition of citizenship and an acknowledgment of "the national principle."

II. The Promise of Integrated Minority Rights: Hungary's Law LXXVII/1993

"I am first and foremost Hungarian. Only second do I want to live in my identity; for this I need the right to do so." ₁₅

Law LXXVII/1993 seeks to identify the substance of individual and collective national rights for Hungarian minorities, and to outline specific provisions by which these rights may be realized. The law recognizes the homogenizing tendency of the modern state; one of its stated goals is to "identify and create conditions under which the assimilation process of national and ethnic minorities can be halted and made reversible." ₁₆ based,

The legal recognition of minorities' existence is a first step towards reversing this tendency. The Act covers Hungarian citizens resident in Hungary who identify themselves as belonging to a recognized ethnicity; together, these people constitute an ethnic group. ₁₇ The Act defines criteria for constituting an eligible ethnic group, ₁₈ but also identifies thirteen groups as de jure national or ethnic minorities. ₁₉ There is no requirement that one declare any nationality or ethnicity. ₂₀

The Act distinguishes between two categories of minority rights: individual and collective. In this first category are such provisions as the right to use ethnic names, ₂₁ to form ethnic associations, and to be educated in the culture, language and traditions of the mother country. The centerpiece of the legislation, however, is the series of collective rights for national minorities. These rights carry nearly the full weight of the political message which motivated the law: a message to and an example for the neighboring states with Hungarian minorities.

The introduction to the law notes that "minority rights cannot be fully guaranteed within the bounds of individual civil rights; thus they are also to be formulated as rights of particular groups of the society." ₂₂ Collective rights guaranteed in the law include minority self-government at the local and national level, as well as the meaningful provision of cultural and linguistic rights, including instruction in the mother language and the organization of cultural institutions. These are the most important rights outlined in LXXVII/1993; they are also the most controversial. The rest of this paper will examine these rights and their actual application in detail.

The chief instrument for achieving collective rights is a system of minority self-governments, enacted on the national and local levels. These self-governments allow minorities to participate in the democratic process as members of a minority group, creating a non-territorial grant of minority rights that is nonetheless expressed through territorial entities. The entire system is conceived to be a territorial expression of cultural autonomy; all the rights and responsibilities are expressed through the established, territorially-based election districts used by the current system of local governments. Since the 1990 conclusion of local government reforms, these units form the foundation of the state administrative system of Hungary. ₂₃ As such, the system has an undeniable territorial component, and yet in all its essential elements, it is fully integrated into the Hungarian state -- there is no exclusively ethnic territoriality. If fully realized, such bodies, elected separately and responsible to their own distinct constituencies, could develop into mature sources of political power, participation, and legitimacy.

The self-governments operate at two levels: local and national. The local minority governments may be formed indirectly by the local council, or directly by a vote of the minority's members. Because they identify new sources for political majorities other than an undifferentiated "50 percent of the people + 1," these two electoral methods constitute a radical break with more conventional notions of state authority and majoritarian models. ₂₄

The indirect method is a rather phenomenal concession to the principle of multiple sources of authority within the state: it provides that, should more than half of the representatives of a local council "[be] candidates of a national or ethnic minority, [that body] may declare itself a minority local government." ₂₅ Hungarians living in such a village would be subject to the same authority, which would also wear the hat of local council. ₂₆

Direct election allows minority members in a locality to conduct a parallel minority election, and the resulting body is recognized by the state and has legal force. ₂₇ Here again, the fusion of individual and collective principles is clear: government is formed by the will of the majority of individual citizens, but the class of citizens made eligible is defined as an ethnic group. Because the regular local council operates on the same territory, a dual system of legitimated majoritarian governance is created. ₂₈

The local government system is paralleled by a national minority self-government, one for each minority. The representatives of the national self-government are chosen from among the local minority government officials, who act as electors according to the same rules that govern the local municipal elections. ₂₉ This provision creates a continuity between the local and national levels of self-government, and mirrors the division of authority between local councils and the national Parliament. However, the national minority self-government operates independently of the Parliament, with its own electoral cycle -- under the Act, the political legitimacy of minority self-governments is related to, but not subordinate to, the main government structure.

Although the means of creating minority self-governments appear radical, the grant of powers is less so. The minority self-governments are given general control over cultural and educational matters affecting the minority population, but their real authority is limited; in general, they exercise rights of consultation or consent on actions undertaken by other authorities. Where they have the right to act independently, they must work within the limitation that their actions may not infringe upon the rights of ethnic Hungarians. Important social services such as health, sanitation, crime prevention, and general education (except as outlined in the next section) remain the responsibility of the local council.

The most important rights of minority self-governments concern education, culture, and budgetary authority. Minority governments have the right to establish schools and take over existing schools presently administered by local councils, to print newspapers and to operate electronic media, to establish enterprises, to organize competitions, and to establish foundations. ₃₀ Local decrees regarding the use of languages, mass media, and appointments of school principals and administrators require the consent of the minority government in all cases in which the education of minority members is affected.

The national self-government has considerable latitude in creating and controlling civic institutions, as these seem to be part of the general philosophy of the Act that approaches the reform of minority rights as part of the larger decentralizing and democratizing project. Where an issue concerns only the minority and its own activities, broad authority has been granted which is basically a `negative' freedom (i.e., freedom from interference, rather than active assistance) from the state. Thus, each national self-government has the right to establish educational and cultural institutes; theaters, libraries and museums; schools and universities; and newspapers and other media. It may also decide how air time on government media allocated to each minority may be used. ₃₁

This grant of authority is more restricted where action by the minority might be seen as infringing on the rights of ethnic Hungarians. The minority national self-government has only limited powers to act for the collective nation with regard to statewide initiatives enacted by the Parliament -- there is no minority veto on legislation. Instead, the minority government is generally restricted to the right to be consulted and to advise and consent on issues that affect the minority.

Ensuring the existence of the minority governments is only one aim of the law; it also seeks to enable them to provide the services and cultural goods that will sustain and nurture their minority communities. This means that minorities are to have not merely a negative right of protection from encroachment by the majority culture, but also the right to live in their identity, as expressed in language, culture, religion and national custom.

Virtually all citizens of Hungary know Hungarian and are able to conduct their public business in that language. Yet, the section of the law on the cultural and educational rights of minorities opens with a list of fourteen languages. ₃₂ Such prominent placement suggests that the practical controversy revolves not only around what is taught, but what language it is taught in.

LXXVII/1993 takes tentative, but important, steps away from the formerly all-consuming belief that only one language will suffice. Some of the elaborated rights and the responsibilities assigned to the state are sensitive by traditional regional standards. Following from the principle that no one may be forced to adopt a particular national identity, instruction in the minority language, Hungarian, or in both languages, is guaranteed, although only "according to local possibilities and demands." ₃₃ Other provisions provide more extensive guarantees -- ones that would actually prove more destabilizing in a country which felt less sure of its position vis-à-vis its minorities. The state is required to train teachers for minority language classes, to "support the employment as visiting professors of instructors coming from the respective mother or language countries," ₃₄ and to support minority study abroad "in courses... offered by foreign institutions aimed at fostering the given culture." ₃₅ One of the most generous provisions states that all civil servants must be competent in the language of the community they serve. In sum, the Act offers concessions to the principle of Heimatrecht, the right to contact with the motherland, seldom encountered in Eastern Europe.

Perhaps the most important limitation on the minority governments is financial; no taxation privileges are included, and all monies are given either as grants from the state or allocated from the budgets of their territorially-synonymous local municipalities. This is potentially the most damaging loophole in the entire Act, since all the substantive provisions could be gutted by funding cuts. Local municipalities are required to "specify in detail" which assets they will provide to minority governments, but are not compelled to actually provide any given level of funding. The clauses enumerating important rights to establish schools, print and electronic media, enterprises, and foundations also invoke the proviso that these rights are authorized "within the limits of its resources available." ₃₆ Transfers to minority self-governments "must not prevent the local government from carrying out its normal duties." ₃₇

In effect, the funding provisions of LXXVII/1993 render the law a promise, not a guarantee. The legal language that would make the substantive provisions truly substantive is missing. The theoretical construct of two autonomous and equal governments (the local council and the minority self-government) which occupy the same territory is entirely dependent upon the cooperative goodwill of the council, which holds the purse strings. We now turn to an examination of the real effects of these loopholes and how well the other provisions and stated goals of the law have been implemented.

III. The Legal Situation of Gypsies: Abuses Under the New Minority Law

"In Eastern Europe, the minority question is a national security question." ₃₈

The provisions of LXXVII/1993 have been undermined, ignored, or contravened by the Hungarian government and its officials at the national and the local levels, particularly with respect to Hungary's Gypsy population. Through interference with national minority self-government elections, denial of funding and access, and attempts to transfer responsibility for providing basic social services to the Gypsy population, implementation of the law has been derailed. The debate surrounding the passage and implementation of LXXVII/1993 has been very much a rhetorical play; the loopholes are in fact the real substance of the law. The Hungarian government interfered in the April 9, 1995, elections to establish the Gypsies' national minority self-government. ₃₉ Through fiscal and other measures, the government helped the Lungo Drom, a national Gypsy coalition party with traditionally close ties to the ruling parties, win all 53 seats in the national self-government. The organization and conduct of the elections revealed a pattern of irregularities that included both neglect and active interference. These irregularities suggest at once a disdain for the stated democratic goals of the Act and a desire on the part of the government to co-opt and control the elections -- and through them, the self-governments. According to one attorney, "the elections were a loyalty contest to the government," in which the government gave vigorous support to its favorites. The resulting body is "a rock-solid corporative government, not a self-government." ₄₀

The National Elections Board, which formulated the rules for the national and local minority elections, adopted the "small list" system of voting. This system, in which individual electors may vote for as many candidates as there are seats, virtually ensures a "winning bloc take all" result. ₄₁ In fact, that is exactly what happened: all 53 seats in the self-government went to a single faction. Thus, the government created an electoral system which would ensure that there would be a single victor. Its other actions, such as disproportionately funding a single faction and placing the elections in that faction's hometown, ensured that the victor would be the faction of its choice.

The government provided far greater funding to Lungo Drom than to the other coalitions and organizations. Over a three-year period, Lungo Drom received 21.43 million forints (approximately $172,000) and the next largest recipient received 12.6 million forints ($100,800), while Lungo Drom's rival at the Szolnok elections had received only 9.5 million forints ($76,000) over the same period. The year before the election, Lungo Drom received 9 million forints ($72,000), twice what its principal competitor received. ₄₂

The Gypsy elections were held in Szolnok, a provincial town which is the headquarters of Lungo Drom; all the other minority elections were held in Budapest, the transportation hub for the entire country. Electors lived in every section of the country, and connections to a provincial town like Szolnok are much more difficult than to Budapest. Nearly 500 electors chose not to attend, citing the great distance as one of their primary reasons. ₄₃ An article in the journal Beszélo suggested that the choice of Szolnok was a calculated decision aimed at assuring the election of a controllable self-government:

[T]his election -- to which it was hardest to call together the electors, which demanded the most time, in which the sharpest conflicts between the competing organizations could be expected, in which the proportion of electors arriving from different parts of the country, and even the time of their arrival, could have decisive significance -- was taken out of the capital, which has the best communications, the greatest number of reception halls and the most hotel space, and was put in Szolnok, the seat of Lungo Drom... the only large Roma organization not run from the capital.

The National Elections Board, with the comic excuse that they couldn't find a single available venue in the capital, took Lungo Drom's suggestion that the elections be held at their home base in the municipal Sport Hall, and made it their own. ₄₄

Once the elections got underway, only six booths were available for over 1,600 electors, each of whom had to vote for 53 separate names from a list of 278 candidates. Electors received as many as five ballots each, voted with both hands during the preliminary nominating procedure, and filled out ballots jointly. ₄₅ "The National Election Board had created conditions that made it impossible for the election to be conducted in a lawful manner," said one journalist who was present. ₄₆ Events in Szolnok suggested the government's intention had been to undermine the Gypsy self-government system and to reaffirm widespread opinions about the disorganized state of Gypsy politics. The weekly Magyar Narancs called the way in which the elections were conducted a "delicate paternalism." ₄₇

Despite an official protest by the losing parties, journalists and several human rights activists, both the National Elections Board and the Supreme Court certified the results of the election. In responding to the protest, the Supreme Court acknowledged that violations had occurred, but said:

It is... true that before the secret ballot began one elector was able to receive several ballots if he showed several stamped registration cards. The videotape proves without doubt that several ballots were distributed in this manner. However, neither the plaintiffs nor the videotape proved that the ballots received by the elector in question were actually filled out by that same elector... The plaintiffs also alleged that the elections committee failed to ensure the conditions necessary for a secret ballot. Without a doubt, the circumstances were not unobjectionable, but if we consider the number of electors and polling booths, there was in theory the opportunity for the electors to cast their ballots in the booths. The videotape shows that some electors violated the rules of secret ballot, but the plaintiffs have been able to prove only a few such instances; the election committees cannot be found responsible because of the electors' own undisciplined behavior. ₄₈

The court noted but did not address charges that several hundred ballots were not counted. ₄₉ The court's disregard for such abuses was particularly surprising in light of its previous decision, only eleven days before it certified the Szolnok results, to invalidate a municipal election in which a single candidate's name was misspelled. ₅₀ The acquiescence of the courts in accepting an election that their decision openly acknowledged to have been conducted in questionable circumstances suggests a broad disregard for the correct forms and procedures of a democratic election in which Gypsies are concerned.

In contrast to the interference that took place at the national-level elections, local council elections were conducted with little interference in November 1994. Following these elections, 436 Gypsy self-governments were formed; ₅₁ 68 more were formed in a special second round of elections held in November 1995. ₅₂ Since the 1994 elections, many of the self-governments have foundered due to a lack of funding and are effectively moribund; thirteen have actually shut down.

All local minority self-governments have some funding; the Parliament authorized a one-time grant of 114,000 forints ($910) to each self-government, regardless of the size of the settlement. However, this level of funding, though ostensibly designed to assist the self-governments with `start-up' costs, is insufficient to establish and maintain an office, let alone fund any programs, in any but the smallest settlements. ₅₃ In effect, the self-governments must rely on other sources of funding such as grants from charitable organizations or the legally mandated support of the local councils. Under LXXVII/1993, the councils are required to ensure the operations of the self-governments and to fund their programs where possible. In many towns and villages, however, the councils have allocated only nominal amounts, and often no money at all. Even more frequently, they have failed to provide the use of office space or other infrastructure.

Reports submitted to the national Gypsy minority self-government by the local Gypsy self-governments from around the country show a pattern of local councils refusing to provide funding to their Gypsy counterparts. While the law makes general financial guarantees, it makes no specific provision for any compulsory level of funding; the local councils have maximally exploited the phrase "where possible." In effect, they have financially paralyzed the ostensibly autonomous governments that share their territory, but not their fiscal and tax privileges.

Local officials have on occasion moved beyond mere exploitation of the law's loopholes to engage in outright violation of its formal provisions. In Fonó, a small southwestern village, the now-defunct self-government was not even aware of the money which the Parliament had authorized. József Orsós, the former president of the self-government -- the sole member who did not resign -- described the resistance to the new body mounted by the local council:

I only found out that we had a budget of 114,000 forints by mistake; after I tried to gain access to the money, I was told I would have to go through the registrar to get it. With the registrar, though, I always had to beg for the money. . .and when I asked the mayor for help in setting up our own budget, he told me `it's impossible. It's too complicated, and it shouldn't be done that way.' Instead they suggested that they control the money, and I [buy things with my own money and] bring them the bills. ₅₄

In sum, while the minority self-governments theoretically have the power to establish their own cultural foundations, schools, theaters, etc., in reality they are ill-equipped to do anything. They are entirely dependent upon the local councils for their budgets, and thus the power is completely in the hands of the local councils. ₅₅

Active and functioning Gypsy self governments generally have some other connection to real political power through the councils. In Barcs, a mid-size town on the Croatian border with a sizable Gypsy population, the local council has allocated one million Forints ($8,000) for the Gypsy minority self-government, which also has budgetary control. However, the President of the self-government is also a local councillor, representing a heavily Gypsy district. His ability to secure funding for the self-government's operations is principally due to his status on the council, not to any independent authority vested in him by the new law. The situation in Barcs is rather unusual; there are relatively few Gypsies on local councils, even in areas of the country with sizable Gypsy populations. Yet in practice, despite the provisions in the Act calling for truly independent and operational minority self-governments, an inside connection to the fiscal power of the local councils is the only real means to make a self-government operate. As one self-government representative from western Hungary put it:

we are in a dependent relationship... they tell us to be patient -- that they are being forced to close schools -- but they are getting their honoraria. Minority representatives get nothing. [The budget] is in their hands; this is not a law, it's a game -- a game with the minorities. ₅₆

Consequently, most Gypsy self-governments, lacking any real authority of their own, are only marginally funded and nominally operational, or not at all.

Because only a small and restricted amount of funding actually reaches the local minority governments, very few have been able to implement any effective programs within their described sphere of competence. Not a single school or theater has been opened by or transferred to any Gypsy self-government. ₅₇ Although signs in other minority languages are now commonplace, almost no towns have put up signs in Gypsy languages. ₅₈ In a more positive development, the Hungarian national government allocated two million forints in February 1996 to establish a Gypsy museum in Pécs, a town in Baranya County.

Likewise, implementation of the law's provision regarding collective cultural and linguistic rights has foundered. Education in Gypsy languages has not increased. Beash, a Gypsy language, is taught in just one private school in the country, ₅₉ and there is no state or county-level Gypsy language teaching, as there is for other minority languages. ₆₀ There is no teacher training for Gypsy educators as provided by the law, and there is effectively no mention of Gypsy culture, history, language or even of the existence of Gypsies in Hungarian textbooks. ₆₁ Very few supplementary Gypsy language or cultural classes are taught, even though all schools receive a per-student allowance from the state for every minority student in the school, including Gypsies. ₆₂

Many Hungarian educators have argued that, regardless of the law's provisions, there has been neither need nor demand for Gypsy cultural or language training. However, many Gypsies expressed a strong desire to have their children learn their own language and culture. ₆₃ One self-government representative insisted that "we would like to have education in the Gypsy language, but we don't have any money, and without money we can't get a program off the ground." ₆₄

One of the most disturbing trends to arise out of the abuse of the self-government scheme has been the attempt by some local councils to transfer responsibility for providing social services to Gypsies to the self-governments. The law limits the self-governments' mandate and funding only to cultural, linguistic and educational initiatives, ₆₅ but many Gypsies reported being referred to the new self-governments when they inquired about welfare assistance, maintenance services and other city services that the councils themselves are responsible for providing.

According to the minority self-government president in Fonó, the Hungarian mayor made an attempt to relieve the local government of the responsibility of providing social assistance to its Gypsy population: "He suggested that we take over the distribution of all social services for Gypsies, but I knew that that wasn't our job, and I turned it down." ₆₆ In the eastern village of Tarpa, the minority self-government president reported:

The atmosphere here is getting progressively worse, because we can't offer anything to the Gypsies here. And ever since the minority council was established, the local council has been refusing to help Gypsies -- they're not getting social assistance." ₆₇

Some Gypsies reported similar responses at banks and other private or semi-private institutions. One woman stated that when a friend of hers sought a loan from a bank in southern Somogy County, the bank officers told her to ask the new Gypsy minority self-government for credit. ₆₈

The self-governments are put into an untenable position when their Gypsy constituents make demands upon them for social services which they have no mandate or funding to provide. When open sewers in a Gypsy settlement in Ózd were left unrepaired throughout the summer of 1995, residents blamed the Gypsy self-government for not addressing the problem. ₆₉ When, often at the behest of Hungarian councils, Gypsy communities turn to their self-governments for help that they cannot provide, the representative-constituent relationship that LXXVII/1993 was supposed to foster is undermined. Some Gypsy leaders have noted that Gypsy communities may actually be adversely affected by the creation of minority self-governments, which have raised expectations without providing the means to fulfill them.

Gypsy minority self-governments have encountered a level of resistance that cannot be wholly ascribed to the depressed economic situation. The existence of a rival governmental authority on the same territory is clearly regarded as a threat by many local councils. In addition to denying funding and infrastructure support, many local councils have met the self-governments with disdain, suspicion and hostility:

The local council absolutely did not want a minority self-government to be established here... They never invited us to the council meetings; we didn't even know when they were. I went to one uninvited, but they never asked me for my opinion about anything. ₇₀

The president of the self-government in the large northeastern city of Miskolc complained that members of the local council did not treat Gypsy representatives with respect and that he had experienced prejudice at council meetings:

They don't treat us as partners. At a meeting of the city council I overheard one council member talking with another in the hallway. He said "How is it that Gypsies can come here to do business?" I was standing only a few meters away. ₇₁

This sentiment reaches beyond the councils and into the constituencies which elect them and to which they respond. Many private citizens expressed opposition to the mere idea of any transfer of power to Gypsies, because Gypsies are perceived to constitute a threat to Hungarian society in a way that the other smaller, more assimilated minorities do not. A school principal commented: "Everyone would be better off if they would just assimilate. We Hungarians will be a minority in our own country soon enough, so it is important to assimilate them now." ₇₂

The reality is that disdain for Gypsies permeates every level of Hungarian society. Even the majority of Hungarians, who do not advocate and often oppose discrimination, frequently express distaste and dislike for Gypsies; negative opinions about Gypsies can be expressed openly in polite society without embarrassment. As one journalist remarked, "even the people who work for Gypsy rights hate Gypsies." ₇₃ There is effectively no constituency among ethnic Hungarians which supports, even indirectly, a policy of creating full and meaningful civil or ethnic rights for Gypsies; this is a resounding silence to which Hungarian politicians have responded. ₇₄

The only pressure for meaningful change on minority issues has come from abroad. Western governments have been keen to see the former socialist countries demonstrate a commitment to resolve their ethnic problems peacefully, in part because they have no desire to absorb those problems into an expanded European Union at a future date. Hungary has responded, both to satisfy the concerns of Western governments as well as the fact that it saw an opportunity to gain leverage on its neighbors who have large Hungarian minorities. Such a strategy requires the outward appearance of reform, not any necessary change on the inside; it required, in the case of LXXVII/1993, adherence to the `forms of reform' in drafting the document, but not in its implementation.

The resistance of the Hungarian political system to any real implementation of LXXVII/1993 has rendered it an empty promise. As one Gypsy political activist ironically noted, the law has not changed Gypsies' peripheral position in Hungarian society: "Before the law we played music -- now we have a law that says we can play music." ₇₅

Epilogue and Prologue: Future Directions for Minority Law

Although LXXVII/1993 appears to embrace a universal principle of collective national rights, its real intention is to pressure the surrounding countries to improve their treatment of ethnic Hungarians. The law is, in effect, a lie: there is little real political sentiment within Hungary for granting any concessions to its own minorities -- least of all to the Gypsies. One incident from the drafting of the law shows the very real limits of the Hungarian political establishment's commitment to the ideals they have espoused: the first major draft of the law, in violation of Article 68 of the Constitution, did not include Gypsies on the list of protected minorities; only after loud protest from Gypsy groups and the international community was the draft revised. ₇₆ There is no reason to believe that the promises made in this law were ever intended to be fulfilled, nor ever will be.

Despite this rather pessimistic assessment of the practical situation, we feel that there has been progress, of a kind. Although the law is a lie, it is a different lie than the drafters would have used 50 years ago, or even fifteen years ago. The overarching domination of the autonomous individual in the rhetoric of rights has given way to -- is giving way to -- the nation and the collective.

The drafters of LXXVII/1993 have not demonstrated any greater or more substantive commitment to human rights than did the many signatories of the Universal Declaration and other canonical expressions of liberal individualism, who, in the privacy of their own homelands, continued on as they always had. They have merely responded to a perceived change in focus. In the process, however, they have changed the rhetoric, and put a rhetorical tool or weapon in the hands of their minorities. Just as the Helsinki Accords created a moral space that, in the Soviet bloc, was perceived as a moral vacuum to be filled and watched over by Charter 77, Beszélo, and others who held their leaders accountable for their promises, so with time, the new rhetoric of collective rights may take on real legitimacy -- despite the original intention of the drafters.

The essential challenge for a system of cultural autonomy is to institutionalize the rights and roles of each nation in a way that ensures that no nation threatens another, nor undermines the cohesion of the state. To succeed, a system must draw from both sources of authority, the nation and the state. As written, LXXVII/1993 points toward a legal regime that accomplishes this. As the experience of Hungary's Gypsies reveals, a successful minorities law must provide: (1) specific funding for each minority self-government; (2) independent monitoring of minority elections; (3) investment of some independent taxation authority in the self-government; (4) a transparent drafting process for the law completed in cooperation with the minorities; (5) timetables for the transfer of property to the minority (theaters, schools, cultural centers), specifying which property is to be handed over; (6) clear rules regulating the relationship between self-governments and other government bodies; and (7) an independent administrative body empowered to ensure compliance with the law. Such a law, fully and meaningfully implemented, could achieve what neither Hungary nor any other country in the region has yet achieved: it would radically restructure the relationship between minority and majority, it would redefine the duties of the state towards its citizens, and it would reconstitute the divided soul of the state itself, deriving its authority from the people and the peoples

_

NOTES

Note 1: Early drafts of the Minorities Law that was finally enacted were submitted in June 1992; other versions were circulated even before that, and both government and minority representatives (such as the Roundtable of National and Ethnic Minorities in Hungary) participated in the drafting process. The Council of Europe was given a draft to comment on during the fall, parliamentary debate on the bill began in September 1992, and negotiations between the six parliamentary parties' working groups continued until December. Back.

Note 2: In keeping with the preference of most Gypsies whom we interviewed in Hungary -- who refer to themselves as "cigány" ("Gypsy") -- we have chosen to use the term "Gypsy" rather than "Rom/Roma." Back.

Note 3: The most common estimates place the number of Gypsies in Hungary at 450,000to 600,000. See Transitions, March 29, 1995, for some recent estimates and commentary.

Gypsies first arrived in Europe in several waves of migration out of India between the ninth and fourteenth centuries. Several different groups of Gypsies eventually settled in the Carpathian Basin, which includes modern Hungary.Today there are four main groups in Hungary; although there are many cultural differences between and within these groups, the principal distinctions are linguistic. The Romungro, the largest group, speak only Hungarian. The Olah speak Romany, the "traditional" Gypsy language related to Sanskrit. The Beashi speak a dialect of Romanian. The small Sinti population generally speaks only Hungarian rather than its dialect, which is related to that spoken by West European Sinti. These linguistic distinctions are partly historical artifact;all Gypsies in Hungary are fluent in Hungarian, and most Gypsies -- regardless of group -- speak only Hungarian. Literacy rates are considerably lower than for Hungarians.

Beginning shortly after their arrival in Europe, Gypsy populations were subjected to forced assimilation, persecutions, and pogroms. During the Second World War, Gypsies were the only ethnicity besides Jews singled out for extermination, although there is still no consensus about how many Gypsies actually perished. Following World War II, the Hungarian Communist Party instituted a quasi-assimilation policy, which broke down traditional Gypsy communities and brought them into the work force without offering them a place in Hungarian society. See also The Gypsies of Eastern Europe, David Crowe and John Kolsti, eds. (Armonk, NY: M.E. Sharpe, 1991); Jean-Pierre Liegeois, Gypsies and Travellers (Strasbourg: Council of Europe, 1987);Helsinki Watch, Struggling for Ethnic Identity: The Gypsies of Hungary(New York, 1993); and for a study of the Holocaust in Hungary, seeLászló Karsai, A cigánykérdésMagyarországon 1919-1945: Út a cigány Holocausthoz(Budapest: Scientia Hungariae/Cserépfalvi Könyvkiadó,1992). Back.

Note 4: "Only an estimated 5 percent of adult Gypsies have finished secondary school." Edith Oltay, "Hungary Passes Law on Minority Rights," RFE/RLResearch Report, August 20, 1993, 60. Moreover, within Hungary's three-tiered system of secondary schools -- gimnázium (university preparatory), szakközépiskola (vocational), andszakmunkás (apprentice) -- that 5 percent is almost exclusively in szakmunkás and, to a lesser extent, inszakközép; practically no Gypsies attendgimnázium. In practice, Gypsies are almost totally absent fromthe academic and intellectual life of Hungary. Back.

Note 5: László Végel, "Liberalism and Autonomy" in Autonomy:Challenge and/or Solution (Budapest: Ferenczy Books, 1994), 50. Back.

Note 6: As one writer on autonomy has it, "it is an unacceptable and sinful luxury that Liberal thinkers oppose the idea of minority autonomy in East-Central Europe, because it gives the impression that they find these tendencies more dangerous than... the unifying and centralizing, etatist tendencies of the nation-state." Végel, 51. Back.

Note 7: These clauses have no teeth, however, and the nationalist dragon does. Back.

Note 8: Oltay, 60. Back.

Note 9: Magyar Hirlap, July 9, 1993; cited in Oltay, "Hungary Passes Law on Minority Rights," 60. Back.

Note 10: "Hungarian FM Speaks on Minority Rights Frame Agreement at CE Meeting," MTI Hungarian News Agency, November 4, 1993. Back.

Note 11: The Introduction acknowledges that this high level of assimilation is due in part to forceful and repressive policies enacted by the Communists and the Hungarian Crown. While on the one hand this is a worthy admission, it also serves to reinforce the message that Hungary's minorities are indeed very assimilated -- and that therefore no other more expansive policy is necessary.It is both a noble and self-serving admission for advocates of LXXVII/1993. The German minority, the second largest after the Gypsies, suffered expulsions and repression during the decade following the Second World War; many who remained downplayed their German identity. Similarly, thousands of Slovaks were traded for Slovakian Magyars following the war. The remaining Slovaks, about 110,000,live mostly along the Slovakian border; however, there is no contiguous `border strip' in which they constitute a majority. The other official minorities have small populations (25,000 Romanians, a few thousand Greeks) and are in mustaches very assimilated. Back.

Note 12: LXXVII/1993, section 3 SS 1; also Section 68 SS 1 of the Hungarian Constitution. Back.

Note 13: LXXVII/1993, section 1 SS 2. Back.

Note 14: This law is not the first document to formulate this right. See Article 27of the International Convention on Civil and Political Rights (March 23, 1976),and Article 15 of the Universal Declaration on Human Rights (December 10,1948). In general, though, these Conventions and others such as the International Convention on the Elimination of All Forms of Racial Discrimination operate within the classical liberal view that sees national identity as a phenomenon of individual humanity, and thus secondary to it. Back.

Note 15: János Kozák, Vice-President of the National Gypsy Self-Government, interviewed in Pápa, July 11, 1995. Back.

Note 16: "Introduction to the Act on the Rights of National and Ethnic Minorities in Hungary," IV. Back.

Note 17: LXXVII/1993, section 1 SS 1. Back.

Note 18: LXXVII/1993, section 1 SS 2. Back.

Note 19: The distinction between national and ethnic minorities is retained in the final draft -- the source of no small controversy -- but it is also stipulated that there is no difference between the two in the Act. This would seem to be the intrusion of received terminology into an otherwise radically new formulation. The thirteen groups named are: Armenians, Bulgarians, Croats, Germans, Greeks, Gypsies, Poles, Romanians, Ruthenians, Serbs, Slovaks, Slovenes, and Ukrainians. Back.

Note 20: Religious groups are not covered; Jews are considered a religious ethnicity, and are not included. Back.

Note 21: Individuals may request that their personal documents be in their own language and script (and in Hungarian), subject to "the bounds of effective legal regulations." LXXVII/1993, Section 12. Back.

Note 22: "Introduction to the Act on the Rights of National and Ethnic Minorities in Hungary," VI. Back.

Note 23: Sections 21 and 64 of LXXVII/1993 modify Law LXIV/1990, which reformed the system of elections for local government representatives and mayors. The reform was seen as an important element of the effort to reduce centralized state authority. Back.

Note 24: Note that these models are fundamentally different from the electoral supermajorities proposed recently by Lani Guinier and others. Those models seek to ensure that the "voice" of the minority be included in the majority's deliberations and decisions, whereas the Hungarian model purports to create an altogether separate, yet equally legitimate, voice -- it describes nost a supermajority, but dual majorities. Back.

Note 25: LXXVII/1993, Section 22 SS 1. Back.

Note 26: There are specific provisions in the Act for the protection of Hungarians as a minority within the locality. LXXVII/1993, Section 25 SS 2. See also Section48 regarding educational guarantees for Hungarian nationals in schools and districts under minority authority. Back.

Note 27: The direct method of creating minority local governments is the more significant, since the minority populations are fairly dispersed and do not form majorities in many districts. Back.

Note 28: Not only dual: some towns and districts of Budapest have multiple minority self-governments, as well as a local council, all territorially coextensive and all legitimated by a majority of the (relevant) voters. Back.

Note 29: LXXVII/1993 Section 34. Special electors can be chosen for communities without any minority local government. Thus even small communities in which political participation is minimal can have some access to the national political process, so long as they initiate the process themselves; this inconsistent with the principle, elaborated in the Introduction, that a minority should have the right to initiate political activity on its own behalf, while also assuming that only those minorities which are "self-aware" need protections. Back.

Note 30: LXXVII/1993 Section 27 SS 3 and 4. Back.

Note 31: LXXVII/1993, Section 37. Back.

Note 32: LXXVII/1993 Sections 42 through 50. There are fourteen languages because two Gypsy languages, Romany and Beashi, are included. Back.

Note 33: LXXVII/1993 Section 43 SSSS 2-3. Back.

Note 34: LXXVII/1993 Section 46 SS 4: a provision, of course, that does little for the Gypsies. Back.

Note 35: LXXVII/1993 Section 46 SS 2-5. Back.

Note 36: See, for example, LXXVII/1993 Section 27 SS 3 and 4. Back.

Note 37: LXXVII/1993 Section 59 SS 1. Back.

Note 38: Interview with Dr. Gábor Noszkai, June 22, 1995. Back.

Note 39: "Gypsy Organizations Question Results of Minority Elections," BBC Summary of World Broadcasts, April 13, 1995 available in LEXIS/NEXIS, British Broadcasting Corporation Library. Back.

Note 40: Interview with Dr. Gábor Noszkai, on June 22, 1995. The Act also provides that minority seats in the Parliament are to be created by another law; over two years and one statewide parliamentary election later, no such law has been passed. Introduction, at VIII; LXXVII/1993SS20(1). Back.

Note 41: In Hungary, this system is otherwise used only in very small communities, not in electoral voting. Back.

Note 42: "A szerencse jön is, megy is" (Fortune Comes and Goes),Beszélo, January 12, 1995, 14. Back.

Note 43: The quorum was achieved only after considerable delay, as many buses arrived late. Because of this, balloting continued late into the night, and many electors were forced to leave the elections before they were completed because their buses were departing. Back.

Note 44: Sándor Révész, "Hosszú útrólvisszatérni. . . ," Beszélo, April 13, 1995. Back.

Note 45: Footage shot by Patrin Cigány Magazin, the weekly Gypsy news and culture magazine of Magyar Televizió, viewed by the authors in MagyarTelevizió Studio, Budapest, on June 20, 1995. Back.

Note 46: Ágnes Daróczi, quoted in Éva Blénesi, "Nemtudom, mi vár ránk," Magyar Narancs, July 13, 1995, 9. Back.

Note 47: "Fegyelmezett többség," Magyar Narancs, April 13, 1995,18. Back.

Note 48: Supreme Court of the Hungarian Republic, Kfv.I.27.392/1995/5, 4-5., decision handed down on April 19, 1995. Back.

Note 49: Ibid. Back.

Note 50: Solt, Ottilia, Nyeröviszonyok, in Beszélo, May 11, 1995, at 29. Supreme Court of the Hungarian Republic, Kfv. III. 27.355/1995/3, decision handed down on April 7, 1995. The Capital City Court invalidated the election results for the Gypsy self-government of Budapest. City Court decision 4.kpk.32917/1995/2, decision handed down on March 29, 1995. Back.

Note 51: Figures from the National Gypsy Minority Self-Government based in Szolnok, and Dr. Mohay of the Budapest City Government. Back.

Note 52: Interview with Zoltán Gál, Népszabadság journalist, in Budapest, March 12, 1996. Back.

Note 53: Even the smallest settlements have three-man self-governments; larger towns and districts of the capital can have as many as nine. 114,000 forints would represent a relatively low wage for one person (though certainly not unheard of), and thus hiring staffers for an office or program is effectively ruled out, absent additional funding from the local council. Back.

Note 54: Interview with József Orsós, July 30, 1995. Back.

Note 55: Interview with Dr. Gábor Noszkai, June 22, 1995. Back.

Note 56: Interview with János Kozák, July 11, 1995. Back.

Note 57: Figures from the National Gypsy Minority Self-Government based in Szolnok and interview with Dr. György Mohay in Budapest on June 20, 1995; see also interview with Péter Radó, Head of Department of Minorities at the Ministry of Culture and Education, in Budapest on July 12, 1995. Back.

Note 58: Statement by Gabor Noszkai, attorney, to György Fehér, attorney, in Budapest on March 12, 1996; see also József Lanko, priest in Alsoszentmárton, an all-Gypsy village. In all of western Hungary, only one town has a Gypsy language sign. The authors also passed through over 200 towns and villages during the summer of 1995 and found no other signs in Gypsy languages except the one at Alsoszentmárton, although signs in other minority languages were fairly common. Back.

Note 59: Interview by György Fehér, attorney, with Mária Neményi, sociologist, in Budapest on March 13, 1996. Back.

Note 60: Interviews with János Bogdán, Headmaster at Gandhi Gimnázium (Hungary's only Gypsy high school, run by a private foundation), in Pécs on July 1-2, 1995. Back.

Note 61: Ibid. Back.

Note 62: Magyar Közlöny, 1994/#130 at 4807-4808, 4809-4810; interview with Judit Szöke, District VIII Cultural and Educational Office, in Budapest on June 20, 1995. Back.

Note 63: Interviews with Ibolya Mihalovics, Gypsy Group Coordinator, in Mohács, Baranya County, June 30, 1995; Tibor Szegedi, parent and President of Local Gypsy Minority Self-Government and Tibor Szegedi, his son, in Barcs, Somogy County, July 3, 1995; József Bogdán, parent and President of Local Gypsy Minority Self-Government, in Kölked, Baranya County, June 30, 1995; Beash Gypsy students at Gandhi Gimnázium, Pécs, Baranya County, July 2, 1995; parent (name withheld) in Pálfa, Tolna County, August 8, 1995. Back.

Note 64: Helsinki Watch interview with József Kosztics, July 31, 1995. Back.

Note 65: The limitations concern the mandate for government funds; there is apparently no theoretical obstacle to a self-government providing social services -- providing unemployment insurance, building roads -- if it can raise the money privately through charitable donations or through profits on enterprises. The one exception to this limit is the right of the self-government to administer schools, institutes, and theaters formerly controlled by the state of by local councils. To date, however, not a single such facility has been handed over. Back.

Note 66: Interview with József Orsós, ex-President of defunct self-government, in Fonó, Somogy County, July 30, 1995. Back.

Note 67: Report of the Gypsy Self-government from Tarpa, Szabalocs-Szatmár County, to the National Gypsy Self-government. Back.

Note 68: Interview in Somogy County, August 1995. Name withheld on request. Back.

Note 69: Interviews in Ózd, July 24, 1995. Back.

Note 70: Interview with József Orsós, July 30, 1995. Back.

Note 71: Interview with Ernö Kalla, July 21, 1995. Back.

Note 72: Interview in Vizvár, July 5, 1995. This is objectively unrealistic, since Gypsies constitute only about 5 percent of the population. Back.

Note 73: Interview with József Göbölyös, August 18, 1995. Back.

Note 74: Even the Alliance of Free Democrats (SzDSz), early on identified as a liberal party with a Western orientation and an active Gypsy policy, has reassessed this effort because, as one former MP (who requested anonymity) told us, they found that it was hurting their standing in the polls. In 1990, there were three Gypsy MPs in the Parliament; today there is one. Back.

Note 75: Interview with János Balogh, August 16, 1995. Back.

Note 76: The first draft retained the Communist-era distinction between "national"and "ethnic" minorities, which gave far more extensive protections to theformer category, and practically none to the latter. Gypsies were the only one of the thirteen minorities classified in the draft law as "ethnic." The finalversion still uses the two terms, but declares them to be equivalent -- which seems to perpetuate, at least rhetorically, the distinction between Gypsies andother minorities. Back.