In the last 3 years, the Hungarian Government, especially with its support from the recently obtained 2/3 majority in the Parliament, has introduced several legislative changes which seriously undermine the essential elements of the rule of law. Criminalization of “facilitating or supporting illegal immigration”, banning homelessness and the Government’s continuing interference in the higher education are just the major issues. Some of the mentioned legal changes were problematic not only on the substantial grounds, but also in regard to the procedure – they were passed promptly and without any public debate. This process triggered the discontent of Hungarian civil society and the international community. In the previous three weeks, a big student protest has taken place in front of the Hungarian Parliament. Students were supported by their teachers and eminent international scholars who joined them and gave lectures as a contribution to the “fight for academic freedom”. What’s wrong with the academic freedom in Hungary, and are there any legal protections within the Hungarian Fundamental law? Although Hungary has been a great inspiration for legal analysis these days, I will focus on the legal effects of the amendments to the Act CCIV of 2011 On National Higher Education introduced in 2017 and the recent Government’s decree which removed the gender studies from Hungarian accredited master’s programs.

In April 2017, Hungarian Parliament passed the law which regulates the status of foreign universities operating in Hungary and modifies the National Higher Education law. This law (in media referred to as Lex CEU) was passed under exceptional procedure which is provided by the article 61 of the Parliament’s Rules of Procedure. The Government claimed that the exceptional procedure was justified because there was the urgent need for the regulation in this area. The Government didn’t show any clear evidence of this necessity. Although the relevant provisions regulate the status of all foreign universities operating in Hungary, new conditions posed by this law seemed to affect only one particular University (Central European University). Central European University is an American private higher educational institution which is both Hungarian and U.S.-accredited and it has been operating according to Hungarian law for more than 25 years. It was clear that CEU could not meet the requirements proposed by the law of 2017 before it would come into force (for example, that the institution has to provide education in the country of origin or that there has to be an agreement between Hungary and the country in which the University is accredited). The law was supposed to come into force 6 months after it was passed, but then the Government extended this deadline until 2019. During this period, CEU has taken all the necessary measures and managed to meet the criteria set by the lex CEU. The only thing left to be done is signing of the agreement between Hungary and the State of New York, in which the CEU is accredited. Hungary has remained silent on this and 2019 is approaching. On December 1, 2018 the deadline proposed by the CEU for signing the agreement passed and the university will be forced to move its operations to another country. Why is it so crucial for this university to stay in a Central European country? CEU is a highly reputable educational institution which provides its students with the knowledge necessary for building an open society that respects and promotes human rights. Lex CEU raised a major debate in Europe and it was addressed as dangerous to the rule of law even by the Venice Commission and European Commission. Another attack on academic freedom was the Government’s decree issued last month, which removed gender studies from Hungarian accredited programs. This legal act affected CEU but one public Hungarian university as well (ELTE University). The Government’s justification for such a measure was that “gender studies are ideology, and not science” and therefore, the state shouldn’t fund that program. Does the Government have the right to make such a decision, in the light of international and Hungarian constitutional law?

Academic freedom as such isn’t protected under European Convention on Human Rights but the ECHR referred to it several times in its case-law under Article 10 (freedom of expression). According to the Venice Commission “…it seems obvious that, as a key pre-requirement for the effective enjoyment of the freedom of expression, States should refrain from undue interference with the university teaching and the freedom of organizing teaching and research.” Another important international instrument which protects the principle of academic freedom is The International Covenant on Social, Economic and Cultural Rights (ICESCR), which in Article 13 guarantees academic freedom and institutional autonomy. Academic freedom is indispensable for the exercise of the freedom of expression, association and the right to education. This being said, the question is – how to protect it within a national jurisdiction.

Article 10 clause 1 of the Hungarian Fundamental Law states that “Hungary shall ensure the freedom of scientific research and artistic creation, the freedom of learning for the acquisition of the highest possible level of knowledge…” What does this provision actually mean in real life? Can it be protected before the Constitutional court or is it only declaratory in nature? Lex CEU was brought to the Hungarian Constitutional court in the procedure upon a constitutional complaint, but the Court remained silent (it decided to postpone the procedure by its decision of 5 June 2018). The other two clauses of Article 10 can be brought into question as well because they prescribe that “The State shall have no right to decide on questions of scientific truth; only scientists shall have the right to evaluate scientific research” and also that “…Higher education institutions shall be autonomous in terms of the content and the methods of research and teaching; their organization shall be regulated by an Act. The Government shall, within the framework of an Act, lay down the rules governing the management of public higher education institutions and shall supervise their management.” The latter provision clearly shows that public universities aren’t autonomous institutions. Claiming that gender studies are ideology and not science amounts to the Government’s interference with the methods of research and teaching. The last part of the provision under Article 10 gives the Government a broad power to regulate in this sphere under the right to “govern the management of public higher education institutions”.  The serious problem is that the Government didn’t give any other justification for its decision to ban gender studies except that the State wouldn’t fund it because it is ideology and because “the Hungarian government is of the clear view that people are born either men or women” (statement of Prime Minister’s chief of staff in August 2018). In addition, the Government stated that gender studies graduates cannot be successful in the job market. If the Government can decide which programs it will or will not fund, what will be the limit? Some time in the future, literature or philosophy studies could be banned as well, because that might not be science or profitable according to the Government.

If the Government can say what the science is, and the 2/3 majority in Parliament can say what the law is, what will happen with the academic and other freedoms in Hungary?

Teodora Miljojkovic is the JURIST regional editor in Hungary. She attends Central European University.

Suggested citation: Teodora Miljojkovic, Academic Freedom in Hungary: A Constitutional Principle or Just a Pipe Dream?, JURIST – Academic Commentary, Dec. 11, 2018, https://www.jurist.org/commentary/2018/12/teodora-miljojkovic-freedom-hungary/

This article was prepared for publication by Ben Cohen, JURIST Section Editor. Please direct any questions or comments to him at commentary@jurist.org