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Source: PRAXISInternational(PRAXISInternational),issue:1+2/1990,pages:8089,

Gyorgy Bence
Vaclav Ravel's great essay The Power of the Powerless, written in the late seventies, included a small parable about the butcher who had to put a sign into the shopwindow, between the sausages and the meat: Long Live the Great Socialist Revolution of October! The story illustrated how the average citizen who just wanted to make a living became involved in the Great Lie. But there was always an alternative, according to Havel. It was completely within our power to renounce the game. If we decided not to lie anymore, we could attain the state of "living in the truth". I must admit that back then, in the seventies, I felt that Havel was demanding too much of the poor butcher. Was it not enough if he played the game strictly according to the rules set down by his Communist bosses? If he did nothing more than he was absolutely required to do? My former scepticism with regard to Ravel's position has evaporated during the first months of his presidency. It turned out that he did not draw vindictive conclusions from his exalted demand of "living in the truth" , a demand to which only exceptional people, like Havel himself, could live up. This lofty ideal has been, in fact, a source of tolerance and forgiveness for Havel and his friends. 1 Communism pressed the citizen into active complicity with the system, unless he was prepared to drop out of normal civil existence. Therefore, it is wrong to condemn him simply because he tried to survive. The former dissidents should be the first to understand this, and Havel in fact did. Havel's position implies either a blanket amnesty for representatives of the previous regime, or strict adherence to due process and the rule of law, even in cases involving Communist bosses. According to this position, former leaders should not be indicted simply because they filled high posts in the party or government. Indictments should be based on specific charges, substantiated by evidence, not on membership or rank. There is another story we should keep in mind when speaking of political justice in post-communist societies, a real one we can see with our own eyes. In the great days of the Romanian uprising, the enraged crowd clamored for the blood of the oppressors. Death to the tyrant! Death to the Securitate men! And summary justice was done, as we watched on television. These are the two extremes defining the limits of political justice in postcommunist Eastern Europe. What is going to emerge as a more regular pattern will most likely fall between these two extremes. In Czechoslovakia, the fate of former Communist leaders will not depend solely on the high morality of Havel.
Praxis International 10:1/2 April & July 1990

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But neither hopefully, it be the crowd that has the last word in these matters, as was the case in Romania. My country, Hungary, has started out on a middle course in political justice. No blanket amnesty will be given, it seems. But extreme sanctions will be also avoided. I have certain misgivings about this moderate course too. But before discussing them, I have to make some comments on the Hungarian political atmosphere that surrounds the debate on political justice. Our Communists, or maybe former Communists have undergone a sudden, but understandable metamorphosis lately. They have become very fastidious in matters involving finer legal points and ethical standards of political behavior. The Communist press in Hungary is full of laments about the illegitimate pressure exercised by the new parties, about the dangers of political discrimination among professionals and in the civil service, about the likelihood of a wholesale proscription of innocent representatives of the old regime, and many other alleged abuses. 2 This indignation of the Communists is, obviously, hypocritical. Who exercised a party dictatorship in the first place? Could a more thoroughgoing system of political discrimination ever be introduced than the infamous nomenklatura? Were the handpicked civil servants, in a Communist country, so civil really? There is, nevertheless, an element of reality in the Communists' allegations. No, as of now, there have not been actual cases of political discrimination, but yes, there is a flood of wild statements of intent coming from some new parties. They say a "clean sweep" has to be made, presumably by the new government. A campaign poster of the Hungarian Democratic Forum, the party that won the general elections, depicted an overflowing garbage can with a big broom, and a caption that read: "Spring cleaning-up is coming!" Other large parties, however, and even the Democratic Forum itself on other occasions, have gone out of their way to reassure the officials of the old regime. All in all, the public mood does not seem to be excessively ugly in Hungary. True, the call for a purge has been made repeatedly but public reaction has been far from unanimous. More important, major political leaders were careful enough to still these voices, to allay the fears of those who could become victimized. There is, consequently, a fair chance that the transition process can be completed without excessive injustice and without wasting a lot of the human resources so much needed for rebuilding my country. But to minimize injustice is not the sam,e thing as to avoid it. And there is a growing consensus among the more thoughtful political leaders in Hungary about how to proceed. If one wanted to reduce injustice to an acceptable minimum they say - the best way would be to apply political justice in a regulated form. Extraordinary measures are clearly needed. This way some injustice would be inevitably done but, at least, not spontaneously and outside the bounds of rational control. Political justice would however be dispensed by some kind of organized tribunal- with judicial powers, although outside the framework of ordinary courts - but not by the mob. This is where the issue stands for today's political leaders in Hungary. Therefore, to raise the question of political justice from the viewpoint of Human Rights is not necessarily a symptom of nostalgia for the bad old days of dissident purity.


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Back then, all injustice emanated from the powers that be, and their opponents could indulge in the moral comforts of innocence at least. Political justice is already being applied in Hungary, although on a small scale and in a restricted way. A certain category of former political leaders are obliged to undergo parliamentary investigation. They have to reveal their assets and account for the way in which they obtained them. This is clearly a case of exceptional justice, overstepping the boundaries of regular legal procedure, and there is a danger of serious abuses of Human Rights. Moreover, the popular demand for political justice is gaining momentum. It is to be expected that some kind of political trials will be held. Therefore, the danger of abuses is going to grow concurrently. And, last but not least, by raising the question of political justice we are also reformulating the ultimate question about the ongoing transition: Is a peaceful transition at all possible? Is there going to be a "second revolution"? Before turning to more technical matters, 3 let me make some further comments on the distinction between ordinary justice and political justice. This distinction might sound rather old-fashioned in the refined ears of an American audience. It is a distinction under fierce attack by those most advanced legal minds of the Critical Legal Studies movement at Harvard and other leading law schools. 4 Our local lawyers in Hungary tend to stick, however, to the old style of thinking. For them, there is a clear difference between the proper legal reasoning on the one hand, and political argumentation on the other. Once the basic legal principles have been laid down, they maintain, there is a secure although complicated way to give authoritative answers to legal problems. The principles are to be laid down by an act of constitution-making, or by long tradition, or - preferably - by both. Legal reasoning, except in the most trivial cases, is more than classification and deduction, but it is still distinguished by its more cogent rationality from political argument. Looking at it from such a conservative perspective, political justice is almost a contradiction in terms. It means, at its most extreme, that several legal principles are thrown overboard in a quasi-legal procedure. Judgment is then reached by a direct appeal to general political considerations. In less extreme cases of political justice, only a few principles are given up, usually with some reluctance, as a concession to the exceptional character of a political situation. Three basic types of political justice need to be distinguished: first, restitutive political justice; second, punitive political justice; and third, the limiting case of political amnesty. Let me start with a brief discussion of restitutive political justice. Then, amnesty will be mentioned for the sake of completeness. Finally, a new set of types will be distinguished within the broad category of punitive political justice. Only after having reviewed these distinctions can we turn to the concrete material of my presentation, a discussion of how punitive political justice is being applied in Eastern Europe. Restitutive political justice is a burning political issue in Eastern Europe these days. However, it belongs to this topic only insofar as it is fueling the demand for punitive political justice. Restitutive political justice is being dispensed massively in Hungary too. Strong lobbying groups were organized by fonner defendants of show trials, other political

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prisoners, camp inmates, their friends and relatives. They are represented by the best legal minds of the country in their legal battle for individual retrials, quashing the sentences of whole categories of people (for example: the participants in the uprising of 1956) and for some financial compensation. And, I am happy to tell you, these efforts have been largely successful. Calls for revenge, tooth for tooth, are rarely heard. But these people, understandably, do not want to see their tormentors - bestial interrogators, partisan judges, brutal jailers - remaining unscathed and enjoying in safety the fruits of their labors. This feeling is, moreover, shared by a large part of the public, well beyond the circle of the victims themselves. The young generation fortunately did not share the experience of the last wave of Communist terror; yet they are even more under the spell of the revelations. For them, the memoirs and historical accounts, having come out since the lifting of censorship, shattered a world of illusions. 5 They believed in the possibility of a decent and relatively peaceful existence, while the older generation has never really managed to forget the skeletons in the closets. What then of the question of amnesty? In the above circumstances, it is not a surprise that the demand for a political amnesty, covering the representatives of the old regime, was not raised by any of the important new political forces. The leaders of the reformist wing of the Communist party, now belonging to the Hungarian Socialist Party, so much blinded by the glory of a successfully managed first stage of transition, felt themselves immune to any future prosecution. And about the fate of their former comrades, now organized in the fundamentalist Hungarian Socialist Workers' Party, they could not care less. It remains to be seen, however, whether they did not commit a fatal mistake. The new opposition parties, on the other hand, having no members or supporters actually in jail, were not interested in raising the question of amnesty, if the other side did not insist on it. Anyway, whatever reasons the Hungarian Communists could have entertained for not trying to insure themselves against legal proceedings which might be initiated by their victorious opponents, I am interested here in political justice as it is being applied against Communists. Drawing on the available literature, I have sketched out three types of political justice, to see whether the East European cases fit these age old patterns. Numbers and titles are given to these types, to make future reference easier, but I don't have any pretensions about their being in the right order or with the best designation:

Type 1: Prosecution for ordinary crimes with a political end in view. - This is the least questionable version of political justice. If an ordinary crime was, in fact, committed, there is no need to stretch the law. It is enough to see a political opponent exposed as a thief, embezzler, petty tyrant using his power for selfish and criminal purposes. Type 2: Political trials based on state protection provisions. - Even the most liberal legal systems contain some provisions explicitly aimed at protecting the state against subversion, not constitutional political acts such as treason, sedition, etc. Formally speaking there is nothing wrong with using these provisions against a political


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opponent. But in extreme cases, especially when the opponent targeted has a chance to start some violent action to prevent prosecution, it is more than likely that justice will be expedited by questionable means. 6
Type 3: Revolutionary justice. - All the previous types of political justice involve a special risk that the bounds of legality, defined by statutes, established legal principles and institutionalized legal tradition, are to be overstepped. Here, this is openly accepted as a matter of practical necessity. 7 Revolutionary justice, at its most extreme, is dispensed by lay tribunals, convened in an ad hoc fashion especially for that purpose, and based directly on the legally unbounded "will of the people", the "spirit of the revolution" or similar ideological constructs. Usually, however, some pretence of legality is kept up, and there is some attempt to accommodate the proceedings and the principles invoked to the normal course of justice. These categories prove helpful in bringing some order to the various instances of political justice in the different East European countries undergoing transition. Type 1 proceedings have already taken place in several countries and, undoubtedly, we will see more and more of them. The differences between the individual East European countries will depend only on the degree to which former Communist leaders were shameless in abusing their power for personal gain and advantage. The moral indignation of the public is justified; the legal means are there. The only danger is that the courts, having been compromised by their less than independent stance under the old regime, might display undue haste and severity in making show trials for public consumption. The examples are, of course, banal. Graft, corruption, nepotism everywhere. In my country, the local bosses have been singled out first, probably because they were living much more in the eye of their neighbors. There was one prominent figure who was eliminated on a similar basis, namely the former Minister of Defense, General Czinege. His speciality was abuse of subordinates, using them for private purposes; he adored collecting juicy pieces of real estate bought on a nominal price from local councils. A typical Type 2 case was started in East Germany where treason charges were lodged against the former Communist leader, Erich Honecker. According to the latest reports from Czechoslovakia, treason proceedings will be initiated against those high functionaries who called in the Warsaw Pact troops in 1968. This last one seems to be an open and shut case, even according to the "socialist legality" prevailing back in those days. Nonetheless, we should be aware of the potential dangers. Such precedents, if they are to be followed, could lead to revolutionary - or rather counter-revolutionary - justice pure and simple, with all the dire consequences. Such Type 2 cases will likely come up in larger numbers in other East European countries too. They all raise the painful question of legal continuity in the process of transition. In Romania, we saw a Type 3 case of revolutionary justice. I am referring, obviously, to the so-called trial of Nicolae and Elena Ceausescu. Since then, according to my scant information, a series of other strange cases of political justice have taken place in Romania.

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I had the opportunity to watch on Romanian television, with the help of an interpreter, the first day of the Securitate Gang of Four Trial. The quality of the proceedings, if I may share with you my impressions, was not very much above that of a classic show trial. With the only minor difference, of course, that the defendants were guilty as hell! In Hungary, political justice took a different course from Czechoslovakia, the GDR or Romania. No one in Hungary is talking about political amnesty. Type 1 proceedings are not widespread, although a few of the former leaders have been charged with personal crimes, as we have seen. The treasonous activities of former leaders - either under the previous regime, or during the process of transition was barely raised as an issue. Type 2 proceedings do not seem to be on the agenda of any important political group or party. As to Type 3 cases, revolutionary justice proper, I am certain that all new political forces would vehemently deny that they have anything like that in mind. There is, nevertheless, a public outcry for political justice aimed against the greatest beneficiaries of the old regime. This outcry is only partly spontaneous, and partly instigated by demagogues. But the sentiment is truly shared by a large part of the public. Hungary is on the verge of bankruptcy. The living standards of whole segments of the population, especially of elderly, retired people, are already at an intolerably low level. And more hardship is to be expected. In contrast, the former Communist leaders are living quite comfortably, sometimes even opulently on their exceptional pensions. They enjoy the fruits of their labors in the form of valuable pieces of real estate. And as they are the ones who have financial means, they are using the new economic freedom to turn themselves into capitalists. This is what the less privileged part of the public thinks. And the demagogues are ready to stir up more vindictiveness and to manipulate the ingenuous. The legal consequences are rather obvious, as can be gathered from press reports about Hungary . Those who are responsible for the economic disaster should be singled out. Their financial advantages should be curtailed by some extraordinary procedure. But if we want to understand the legal complexities involved in this special kind of political justice, it is better to follow, at some length, the story of these demands, and not to remain content with the results of the moment. I cannot, of course, give complete details. The space limits for this presentation would not allow it, and there are many facts which are not yet available, especially in the parliamentary records yet to be published. The discussion about political justice has had both a popular and a more scholarly, academic side. My account will be inclined to the latter where I have been taking part in the discussion. The issue of confiscation of property as a form of political justice was first raised in the Autumn of 1989. 8 Interestingly, the more liberal of the two Communist successor parties, the Hungarian Socialist Party, officially joined the demand for a property test of former leaders. 9 It took, nevertheless, a long time to transform the delnand into a bill. Three points were quite hotly debated. The Communists sided, of course, with the milder proposal on all three counts. First, how wide a circle of former leaders would be investigated? Second, how far should the investigation extend into the past?


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Third, should the investigation cover matters of political responsibility, or should it be restricted to the financial situation of former leaders? The provisions of the bill eventually adopted as Law iii of 1990 turned out to be quite narrow. lO Instead of 1968, proposed by the Hungarian Democratic Forum, the investigation reached back only to 1980. The circle of persons to be investigated was restricted to high party, state and municipal functionaries, like politburo members, ministers, county bosses. And matters of political responsibility were excluded from the scope of investigation. The law left open the question, moreover, of what should happen after the parliamentary commission entrusted with the investigation will have reached its conclusions. ll It was, most probably, a consequence of this relative mildness of the law that after one full working session without dramatic results, the Commission eventually faded away. The summons were not served, the members did not appear. 12 These meagre results notwithstanding, a critical threshold had been crossed. From political sloganeering, political justice was transfonned into legislative reality. This was perceived as a challenge by some scholars interested in Human Rights and legal matters generally. On extremely short notice, a conference was called together for January 14, 1990 at the Department of Social and Moral Philosophy at the Budapest University. Historians, political scientists, philosophers, legal scholars and practicing lawyers were invited to share their thoughts on "Political Justice by Fiat of Successor Regimes." The two best represented groups of scholars, the lawyers and philosophers, took opposing sides in the discussion, although there were some notable exceptions. 13 The first tended to warn against an uncritical commitment to political justice. Some philosophers insisted, under the impact of the recent happenings in Romania, on the differences between revolutionary and regular justice. 14 Some other philosophers stressed the necessity to curb moral indignation, even if justified, because otherwise the rule of law cannot be preserved, not to speak of establishing it, as it is on the agenda in Hungary. 15 Most lawyers, on the other hand, were convinced that the only practical question is how to dispense political justice, not whether it is appropriate to do so. They started with the assumption that an extraordinary judicial procedure is to be instituted with the aim of establishing political responsibility for the economic disaster. But they wanted to mitigate the disturbing aspects of such an initiative, and therefore they stressed that the purpose is to establish the truth. The sanctions would therefore be of a milder, non-criminal character. 16 It was here that the idea of a moral or political pillory came up first in Hungary. Suppose that the defendants are found guilty by a special tribunal trying them on ad hoc charges, not provided for in any statute, like gross negligence or malfeasance in government. Even in such a case no criminal charges shall be brought against them. They shall only have to suffer the consequences of compulsory publicity to be given to their sins. They shall have to see the results of the investigation broadcast on television, published in the press and posted on walls. 17 The problems connected with ex post facto law or, in the language of the U. S. Constitution, with a bill of attainder were, of course, also discussed by several participants of the conference. So were the time limits set by the statute of limitations for political justice. 18

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The next contribution to the public debate about political justice, both on the political and more scholarly side, was the proposal of the Independent Lawyers' Forum, a professional group responsible for having initiated the Opposition Round Table (EKA) talks last year. 19 The Independent Lawyers presented a draft bill with appropriate explanations which will, undoubtedly, constitute an important stepping stone for the work of the new Parliament and Ministry of Justice. The Independent Lawyers took over the principle of collective indictment from the Law iii of 1990, which I mentioned above. But they insisted on the analogy of objective responsibility under Hungarian tort law. As in the case of a driver who is expected to drive carefully and not to cause harm to anybody, the managers of the national economy should have been careful enough to avoid the present disaster. My main problem with such an approach is that it would undermine the autonomy of the executive branch of government. Any policies which would be considered disastrous in the future, could give rise to special proceedings against the ministers responsible for them. The sanctions also envisaged by the proposal include measures which are, clearly, of a confiscatory character. At this point, therefore, the analogy with tort law breaks down. The national economy would not be compensated by the confiscation of property accumulated by former ministers. This is, clearly, a punitive measure. Third, the Independent Lawyers wanted to extend the time limit of the investigation as far back as the adoption of the first Communist constitution in 1949. As they maintained, it was too formalistic to argue against their position by invoking the statute of limitations. The time elapsed since the Communist takeover did not count in matters of political justice, because the courts were not independent and, therefore, there was no real chance of prosecution. This argument did not take into account the rationale behind the statute of limitations and related provisions, like prescription in property law. This is an enormous subject, of course, but two things seem to stand out. One is the difficulty of proof after a long time. The other is connected with the inherent conservatism of the law, and as such is particularly relevant for the present subject. In the course of time all kinds of consequences, good or bad, accrue to an original action starting the whole process, however evil it might have been in the first place. The law is, therefore, always reluctant to overturn long-established conditions for people's private lives. 20 All this is a matter of degree, of course, depending on how obnoxious the original act was. There is, obviously, a difference in this respect between criminal acts, like murder and torture, and that kind of irrationality which the Communists displayed in their management of the national economy. All the attempts to account for political justice in Hungary that I tried to analyze and discuss here share a common weakness. It is excessive reliance on legal procedure and state action in general. If the main purpose, as it was claimed by many lawyers arguing for political justice, is to reveal the truth, to establish responsibility, to give moral satisfaction to the nation, and not to punish those who are responsible, why could not this be done without judicial recourse? Are historians and economic analysts less able to establish facts and assign responsibility than prosecutors, judges and parliamentary


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commissions? And if the public prefers tribunals, all kinds of private commissions could be formed, consisting of distinguished experts and moral authorities. There are, of course, advantages and disadvantages on both sides. The court can subpoena witnesses, can force them to tell the truth under the threat of contempt and perjury sanctions, but it is bound, among other things, by the rules of evidence. Although a social tribunal has no control over its living sources, but is not restricted by legal technicalities. Looking at it from the perspective of rule of law, however, there is an overwhelming advantage on the side of an investigation conducted by a private committee. There is no need, then, to tinker with the statute of limitations, to invent ex post facto provisions and to use the other dubious devices of political justice. It is hard to escape the suspicion that the temptation to use legal procedure to overcome the legacy of the past, belongs rather to the problem than to its solution.

1. See Lally Weymouth's report in the Washington Post as quoted in the Guardian Weekly of February 18, 1990. 2. The disguised variety of the Communist press is no less busy in spreading this phony moral indignation. The weekly Reform, controlled allegedly by financial interests of the Communist party , is a typical tabloid. The "Independent Democratic Magazine", as the sub-title runs, seems to be radically anti-Communist to the naive reader. But, at the right moment, it comes out with a Communist message, not to be mistaken by the less naive. There are, for example, two lead stories in the recent issue of April 6, 1990. One is about the heroes of the 1956 uprising. Its main point is that the candidates belonging to this group failed at the elections. The other lead story is about the purge to be expected after the new government takes over. It starts with the picture of a former Olympic gold medalist, the boxer Gedo who lost his job and had to seet up a shoe shining stand on Heroes' Square; then continues with a quotation from Mr. Horn, Minister of Foreign Affairs, the most popular Communist leader, warning against the coming purge; then come many other reports about distinguished government officials who are planning to retire, to start business ventures, etc. 3. I will rely on the only full-length monograph on the subject known to me: Kircheimer, Political Justice (Princeton: 1961). 4. R. Dnger, Critical Legal Studies (Cambridge: 1986). 5. In Hungary, the revision of political sentences is being done in two different ways, as I intimated in the main text. Either the sentences are quashed by the Supreme Court (not to be mistaken for the new Constitutional Court) on technical grounds, or there is a retrial. In the latter case the public has the opportunity to relive the whole ghastly experience. There are the surviving judges and attorneys, the stage managers of the show, and they have to give account of their sinister operations. This happened during the retrial of the so-called Standard Case. The Standard Co. was a subsidiary of I.T. and T., and all its staff personnel were imprisoned or executed for industrial espionage and sabotage in 1950. A fascinating television documentary was made of the whole story by Anna Merei, a movie director and Dr. Vera Pecsi, a historian. 6. In constructing the first two types, I leaned heavily on Kircheimer, (ch. 3) and Schmitt, Veifassungslehre (Berlin: 1928). 7. Schmitt, Verfassungslehre , para. 9. 8. It is not yet clear who could claim the dubious distinction of being the first to introduce the issue of confiscation into the parliamentary debate. There are two representatives, returned in freely contested by-elections to the previous parliament, who stand a better chance than anybody else: Zoltan Kiraly and Erno Raffay.

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9. See the interview of Mr. Csaba Hamori under the title, "Property test- according to European norms" in the Nepszabadsag of February 28, 1990. Note the adjective "European"! 10. Magyar Kozlony, February 12, 1990. 11. "It shall make proposals to be acted upon" says a Parliamentary Decision no. 12, February 14, 1990 as published in Magyar Kozlony. Proposals to whom? What kind of action is envisaged? 12. "A commission disappearing", Nepszabadsag, April 6, 1990. 13. The most notable was, if I might say so, Andras Sajo, the distinguished legal scholar who, in his mild and sophisticated way, called attention to the dangers of political justice. Bence et al, Visszameno politikai igazsagszolgaltatas utodrezsimekban (Budapest: 1990). 14. Maria Ludassy and Mihaly Vajda, in Bence et a1. 15. Janos Kelemen and Gyorgy Bence, in Bence et al. 16. Alajos Dornbach and Istvan Nehez-Possony, in Bence et a1. 17. This was the position of the legal scholar Csaba Varga (not to be confused with the National Peasant Party leader), ibid. It is instructive to compare this conclusion with the ideas about the "truth phase" and "justice phase" of such an investigation, developed by Mendez, Truth and Partial Justice (NY: 1987) and Neier in the New York Review ofBooks on Feb. 1, 1990. The Hungarian lawyers, most probably, did not know the first and could not know yet the second publication. 18. The whole conference was amply reported by the press and covered by the media. Thus, the results had a considerable influence on the subsequent discussion in Hungary. I don't want to enter into the details of the journalistic debate that has been dominated by demands for more political justice. But a few cautionary voices were also to be heard. See E. Hankiss "Tegyunke igazsayot?" Magyar Nemzet, March 8, 1990 and my article "Azt kovetelik az einberek - Jogorok Vigyazzatok!" lvIagyar Novancs, Feb. 21, 1990. 19. Independent Lawyers' Forum, 1990. I want to express my thanks to Dr. Pal Bartfay who kindly sent me the text of the proposal. 20. See Burke, Reflections on the Revolution in France in The Works of Edmund Burke, Vol. 11

(London: 1872).