By Nandini Ramanujam and Vishakha Wijenayake
Rule of Law and academic freedom are cherished political ideals of the liberal tradition. Insights from our work at McGill University’s academic freedom monitoring clinic, conducted in partnership with Scholars at Risk Network, has underscored the mutually reinforcing relationship between these two notions.
Our monitoring exercise which examined recent developments in Russia, Hungary and Poland highlighted an alarming trend in the erosion of academic freedom. The overarching thread we observed across these three countries is the instrumentalization of laws by the State to control universities and to restrict academic freedom.
Autonomy of institutions of higher education was recognized as a vital component of academic freedom in the recent judgment of Commission v Hungary (Higher education) (C-66/18), delivered on 6 October 2020 by the European Court of Justice. The Court ruled that two amendments to the Hungarian law on higher education adopted in 2017, imposing strict regulations on foreign funded non-governmental organizations, violates European law.
These amendments which were claimed to be directed against the Hungarian-born philanthropist George Soros and his promotion of ‘open society’, led to the shutting down and expulsion from Budapest of the Central European University (CEU) founded by him. More recently, since September 2020 protestors have rallied against the takeover by the Hungarian government of the University of Theatre and Film Arts which Orban supporters say is dominated by liberals. These incidents in Hungary indicate a trend of clamping down on liberal academic spaces.
Hungary, however, is not alone in policing institutions of higher education. In April 2016, the European University at St. Petersburg (EUSP), a liberal University founded by private donors and informed by the principles of promoting civil society development through liberal arts, had its accreditation and license revoked for two years. Similarly in 2018, Shaninka (formerly known as the Moscow School of Social and Economic Sciences) had its programs de-accredited.
Poland too follows this pattern, by using litigation to restrict academic freedom. In January and March 2019, Poland’s ruling Law and Justice Party (PiS) and a public broadcasting agency filed lawsuits against and indicted a professor of law at the University of Warsaw, in apparent retaliation for public comments he made criticizing the two plaintiffs. In June of 2019, the Ministry of Justice publicly announced a civil lawsuit against a group of legal academics who published a critical opinion about draft amendments to the Criminal Code.
Instrumentalizing laws to stifle academic spaces can also adversely affect the globalized nature of academic exchange. In July 2019, the Russian Ministry of Education and Science issued new rules to make it more difficult for academics to have contact with ‘foreigners’. Also in 2019, a previous law that allowed certain organizations (directed against NGOs) to be labelled as foreign agents was expanded to include individuals in a manner that can limit academic expression.
As we see in Russia, Hungary and Poland, States often determine the contours of academic freedom through legislating, enforcing and adjudicating upon law and policy in their territory in insidious ways. Principles of Rule of Law can prevent such instrumentalization of laws by the State.
According to the European Commission for Democracy through Law (Venice Commission) Rule of Law “requires a system of certain and foreseeable law, where everyone has the right to be treated by all decision-makers with dignity, equality and rationality and in accordance with the laws, and to have the opportunity to challenge decisions before independent and impartial courts through fair procedures.” Likewise, the idea that there needs to be a check on arbitrary exercise of power by the State is central to Rule of Law.
In fact, the manner in which academic freedom has been curtailed in Russia, Hungary and Poland demonstrates that the governments of these States have failed to conform to principles of Rule of Law.
The Venice Commission notes that an exercise of power that leads to substantively unfair, unreasonable, or oppressive decisions violates the Rule of Law. Shaninka had its programs de-accredited by the Rosobrnadzor, Russia’s Federal Service for the Supervision of Education and Science, for unfounded allegations such as the lack of a moot court room for law students and for other minor details that would typically be ignored by Rosobrnadzor inspections. In a similar vein, in 2007 an official crackdown of EUSP came in the form of a fire inspection crisis, resulting in the shutting down of the building.
The Hungarian legislative amendment of 2017 which was urgently adopted by the Parliament within a few days, appeared to specifically target the CEU so much so that the Opinion of Advocate General Kokott of 5 March 2020 acknowledged that the law was referred to as “lex CEU” in public debate. According to the Advocate General, the law also imposed conditions which were not foreseeable and the fulfilment of which was not in the control of CEU. In spite of these facts, in 2018 the Hungarian Constitutional Court failed to strike down the law.
Poland’s Commissioner for Human Rights in a statement from February 2020, points to a pattern of cutting State funding for cultural magazines dealing with minority opinions or with certain recognized political positions. The Commissioner notes that public authorities have failed to set clear and transparent procedures to evaluate bids for subsidies of such publications, thereby going against the basic standards of Rule of Law.
These experiences point towards a pattern of Rule of Law backsliding as seen through amendments to laws that affect their constancy and foreseeability; State policy that lacks transparency and clarity; and unfair and unreasonable application of laws that seem to target certain academics and universities preventing them from exercising their academic freedom.
As demonstrated in these three countries, infringement on academic freedom has resulted due to the undermining of Rule of Law. Therefore, looking at academic freedom through the lens of Rule of Law provides valuable insights to those who are committed to its promotion and protection.
Nandini Ramanujam is a Full Professor (Professional) at the Faculty of Law, McGill University and Co-Director and Program Director of the Center for Human Rights and Legal Pluralism (CHRLP). She supervises the academic freedom monitoring clinic of CHRLP. Vishakha Wijenayake is a Doctoral Candidate at the Faculty of Law, McGill University and an O’Brien Fellow at CHRLP. The authors would like to thank Hamza Mohamadhossen (JD/BCL) and Natalia Koper (JD/BCL) for their monitoring work at the clinic in Winter 2020. This article is informed by their work.