Decision U.no.226/2008

U.no.226/2008

On the basis of Articles 110 and 112 of the Constitution of the Republic of Macedonia and Article 70 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 1 July 2009, the Constitutional Court of the Republic of Macedonia took the following

DECISION

1. a) Article 45 paragraph 3, in the part: “and is organised and implemented by the Ministry and the State School Inspectorate” of the Law on Secondary Education (“Official Gazette of the Republic of Macedonia”, nos.44/1995, 24/1996, 34/1996, 35/1997, 82/1999, 29/2002, 52/2002-filtered text, 40/2003, 42/2003, 67/2004, 55/2005, 113/2005, 35/2006, 30/2007, 49/2007, 81/2008 and 92/2008) and
b) Article 71 paragraph 3, in the part: “and is organised and implemented by the Ministry and the State School Inspectorate” of the Law on Elementary Education (“Official Gazette of the Republic of Macedonia”, no.103/2008).
ARE REPEALED.

2. The Resolution for suspension of the execution of individual acts and actions adopted, that is, taken on the basis of the parts of the provisions in the articles of the laws noted in item 1 a) and b) of the present decision is PUT OUT OF EFFECT.

3. This decision shall generate legal effects from the date of its publication in the “Official Gazette of the Republic of Macedonia”.

4. Upon the initiative submitted by Anastasija Kochova from Bitola, the Constitutional Court of the Republic of Macedonia with its Resolution U.no.226/2008 of 20 May 2009 instigated proceedings for appraising the constitutionality of the provisions of the Law noted in item 1 a) and b) of the present decision, as there was a well-founded question raised regarding their concordance with the provisions of the Constitution.

With this resolution the Court at the same time pronounced an interim measure for suspension of the execution of individual acts and actions adopted that is taken on the basis of the articles from the laws noted in item 1 a) and b) of the present decision.

5. At its session the Court found that under Article 45 of the Law on Secondary Education students are evaluated in the subjects they study. The marks of the student in public schools are defined as: excellent (5), very good (4), good (3), sufficient (2) and insufficient (1). All marks are passing except for the mark insufficient (1).

The following and evaluation of the progress and the achievement of students may be made with internal and external check and evaluation. Internal check and evaluation is made by the teachers in the school.

External check of the achievements of success of students at the end of each years is carried out by standardised tests prepared by the Bureau for Development of Education and the Centre for Professional Education and Training, and is organised by the Ministry and the State School Inspectorate.

The results from the check of the progress and achievement of the success of the student under paragraph 3 of this article do not influence the general success of the student, that is his marks, except if the difference between the mark from the external check of the achievement of the success of students and the mark by the teacher is more than one mark.

The student is issued a certificate for completed year after the conducted external check under paragraph 3 of this article.

The manner of organisation and conduct of the achievement of the success of students under paragraphs 2 and 3 of this article, as well as the manner of determination of the final marks of the student is prescribed by the Minister.

Under Article 71 of the Law on Elementary Education, the following and check of the progress and the achievement of the success of students are made with internal or external check.

Internal check of the achievement of the success of students at the end of third grade is made by the teachers in the school on the basis of standardised tests prepared by the Bureau.

External check of the achievement of the success of students at the end of each school year for the students from fourth to ninth grade is carried out on the basis of standardised tests prepared by the Bureau, and is organised and conducted by the Ministry and the State School Inspectorate.

The results from the check of the progress and achievement of the success of the student under paragraph 3 of this article do not influence the general success of the student, that is his marks, except if the difference between the mark from the external check of the achievement of the success of students and the mark by the teacher is more than one mark.

The student is issued a certificate for completed grade after the conducted external check under paragraph 3 of this article.

The manner of organisation and conduct of the check of the achievement of the success of students under paragraphs 2 and 3 of this article, as well as the manner of determination of the final marks of the student is prescribed by the Minister.

6. Pursuant to Article 8 paragraph 1 line 3 of the Constitution, the rule of law is one of the fundamental values of the constitutional order of the Republic of Macedonia.

Under Article 44 of the Constitution of the Republic of Macedonia, everyone has a right to education. Education is accessible to everyone under equal conditions. Elementary education is compulsory and free.

Under Article 45 of the Constitution, citizens have a right to establish private schools at all levels of education, with the exception of elementary education, under conditions defined by law.

Pursuant to Article 51 of the Constitution, in the Republic of Macedonia laws shall be in accordance with the Constitution, and all other regulations in accordance with the Constitution and law. Everyone is obliged to respect the Constitution and laws.

Under Article 91 paragraph 1 of the Constitution, the Government of the Republic of Macedonia determines the policy of implementation of the laws, and under line 5 the Government adopts bylaws and other regulations for the implementation of the laws.

Pursuant to Article 96 of the Constitution, the bodies of state administration perform the matters within their competence autonomously on the basis and within the frameworks of the Constitution and laws, being accountable for their work to the Government.

Pursuant to Article 55 paragraph 1 of the Law on the Organisation and Work of Bodies of State Administration, the Minister adopts rulebooks, orders, instructions, plans, programmes, resolutions and other acts for the implementation of the laws when he/she is authorised for that by law.

The organisation, functioning and management in secondary education in the Republic of Macedonia as part of the system of education, is regulated by the Law on Secondary Education, while the activity of elementary education as part of the single educational system is regulated by the Law on Elementary Education.

Pursuant to Article 2 paragraph 2 of the Law on Secondary Education, secondary education is realised in secondary schools which are organised as public secondary schools (secondary municipal school, that is, secondary school of the City of Skopje and state secondary school) and private secondary schools.

Under Article 21 paragraph 1 of the Law, the curricula and subjects of instruction regulate the goals, areas of instruction, topics and contents, educational standards and profile of the teacher that realises the instruction. Under paragraph 2 of the same article of the Law, the educational standards are adopted by the Minister upon a proposal of the State Examination Centre. Paragraph 3 of the same article of the Law envisages that the programmes are prepared according to a model of programmes that is adopted by the Minister upon a proposal of the Bureau for Development of Education. The model defines the flexibility in the realisation of the areas of instruction and topics. Under paragraph 4 of Article 21 of the Law, the plans and programmes of paragraph 1 of this article also define other forms of educational activity.

Pursuant to Article 22 paragraph 1 of the Law, plans and programmes for public schools are prepared by the Bureau for Development of Education, and are adopted by the Minister.

The status of the student, as well as the determination of the average success of students in secondary schools is regulated in Chapter V of the Law with the heading “Students”. Thus, pursuant to Article 41 of the Law, the status of students in secondary education is acquired by enrolling in a secondary school.

The contested Article 45 of the Law actually regulates the manner of internal and external check of students and their evaluation. This article of the Law specifically defines that external check of the achievements of the success of students is carried out at the end of each school year and it is carried out on the basis of standardised tests prepared by the Bureau for Development of Education and the Centre for Professional Education and Training, and is organised and implemented by the Ministry and the State School Inspectorate. The student will be issued a certificate for completed grade after the conducted external check of the success of the student.

Under Article 46 of the Law, the average success of the student is determined on the basis of the annual marks from all compulsory subjects at the end of the year, and for the students who will go to a makeup examination after the conclusion of the makeup examinations.

Chapter VI of the Law on Secondary Education contains the topic “Teachers and Expert Associates”.

Article 59 of the Law envisages that the educational work in secondary education is realised by teachers, educators and expert associates (a pedagogue, psychologist, special education teacher, sociologist, social worker, laboratory technician, librarian, etc.). Teachers in secondary education may be persons who have completed appropriate studies for education in faculty, higher school or academy and have taken a professional examination. Teachers in secondary schools may also be persons who have appropriate university-level education acquired from other faculties, and have gained pedagogical, psychological and methodological training in appropriate faculties and have taken a professional examination, unless the conditions of paragraph 2 of this article are not met. Teachers in secondary education for students with special educational needs may be persons with completed university-level education of paragraphs 2 and 3 of this article, who have gained appropriate special education and have taken a professional examination. The provision of paragraph 4 of this article does not apply to the educational staff in secondary education for students with special needs that has already had over ten years’ working experience, who have not gained special education previously. As an exception, persons who have completed specialist secondary or higher education, have gained pedagogical, psychological and methodological training from appropriate faculties and have taken professional examination may also teachers in secondary vocational education. As an exception, persons who have completed secondary ballet school and have five years’ experience in playing ballet, and have gained pedagogical-psychological and methodological training from appropriate faculty and have taken professional examination, may also be teachers in secondary ballet education in the vocational theoretical and practical instruction. The programmes for pedagogical, psychological and methodological training, as well as for appropriate special education of paragraph 4 of this article are prepared by the appropriate faculty for teachers in cooperation with the Bureau for Development of Education. Persons with completed appropriate secondary, higher and university-level education may be expert associates in secondary education. The appropriate profile is defined in the plans and programmes. Educators in a student house may be persons who meet the conditions for a teacher, pedagogue or psychologist in secondary education. Teachers and educators of paragraphs 2, 3, 4, 5, 6 and 9 of this article must be nationals of the Republic of Macedonia and to have command of the literary language and alphabet in which they carry out the instruction. Persons who are foreign nationals and have the appropriate level of education may be teachers in a private secondary school, for the subjects in which the instruction is conducted in a foreign language, under the conditions defined by this Law. The school is obliged to organise check of the teacher about the command of the language of paragraph 11 of this article. The check is carried out by a commission.

Article 68 of the Law stipulates that the principal, teacher and expert associate in a public school during their work are obliged to permanent professional advanced training. Professional and pedagogical advanced training is organised and realised by the Bureau for Development of Education, faculties with teaching groups and other specialised public and private institutions. The forms, manner, procedure and conditions for professional and pedagogical advanced training are prescribed by an act adopted by the Minister.

Pursuant to Article 69 of the same Law, in public schools teachers and expert associates are evaluated every two years for autonomous performance of the jobs and tasks and modernisation of the educational work in schools. The evaluation of teachers and expert associates is made by a commission composed of the principal, expert associate from the school and the appropriate advisor from the Bureau for Development of Education. The results from the evaluation enable to acquire titles. The worker who is not satisfied with the grade of paragraph 1 of this article has a right to an appeal to the school board. More specific regulations about the conditions, manner of evaluation, the grade for the work, the type and the acquisition of titles are adopted by the Minister.

The Law on Elementary Education regulates compulsory elementary education that is realised in elementary schools, as well as the activity of the elementary education as part of the single educational system.

Article 65 of the Law, which is included in Chapter VI, under the heading “Evaluation of the accomplishments and progress of students”, envisages that (1) Accomplishments of students in the elementary school are assessed descriptively and numerically. (2) In the first period, the accomplishment of the student during the school year in compulsory and elective subjects is assessed descriptively. (3) The student of paragraph (2) of this article receives a certificate with descriptive marks only at the end of the school year. (4) In the second period, the accomplishment of the student during the school year in compulsory and elective subjects is assessed descriptively and numerically. (5) The student of paragraph (4) of this article receives notification about the success with numerical marks at the end of first semester, and at the end of the school year receives a certificate with numerical marks and an average mark of success. (6) In the third period, the accomplishment of the student during the school year in compulsory and elective subjects is assessed numerically. (7) The student of paragraph (6) of this article receives notification about his success with numerical marks at the end of the first semester, and at the end of the school year receives a certificate with numerical marks and an average mark of success. (8) The numerical marks are: excellent (5); very good (4); good (3); sufficient (2) and insufficient (1). All marks are passing except for the insufficient mark (1). (9) The highest mark is excellent (5).

Under the contested Article 71 of the Law: (1) The following and checking of the progress and achievement of success of students is carried out with internal or external checking. (2) Internal check of the achievement of success of students at the end of third grade is carried out by the teachers in the school on the basis of standardised tests prepared by the Bureau. (3) External checking of the achievements of success of students at the end of each school year for the students from fourth to ninth grades is carried out on the basis of standardised tests prepared by the Bureau, and is organised and implemented by the Ministry and the State School Inspectorate. (4) The results from the check of the progress and achievement of success of the student of paragraph (3) of this article do not influence the general success of the student, that is, his marks, except if the difference between mark received from the external check of the achievement of success of students and the mark received from the teacher is more than one mark. (5) The student is issued a certificate for completed grade after the conducted external check of paragraph (3) of this article. (6) The manner of organisation and implementation of the checking of the achievement of success of students of paragraphs (2) and (3) of this article, as well as the manner of determination of the final marks of the student is prescribed by the Minister.

Article 96 of the Law, which is contained in Chapter VII and titled: “Teachers, expert associates, and educators” item 5 subtitled “Evaluation of teachers”, envisages that (1) the Bureau, the Council of Parents or the State School Inspectorate shall raise an initiative to the school board to examine the ability for realisation of the working obligations for teachers, expert associates or educators who, in the realisation of the educational process do not demonstrate satisfactory results. (2) The Bureau, Council of Parents or State School Inspectorate shall raise an initiative to the school board for termination of the employment also for teachers in elementary schools who carry out preparations and other activities for students from the school that attend instruction after the working hours, and are not defined in the annual programme for work. (3) The initiative of paragraphs (2) and (3) of this article must contain an explanation of the reasons for which it is raised. (4) If the initiative of paragraphs (1) and (2) of this article is raised by the Council of Parents, prior to debating about the initiative the School Board shall ask for an opinion by the State School Inspectorate. (4) If the School Board accepts the initiative of paragraphs (1) and (2) of this article, it shall submit to the principal a proposal for termination of the employment of a teacher, expert associate or educator, within seven days. (5) The principal shall be obliged to act upon the proposal of paragraph (4) of this article within seven days from the date he received the proposal.

Under Article 97 of the same Law: (1) The objectivity and professionalism of the teacher in the evaluation of the achievements of the success of the student is assessed on the basis of the results from the external checking of the achievements of the success of students of Article 71 paragraph (3) of this Law; (2) The evaluation of paragraph (1) of this article is carried out by comparing the results from the external check of the achievements of the student with the final mark of the student in the appropriate subject, for which the Ministry prepares a list ranking the difference from the indicators obtained. (3) On the basis of the ranking list of paragraph (2) of this article, 20% of the teachers who have the smallest difference in the indicators obtained shall have a rise in their salary for the next year by 15% of the salary they received; (4) On the basis of the ranking list of paragraph (2) of this article, 20% of the teachers who have the biggest difference in the indicators obtained shall have a decrease in their salary for the next year by 10% of the salary they received. (5) If three years in a row the teacher demonstrates results of paragraph (3) of this article he/she shall be promoted in the first immediate rank. (6) If three years in a row the teacher demonstrates results if paragraph (4) of this article, he/she shall have his/her employment terminated. (7) An act for a rise, that is decrease in the salary of the teacher pursuant to paragraphs (3) and (4) of this article shall be adopted by the principal of the school. (8) The teacher may lodge an appeal against the act of the principal of paragraph (7) of this article with the competent court. (9) The manner of preparation of the ranking list, the determination of the percentage of biggest, that is, smallest differences from the indicators obtained, the percentage of rise, that is, decrease in salary, as well as the manner if decrease, that is, rise in the salary of the teacher within the frameworks of the stipulated percentages pursuant to this article is prescribed by the Minister.

From the analysis of the noted constitutional and legal provisions of the two contested laws, and taking as a starting point the constitutional guarantees for ensuring the right to education to everyone under equal conditions, in both laws – the Law on Secondary Education and Law on Elementary Education – the legislator decided clearly and expressly that the educational process is conducted in an institution set up to that aim, that is, in elementary and secondary schools, which process is realised through special programmes and organisation of the educational work in the elementary school, that is, plans and programmes for the educational activity in secondary schools. The right to education means a right for the citizen to gain knowledge and professional training at all levels of education under equal conditions envisaged in the Constitution.

In the projection of the provisions expressing the right to education, the Constitution takes as a starting point the general conclusion that education is not just a private matter of the individual, but an interest and necessity of the society as a whole. Hence, guaranteeing everyone his right to education the Constitution refers to the acquisition of knowledge and professional training.

Following the changes in the social-economic structure, where market laws and entrepreneurship should bring about essential changes not only in the social-economic sphere, but in almost all social activities, where education has a special position and meaning, the concept for development of society presupposes competition and better quality also in this very sensitive sphere of social life.

The evaluation of students encompasses following and checking of the achievements and progress of the student, as well as collecting and analysing indicators for his/her development in the educational process, Hence, according to the Court in the determination of the mark it is essential to consider a number of aspects, such as: the scope and quality of the knowledge acquired, working habits, interestedness in the instruction and the attitude towards the same, the ability to apply the knowledge, the development of the ability and the creation of moral stances. The following, checking and evaluation of students, and in the context of the aspects noted, should be continuous and systematic.

In the process of following, checking, stimulating and evaluating the development and progress of students in the educational process teachers use methods, procedures, techniques that correspond with the contents being evaluated, such as oral and written checking, written work, tests of knowledge, practical checking, essay assignments, etc. Thus, through these methods, teachers being directly involved in the educational process are the only ones who can follow continuously and systematically the achievement and progress of the student throughout the entire school year, and at the end to determine the general success of the student.

Hence, according to the Court the contested parts of the legal provisions in Article 45 of the Law on Secondary Education and Article 71 of the Law on Elementary Education specifically noted in item 1 a) and b) of the present Decision, are not in accordance with the Constitution and the implementation of the principle of the rule of law and legal safety of citizens as it part. This especially from the fact that in both laws there is no express, clear and precise solution that the conduct or carrying out of testing will be within the competence of the school as an educational institution, but this competence is rendered exclusively to the executive power, by empowering the Ministry of Education and the State School Inspectorate.

According to the Court, a body of the executive power, outside the school and the educational process, may not conduct external checking and evaluation of the students in elementary and secondary schools, that is, it is not in accordance with the Constitution and the principle of the rule of law for the Ministry of Education and the State School Inspectorate to organise and implement the checking of the success of the student, and which influences the final accomplished general success of the student. Namely, according to our educational system, the implementation of the process of instruction and the determination of the general success of the student is carried out by educational institutions and bodies.

Consequently, the Court found that the contested provisions of Article 45 paragraph 3, in the part: “and is organised and implemented by the Ministry and the State School Inspectorate” of the Law on Secondary Education and of Article 71 paragraph 3, in the part: “and is organised and implemented by the Ministry and the State School Inspectorate” of the Law on Elementary Education, are not in agreement with Article 8 paragraph 1 lines 3 and 4 of the Constitution of the Republic of Macedonia.

7. On the basis of the aforementioned, the Court decided as in item 1 a) and b) of the present Decision.

8. The Court took the present decision with a majority vote in the following composition: Dr Trendafil Ivanovski, President of the Court, and the judges: Dr Natasha Gaber-Damjanovska, Mr Ismail Darlishta, Mrs Liljana Ingilizova-Ristova, Mrs Vera Markova, Mr Branko Naumoski, Dr Gzime Starova, and Dr Zoran Sulejmanov.

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