Academic freedom(s) in the drift towards authoritarianism (1/4)
At the last editorial board meeting of Droit et Société, a discussion was initiated on the current situation many academic colleagues, from around the world, are experiencing. Some of them are suffering from the consequences of the undermining of long-established and law-binding academic freedoms. Several countries are involved, including European ones, which were supposed to have adhered yet to common principles of freedom. Academic institutions and colleagues are now directly threatened/endangered. Our journal and the larger Law and Society project are based on a set of values: independence from institutions, constituted powers and discourses, intellectual openness and sharing, interdisciplinary and international dialogues. These values were reiterated in the ‘letter-manifesto’ published for the 30th anniversary of our journal (https://ds.hypotheses.org/723) and signed by forty other journals from the global community.
These situations cannot be ignored any longer and we all need to ask ourselves what kind of freedoms our still “liberal” democracies will enjoy. Therefore, our journal could not keep silent about what is currently playing out in Hungary, Turkey, Brazil, and Poland. The idea emerged that we might establish forums based on careful and well-documented analysis from very concerned colleagues. We are sincerely thankful to the authors for their enlightening contributions. The implementation of the project is mainly due to Stéphanie Hennette-Vauchez. In a very short time, in the middle of summer and then at the beginning of the academic year, she contacted our colleagues, gathered their texts, and fully translated them into French in order to make them available to our readers. She deserves full recognition for her commitment and efficiency for the values to which we subscribe. As editors-in-chief and on behalf of the journal and its editorial board, we sincerely thank her.
La Rédaction de Droit & Société
The End of Academic Freedom in Hungary
by Gábor Halmai (European University Institute, Florence)
Gábor Halmai, Professor and Chair of Comparative Constitutional Law and Director of Graduate Studies at the Law Department of the European University Institute in Florence. His primary research interests are comparative constitutional law, and international human rights. He has published several books and articles, as well as edited volumes on these topics in English, German and Hungarian. His most recent book is Perspectives on Global Constitutionalism (Eleven International Publishing, 2014).
After the establishment and consolidation of the authoritarian state institutions, the government of Viktor Orbán started to dismantle the independence of academic institutions such as universities and the Hungarian Academy of Sciences, arguing that they represent a threat to their proudly followed illiberal ideology1.
The Expulsion of CEU
In April 2017 the Hungarian Parliament curtailed the normal legislative process and hastily adopted an amendment to the Act on National Higher Education. Even though the law was formulated in normative terms, the only targeted institution was the Central European University (CEU) founded by George Soros, one of the main enemies of the Viktor Orbán’s ‘illiberal state’. Michael Ignatieff, a former Canadian politician and professor of Harvard University’s John F. Kennedy School of Government and the current president and rector of CEU, assessed the law as discriminatory political vandalism violating Hungarian academic freedom2 . Here I do not want to deal with the clear ideological and political motivations of the action of the current Hungarian Prime Minister (who once upon a time, during his own studies in Oxford three decades ago, was a liberal recipient of Soros’s financial support).
I rather want to focus on the behavior of a contemporary authoritarian (or dictator, as Jean-Claude Juncker, the outgoing President of the European Commission once greeted him3 ). As William Dobson argues is his book The Dictator’s Learning Curve, “today’s dictators and authoritarians are far more sophisticated, savvy, and nimble that they once were”4 . They understand, as Orbán does, that in a globalized world the more brutal forms of intimidation are best replaced with more subtle, legal forms of coercion5 . Therefore, they work in a more ambiguous spectrum that exists between democracy and totalitarianism, and from a distance, many of them look almost democratic, as does the leader of Hungary, a Member State of the EU. Their constitutions, as the Fundamental Law of Hungary, often provide for a separation of powers among the executive, the legislature, and the judiciary – at least on paper. They are also not particularly fearful of international organizations. In fact, foreign or international interventions and criticisms can prove to be useful foils for stirring up nationalist passions and encouraging people to rally around the regime. This is what happened for instance in the case of Lex CEU, as for Orbán claimed to protect Hungary from becoming a colony of the EU. If necessary, today’s authoritarians use the most refined European discourses, for instance about national constitutional identity; this is exactly what the Orbán government did in order not to take part in any European efforts to solve the refugee and migration crisis6 . And as opposed to previous dictators of the good old times of totalitarian regimes, who just closed up organizations they did not like, without any scruples, they take advantage of formalistic legal arguments against their enemies. Again, this is what happened in Hungary with the ‘Stop Soros’ legislative package: named after the Hungarian-American philanthropist George Soros, the package criminalized NGOs and activists aiding ‘illegal migrants in any way.’ This echoes what the Russian authorities did in the fall of 2016 when they revoked the educational license of the European University in St. Petersburg following unscheduled checks in the buildings, invoking to several violations of regulations such as lack of a fitness room and an information stand against alcoholism7 .
Using the same playbook, the April 2017 law of the Hungarian Parliament also invented legal tricks to force CEU to cease its operation in Budapest. One of them was the crafting of an unacceptable requirement to open an additional campus in the State of New York. This had not been a condition in 1995, when CEU, holding a charter from the New York State Education Department, received its license from the Ministry of Culture and Education to operate in Hungary. Like other international universities chartered in the US, CEU does not maintain any academic or other programs in the United States. Moreover, in 2004 Hungary had promulgated a special law establishing Közép-európai Egyetem (KEE) as a Hungarian university accredited by the Hungarian Accreditation Committee together with ten graduate and doctoral programs of the CEU as programs of KEE. Ever since, the university has had a dual legal entity, as both KEE and CEU, although it has always been one university with only one campus, one academic staff, senate and rector (the latter appointed by the President of Hungary). According to the 2017 law, Hungarian universities are restricted to delivering programs of European universities only and not of countries from the OECD (including the US). As a consequence, although it is legally a Hungarian university, KEE can no longer deliver its single set program with CEU, which was allowed under the previous law. Another unacceptable and in fact legally impossible requirement of the law was that the Hungarian government sign an agreement with the US federal government. This is an impossible requirement because the US federal government cannot possibly intervene in the jurisdiction of the US States regarding higher educational issues. Despite these nonsensical hurdles CEU, in collaboration of Bard College, has opened a campus in New York State, and the State authorities were ready to sign an agreement with the Hungarian government, who then refused to comply with its own condition. The new law thus made it impossible for CEU to continue its research and teaching activities, including its highly ranked master and doctoral programs8 .
Attacks Against Hungarian Universities and the Academy of Sciences
Hungarian universities are also not exempt from harassment by the government, the privileged method here being the decrease of state funds, sometimes replaced by an oligarchic privatization of public educational institutions like in the case of the Corvinus University9 . Due to this dry-out policy, the number of Hungarian students attending university has dropped by 28% since 2010, due to the discouragment of enrollment10 . The only heavily subsidised university is the brand new National Public Service University, the university of the new cadres of the ‘illiberal state’ that does not even appear in World University Rankings 2020 that references 1,400 universities across 92 countries.
Besides not government-loyal institutions of higher education, another target of the Orbán government’s attacks has been the Hungarian Academy of Sciences. The aim of the government has been the destruction of the academy’s independence and self-government. This has taken place throughout the total reorganization of the network of research institutes that brings together approximately 5,000 researchers. All 15 institutes of the Academy have been placed under direct governmental oversight. Some members of the new governing board are nominated by the Academy, but the government now nominates the majority of the board, including its chair, and all members are appointed by the Prime Minister himself. The newly-appointed chairperson of the Loránd Eötvös Research Network (Eötvös Loránd Kutatási Hálózat (ELKH)) is Miklós Maróth, a former dean of the Péter Pázmány Catholic University, a professor of Middle Eastern cultures, and an old ally of Viktor Orbán in his fight against immigration of people from Muslim faith11 .
The financing of the institutes is henceforth based on individual grant applications for every project. As Zsolt Enyedi has argued, this extreme centralization of both the higher education and academic research can be explained by a mixture of pragmatic and ideological reasons12 . The pragmatic explanation has been provided by László Palkovics, the Minister of Innovation and Technology, who has openly expressed his goal of having more Hungarian patents as the most important achievement and measurement of scientific research. He is also convinced that an autonomous academic community cannot guarantee this aim13 . The probably even more important hidden reason of the government is to divert the EU research funds from autonomous academic institutions towards goverment channels, and to allocate them for their own puroposes. The more ideological justification is delivered day-by-day by the totally non-independent public and commercial media, the latter owned by government-loyal oligarchs. They constantly accuse scholars at universities and research institutes of serving a liberal agenda and wasting taxpayers’ money on studies that embarrass the government, such as Gender Studies, which have been banned not only at public but also at those private universities who spend their own resources on the delivery of the degrees they offer.
All these attacks against academic freedom have already triggered the departure of several thousands of young scholars to the West. But many others who cannot and do not want to leave will not be able to continue their academic work because universities and research institutions are now financially strapped. The state of academic freedom in the country can be illustrated with the following personal experience. A talented young legal researcher, who happens to be a co-editor of Fundamentum, a Hungarian language human rights quarterly I established back in 1997, wrote a scientific article based on empirical studies about the partisan appointment procedure of judges. The editorial board of Pro Futuro, the journal of the University of Debrecen Law School accepted the paper for publication, but the Dean of the Law School later intervened and asked the editors not to publish it for admittedly ‘not-professional reasons.’ As the editor-in-chief of Fundamentum, I called upon my fellow law journal editors to issue a protest letter addressed to all scientific journals and the general public on the threats of censorship in academia. I haven’t received any response.
These blatant violations of academic freedom, which on paper is still part of the Hungarian Fundamental Law, are happening in a Member State of the European Union that is officially based on the values of fundamental rights. In the absence of an independent Constitutional Court in Hungary, there has been no domestic remedy, and unfortunately the European institutions have also proved unable (or unwilling?) to provide any help with respect to the forced departure of a world-wide well respected academic institution from the country, or the dismantlement of the autonomy of the national universities as well as of the Hungarian Academy of Sciences. It seems to be very likely that the European funds aimed at contributing to the development of higher education and academic research in Hungary will still be flowing to the pockets of the authoritarian Hungarian government; but they are now at risk of serving their anti-European, illiberal aspirations.
- See the infamous speech delivered on July 26, 2014, in which Viktor Orbán proclaimed his intention to turn Hungary into a state that “will undertake the odium of expressing that in character it is not of liberal nature.” Speech at Băile Tuşnad (Tusnádfürdő) of 26 July 2014, Budapest Beacon, July 29, 2014, http://budapestbeacon.com/public-policy/full-text-of-viktor-orbans-speech-at-baile-tusnad-tusnadfurdo-of-26-july-2014/.
- See Palko Karasz, « Hungary Plan That Could Shutter Soros’s University Is Called ’Political Vandalism’ « , The New York Times, March 29, 2017.
- W. J. Dobson, The Dictator’s Learning Curve. Inside the Global Battle for Democracy, Doubleday, 2012. 4.
- This is what Kim Lane Scheppele calls autoritarian legalism. See Kim L. Scheppele, « Authoritarian Legalism », University of Chicago Law Review, March 2018, 85 (2), p. 545-583.
- Gábor Halmai, « Abuse of Constitutional Identity. The Hungarian Constitutional Court on Interpretation of Article E) (2) of the Fundamental Law », Review of Central and East European Law, 43 (2018), p. 23-42.
- About the CEU story see more detailed Zsolt Enyedi, Democratic Backsliding and Academic Freedom in Hungary, Perspectives on Politics 16(4), December 2018, 1067-1074.
- See Professor Róbert Braun’s resignation letter from Corvinus University, Hungarian Spectrum, 5 September 2019. http://hungarianspectrum.org/2019/09/05/professor-robert-brauns-resignation-letter-from-corvinus-university/
- Strangely enough while discouraging Hungarian students’ enrollment, the government “generously supports foreign applicants, especially from countries that fall under the government’s ‘Eastern Opening’ foreign policy and trade initiative. In the 2018/2019 academic year, Hungary offered 4,100 scholarships, and for the current academic year, more than 5,000. Hungary’s friendship with Azerbaijan is amply demonstrated by the fact that in the last ten years the number of Azeri students has grown from 9 to 564. Jordan is another country which is obviously favored, as witnessed by the jump from 22 Jordanian students in 2010 to 473 today”. See Eva S. Balogh, How Good Are the Hungarian Universities, Hungarian Spectrum, 13 September 2019. http://hungarianspectrum.org/2019/09/12/how-good-are-the-hungarian-universities/
- In one of his latest propaganda speeches, Maróth claimed that Europe will have one billion Islamic immigrants by 2050. According to him, immigrants from the Middle East are coming to Europe not because of wars but because of the demographic explosion of the last 50 years. He predicts a deadly clash between the Islamic and Christian cultures. The Middle Eastern immigrants are incapable of integration into the European culture because of their close religious attachments. Therefore, he argues, new arrivals bring chaos and disorder. In another lecture, titled ‘In Defense of Europe,’ Maróth listed all the horrors of Islam as a religion. Anyone, he claimed, who joins Islam today in essence accepts the customs and lifestyle of early seventh-century godforsaken Arabia, whether that person knows it or not. See Éva S. Balogh, Orbán Propagandist Heads the New network of Research Institutes, Hungarian Spectrum, 2 August 2019. https://hungarianspectrum.org/tag/miklos-maroth/
- Zsolt Enyedi, Hungary’s Academic Freedom and the EU: Is It All Hot Air?, The Global Post, July 8, 2019.
- Looking for analogy, one can find similar ‘reorganizations’ of academic research by the government in Israel, which follows the model of an academy advising the government on research activities and scientific planning of ‘national importance.’ During Netanyahu’s July 2017 visit to Budapest, Viktor Orbán apparently suggested an exchange of ideas on the topic of ‘innovation.’ and a few months later László Palkovics discussed the issue with his Israeli counterparts. Éva S. Balogh, The Agony of the Hungarian Academy of Sciences, Hungarian Spectrum, 6 February 2019, https://hungarianspectrum.org/2019/02/06/the-agony-of-the-hungarian-academy-of-sciences/