Centre for Civic Education (CCE) yesterday addressed each of the heads of the parliamentary clubs in the Parliament of Montenegro, except the Democratic Party of Socialists (DPS), appealing for their special attention to the set of laws from the field of education, as well as to dismissal of the Proposal of the Law on High Education in total due to the number of its lacks.
CCE did not send such an appeal to the parliamentary club of the DPS assessing that minister in charge is representing party policy in that respect, which resulted during the work on these legal texts with total ignorance of the interested public and unacceptable level of non-transparency.
The letter is presented in full lenght:
Parliament of Montenegro
Goran DANILOVIĆ, head of the parliamentary club of Democratic Front
Aleksandar DAMJANOVIĆ, head of the parliamentary club of Socialist People’s Party
Borislav BANOVIĆ, head of the parliamentary club of Social-democratic Party
Mladen BOJANIĆ, head of the parliamentary club of Positive Montenegro
Almer KALAČ, head of the parliamentary club of Bosnian Party
Ljerka DRAGIĆEVIĆ, head of the parliamentary club of Albanian parties (Forca, DP), HGI and LPCG
Podgorica, 18 July 2013
We are writing to you as the heads of the parliamentary clubs estimating that MPs of your clubs can significantly contribute to improvement of the part of the legal acts in the field of education, which are currently in parliamentary procedure, but also to dismiss one part in its entirety due to its extremely poor quality.
Centre for Civic Education (CCE) is continuously, within its capabilities, monitoring this area, which is important for the overall development of the Montenegrin society and tries to act either independently, with partners or in coordination with other civil society organizations in corrective manner on the legislative framework and existing practices. In this regard, we appeal to you that during the plenary debate and vote on a set of laws on education, with all respect to the pressing political issues, especially pay attention to solutions these laws foresee.
During the prior approval of the General Law on Education and its amendments and changes, CCE pointed out to the deleterious effects of the provisions by which the Minister of Education appoints and dismisses all directors, because it reduces the level of democratic leadership in the educational institutions, limits the development of a critical spirit in the overall education system and opens a space for political discrimination. This is defined in Article 80, paragraph 6 of the General Law on Education, which is in force and which deals with appointment and dismissal of directors and gives inconceivable power to the minister, while minimizing the importance of the school board whose only role is to open a call and submit all documentation to the Minister for a decision. Thus, it is of outmost importance to limit unnecessary powers of the Minister in the part of appointment and dismissal of directors of public institutions in the field of education, since they cause irreparable damages in the Montenegrin context, and such authorization should be delegated to the reformed structure of the school board or board of directors. In line with this, it is necessary to insist on changing the structure of the school board or the board of directors (Article 73 of the Law) and on the harmonization of the law with the Constitution so that it includes a provision regulating providing of free of charge textbooks (amendment of Article 97a of the Law). We believe that you will with focus to these solutions and voting for them respond in the best way in which you to the expectations and needs of the citizens which you represent in the highest legislative body. With direct interventions in the proposal Law under these proposals you would create a framework for the school to become a place where everyone can acquire knowledge and where the knowledge is appreciated, education and upbringing without oppression and discrimination by service or teaching staff, in order to contribute to the strengthening of democratic political culture in Montenegro. Additionaly, since the Constitution of Montenegro guarantees free basic education, and thus free textbook for primary school pupils, the only adequate solution, which needs to be a part of the amandments and changes of the General Law on Education is the one that is harmonized with the Constitution. We believe that there is no need for further elaboration as to how important this is to the citizens who in these economic conditions need to provide for their children basic resourses for education, and textbooks are just one item on their list.
Furthermore, CCE assess that the adoption of the new Proposal of the Law on Higher Education represents serious step back, and even some good solutions from the aforementioned proposal which were intended for improvement of the quality of higher education are not well defined and as such can be manipulated in practice by those who are implementing this law. The fact that this proposal is abundant with the general norms and inconsistencies points to such an intention of the executive. Very positive is recent opinion of the Legislative Committee which didn’t give support to such Law Proposal because of poor legal-normative and content sense, and this should be encouragement to MPs to vote in a plenary session to return the text for detailed revision. There are many reasons for this and we point out a few that we deem to be particularly important:
Article 4 Autonomy of institutions – a provision is unclear, as to which institution it refers to: is it University or concept of institution in this provision refers to and include individual faculties, which are legal entities, and therefore we already have problematic examples in practice such as the newest centralized budget, by which financial autonomy of institutions i.e. faculties is restricted.
Article 11 – It is necessary for promotion and development of higher education to change this provision so that the Parliament appoints the Council for Higher Education (hereinafter: the Council) in order to provide minimum of conditions that Council members are independent and impartial persons recommended by academic references, not any other subjective criteria. In any case Government should definitely not appoint the Council because it is the founder of the state university, and there is also an issue of conflicts of interest of certain members of the Government in relation to certain private universities.
Article 12-The jurisdiction of the Council in paragraph 1, item 8, which refers to conducting of the procedure of assessment of the quality of the study program in the process of licensing institutions and certification of accreditation of study programs points to the fact that the Council does not make decisions of the accreditation, but the Ministry. Therefore, the Council only gives its opinion. But throughout the entire legal text is not clearly indicated that it “shall control the fulfillment of the requirements of work” which is necessary to clearly and consistently define so that the text from Article 35 of the law proposal would be in line with CCE proposal of Article 12 item 8 where after the words “institutions ” the following wording must be added “controls the fulfillment of the requirements of work”. It is necessary to include provision that the Council for Higher Education has to decide and not only provide opinion on specific matters, concretely on accreditation and re-accreditation.
Article 13 The composition and appointment of the Council for Higher Education must be prescribed in such a wat that the membership also include a representative of non-governmental organizations working in the field of education, in order to improve the transparency of the work of this body.
Article 18 Freedom of institutions – this provision in the Proposal of the Law is in contradiction to the Art. 4 of the same Proposal of Law because Art. 4 does not limit the autonomy of the institution while this provision prescribes limitations in the area of finance where the control of the finances faculty units is conducted by the Managing Board of the University of Montenegro, which is not good for the functioning of the faculty units.
Article 24 “An institution can be established by public-private partnerships model, in accordance with the special law” is not precise enough and broadly positioned this norm is in collision with the institute of “concessions” because it allows the privatization of the University of Montenegro. Also, with this norm is putting a path towards ensuring the security for public-private partnerships, for which Montenegrin practise has already shown that private partner is the one who always sets the rules and leads the game, often contrary to the public interest, which is unacceptable. In addition, it remains completely unclear which is the special law by which a public-private partnership can be establish, because there is no mention of it or the deadline for its adoption in the transitional and final provisions. That additionally strengthens the belief that this law is intentionally made to suit only to a narrow circle of people and not to the public interest.
Article 27 stipulates the Conditions of establishment of institutions of higher education, and must be supplemented by conditions which “provide immediate free access, residence and work permits for persons with reduced mobility in accordance with a special regulation.”
Article 34 which refers to the exemption when the licensed institution of education “between the two re-accreditation may make changes in the study programme at postgraduate studies up to 30 ECTS, without conducting the procedure of accreditation and licensing” is also too broadly defined norm which leaves space to various interpretations and therefore it needs to be reduced with ammendment after the word re-accreditation “if the previously submitted application for re-accreditation of the Ministry whose decision is pending ” or delete this norm or harmonize it with Article 47 paragraph 2.
Article 37 The abolition of the institution of higher education – by this provision other examples when certain institution is not able to enroll students for the first year should be regulated not only the case of the abolition of “institution.” Also, in paragraph 3 of this Article “in the case of the abolition of the institution the founder is obliged to enable current students to complete their studies within the established deadline from the act of abolition of the institution” . This norm sjhould be defined much more precise. Namely, the criteria for accreditation should be make strict so that by eventual abolition of the institution there would not be non valid studies, diplomas and profression which students gained investing their effors and money and to avoid their “blacklisting” as unwanted and illegal highly educated people.
Article 51 Managing bodies – “Managing Board of a public institution has 15 members, being composed by representatives of: academic staff, non-academic staff, students and founder.” It is very important in this part to define the balance between the members, which is not defined in adequate manner since it is clear that into the board must be 5 representatives of the founder, and these are the representatives of the Government, but it is not clearly regulated the number of academic, non-academic staff and students, and in this sense, the unclear norm opens space for manipulation and disputes about membership in the Managing Board of the University of Montenegro.
Article 53 The body that governs the university in paragraph 5 stipulates that “the Rector of the public university, is elected by the Managing Board, amongst regular professors at the proposal of the Senate. CCE estimates that the option that the Rector of the University is elected at the proposal of the decision of the Council of the university’s faculty units with majority of votes instead of at the Senate proposal should be considered, and further to be appointed by the Managing Board. In this way could be avoid the situation that the same professors centered from one control position to another. This would enable avoiding the practice of the same professors rotating from one to the other position. By the proposed solution of the CCE, equal opportunity would be granted to all those who fulfill the scientific and managerial criteria for being management personnel.
Article 59 Funding of higher education institutions is also unfinished norm. As one of the most important, it actually leaves space for money manipulation, which is annually allocated from stated budget to the state university. So, it is necessary to specify the paragraph 1 item 1 funding from the budget and determine it in percentages, separately for public institutions of higher education, then for private ones, taking into the account that the private institutions must not exceed more than 10% within the planned budget allocated to the higher education. That amount would be distributed depending on the size and number of students, as well as the quality of the studies as testified by evaluation and self-evaluation of all private institutions.
Within the Article 60 of this Proposal in terms of return of funds another paragraph should be prescribed. The Ministry of Education as the initiator of this law should have included the norm in this Proposal that the state university is legal entity and that all academic units within it have the same characteristic of legal entity, as well as that they are accountable for its (mis)conduct within the limits of their authority. That would mean that each unit has its own financial sub-account with the financial autonomy of its conduct. Otherwise, as it proves current state of affairs, centralized budget make senseless work of each faculty individually, and accordingly the existence of the University of Montenegro. In order to protect the University of Montenegro from the bankruptcy and cessation of function and work of those faculty units with low number of students due to their lack of interest for specific sciences (e.g. some faculties of natural sciences), the law should prescribe a higher percentage of allocation of funds to those faculty units that entered the enormous number of students instead of so far 20% in terms that such “faculty units out of their income must allocate 40% of its funds to the University of Montenegro”.
Article 65 should be deleted “If the public authority does not receive a certificate of re-accreditation in accordance with this law, the Government may allow a temporary continuation of funding to re-obtain the certificate of re-accreditation”. This further indicates that the Proposal of this law was written to damage the state university and to favor private universities and faculties, which, as experience has proven, are always late and have problems with accreditation or re-accreditation. It is unacceptable that the money from the budget is spent and transferred to the institutions that are operating without a certificate, and on the other hand to reduce the budget of state faculties that embrace several decades long tradition.
Article 70 Norms and standards for funding, paragraph 2 “The amount of funds from the paragraph 1 of this Article shall be determined on the basis of norms and standards for funding study programmes of the public interest at the private institutions that the Government adopts” – it is necessary to precise and to add after the word government “but no more than 10% of the funds that the Government allocated in the overall budget for higher education”. Also, it is necessary to add the paragraph 3 “The amount of funds under paragraph 2 should be distributed in proportion to the size of the university and number of students at study programmes of public interest at the private institutions.”
Article 72 that defines “concession” is extremely controversial: “To perform publicly valid educational programme, a concession may be granted to a private institution, domestic or foreign legal or physical entity who meets the requirements for the performance of higher education prescribed by this law.” In this article need to be underlined or add a new paragraph that state university and all state higher education institutions in no way can be given as concession. Therefore, it is necessary to specify what can be awarded as concessions (whether this could be campus grounds, laboratories, etc.).
Article 76 – Institute of visiting professors – Law should not leave the alternatives when it comes to this norm, as it often leads to the dual employments and accordingly it is necessary to define that “institution needs, on the base of the public competition, to engage academic staff from other institutions outside the territory of Montenegro as a visiting professor, only if the country does not have the academic staff for the particular subject or area for which it is necessary to engage the same person.” The rights and obligations between the visiting professor and institutions are governed by the contract, in accordance with the statutes of the institution.
Article 77 Standard that academic titles under Article 75, paragraph 1 of this law can be a elected person who has a PhD degree “to which by Article 81 of this law clearly established that is not plagiarism” presents a basic requirement for the appointment of academic staff.
Article 78 Associates – It is necessary to add the words “at least” 240 ECTS. Time that is determined by a teaching assistant must be at least 3 years after which time the insights in the evaluation and assessment of the results of scientific and professional basis shall be decive for further engagement.
Article 81 Protection from plagiarism – as a good legal solution that is finally found its place in the Law, but unfortunately in an incomplete manner, so it is also necessary to further precise it by the same Proposal of the Law and not by the special law because in the transitional and final provisions it is not defined and there is a question which is that law and when it will be adopted.
Article 93 It is necessary to define the institute “grading” in clear and concise manner, because this article is further elaborated in the Statute of the institutions and other bylaws or as an alternative solution to delete Articles 93, 94, 95, 96 because the grading and study conditions, examinations and tests are prescribed in detail by the Statute and other regulations of the institution.
Article 94 This article shall provide that “students with disabilities have right to have exam in a manner and form that best suits them.”
Article 97 should be amended in order to allow that the Entry of basic academic art studies is possible without passing of the external final exam or after the completion of the second level of the National Qualifications Framework, in line with the results achieved at additional entrance exam, with the obligation of taking the difference exams, which were regulated by institution’s statute.
Article 106 items 3 “Complaint for violation of any of his rights determined by the general act.” The law has, leaded by this provision, to prevent submitting of the appeal in cases where the professor in accordance with this Law and the Code of Ethics does not meet voluntary commitments towards students, because it the third person endange any of his rights or that such norm define more strict penal provisions. The practice recognised the situation at the Faculty of Philosophy where professors are dissatisfied with their position because of unpaid salaries and fees which were not transferred to them by the University of Montenegro or Faculty of Philosophy, and therefore they left their students without a signature and possibility to pass the exams, even though the students paid the tuition for the current school year.
Having in mind the large number of unclear norms, out of which just several have been listed above, and that all these are enabling broad interpretation of the provisions, CCE considers that the proposed text needs to be more concise, systematic and with better quality. This Proposal give an impression that the aim was not to ensure quality of higher education, but rather that to introduce confusion within higher education institutions as education providers. In this respect, CCE urges MPs to dissmiss this text as a whole and to to return it for fundamental change with with clear instruction and reminder that it must serve the public interest.
Would you have any further questions, we remain at your disposal to clarify our views which we hope you share as well.
Snežana Kaluđerović, Programme Coordinator