U.no.202/2008

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

3. Upon the initiative submitted by the Liberal Democratic Party of the Republic of Macedonia, the Constitutional Court of the Republic of Macedonia with its Resolution U.no.202/2008 of 11 February 2009 instigated proceedings for appraising the constitutionality of Article 26 of the Law noted in item 1 of the present Decision.

The proceedings were instigated as there was a well-founded question raised before the Court regarding the agreement of the contested provision of the Law with the Constitution.

4. At its session the Court found that Article 26 of the Law on Primary Education stipulates that religious education may be realised in the elementary school as an elective subject.

5. The Constitution of the Republic of Macedonia in the part relating to the civil and political rights, in Article 9 defined that citizens of the Republic of Macedonia are equal in their freedoms and rights, irrespective of their sex, race, colour of skin, national and social origin, political and religious beliefs, property and social status.

All citizens are equal before the Constitution and laws.

Article 16 paragraph 1 of the Constitution guarantees the freedom of personal conviction, while Article 19 paragraphs 1 and 2 of the Constitution guarantee the freedom of religious confession and the right to express one’s faith freely and publicly, individually or with others.

Amendment VII item 1 replaced paragraph 3 of Article 19 of the Constitution and it defines that the Macedonian Orthodox Church, as well as the Islamic Religious Community in Macedonia, the Catholic Church, the Evangelical-Methodist Church, the Jewish Community and other religious communities and groups are separate from the state and equal before the law.

Item 2 of this Amendment replaced paragraph 4 of Article 19 of the Constitution, and defines that the Macedonian Orthodox Church, as well as the Islamic Religious Community in Macedonia, the Catholic Church, Evangelical-Methodist Church, Jewish Community, and other religious communities and groups are free to establish religious schools and social and charitable institutions in a procedure defined by law.

Under Article 20 of the Constitution, the citizens are guaranteed freedom of association to exercise and protect their political, economic, social, cultural, and other rights and convictions.

Citizens may freely establish associations of citizens and political parties, join them, or resign from them.

The programmes and activities of association of citizens and political parties may not be directed at the violent destruction of the constitutional order of the Republic, or at encouragement or incitement to military aggression or national, racial or religious hatred or intolerance.

In the part of the Constitution relating to the economic, social and cultural rights, Article 44 defines that everyone has a right to education.

Education is accessible to everyone under equal conditions. Primary education is compulsory and free.

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

According to the Court, taking as a starting point the contents in the said provisions of the Constitution, it arises that:
– the citizens of the Republic of Macedonia are equal in their freedoms and rights;
– the free expression of religious confession is guaranteed to everyone;
– religious communities and groups are separate from the state and equal before the law;
– they are free to establish religious schools and other social and charitable institutions;
– the right to belong to a certain religion also implies the right not to belong to any religion and not to profess its teaching;
– there is no state religion that would be privileged and no privileges of any religion on any ground are recognised;
– there is freedom of association of citizens to exercise their convictions on the basis of programmes and actions that are not directed, inter alia, at religious hatred and intolerance.

The Law on Primary Education in Part III which relates to the “Programmes and organization of educational work in primary school”, in Article 25 regulated that the minister defines the Concept for primary education and education on the basis of which he, upon the proposal of the Bureau, adopts the curricula and programmes for elementary education which contain the compulsory and elective subjects, number of classes, programme objectives, contents, basic notions, activities and methods in instruction, conditions for realisation and standardisation of the norms of the teaching staff.

The contested Article 26 of the Law stipulates that there may be religious education in the primary school as an elective subject.

The issue about the type of compulsory and elective subjects is left to be regulated by the curriculum and programmes of the primary schools and is not specially regulated by the Law. Hence, the issue about the study of religious education, and then its election, organisation, number of classes, teaching staff, in which grade it will be studied, contents, activities and methods of implementation of religious instruction, are completely within the field of regulation with the curriculum and programmes for primary education, which are adopted, that is, defined by the Minister of Education upon a proposal by the Bureau for Development of Education. Concomitantly, pursuant to Article 7 paragraph 6 of the Law, the manner and procedure for the election of teachers who will realise the curriculum and programme is also defined by the Minister.

According to the Court, in this part of the analysis of the issue for religious education it is necessary to bear in mind also that Article 22 of the Law on the Legal Position of a Church, Religious Community and Group (“Official Gazette of the Republic of Macedonia, no.113/2007), regulates that the church, religious community and group are entitled to establish religious educational institutions at all educational levels, except for primary education, for the purposes of educating priests and religious clerks and that religious educational institutions are equal with the other educational institutions. Under Article 27 of this Law, it is specially regulated that there may be religious education organised in the educational institutions as an elective subject pursuant to law, whereby the church, religious community and group may be consulted in the drafting of the curriculum and programme defining the elective subject in the field of religious education, through the body competent for the tasks in connection with the relations between the state and the religious communities.

From what has been noted, it arises that there may be consultations made with the religious communities in the drafting of the curriculum and programme defining the elective religious subject in the exercise of the right to organise and realise religious education in the primary school which is a state educational institution.

Furthermore, based on the explanation of the Proposed Law on Primary Education no special data arise as to the manner in which the realisation of the religious instruction has been projected, while in the response of the Government of the Republic of Macedonia as the proposer of the Law, what has been stated as basic is the thesis that the Constitution does not stipulate prohibition for the possibility to organise religious education also in the educational institutions established by the state.

The contested provision of Article 26 of the Law on Primary Education provides for a legal ground for the Minister to define, through the Concept for Primary Education, the curriculum and programmes, the realisation of religious education in primary schools, and to operationalise it in consultation with the religious communities, church or religious group.

The noted provisions in Article 19 and Amendment VII of the Constitution promote the freedom of confession, but at the same time establish the principle of separation of the state and the religious communities, that is, the principle of secularity. Freedom of confession, in the opinion of the Court, unavoidably contains in itself the principles that everyone is free, without anybody’s influence, to determine his/her religious belief, to accept or not certain religion or to accept another religion, or not to accept any religion whatsoever, to profess or not his/her religion, to take part or not in religious sermons, etc. In this context, the state, on its part, pursuant to the principle of separation of religious communities, must maintain its neutrality and must not interfere in the issues on religion, that is, religious communities and groups, incite the determination for a certain religion or religion in general, or obstruct the expression of religion, or impose religious conformism or request implementation of religious activities as socially desirable conduct. The Court found that the noted constitutional amendment also resolves, in a principled manner, the issue about religious education (religious instruction, religious teaching) which is left to be the subject of decision and sphere of concern of religious communities and groups, within the frameworks of the freedoms to establish religious schools for these purposes.

The Court assessed that the contested provision of Article 26 of the Law provides an opportunity to introduce a subject in primary education in which certain religion is studied, which makes introduction into the rules under which the member of certain religious confession — or as it is called religious teaching, religious lesson or, most often, religious instruction — should conduct. Thereby, the Court bears in mind that the manner of implementation of the contested provision, in all respects, also coincides with this conclusion. Such form of religious education deriving as a possibility from the law, exceeds the academic and neutral character of the teaching, which is otherwise the characteristic of the public, state education and involves the state in the organisation of such religious teaching, vis-à-vis the noted principle of separation of the state and the church, and in this context the freedom of the religious communities to establish religious schools. Hence, the Court found that the contested provision of the Law is not in accordance with Article 19 and Amendment VII of the Constitution.

6. On the basis of the aforementioned, the Court decided as in item 1 of the present Decision.

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

U.no.202/2008
15 April 2009
S k o p j e

Dr Trendafil Ivanovski
PRESIDENT
of the Constitutional Court of the Republic of Macedonia