Academic freedom(s) in the drift towards authoritarianism (4/4) – Poland
By Dr Katarzyna Łakomiec
Katarzyna Łakomiec is an independent scholar specializing in constitutional law as well as the intersection of law, bioethics and new technologies. She earned her Ph.D. in law from the University of Warsaw in 2019. She currently holds the position of a senior specialist in the Constitutional, International and European Law Department of the Office of the Commissioner for Human Rights (Polish Ombudsman). From 2015 to 2016 she worked for the Bureau of Research of the Chancellery of Sejm (the first chamber of the Polish Parliament).
Freedom of Science in Poland
Freedom of science in the Polish Constitution
According to Article 73 of the Constitution of Poland: “The freedom of artistic creation and scientific research as well as dissemination of the fruits thereof, the freedom to teach and to enjoy the products of culture, shall be ensured to everyone”. This provision is interpreted to include three connected freedoms: freedom of scientific research, freedom to publish results of scientific research and freedom of teaching. Article 70 (5) of the Constitution of Poland ensures the autonomy of the institutions of higher education. In the context of protecting the freedom of science, the prohibition of preventive censorship (Article 54 (2) of the Constitution of Poland) is also relevant.
The interpretation of the freedom of science principle was attempted in the jurisprudence of the Constitutional Tribunal. But the cases reviewed by the Tribunal so far do not seem to paint a full picture. Traditionally, it has been argued that freedom of science is closely related to freedom of expression (Garlicki, Derlatka 2016) and as such is subject to similar interpretation methods. On the other hand, the separate regulation of freedom of science in the Constitution indicates the special significance of this principle. The Freedom of scientific research includes freedom of choice regarding the subject of the research, its methodology as well as a choice of the place and means of presentation of the research output (Garlicki, Derlatka 2016; SK 30/10). This may not always be a case as scientific research in the field of biology and medicine requires a separate framework based on the constitutional rights to protection of life and health (Articles 38 and 68 of the Constitution of Poland), as well as prohibition of scientific experiments without the free given consent of the person concerned (Article 39 of the Constitution of Poland). It is established that also conducting experiments involving threats to the public (nuclear energy or weapons) can be limited by the state. Part of the freedom of science is the freedom of access to all information that may be needed for research (SK 30/10).
The Constitutional Tribunal recognizes that freedom of scientific research is especially important for academic communities and it is connected to the responsibility for teaching and conducting scientific research (K 27/07). It is related to students’ right to education covered by Article 70(1) of the Constitution of Poland. At the same time, the Constitutional Tribunal states that freedom of scientific research cannot be a legal basis for material claims of the researchers against state or universities, including for employment or grants or social security benefits (K 27/07). Freedom of scientific research can be also exercised by independent researchers.
Reform in higher education
Since the 2015 election, many areas of public life in Poland have undergone changes. The most significant legislative intervention was aimed at reshaping the court system. The chronicle of changes in Polish courts has been accurately recorded by scholars and activists. However, higher education has also undergone a complex transformation in recent years. The Minister of Science and Higher Education had announced in September of 2016 that his flagship project was a reform the higher education system. Subsequent legislative activities were carried out with great momentum and the legislative project of the Law on Higher Education and Science got the telling unofficial name – Constitution for Science (Konstytucja dla nauki).
Unlike the laws on the judiciary, the Law on Higher Education and Science was a subject of extensive public consultation. Legislative work lasted about two and a half years. Nine large consultative conferences were held at various academic institutions across the country, covering the most important issues which were to be included in the project. The result of this work – the ministerial draft of Law on Higher Education and Science (Constitution for Science) – was presented during the National Congress of Science in September of 2017 in Kraków. Inter-ministerial and public consultations were subsequently held. After the consultations, the Law on Higher Education and Science was adopted by the Parliament and entered into force on 1 October 2018. The new law replaced the four existing ones: the Law on Higher Education, the Law on the Principles of Financing Science, the Law on Academic Degrees and Title, as well as the Law on Student Loans. The new law included provisions that are aimed at: improving the quality of education and scientific research; providing academic institutions with freedom of operation; introducing a different model of financing of higher education and scientific research; reshaping of governing bodies of the academic institutions (with greater role assigned to rector); change in the course of scientific careers (e.g. introduction of doctoral colleges), greater significance of publishing in international journals.
Taking into account that the Law on Higher Education and Science entered into force on 1 October 2018, it is important to remember that its implementation is a process scheduled for several years (until 2022). For this reason, as well as because of the magnitude of the change, it is currently difficult to formulate strong assessments of the adopted systemic solutions. There is no doubt that the stated goals of the reform are commendable. Unfortunately, after a year from the beginning of the implementation of the Law on Higher Education and Science, worrying signals about potential threats to the freedom of science begin to surface.
The most widely discussed examples include changes in the creation process of the ranking list of scientific journals and the list of scientific publishers. These lists are important from the perspective of assessing the work of scientists and academic institutions. Publishing is the most important factor taken into account during the evaluation of research activities and is directly connected to the scientific category that the academic institution receives, granted funding and the right of awarding academic degrees. Commentators note that the Ministry of Science and Higher Education can use these tools to limit freedom of scientific research in the case of social sciences. Lack of academic support for rule of law infringements in judicial reforms is a well-known fact. For example in September of 2018, the law faculty deans of almost all major Polish universities signed an open letter expressing their disapproval of the actions of state authorities undermining the principle of separation of powers as well as the independence of the courts.
Both lists are created by expert groups, but their final shape is read by many as a testimony of political influence. In the case of the list of scientific publishers, the main allegations are related to the fact that the list included publishing houses that publish non-scientific books. The list also included many publishing houses connected to the Roman Catholic Church. The doubt, in this case, is about whether the inclusion of these types of publishers will promote striving for scientific excellence or is rather designed to support publishers and scientists associated with the ruling party. Many major international publishing houses have not been included, and they would have to petition the Polish Ministry to change that. Regarding the list of scientific journals, the main objections include the lack of transparency of the process; the fact that the list does not reflect the scientific value of the journals and is based on databases that are not adequate for all scientific fields and the differences between lists prepared by experts and lists published by the Ministry of Science and Higher Education.
The attitude of the state towards scientists
The case of the publishing house
On 27 October 2016, one of the main Polish newspapers published an article about the suspension of the sale of three books on the subject of democracy and the rule of law. The books were published by Wydawnictwo Sejmowe (Sejm Publishing Office), a publishing house originally established in the 1990s for the publication of materials necessary for the work of the first chamber of the Polish Parliament. Over time, this publishing house acquired the status of one of the most important publishers in the field of public affairs, parliamentarism and constitutional law. The suspended books included “Contemporary theories of democracy” by Andrzej Antoszewski and “Undemocratic dimensions of democratic elections” by Jarosław Szymanek (political science) as well as “Independence of the constitutional state body and its protection” by Wojciech Brzozowski (law). All these authors are widely recognized for their scientific work in the fields of political science and law, respectively. The description of the activities undertaken by the publishing house was disturbing, to say the least. It was reported, that books, already prepared for distribution, were detained in the publishing house’s warehouses. The rationale behind this decision was closely related to the subject of the research described in the books, including an authoritarian turn in Europe (the case of Hungary) or the problem of independence of the constitutional state bodies. As a result of this press article members of the Helsinki Committee in Poland expressed their concern describing the actions of publishing house as censorship. The Commissioner for Human Rights became interested in the case and possible infringement of the rights of the scholars and submitted an intervention to the Head of Sejm Publishing House. The Chancellery of the Sejm replied, that the whole situation was a part of an internal audit. The two of the books (Szymanek, Antoszewski) were released almost right away but the third author (Brzozowski) waited almost two years for his book to be available in bookstores.
The case of the review
On 13 March 2018 Professor Michał Bilewicz, the Head of the Center for Research on Prejudice – an interdisciplinary research unit at the Faculty of Psychology of the University of Warsaw – gave a lecture “Hate Speech Epidemics. Are We Far from March ’68?”. The lecture was part of the conference held on the 50th anniversary of March ’68 by the POLIN Museum of the History of Polish Jews and the University of Warsaw. The lecture concerned topics of anti-Semitism and hate speech that were very relevant in public debate but also polarizing. A representative of the National Movement, present at the venue, live-tweeted the lecture. As a result, the media became interested in its content and various commentators spoke on that matter. Artur Warzocha and Rafał Ślusarz, senators of the ruling Law and Justice party, on 15 March 2018 issued Senators’ statement addressed to Jarosław Gowin, Minister of Science and Higher Education. In the statement, they said that Professor Michał Bilewicz had received a grant from The National Science Centre and suggested that his activity was not scientific. He claimed that, as such, it should be reevaluated in terms of it’s eligibility for public funding. They also expressed the opinion that public support for projects incompatible with the Polish raison d’etat is unfounded. According to the Minister of Science and Higher Education explanation, the Polish system of funding science projects is independent of political factors. Funding schemes are provided by specialized bodies, with research proposals evaluated by independent experts. The Minister added that in his view, such a system is necessary to preserve constitutional freedom of scientific research.
The case of the lawsuit
In June of 2019 Polish Ministry of Justice published a statement on the official government website and sent a note to the press regarding the actions of the Cracow Institute of Criminal Law, a group of scientists who published a critical opinion about draft amendments to the Criminal Code. The Ministry of Justice stated directly, that the opinion of academics was “false” and that it was “a lie”. The bone of contention, in this case, were rules concerning liability for corruption conducted by managers of public companies. According to the researchers, the new rules were to limit this liability. Revealing it to the public was not appreciated by the Ministry, as it had gone against its tough-on-crime rhetoric. In response to criticism, the Ministry of Justice publicly announced a civil lawsuit against academics. According to this announcement the lawsuit was aimed at defending the good name of the Ministry and the Polish justice system, as well as preserving the reputation of the Jagiellonian University (where most scientists in question were employed). As a result of widespread criticism, the Ministry of Justice announced that the lawsuit is no longer needed and refrained from further actions. However, this situation should be considered as a dangerous precedent.
The level of protection of freedom of science in Poland cannot be analysed without taking into consideration the fundamental changes in the Polish higher education system. At the same time, it is difficult to clearly assess the long-term effects of the ongoing transformation. Presented examples show, that we are dealing with events that should not take place in a democratic state, such as announcements of lawsuits against scientists or suspension of sales of scientific books. The constitutional provisions should protect researchers against such actions from public authorities because even several cases of such behavior can cause a chilling effect. It must be emphasized that instances, when the state may interfere with freedom of research, are very limited according to the Constitution of Poland.
- Lech Garlicki, Marta Derlatka, [in:] Konstytucja Rzeczypospolitej Polskiej. Komentarz, vol. 2, ed. Lech Garlicki, Marek Zubik, Warsaw, 2016, p. 789-800.
- Wojciech Brzozowski, [in:] Prawo nauki. Zagadnienia wybrane, ed. Aleksandra Wiktorowska, Aleksander Jakubowski, Warsaw, 2014, p. 25-45.