Decision U.no.31/2005

U.no.31/2005

On the basis of Articles 110 and 112 of the Constitution of the Republic of Macedonia and Article 71 of the Book of Procedures of the Constitutional Court of the Republic of Macedonia (“Official Gazette of the Republic of Macedonia”, No.70/1992), at its session held on 15 June 2005, the Constitutional Court of the Republic of Macedonia made the following

DECISION

1. Article 55 of the Law on Changing and Supplementing the Law on Secondary Education (“Official Gazette of the Republic of Macedonia” no.67/2004) IS REPEALED.

2. – The Book of Rules on the manner of taking the examinations and the evaluation of the results of the students in the graduation examinations in gymnasium education (“Official Gazette of the Republic of Macedonia” no.8/2005) and
– The Book of Rules on the manner of taking the examinations and the evaluation of the results of the students in the final examination in the secondary vocational education (“Official Gazette of the Republic of Macedonia” no.8/2005)
ARE REPEALED.

3. The Resolution on Stopping the Enforcement of Acts and Activities that have been adopted, that is, undertaken on the basis of Article 55 of the Law on Changing and Supplementing the Law on Secondary Education (“Official Gazette of the Republic of Macedonia” no.67/2004) and on the basis of the contested books of rules noted in item 2 of this decision BECOMES INEFFECTIVE.

4. This Decision generates legal effect from the date of its publication in the “Official Gazette of the Republic of Macedonia”.

5. The Constitutional Court of the Republic of Macedonia with its Resolution U.no.31/2005 of 27 April 2005, upon the initiative of Slagana Ananievska from Skopje, instigated a procedure for the appraisal of the constitutionality of Article 55 of the Law noted in item 1 of this Decision, and for the appraisal of the constitutionality and legality of the books of rules noted in item 2 of this decision, since there was a founded question as to their conformity with the Constitution and law.

6. At its session, the Court established that Article 55 of the Law on Changing and Supplementing the Law on Secondary Education changes Article 114 and it reads as follows:

“The provisions in Article 26 paragraph 2, Article 27, Article 28, Article 29 paragraphs 1, 2 and 3, and Article 30 paragraph 2 of this law, which relate to the state graduation examination, the school graduation examination and the final examination shall apply as of the entry into force of the new curricula and programmes”.

7. The Court also established that on the basis of Article 38 paragraph 2 of the Law on Secondary Education, the Minister of Education had adopted the disputed books of rules, which regulate the manner of taking the examinations and the evaluation of the results of the students in the school graduation examinations in the gymnasium education, that is, the manner of taking the examinations and the evaluation of the results of the students in the final examination in the secondary vocational education lasting for four, that is, three years.

8. Pursuant to Article 8 paragraph 1 subparagraphs 3 and 4 of the Constitution, the fundamental values of the constitutional order of the Republic of Macedonia are the rule of law and the division of state powers into legislative, executive and judicial.

The Law on Secondary Education governs the organization, functioning and administration in secondary education, being part of the pedagogical and educational system.

Part IV of this Law contains the provisions of Articles 33, 35, 37, 38 and 39, which relate to state graduation examination, school graduation examination, final examination and international graduation examination.

Under Article 33 of this Law, regular students who have completed their primary education enroll the gymnasium education. A part-time student may also enroll the second, third and fourth year of gymnasium education due to justified reasons defined in the statute of the school. Students in gymnasium education take state graduation examination or school graduation examination. International graduation examination may also be realized in the gymnasium education, for which consent is given by the Minister. The Programme for the international graduation examination has the same validity as the gymnasium education.

Pursuant to Article 35 of this law, following the completion of the last year of the public vocational education, state graduation examination or a final examination is taken. After the completion of the public vocational education lasting for four years, students take state graduation examination or a final examination. Following the completion of the public vocational education lasting for three years, students take a final examination.

Article 37 of this Law defines that students who have completed the last year of the public art education take school graduation examination under specified programmes.

Pursuant to Article 39 of this law, the secondary education for students with special educational needs educates students according to programmes tailored for corresponding vocations, that is, educational profiles or for job training. Depending on the programmes tailored for the corresponding professions, that is, educational profiles, students with special educational needs may take state graduation examination or final examination.

From the legal provisions noted, it derives that students in gymnasium education take state graduation examination or school graduation examination, students in public vocational education lasting for four years take state graduation examination or final examination, while students in public vocational education lasting for three years take final examination.

Article 55 of the Law on Changing and Supplementing the Law on Secondary Education changes Article 114 to read as follows: “The provisions in Article 26 paragraph 2, Article 27, Article 28, Article 29 paragraphs 1, 2 and 3 and Article 30 paragraph 2 of this law, which refer to state graduation examination, school graduation examination and final examination shall apply from the date the new curricula and programmes entered into force.”

Article 26 paragraph 2, Article 27, Article 28, Article 29 paragraphs 1, 2 and 3 and Article 30 paragraph 2, to which relates the contested Article, are provisions in the Law on Changing and Supplementing the Law on Secondary Education with which a new paragraph 2 is added to Article 33, while the existing paragraph 2 is modified; Article 35 is changed completely; in Article 37 the word “school” is added before the word “graduation examination”; Article 38 is modified completely; in Article 39 the words “that is, educational profiles” are added after the word “professions” and a new paragraph 2 is added.

It is apparent that from a legal-technical aspect, the disputed article is unclear and creates dilemmas as to which provisions of the law are concerned, which creates legal uncertainty contrary to the constitutional principle of the rule of law.

Also, the contested article conditions the application of the provisions referring to state graduation examination, school graduation examination and final examination from the date of entry into force of the new curricula and programmes, which means that their adoption depends on the Minister’s will, so that the application of the law in this part depends on the will of the executive power. In other words, this means that the beginning of the application of the law would depend on the will of the executive power, that is, when it adopts new curricula and programmes.

Thereby, the Court finds it unclear what the legislator implies under the notion “new curricula and programmes”, that is, whether the notion ‘new curricula and programmes’ implies curricula and teaching programmes under which students will begin and follow instructions in secondary education or it implies curricula and programmes for taking the final examination (graduation examination), even more that the Law uses the terms: curricula, subjects, programmes, examination programmes, etc.

Given the contents of the disputed article and the dilemmas deriving from its imprecision, the Court judged that the whole article creates legal uncertainty as a result of which it is not in conformity with the constitutional principles of the rule of law, as well as with the constitutional principle of the division of powers into legislative, executive and judicial.

9. In view of the books of rules challenged, the Court judged that they had been adopted prior to the adoption of the new curricula and programmes, prior to the adoption of the examination programmes and prior to the adoption of the new Concept for graduation examination and final examination in public secondary education.

Also, the contested books of rules refer only to school graduation examination, that is final examination, while the Law provides for taking state graduation examination or school graduation examination, that is state graduation examination or final examination. This means that there is no act whatsoever that will govern the manner of taking examinations and of evaluating the results of students in state graduation examination, although pursuant to the law students are free to elect whether they will take state graduation examination or school graduation examination, that is state graduation examination or final examination.

Hence, the Court judged that the books of rules challenged had been adopted prior to the entry into force of the new curricula and programmes, that they refer to the graduation examination of students from the 2004/2005 school year who had followed the lectures according to other curricula and programmes and that there are no provisions for taking state graduation examination, whereby students are denied the legally bestowed right to a choice, as a result of which the books of rules are not in conformity with the Law on Secondary Education.

Furthermore, according to the books of rules contested, school graduation examination in gymnasium education consists of three parts, as follows: written paper in the language and literature which the student followed during the instructions, oral examination in one compulsory or elective subject upon student’s choice, and individual graduation paper.

The final examination in secondary vocational education lasting for four years consists of three parts, as follows: written paper in the language and literature which the student followed during the instructions, oral examination in one subject from the specific vocational subjects characteristic for the educational profile, and practical work.

The final examination in secondary vocational education lasting for three years consists of written paper in the language and literature the student followed during the instructions, and practical work.

In the opinion of the Court, these facts are important given that according to the Book of Rules which became ineffective with the books of rules challenged, final examination in vocational education consists of written work in Macedonian language and literature, that is, in the language in which the student followed the instructions and the literature, and of practical work, while the final examination in the gymnasium education consists of written work in Macedonian language and literature, that is, in the language in which the student followed the instructions and the literature, and of oral examinations in two subjects of general knowledge or elective subjects which the student has chosen.

From the above it stems that the disputed books of rules, among other things, introduce oral examination in one subject for the students in secondary vocational education lasting for four years, and an individual graduation paper for students in gymnasium education.

Taking into consideration the contents of the books of rules disputed, as well as the fact that they were adopted in February 2005, so that students contrary to their legitimate expectations found out about the changes three months prior to taking the graduation examinations, the Court judged that the books of rules are not in conformity with the Constitution regarding the legal certainty as an element of the principle of the rule of law, as well as regarding the constitutional prohibition of the retroactive effect of laws and other regulations.

10. On the basis of what has been stated, the Court has decided as in items 1 and 2 of this Decision.

11. The Court has passed this Resolution in the following composition: the President of the Court Mrs Liljana Ingilizova – Ristova, and the judges: Dr Trendafil Ivanovski, Mr Mahmut Jusufi, Mrs Mirjana Lazarova Trajkovska, Mrs Vera Markova, Mr Branko Naumoski, Dr Bajram Polozani, Mr Igor Spirovski, and Dr Zoran Sulejmanov.

U.no.31/2005
15 June 2005
S k o p j e

PRESIDENT
of the Constitutional Court of the Republic of Macedonia
Liljana Ingilizova – Ristova

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