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By Professor Renáta Uitz, Chair of the Comparative Constitutional Law Program at Central European University
October 13, 2017 turned out to be a momentous day for the rule of law in Hungary.
This was an accident, as October 11, 2017 was meant to be the magic day.
October 11, 2017 was set by an amendment of the national higher education act, adopted in the spring of 2017, as major deadline for the continuing operation of foreign private universities in Hungary (Act no. 204 of 2011). By this date the Hungarian government – not the affected university – was meant to conclude an international agreement with the government of the foreign university’s seat regarding the continuing operation of that specific university in Hungary. Missing the deadline enables the National Education Authority to withdraw the operational license of the offending institutions to operate in Hungary.
Compliance with the October 11, 2017 deadline was not made easy as the amendment expressly requires that in case the foreign university is located in a federation, the foreign federal government must express its in principle prior approval for such an international agreement to be concluded between one if its constitutive units. That approval must be given by the October deadline (Article 76(1)(a)). That the kind of international treaty or approval required by the Hungarian education may not exist in the law of the foreign federation clearly did not bother the Hungarian lawmaker.
The next magic date set by the same amendment is January 1, 2018. By this time, a foreign private university operating in Hungary is required to “conduct educational activities” in the country of its accreditation by January 1, 2018 (Article 76(1)(b)). The Venice Commission noted in its preliminary opinion on the Hungarian law that this requirement is vague and open to various interpretations (para. 97). As if to prove this point, in early October when CEU concluded a memorandum of understanding on academic cooperation with a US-based institution, the Hungarian secretary of education took the opportunity to clarify in a television interview that “conducting educational activities” meant having an accredited degree program in the original accrediting state by the deadline. If so, this is yet another impossible condition to meet: eight months are hardly sufficient to receive accreditation for a new degree program in any legal system.
Although the amendments of the higher education act apply to all foreign-accredited universities in Hungary, the rules appear to target one institution: Central European University (CEU). To dispel doubts to this effect, the governing majority made did not hide it in the parliamentary debate of the bill as well as in the press, that they were set on teaching a lesson to the “Soros university,” a tag referring to the founder of CEU, Mr George Soros. As soon as the amendment was tabled in parliament, the voices kept repeating in the press: the Soros university deserves no exception, everyone is expected to obey the law in Hungary.
The amendment took thousands of demonstrators to the streets in Budapest, triggered an avalanche of support for CEU from the international academic community, and was condemned in both the European Parliament and the Parliamentary Assembly of the Council of Europe. To express its disapproval, the European Commission has commenced infringement proceedings against the Hungarian government, and the Venice Commission issued a preliminary opinion voicing serious concerns about the rules as they were meant to apply to already existing universities. A group of opposition MPs brought a challenge against the law before the Hungarian Constitutional Court, which decided to form a special working group for the matter after it received briefs from several amici.
In short, compliance with the October 11 deadline looked as the benchmark for testing the operation of the rule of law in Hungary, and in Europe: it does not take more than simply taking stock of what did and what did not happen by this deadline. The Venice Commission’s preliminary opinion in August 2017 or the EU infringement procedure did not prompt the Hungarian government to revise the amendment before the October 11, 2017 deadline. Although the Hungarian government did negotiate an agreement with the state of New York regarding CEU, it did not sign the deal by the October deadline. In the meantime, the infringement procedure is moving by its usual pace, and the Hungarian government’s lack of cooperation is pushing it closer and closer to the desk of the Court of Justice of the EU. The Hungarian Constitutional Court is yet to decide in the matter. This state of affair has become a major source of anxiety and uncertainty for CEU.
Then, at lunchtime on October 13, 2017 two interesting things happened.
Out of the blue the Hungarian Minister of Justice took to a press conference and announced that the government is about to table a bill to extend the January 1, 2018 deadline with a year, by January 1, 2019. The bill has been tabled shortly afterwards. As a fine touch, the Minister of Justice emphasized “despite mounting international pressure which lacks any substantive legal argument the Hungarian government insists that Hungarian law applies to all, including Central European University.”
About the same time, atlatszo.hu, a freedom of information site received a response on a freedom of information request from the Ministry of Human Resources. Atlatszo.hu asked the Ministry for the text of any such prior approval for an international treaty the government may have concluded under the amended higher education law. In response, the Ministry attached a letter from the U.S. Secretary of Education dated on June 15, 2017 where Secretary DeVos wrote that
“Education is primarily a state and local responsibility in the United States. Matters related to the legal status and degree-granting authority of not higher education institutions, including these higher education institutions operating in Hungary, are within the purview of state-level authorities and not the U.S. federal government. … [T]he appropriate authorities with which to enter into discussions regarding the feasibility of such agreements are state-level authorities.”
If we can believe the Hungarian government’s response to the freedom of information request, although it has never been stated expressly by, the October 11, 2017 deadline set by the amendment in fact has been met by the government with regard to all universities accredited in the U.S. on June 15, 2017. This information is better to learn late than never, especially when the operational license of a university is in the balance.
While these developments come as a relief to CEU, as far as the rule of law and academic freedom are concerned, this picture is bleak. Making up the law on the fly is not rule of law, not is even rule by law, it is rule by men. The rule of law is way too easy to mold into rule by law, and from there rule by men is a small step. Sadly, the rule of law appears to waver when it encounters rule by men. It can only stand up to raw political will if its defenders are willing to look past disingenuous rhetoric and naked tactics which are built on misusing its name. When academic freedom is at stake, this task is especially hard. Academic freedom may be a cherished foundation of liberal democracy and individual liberty, yet, it has been taken for granted for too long even by its very beneficiaries without much further reflection. Attacks like the Hungarian saga, or the more blatant violations, as in Turkey, draw attention to the urgency of defining the conceptual foundations of a much forgotten liberty.
Hungary: rule by men in its prime
By the spring of 2017 CEU has been operating in Hungary for over two decades. Its admittedly complicated corporate structure, complete with a university accredited in the U.S. in the state of New York, a Hungarian private university, and a foundation to maintain the Hungarian university, was established incompliance Hungarian legal requirements applicable to foreign private universities evolving over the years. Until the spring of 2017 there was little doubt that CEU was one university: it has one campus, in downtown Budapest, one faculty, one student body (see Venice Commission preliminary opinion, para. 24 – 33).
The amendment of the higher education law was passed by the Hungarian parliament with the speed of light: the bill was tabled on March 28, 2017 and was passed by the Hungarian Parliament in a procedure of exceptional urgency on April 4, 2017 amidst intense international and domestic protest. The need for urgency was later explained by the government as a measure to ensure that the new rules enter into force before the new academic year (Venice Commission preliminary opinion, para. 53).
The terms of compliance with the October 11, 2017 deadline has kept many on their toes. In May 2017 the US State Department urged the Hungarian government to amend the law, and negotiate with the affected universities directly. This was confirmed by the Education Secretary’s letter of June 15, 2017, which the Hungarian government has also presented to the world in its own words before. If read literally these messages appear to confirm that the Hungarian amendment sets an impossible condition for the continuing operation of foreign private universities. This goes against the basic minimum of the rule of law even in its thinnest iteration. As if to demonstrate that the October 11, 2017 deadline was not impossible to meet, the Hungarian government did sign other agreements, including with the state of Maryland in July 2017, regarding McDaniel College. It was tabled for ratification in the Hungarian Parliament on October 8, 2017 and was signed by the President on October 11, 2017, right on the magic day.
That in the meantime the Hungarian government decided to read the letter of Secretary deVos as the federal government’s permission for the states to negotiate with the Hungarian government is a welcome development, but it could certainly not have been foreseen. That this interpretation was disclosed in a response to a freedom of information request is also unusual, considering that in instances of similar magnitude the government communicated its stance about the enforcement of this law in the press. As such, the condition and its applications continues to run counter to the very essence of the rule of law on several counts.
To be clear: a foreign-accredited university, the fate of which hinges on such an international agreement was not meant to be part of the negotiations envisioned by the Hungarian amendment. The amendment does not provide any recourse for the affected university against the inaction of either government. In brief: the fate of an already functioning, and already accredited university depends on the political discretion of two sovereigns. If these sovereigns are unable or unwilling to agree with each other by the deadline set in Hungarian law, the sanctions fall on the one entity which is not provided with a seat at the table – at the discretion of the educational authority of the state which set the statutory condition in the first place
In short, after having passed a major amendment which fundamentally changes the conditions of operation for foreign private universities in an urgency procedure and without any public consultation, after having set a condition which can only be fulfilled by the government itself (with a gesture based on open political discretion), now CEU’s future in Hungary depends on a further discretionary decision of the government not to enforce its own laws against the university. That the Hungarian government decided to extend the deadlines set by the amendment by a year on October 11, 2017 some two days after it failed to meet the deadline the deadline set for its own compliance under the law certainly may help CEU, yet, it does not help the rule of law. This saga is a far cry from legal certainty and the protection of legitimate expectations. This is rule by whimsical men who use legal provisions to communicate their momentary wishes to the world.
The rule of law at work – in defense of academic freedom
The rule of law appears pale in the face of naked political will, and the resulting picture is not pretty.
Before they get involved in any matter, European constitutional actors need to have proper powers and they follow the rules applicable to their engagement. This is a tall order, as the academic freedom of a university, although often taken for granted, is not clearly guaranteed by regional or international human rights instruments or in the founding treaties of the Union. The preliminary opinion of the Venice Commission is most helpful here in explaining that despite several soft law instruments on the subjects, the most likely basis for the protection of academic freedom is the protection of freedom of expression (paras. 38-51).
The connection is plausible, but far from perfect, as was explained in Mustafa Erdogan v. Turkey by Judges Sajó, Vucinic and Kuris in their concurring opinion:
“The level of protection granted to academic freedom, especially in its “extramural” manifestation, cannot be explained fully (and consequently, in a convincing and transparent way) within the four corners of the assumptions that underlie the Court’s case-law concerning freedom of expression. At least as matters currently stand, these assumptions remain at the level of intuitions. The meaning, rationale and scope of academic freedom are not obvious, as the legal concept of that freedom is not settled. Traditionally, academic freedom referred to a crucial element of university autonomy: non-interference by external powers in university teaching.
There is no Chinese wall between science and a democratic society. On the contrary, there can be no democratic society without free science and free scholars. This interrelationship is particularly strong in the context of social sciences and law, where scholarly discourse informs public discourse on public matters including those directly related to government and politics.”
It is important to point out, that the infringement procedure of the European Commission in defense of academic freedom and the rule of law is brought in term of fundamental market freedoms in the internal market, such as the freedom to provide services (Article 56 TFEU and Article 16 of Directive 2006/123/EC on services in the internal market) and the freedom of establishment (Article 49 TFEU and Articles 9, 10, 13, 14 of Directive 2006/123/EC). The Commission’s approach is based on the assumption (recognized by the CJEU) that private education is an economic activity. This approach may well be in the four corners of EU law and the Commission’s competences, it is, however, a far cry from protecting academic freedom and especially university autonomy from undue interference.
Furthermore, it was clear from the start that even if the Commission decided to intervene, an infringement procedure will not help the victims of the amendment without the cooperation of the Hungarian government. The infringement process was expected to run beyond the October deadline, leaving the affected universities at the whims of the Hungarian government. The rule of law, by definition, makes the operation of bureaucracies (national as well as supranational) predictable. Deadlines are set at a pace to permit a fair procedure and ample opportunity to make one’s case. This plays into the hands of those who are eager to beat the system at its own game. Few would be surprised to learn that in the original the deadlines in the Hungarian amendment were less tight, they were rushed forward in the course of the parliamentary debate, against the advise of the Hungarian Rectors’ Conference.
By the time the CJEU decides on the matter, the sheer limbo of the legal status of the university (and the threat of the suspension of it license) will do serious damage on the ground. Universities start recruiting their incoming classes a year before the start of the academic year. For CEU the new academic year and the new recruitment cycle starts with knowing that the Hungarian authorities can suspend its license any time after October 11, 2017, until the Hungarian government agrees to sign an international agreement it had already negotiated.
That the Hungarian Constitutional Court has not decided on the case yet is not surprising. There is no deadline on its procedure and it has no reason to walk into an open political minefield. If it were to follow its long-standing jurisprudence, the Court would need to find the amendment unconstitutional as a blatant violation of the rule of law as defined in Article B(1) of the Fundamental Law. This was argued in an amicus brief by leading Hungarian constitutional scholars, including – rather unusually – the former president of the Constitutional Court and president of the republic, László Sólyom. Whether and when the Court is willing to reach this conclusion depends less on the case law of the Court, and more on the political calculations of the justices.
What is next?
What follows is a waiting game. Waiting for the European Commission and the CJEU, waiting for the Venice Commission’s final opinion, waiting for the Hungarian Constitutional Court’s judgment, waiting to see if European political actors are able and willing to mobilize their resources against the Hungarian government on account of this issue – and not for one of the others. They may certainly pick their battles, as the issues range from the refugee crisis to attacks on civil society organizations. How they pick their battles will depend a lot more on the outcome of the conversation on the future of the Union than their readiness to stand up for academic freedom. In the meantime, while taking its time with signing the treaty, the Hungarian government is conducting a high profile opinion poll via direct mail (officially: a national consultation) on what they call the Soros plan. The survey asks Hungarian voters whether they support Mr. Soros’ plan to impose one million migrants on Europe (Question 1) or to give lighter sentence for migrants than for nationals for the crimes they commit (Question 5).
Indeed, although it is often taken for granted even by its very beneficiaries, academic freedom is not that easy to defend.
Its unclear foundations aside (with freedom of expression being the primary contender), it is also conceptually unclear. In a modern regulatory state it is easily seen not as a liberty for individuals and institutions, but as a large baggage of governmental duties and obligations. The regulatory and licensing part is too technical and complicated (yet certainly not urgent to straighten out), while the financing aspect is rather costly and the proverbial lack of public resources easily results in messy entanglements between the government and the private sector. From the government’s perspective the pleasant part of academia is its capacity to generate ideas and solid research for policy-making and implementation. These benefits are quickly counterbalanced by academia being a constant source of criticism and dissent. Such a buzzing nest of contention and contradiction is hard to defend in the face of public reservations in good times (“what is the use of humanities?”), and it becomes a particularly unpleasant burden in the era when illiberal and anti-elitist populist rhetoric brings to voters to the polls.
Yet, this is the very reason for legal academia to spend some of its capital on developing solid conceptual foundations for its very own existence. This exercise is not only urgent, it is also likely to benefit scholarship on constitutional democracy and individual liberty, if Jonathan Cole is right when he claims:
“The institutionalization and commitment to academic freedom and free inquiry by those both inside and outside a university is, I believe, a key indicator (of course not the sole indicator) of the existence and form of a liberal democracy. Its existence will allow us to measure whether democratic ideals and adherence to principles of individual liberty and free expression really exist within a society.”