DEVELOPMENTS IN FREEDOM OF EXPRESSION AND INFORMATION II
Panel formed with individual proposals.
The paper investigates the status and role of academic freedom in public law. Recent developments in international law indicate that academic freedom may be a new, emerging “freedom“—albeit quite underdeveloped in terms of conceptual tools, operationalizing mechanisms, monitoring methods, and benchmarking schemes. The peculiarity of academic freedom is that it is situated within neoliberalism and illiberalism. In addition, competing ideas exist surrounding how to best conceptualize academic freedom: an individual right (of faculty and students) - a set of requirements for autonomous institutional design - a field to be regulated for market service providers or public commodities - or a benchmarking tool for international policymaking or academic ranking—not to mention the challenge of how to incorporate the zeitgeist of social justice movements.
FOI laws are particularly important for a healthy democracy (Sunstein, 2018) as part of wider transparency policies (Pozen, 2017) where the right to information (RTI) is a fundamental right which should be intended as comprehensive of both request- driven and proactive approach. RTI should be read together with other kind of guarantees such as clear motivations from authorities for policies and administrative acts enacted. These considerations are ever more important in the pandemic period when states impose restrictions on basic freedoms (Banisar, 2020): for citizens to evaluate the proportionality of such restrictions, bases of accessible and open data related to pandemic should be available. From studying Italian case where the FOI suspended after the beginning of the pandemic this study wants to outline that when the policies enacted were not transparent, public confidence and a collaborative relation between society and the public institutions could not be achieved (Meijer, 2014).
Recently, political activist Jolovan Wham was convicted for organising a public assembly in which a foreign speaker participated electronically. As with other protestors in the past, Wham's arguments based on the freedom of assembly failed. Is this yet another instance of courts - in Singapore, as in several other jurisdictions - deferring strongly to the legislature's decision to restrict the freedom of assembly? In fact, the law on freedom of assembly is more nuanced than it may first appear. It appears that critics often fail to distinguish between two models of rights-protecting regime. One asks whether the outcome brought about by the state complies with a constitutional right. The other, which Singapore follows, inquires into the lawfulness of particular executive/legislative actions. I will distinguish between the two models, and argue that a failure to apprehend the difference - and to identify the proper target of challenge - has plagued the case law and discourse about it.
This communication is the result of research on whether the epistemic roles and duties performed by universities are related to the protection of democracy and the rule of law. While there is a more obvious intertwinement between academic freedom and fundamental rights such as freedom of speech and freedom of thought, we argue that there is a deeper, symbiotic connection between university autonomy and democracy as a whole. On the one hand, due to requirements set by epistemic standards, universities rely on the autonomy that democratic systems grant them for performing to their full potential - on the other hand, we argue, autonomous universities become a watchdog for democracy and a space of resistance against authoritarian government attacks. This, we conclude, is sufficient to justify university autonomy as a true constitutional fundamental right (owned by society as a whole), and as a constitutional guarantee for the protection of other, related fundamental rights.