U.br.53/2013

On the basis of Article 110 of the Constitution of the Republic of Macedonia, Article 28 lines 1 and 2 and Article 71 of the Rules of the Constitutional Court of the Republic of Macedonia (»Official Gazette of the Republic of Macedonia«, no.70/1992), at its session held on 5 March 2014, the Constitutional Court of the Republic of Macedonia passed the following

1. NO PROCEDURE IS INITIATED for the appraisal of the constitutionality of Article 22 paragraph 3, Article 45 paragraphs 7, 8, 9, 10 and 11, Article 57 line 2, Article 83 paragraph 1 lines 12 and 13, Article 100 paragraph 4, Article 110-a and Article 146-b of the Law on University Education (“Official Gazette of the Republic of Macedonia”, nos.35/2008, 103/2008, 26/2009, 83/2009, 99/2009, 115/2010, 51/2011 and 15/2013).

2. The application for initiation of a procedure for the appraisal of the constitutionality of:

– Article 87-a paragraphs 1 and 2 and Article 99 paragraph 3 of the Law noted in item 1 of this Resolution, and

– the Law on Changing and Supplementing the Law on University Education as a whole (“Official Gazette of the Republic of Macedonia”, no.15/2013), IS DISMISSED.

3. Ljubica Georgievska – Ismail and a group of professors from Skopje filed an application to the Constitutional Court of the Republic of Macedonia for instigation of proceedings to appraise the constitutionality of the Articles in the Law noted in item 2 line 2 of this Resolution.

According to the allegations in the application, the challenged Law was adopted in a summary procedure, which was in contradiction with Article 170 of the Rules of the Assembly of the Republic of Macedonia. Furthermore, in the application it is noted that the challenged Articles 45, 57 and 110-a of the Law negated the autonomy of the University to regulate by itself its internal organisation and work, define the rules of studying and define the conditions and criteria for studies in the first, second and third cycle.

Namely, contrary to the constitutional determination in Article 46 of the Constitution, the Law interfered into the issues defined as autonomous issues, in a way that the Government interfered directly into the definition of the rules and criteria of studying and set the conditions for studying itself.

According to the application, Article 99 paragraph 3 and Articles 100 paragraph 4 of the Law negated the university’s autonomy in planning, realising and developing university activity, that is, restricted the autonomy of the university in planning and development.

According to the application, Article 83 paragraph 1 lines 12 and 13, Article 87-a paragraph 1, and Article 146-b of the Law negate the university’s autonomy in disposing with allocated funds and its own incomes and imposed the university an obligation that implied a concrete way of spending its own funds. The disposition with the funds was not restricted only to the funds that the Government awarded through budget allocations for the university, but also to the funds that the university gained from other sources.

The autonomy of the university in the decision-making on the forms of cooperation with other organisations was restricted by Article 22 paragraph 3 of the Law. Specifically, this article of the Law restricted the autonomy of the institutions in the organisation of the second and third cycle of studies on the one hand, and on the other hand forced organisational units of the university to cooperate even when they did not have a joint interest in developing same or similar programmes.

According to the application, Article 45 paragraph 9 of the Law negated the autonomy of the university in the realisation of international cooperation. The legal solution in this Article of the Law pointed to the conclusion that in this way universities were forced to cooperate with certain number of foreign subjects based on criteria defined by the Government and without a possibility for a choice of their own.

The application also indicates that the contested articles of the Law were in contradiction with the international standards complied with by the Republic of Macedonia. The rule of law has been elevated in international law to the highest level possible. The Republic of Macedonia, as a member of the UNO, Council of Europe and OSCE, in 2003 signed the 1999 Balkan Declaration. One of the basic standards of this Declaration is the very autonomy of the university. The Bologna Declaration and the autonomy of the university have been developed in several declarations adopted by the European Association of Universities recognized as relevant by the European Commission, Graz Declaration, Prague Declaration, Lisbon Declaration and Salamanca Convention. In these documents, university autonomy is defined through four basic dimensions of autonomy: 1) academic (deciding on the level of education, programme method of training, areas, scope, goals and methods of research), 2) financial autonomy (obtaining and disposing with funds, decision-making on tuition, management with accumulated surplus funds), 3) organizational autonomy (determination of the structure of the university), and 4) autonomy of employment (responsibility for recruitment, salaries and promotion). The autonomy of the university was defined with all these types of autonomy in the Law on Higher Education of the Republic of Macedonia and the draft law explicitly invoked and indicated in the bill that the changes in the Law were aimed at approximating the law of the Republic of Macedonia to the European law in this area.

4. At its session the Court found that under Article 22 paragraph 3 of the Law on Higher Education a scholarly institute within the university as its unit may carry out a higher education activity in the second and third cycle of studies in cooperation with a unit carrying out study programmes from the same or similar scholarly field”.

Article 45 paragraphs 7, 8, 9, 10 and 11 of the Law stipulate that a university shall found at least one career center. The Career Center keeps separate records of former students (alumni) and organizes career fairs at each faculty/university where there is a career center.

Career Centers are established for the purposes of organizing practical training for students to prepare professional staff that will apply modern innovative techniques and technologies in teaching. Career Centers consist of a profile of advisors who have knowledge in the field of education.
                     
Career Centers are obliged to set up working groups (from representatives from the technical colleges and chambers of commerce) and organize monthly meetings with the presence of representatives of the Agency for FDI for the needs of staff on the labor market and reducing the gap between demand and supply of workforce.

A university or unit thereof and a higher education school/institution have an obligation to sign at least two agreements on cooperation with a university of the 500 top-ranked universities according to the Shanghai list, that is, 100 top-ranked universities in the MBA program, as well as an accredited institution of higher education in one of the first 200 top-ranked universities in the relevant scientific field, according to Shanghai Cio Tong University, US News and Report and Times Higher Education Supplement-World University Ranking.

A university or unit thereof and a higher education school/institution have an obligation to sign at least two agreements for dual degree (double degree) or a joint study program (joint degree) with a university of the 500 top-ranked universities according to the Shanghai list,  that is, 100 top-ranked universities in the MBA program, and an accredited higher education institution in one of the first 200 top-ranked universities in the relevant scientific field, according to Shanghai Cio Tong University, US News and Report and Times Higher Education Supplement-World University Ranking.

Under Article 57 line 2 of the Law, the Rector’s Office determines and announces the competition for enrollment of studies in the first, second and third cycle, upon prior consent from the Government of the Republic of Macedonia.

Pursuant to Article 83 paragraph 1, lines 12 and 13 of the same Law, the Council within its powers has an obligation to propose measures to the university or units thereof for the funding of scholarly research activities and to encourage funding of basic research up to 10% of the total funds allocated to fund scholarly research activities, and the Council is obliged to inform the Ministry responsible for the affairs in the field of higher education in the case of cutdown of funding in the areas of scholarly research activity.

Under Article 87-a paragraphs 1 and 2 of the Law, (1) Part of the funds acquired from participation in the study costs for the number of students whose funding is provided within the number of students whose education is financed from the Budget of the Republic of Macedonia and from co-financing the costs of studying for students whose education is not financed from the budget of the Republic of Macedonia, in the amount of 40%, the public university, that is, public institution of higher education shall compulsory use for fundamental and applied researches, modernization of the scholarly research infrastructure, for training and advancement of the personnel for the scholarly scientific research, as well as for investments and investment maintenance. Available funds in the amount of 40% as defined in this paragraph shall be used for investment in scholarly research projects, for announcement of competitions for funding by universities, as well as for the covering of the costs of the associate/assistant who is obliged to have at least one study visit for a period of not less than one month and not more than three months within a period of three years at the first 500 top-ranked universities according to the Shanghai list, that is the first 200 top-ranked universities in the respective scholarly area, that is, the first 100 top-ranked universities in MBA programme according to Shanghai Cio Tong University, US News and Report and Times Higher Education Supplement-World University Ranking; and (2) Preparation and distribution of 40% of the available funds, referred to in paragraph 1 of this Article, shall be made in accordance with a rulebook for internal allocation of funds, which is adopted by the university, and upon prior approval of the minister responsible for higher education issues.

Under Article 99 paragraph 3 of the Law, study programmes in all years of study should include compulsory and elective subjects. The compulsory subjects should be from the relevant area of ??the university unit, that is the internal organizational unit (institute, department, section), and their share is up to 60% of the number of subjects. The rest of the study program comprises 30% elective subjects which students independently select from among all subjects of instruction in the university unit and 10% elective subjects which students independently choose from a list of free electives proposed by each university unit separately. In these 10% of elective subjects it is required to include courses in entrepreneurship and innovation at those faculties where these subjects are studied.

Pursuant to Article 100 paragraph 4 of the Law, in addition to the programmes for vocational or professional further training, the university and its units, or higher vocational school, higher educational institution is obliged to organize various forms of informal learning in at least two courses/trainings per year per study programme and similarly, if it does not affect the performance of the study programmes for acquisition of higher education.

Article 110 of the Law stipulates that the Government of the Republic of Macedonia with a decision establishes the number of quotas of students exempted from paying the registration fee for doctoral and master’s degrees and specializations that are awarded annually based on the National Programme for Higher Education and Scholarly Research Activity.

The Government of the Republic of Macedonia with a decision establishes the number of quotas for students enrolled in study programmes, and the number of students who will be exempted from paying the registration fee under the state quotas.

The obligation for payment of the registration fee of the students referred to in paragraph 2 of this Article within the state quotas remains to the faculties.

Students who have achieved an average mark of over 9 in the previous year have a right to free education.

Under Article 146-b of the Law, a teacher who ran or participated in a research project at one of the first 50 top-ranked universities according to the last published Shanghai list is paid a monthly allowance equal to 30% of the salary that he/she received in a period of one year, with the participant receiving 20% for three years, and the head receiving 50% for the first year and 20% for the next two years.

Teachers are entitled to refunding of travel and daily expenses and fees for the participation in at least two international conferences annually organized/conducted in one of the OECD countries, if they have applied with a scholarly paper in the subject matter concerned.

Teachers who teach study programmes for which a higher education institution from the Republic of Macedonia issues a dual or joint degree with a university ranked among the first 200 top-ranked universities according to the Shanghai list are entitled to a monthly allowance of 15% from the last salary paid in the months during which instructions take place.

A teacher employed at a university may be paid a one-time fee of one last net salary which was paid to him/her, for every paper published in a scholarly journal with an impact factor the author of which is teacher.

Foreign professors who teach study programs for which a higher education institution in the Republic of Macedonia issues a dual or joint degree with a university ranked among the first 200 top-ranked universities are entitled to reimbursement of travel and daily expenses, if they are not covered and there are conditions for that.

The fees referred to in paragraphs 2, 3 and 4 of this Article shall be paid from the incomes with which the units of the university dispose independently.

The fee referred to in paragraph 5 of this Article shall be paid from the revenues that the university acquired from the units and are earmarked for the funding of integrated activities.”
          
5. 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.

The Constitution of the Republic of Macedonia in its Article 44 defines that everyone has the right to education and that education is accessible to all on equal terms, and Article 45 of the Constitution stipulates that citizens have the right, under the conditions stipulated by law, to establish private educational institutions in all levels of education, except primary education.
Under Article 46 of the Constitution, the university is granted autonomy (paragraph 1). The terms of establishment, performance and termination of the activities of the university are regulated by law (paragraph 2).
Article 47 paragraph 1 of the Constitution guarantees freedom of scholarly, artistic and other forms of creative work, and under paragraph 3 of the same Article the Republic encourages, supports and protects development, science, art and culture.

From the said constitutional provisions it arises that the university autonomy is a constitutional category and a condition for the provision of qualitative higher education.

From the content of Article 46 paragraph 2 of the Constitution it derives that the conditions, performance and termination of the activity of the universities are regulated by law, which means that university autonomy is not an absolute category exhausted only with the constitutional provision noted. The Constitution leaves the matter regarding what constitutes the autonomy of the university and what are the elements of university autonomy to be the subject to regulation by law.

Based on the above, the Law on Higher Education was adopted, which regulates the university autonomy and academic freedom, the conditions and procedure for the establishment and termination of higher education institutions, system for provision and assessment of the quality of higher education, the bases for organization management, development and financing of higher education activities (Article 1).
With regard to the issue related to university autonomy and academic freedom, the Constitutional Court of the Republic of Macedonia already took up position articulated in its Resolution U.br.98/2011 of 13 February 2013, which will be fully followed together with the presented legal arguments therein in the legal opinion in this particular case as well, given that newly enacted provisions on this issue in the Law on Changing and Supplementing the Law on Higher Education are in question (“Official Gazette of the Republic of Macedonia” no.15/2013).

The currently filed application (by the same applicants as in the case U.br.98/2011) attacks in conceptual terms again the provisions of the Law and it negates the autonomy of the university, due to their inconsistency with Article 8 paragraph 1 line 3 and Article 46 of the Constitution.

However, following the position of the Constitutional Court expressed in the case U.br.98/2011 the Court found that the definition of the solutions in the challenged law used the experience and regulation on higher education in the countries of the European Union and countries in the region, as well as relevant international documents: the Magna Carta of universities (Bologna Magna Charta Universitatum) adopted in Bologna in 1988, the basic principles and recommendations of the Bologna Declaration signed in 1999 by the Ministers of Education of 29 European countries, as well as documents and recommendations arising from the so far overall Bologna process.
University autonomy is regulated in the separate Chapter II (Article 11 to Article 14). Under Article 11 of the Law, the universities and the units in their composition and independent higher education institutions perform their activity on the principle of academic autonomy (paragraph 1). The academic autonomy guarantees intellectual freedom of the members of the academic community and the creative nature of the research and education process, as supreme values and capabilities (paragraph 2). The autonomy of the university includes academic freedom, autonomy of mangement and inviolability of autonomy (paragraph 3). Higher education institutions have the right to initiate proceedings before the competent court to protect the university autonomy (paragraph 4).

Academic freedom is defined in Article 12 of the Act, and it encompasses: – freedom of scholarly-research work, artistic creation, application and mediation of knowledge; – self-regulation of internal organization and operation by …… statute in accordance with law; – freedom of teaching, implementation of scientific research, artistic activity, that is, creation and applying activities, including freedom of publication and public presentation of scholarly results and artistic achievements; -freedom of study, determining the rules of studying, the forms and types of teaching and educational activities of checking students’ knowledge; – freedom of choice of study programmes and the contents of individual subjects, as well as preparation of textbooks and other teaching aids; – freedom to choose the method of interpretation of the curricula and artistic content; – definition of conditions and criteria for studies of first, second and third cycle, and other types of education; – preparation, adoption and realization of scholarly-research programmes and applied work; – awarding professional, academic and scholarly positions in accordance with law, and awarding honorary academic titles; – definition of conditions, criteria and procedures for teaching-scholarly, scholarly, teaching positions, and – choice in educational, scholarly, teaching titles.

Management autonomy is regulated in Article 13 of the Law and is expressed in: – planning, realization and development of higher education activity; – establishment and regulation of internal organization; – enactment of the statute or rules of the unit; – election, appointment and revocation of the organs in accordance with the statute; – disposition with approved funds, and with its own revenues, – the foundation of funds and establishment of other organizations from its own incomes, donations and other sources for the performance of higher education, scholarly-research, publishing and applied activities; – management and use of property in accordance with the purpose for which it is obtained; – deciding-making on the forms of cooperation with other organizations; -joining and associating in appropriate organizations and forums in the country and abroad; – realization of international cooperation, contracting and participation in international organizations and associations, and – decision-making on other rights defined by the Statute, that is, the Rules of the unit.

From the analysis of the whole of the Law, the claim in the application that Article 22 paragraph 3 of Law denies the autonomy of the university in the decision-making on the forms of cooperation with other organizations may not be accepted. Namely, there is no arising restriction from the contents of the specified statutory provision of the autonomy of the institutes in organizing the second and third cycle of studies, as alleged in the application. On the contrary, it only provides guidance in the way of cooperation that refers to a unit with a study program from the same or related scholarly field, and aiming at efficient operation of the institutes.

The application conceptually attacks the provisions of the Law as a negation of the “autonomy” of the university, contrary to Articles 8 and 46 of the Constitution.

Specifically, the applicant objected that Article 45 of the Law made legal intervention against the constitutional commitment to “autonomy” of the university, with the fact that it imposed the term: “Applied activities of higher education institutions”, in order to remove the term “Internal organization of the university” and thus shorten the autonomy in its element “freedom of internal organization of the university.” Hence, it derives that challenging the provisions of the Law on Higher Education the applicants actually object the terminology definitions in the Law.

From the said objections against the terminological definition of the terms in the Law, the Court found it necessary to note that the Republic of Macedonia in September 2003 signed the Bologna Declaration thereby joining the countries that are committed to building a common European space of higher education. Higher education has a vital role in the development of the economy and democratic society based on knowledge. The ability of society to produce, select, modify and use the knowledge is a critical factor for sustainable economic growth and improvement of living standards.

Furthermore, analysis of the entire Law clearly shows that study programmes reflect the changes in relation to the priorities of researches and upcoming disciplines, and the fact that researches are aimed at supporting teaching and learning. Hence, the claim in the application about restriction of the autonomy of the university may not be sustained, even more since, according to the Court, the scholarly institute within the university cannot be viewed as an isolated entity.

With regard to Article 45 paragraph 9 of the Law, which, as argued in the application, denied the autonomy of the university in realizing international cooperation, we believe that it cannot be reasonably questioned in view of Article 46 of the Constitution. This is for a reason that the contested provision provides a wide range of universities – 500 highly ranked universities according to the Shanghai list, that is, 100 top-ranked universities in the MBA programme and an accredited higher education institution in one of the first 200 top-ranked universities in the relevant scholarly area, in accordance with Shanghai Cio Tong University, with which the University has an obligation to conclude cooperation. Hence, this clearly shows the right of the university to decide by itself in terms of cooperation with foreign entities, given the large number of entities specified in the disputed article of the Law. Thus, the argument in the application that the same denies the autonomy in realizing international cooperation may not be accepted.

The applicants believe that Article 57 line 2 of the Law denies the autonomy of the university in determining the rules of studying and determining the conditions and criteria for studies of first, second and third cycle, due to the fact that it stipulates prior approval of the Government of the Republic of Macedonia without which a competition for entering studies may not be announced, whereby the Government, that is, the executive power directly influences the conditions and criteria established by the university for the enrollment of students.

Judging the said allegations, the Court found them to be unsubstantiated, that is, the claim in the initiative that the competition for enrollment of studies should be exclusively run and announced by the university without any consent of the Government may not be accepted. This for a reason that, according to the Court, the operation of the university cannot be viewed in isolation and out of the overall social development. Namely, it is necessary to adjust and adapt it to the needs of the state, that is, society and employers. After all, the main and ultimate goal of all students is the degree to bear fruits, which means that it must be adapted to the needs in the state for a specific profile and surveillance of studies. It is in this context that the need emerges for the consent of the Government of the Republic of Macedonia, which as a relevant stakeholder creates the politics in society in order to achieve the final effect from the completed studies.

The application also states that Article 100 paragraph 4 of the Law denies the autonomy of the university in the process of planning, implementation and development of higher education activity and limits the possibility for autonomous planning and development of higher education activity, that is, that the university is imposed an obligation which means restriction of its autonomy in planning and development.

According to the Court, the challenged Article 100 paragraph 4 of the Law is not inconsistent with the Constitution of the Republic of Macedonia, for a reason that it is in direct correlation with the Bucharest Communiqué (2012) which clearly indicates the need for graduated students to possess combined, transversal, multidisciplinary and innovative skills and abilities also with the other courses of the study program in order to be able to meet the broader needs of society and the labor market. Namely, innovation and entrepreneurship are actually two crucial elements to increase employment and socio-economic development of a country. Hence, the addition of mandatory subjects of entrepreneurship and innovation, in our opinion, is in line with the requirements of the state and is also aimed at providing students with innovative and entrepreneurial knowledge, skills and abilities.

In Article 100 paragraph 4 of the Law governs the introduction of programmes for vocational education and training, that is, various forms of informal education. It is generally known that the basic qualifications that are gained upon the completion of certain cycle of studies in the career of the student are advanced through various forms of informal learning. The university as the owner of the most advance current achievements in science or of public interest is the most competent one to organize such kind of courses and training, and it does not limit the possibility for independent planning and development of the institution.

The application also challenges Article 83 paragraph 1 lines 12 and 13 and Article 146-b, regarding the denial of autonomy of the university in the disposal with the allocated funds and with its own revenues. Namely, according to the allegations in the application, the said articles of the Law laid out strict boundaries of the funds that the university can invest in certain areas and the same concomitantly imposed obligations that implied a particular way of spending its own funds.

The allegations in the application, which are rather poor when it comes to noncompliance with the Constitution and the norms to which reference is made, according to the Court are without merit. This for a reason that the arguments stated in the application are not enough to accept that the latest amendments to the Law in 2013 violated the autonomy of the university. According to the Court, the legal concept of university autonomy is quite logical and justified in terms of its existence within the society and the good of the community. The entire content of the impugned provisions clearly indicates the circumstances that all funds that are acquired by the university are used for improving the qualifications of students and their personal and professional development, as well as for scholarly-research activity, that is, scholarly-research projects, announcing competitions for funding by the university.

The concept of the Law on Higher Education is aimed at international openness of the university, as a key factor for the development of higher education.

According to the Court, the impugned provisions of the Law provide harmonized ratio with constitutionally defined rights and freedoms, which contains also the right to education and especially underlined autonomous institutional form of the university with an autonomous status in carrying out activities in the field of educational and scholarly work.

The guarantee of the university autonomy laid down in Article 46 of the Constitution, in our opinion, does not rule out the possibility for the state to influence the work of the university in each segment of its activity, even in the disposal with the funds, through the relevant ministry, which is in the direction of complying with the Law on Higher Education and the Constitution.

Taking as a starting point the content of the provisions of Articles 95 and 96 of the Constitution, and given the content of the challenged provisions of Article 83, paragraph 1, lines 12 and 13 and Article 146-b of the Law on Higher Education, the Court found that the bestowed legal authority is in accordance with the Constitution, as a result of which the question of their compliance with said constitutional norms was not raised.

The challenged Article 110-a of the Law cannot be questioned either in view of Article 46 of the Constitution, for the same reasons listed above, that is, that one may not accept the claim that the autonomy of the university is restricted in a way that the Government has a legal obligation to determine, with a decision, the number of quotas of the students exempted from paying the registration fee for doctor’s and master’s studies. Namely, the contested provision is aimed at raising the level of subjective and objective quality of the services the university provides to society as a whole, which undoubtedly cannot be of concern only to the university.

Analyzing as a whole all challenged provisions of the Law on Higher Education vis-à-vis Article 46 of the Constitution, the Court finds that they do not stipulate conceptual denial of the autonomy of the university for a reason that they provide strengthening of the relationship of the academic with the wider public in society, which significantly ensures quality of the qualifications that students acquire and simultaneously provides an opportunity for the development of scholarly-research activity according to the current societal needs. Hence, the university may not be observed in isolation from the social and socio-economic development.

6. When building the legal opinion the Court took into consideration and judged the allegations contained in the application also in terms of Article 87-a paragraphs 1 and 2 and Article 99 paragraph 3 of the Law. However, it found that in this case there are no procedural assumptions for the Court to engage itself meritoriously in assessing the merits of the allegations in the application, for a reason that the Constitutional Court stated its view regarding the constitutionality of these two articles of the Law with its Resolution U.br.98/2011 of 13 February 2013, and held that the challenged provisions of the Law could not be questioned in view of Article 46 of the Constitution.

Under Article 28 line 2 of the Rules of the Constitutional Court, the Constitutional Court shall dismiss the application if it had already decided on the same matter, and there is no basis for a different decision.

In the said Resolution the Court expressed the stance that the legal solution is aimed at fulfilling the obligations undertaken by the Bologna process and creating conditions for the carrying out of the activity of the university. Therefore, the Court did not accept that such regulation leads to disruption of the university autonomy. According to the Court, in the same sense should be treated the provision with which the legislator determines the ratio of compulsory and elective courses, as in Article 99 paragraph 3 of the Law.

Considering that in the present case there is no basis for different decision-making, the Court found that the conditions of Article 28 line 2 of the Rules of the Constitutional Court are met regarding these two provisions of the Law, as a result of which the Court dismissed the application in this part.

7. The application challenges the whole of the Law on Changing and Supplementing the Law on Higher Education regarding the procedure of its adoption, that is, that such a complex Law may not be passed in a summary procedure as it was done with the adoption of the same as a consequence of which Article 170 of the Rules of the Assembly of the Republic of Macedonia was violated.

However, according to the Court, the Constitutional Court in terms of Article 110 of the Constitution of the Republic of Macedonia which defines the jurisdiction of the Constitutional Court decides on the conformity of laws with the Constitution but is not competent to assess whether the procedure for its adoption is in accordance with the Rules of Procedure of the Assembly. Namely, the Constitutional Court assesses the content of the law vis-à-vis the Constitution, while the formal aspect of enacting laws, that is, their preliminary procedure for enactment exceeds the powers of the Constitutional Court for constitutional-judicial analysis in this direction.

For these reasons, the Court decided to dismiss the application in view of this part either, and due to incompetence within the meaning of Article 28 line 1 of the Rules of the Constitutional Court.

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

9. The Court passed this Resolution in the following composition: the President of the Court Elena Gosheva, and the judges: Dr Natasha Gaber-Damjanovska, Mr Ismail Darlishta, Mr Nikola Ivanovski, Mr Jovan Josifovski, Mrs Vangelina Markudova, Mr Sali Murati, Dr Gzime Starova and Mr Vladimir Stojanoski. The Resolution in view of item 1 and item 2 line 1 was adopted with a majority vote.

        
U.br.53/2013                                  
5 March 2014                       
S k o p j e                                    
                                        

PRESIDENT
of the Constitutional Court of the Republic of Macedonia
Elena Gosheva

On the basis of Article 25 paragraph 6 of the Rules of the Constitutional Court of the Republic of Macedonia (“Official Gazette of the Republic of Macedonia”, no.70/1992), upon my voting against the Resolution U.br.53/2013, adopted on12.03.2014, for non-initiation of a procedure for appraising the constitutionality of, inter alia, Article 45 paragraphs 7, 8, 9, 10 and 11, Article 57 line 2, Article 83 paragraph 1 lines 12 and 13, Article 100 paragraph 4, Article 110-a and Article 146-b and on dismissal of the application for initiation of proceedings to appraise the constitutionality of Article 87-a paragraphs 1 and 2 and Article 99 paragraph 3 of the Law on Higher Education (“Official Gazette of the Republic of Macedonia”, nos. 35/2008, 103/2008, 26/2009, 83/2009, 99/2009, 115/2010, 17/2011, 51/2011 è 15/2013), I separate and explain in writing the following

S E P A R A T E   O P I N I O N

With the said Resolution, with a majority vote the Constitutional Court decided, inter alia, not to initiate proceedings for the challenged Article 45 paragraphs 7, 8, 9, 10 and 11, Article 57 line 2, Article 83 paragraph 1 lines 12 and 13, Article 100 paragraph 4, Article 110-a and Article 146-b and to dismiss Article 87-a paragraphs 1 and 2 and Article 99 paragraph 3 of the Law on Higher Education (“Official Gazette of the Republic of Macedonia”, nos.35/2008, 103/2008, 26/2009, 83/2009, 99/2009, 115/2010, 17/2011, 51/2011 è 15/2013).

The stance of the majority judges expressed through the Resolution is that generally the contested provisions do not negate the university autonomy and academic freedom. Regarding the specific challenged provisions, it is considered inter alia that “the University has the right to decide on its own in terms of cooperation with foreign entities, given the large number of entities specified in the disputed article of the Law” (explanation of Article 45, paragraphs 10 and 11); that theuniversity may not announce the competition for enrolment of studies without any approval from the Government since the university is not isolated and out of the overall social developments, and thus it needs to adjust and adapt to the needs of the state, that is, society and employers, and to adjust to needs in the state of a particular profile and oversight of studies (explanation to Article 57 line 2); that the mandatory addition of subjects from the field of entrepreneurship and innovation is in line with the needs of the state and at the same time is aimed at providing the students with innovative and entrepreneurial knowledge, skills and abilities (explanation to Article 100, paragraph 4); that it provides “non-isolation of the university with society and the wellbeing of the community” by that that “all funds acquired by the university are used to improve the qualifications of the students and their personal and professional development” (explanation of Article 83, paragraph 1, lines 12 and 13 and Article 146-b), etc. The basic position is that the guarantee of the university autonomy laid down in Article 46 of the Constitution does not rule out the possibility for the state to influence the work of the university on each segment of its activity, even in the disposition with the funds through the relevant ministry, which is in the direction of complying with the Law on Higher Education and the Constitution. It is also stated that raising the level of subjective and objective quality of the services the university provides to society as a whole cannot be undoubtedly of interest only to the university, because it is not isolated from the social and socio-economic development.

I think the way this case and the contested provisions should be approached is identical to the one according to which the Court should have been guided in the creation of the stance for the case U.br.98/2011, given the identical crucial issue on which the Court should state its view and that is the university autonomy and its scope. I believe that in both resolutions there was a violation of the basic approach and criterion according to which the issue of university autonomy should be solved primarily as specified in Article 46 of the Constitution where the university is guaranteed autonomy, especially under paragraph 2 of this Article, where it is defined that the conditions for establishment, performance and termination of the activity of the university are regulated by law. This practically means that the university autonomy is a constitutional category and condition of providing qualitative higher education, but it is not an absolute (abstract) category exhausted just by the said constitutional provision, but the Constitution leaves the matter regarding what autonomy of the university is and what are its elements to be regulated by law.

Although the Constitution does not specify in detail the content of the university autonomy, it may only and should be accepted and determined in accordance with the clear historical and legal tradition that holds elements of civilisational achievements acquired and groomed on European soil over the comparative regulation of European free universities and relevant international documents which I believe the Republic of Macedonia is striving to reach and consistently apply. Accordingly, the legislator has the right to legally regulate constitutionally specified conditions, meaning the general framework for establishment, performance and termination of the activity of the university, while the concrete development and appropriate professional criteria should clearly be left to be regulated by the university. These are issues the university has a legitimate right to self-regulate, as a result of its autonomy, and which in principle are matters that are governed by a statute and/or more specifically by other bylaws.

It should be taken into account that this dissenting opinion does not contest as to whether the concrete legal solutions with which the legislator regulates in detail certain issue are sustainable and successful, but that the constitutional basis accoriding to which the legislator in general interfered in regulating these issues is in question. After all, social and state interests that undoubtedly exist in such an important area can be realized also through the adoption of strategic documents (national programmess or strategies), whereby the constitutionally guaranteed autonomy of the university would not be violated by the legislator.

Additionally, the way I believe the terms of establishment, performance and termination of the activity should be interpreted is also regulated by international regulation that the Republic of Macedonia directly accepts and applies into its own laws. As apparent from the reasoning for the adopting of the Law on Higher Education, with the so far adopted multiple changes in the Law, including the current disputed changes, the legislator constantly calls for continuous monitoring of the recommendations arising from the Bologna process. This means that in all so far legal changes the experience and regulation of higher education in the countries of the European Union and countries in the region, as well as relevant international documents are translated concretely into the definition of the legal solutions: the Magna Carta of Universities (Bologna Magna Charta Universitatum) adopted in Bologna in 1988, the basic principles and recommendations of the Bologna Declaration, signed in 1999 by the Ministers of Education of 29 European countries (in particular paragraph 26 of the document deals with university autonomy), as well as the documents and recommendations arising from the current overall Bologna process. The Bologna declaration and university autonomy are further elaborated in several declarations adopted by the European University Association, which according to the European Commission is a relevant party, the Declaration of Graz, Prague Declaration, Declaration of Lisbon and Salamanca Convention. In these papers, university autonomy is defined through four basic dimensions of autonomy: 1) academic, as reflected in the decision-making level of education, programming method of training, areas, scope, goals and methods of research (which means freedom of expression, fostering and encouraging critical thought and awareness among members of the academic community, determination of academic profiles, introduction and elimination of academic programmes, definition of the structure and content of the programmes on the basis of which academic degrees are acquired, definition of the role and responsibility in terms of providing quality of the programmes and academic degrees, freedom in terms of enrollment policy, etc.), 2) financial autonomy as reflected in the receipt and disposal with funds, decision-making on tuition, disposal with the accumulated surplus funds (which means freedom to use different forms of collection and disposal with the funds, the possibility to charge fees and accumulate surpluses, borrow funds, and the right to acquire ownership of lands and buildings), 3) organizational autonomy as expressed in the determination of the structure of the university (which is reflected in the freedom of establishment of management structures and bodies, determination of the rules for accountability, and decision-making), and 4) autonomy in employment, which means responsibility for recruiting staff, salaries and promotion as well as responsibility for the conditions of employment .

Taking these principles of university autonomy which are regulated in international documents, the Law on Higher Education directly incorporates them in a separate chapter in which it defines the university autonomy in the same way in Articles 11 through 14. Thus, under Article 11 of the Law, the universities and units in their composition and independent higher education institutions carry out their activity on the principle of academic autonomy (paragraph 1). The academic autonomy guarantees intellectual freedom of the academic community members and the creative nature of the research and education process, as peak values and capabilities (paragraph 2). The autonomy of the university includes academic freedom, autonomy of management and inviolability of autonomy (paragraph 3). Higher education institutions have the right to initiate proceedings before the competent court for protection of the autonomy of the university (paragraph 4).

Academic freedom is defined in Article 12 of the Law, and it includes: – freedom of scientific research, artistic creation, application and use of knowledge; – self-regulation of the internal organization and work with a statute in accordance with the law; – freedom of performing teaching, implementation of scientific research, artistic activity, that is creation and applied activities, including freedom of publication and public presentation of scientific results and artistic achievements; – liberty of studying, setting the rules of studying, the forms and types of educational activities and checking the students’ knowledge; – freedom of choice of study programmes and content of individual courses and preparation of textbooks and other teaching aids; – freedom of choice of the method of interpreting teaching and artistic contents; – and determination of the terms and criteria for studies of first, second and third cycle, and other types of education; – preparation, adoption and realization of scholarly-research programmess and applied work; – awarding professional, academic and scholarly positions in accordance with law, and granting honorary academic titles; – determination of the conditions, criteria and procedures for educational-scholarly, scholarly, teaching positions; and – awarding academic-scholarly, scholarly, educational positions.

Autonomy in management is regulated by Article 13 of the Law, and is expressed in: – planning, implementation and development of higher education activity; – the establishment and regulation of internal organization – the adoption of the Statute, that is, Rulebook of the unit; – the selection, appointment and revocation of the bodies in accordance with the statute; – disposal with the approved funds, and with its own incomes; – the establishment of funds and foundation of other organizations from its own incomes, donations and other sources for the performance of higher education, scholarly-research, publishing and applied activities; – management and use of property in accordance with the purpose for which it is obtained; – deciding on the forms of cooperation with other organizations; – joining and associating in appropriate organizations and forums in the country and abroad; – achieving international cooperation, contracting and participation in international organizations and associations; and – deciding on other rights defined by the Statute, that is, Rulebook of the unit.

Inviolability of university space is defined by Article 14 of the Law. Thus, it is prescribed that the area of the universities and independent institutions of higher education is inviolable. The police and other state security bodies may not, without the consent of the rector, that is, director or a person authorized by them, enter this space, except in cases to prevent the commission of a crime, an imminent or just initiated criminal offence, withhold its perpetrator, and in case of natural and other disasters (fire, flood, etc.). The university and independent institutions of higher education are prohibited  from any political and religious organization and activity, as well as highlighting party of religious symbols.

Given that the basic principles of university autonomy are explicitly affirmed at the very beginning of the Law on Higher Education, what is surprising is the fact that despite the thus legally proclaimed principles of autonomy, many of the provisions that follow in the amendments challenged in both case 98/2011 and in this one – 53/2013, are actually fundamentally contradictory and represent their direct antipode. A simple comparison of the currently contested provisions with the defined principles of university autonomy registers an obvious contradiction between the proclaimed principles and the concrete legal solutions. Again, the crucial question is not whether the challenged statutory provisions are successfully selected regulatory decisions, but whether the Government under the Constitution and Article 46 which guarantees university autonomy have the right to regulate these questions by law or it is a matter that should be regulated autonomously by universities through their statutes and other bylaws, that is, to self-regulate these issues. In that sense I believe that the Constitutional Court had a duty to interpret the essence of university autonomy and to assess in line with this constitutional principle, since primarily the Constitution defines the limits within which the legislator should move in regulating such issues while respecting international regulations directly incorporated in the Law.

Viewed from this aspect, one could not speak of academic freedom as defined in Article 12 of the Law, in particularin the part of the application of and mediation in knowledge, self-regulation of work and freedom in teaching and applied activities, and Article 13 in the area of ??autonomy in deciding on the forms of international cooperation with other organizations and associating in appropriate organizations at home and abroad, if the university is imposed by law how to organize applied activities of higher education institutions, including how career centers will be established, their structure and way of work, with whom it will be compulsory to sign cooperation agreements and agreements on double degrees, which would be the ratio between the elective and teaching subjects and what they will be, and the obligation to organize different forms of informal learning (contested Article 45, paragraphs 7, 8, 9, 10 and 11, Article 99 paragraph 3 and Article 100 paragraph 4). It is more than obvious that with such detail and over-regulation this autonomy is not enabled, on the contrary, it is prevented.

Article 99 paragraph 3 was already considered in the previous case 98/2011 for which in the dissenting opinion for it is stated that “the legislator established a mandatory application of the said regulations, standards and methodology in creating the study programmes, which is aimed at providing comparable and compatible qualifications for the higher education in European area, and given that the academic autonomy of the university means that the creation of the study programmes is the responsibility of the university it arises that prescribing the profile, objectives and starting points for the creation of study programmes to be more closely defined by a Decree on the National Framework for higher education qualifications that is adopted by the Government of the Republic of Macedonia (paragraph 2) upon the proposal of the minister responsible for higher education means involvement of the executive power in the academic freedom of universities which is reflected in the freedom of creating study programmes.”

Also, again from the perspective of university academic freedom I believe that there is no constitutional justification for the unconditional obligation to obtain prior approval from the Government for the competition for enrollment of studies of first, second and third cycle (Article 57 line 2), given that this legal solution provides dominant position of the Government in the work of the university.

Identically, we could not talk about financial autonomy as defined under Article 13 of the Law which provides the disposition with the approved funds and its own incomes, the establishment of funds and other organizations from their own income, donations and other sources for higher education, scholarly-research, publishing and applied activities, if the legislator directly regulates the norms for financing even for assets that are not budget that universities spend on assistants, states how they should spend these funds, how teaching and scholarly staff should be rewarded and for what, etc., and the rulebook which governs the allocation itself necessarily has to be approved by the Minister of Education (Article 87-a paragraphs 1 and 2).

In terms of the legally guaranteed financial university autonomy, I consider that there is no constitutional justification for the inability of the university to dispose with the allocated funds and its own revenues, given the restrictions listed in Article 83, paragraph 1, lines 12 and 13, where legally are determined the percentages of funds that will be spent on specifically defined purposes for which the Council has an obligation to notify the Ministry in case of any changes in funding, as well as the provisions of Article 146-b where legally directly and in detail are regulated the criteria for rewarding teachers, whereby it is explicitly conditioned on activities of universities ranked on the Shanghai list.

It should be noted that all these contested provisions apply to private universities in the same way, which I think is unfounded involvement in their academic and business policy.

If summarily consideration is made of these legal solutions, the inevitable conclusion is that the legislator departed from previously established autonomy of the university in a number of the disputed provisions, whereby it is unfounded involvement of the legislative and executive powers in the sphere of the autonomy of the university, which leads to violation of the rule of law (Article 8, paragraph 1, line 3 of the Constitution), as a fundamental value of the constitutional order of the Republic of Macedonia. The complete review of the legal solutions which were made in a row with the legislative changes raise the dilemma whether some issue has remained that is left from the aspect of the constitutionally guaranteed autonomy for the university to self-regulate it, given that unfortunately there is no more visible, clearly definable legal framework in which the legislator would self-restrict himself and move in that legal regulation. The current tendency of the law to regulate issues that immanently unconditionally belong to the domain of university autonomous self-regulation leads to complete depersonalization of the autonomy and its transformation into a constitutional provision which in its application has been emptied of its substance.

Dr Natasha Gaber-Damjanovska
Judge
at the Constitutional Court of the Republic of Macedonia