Podgorica, 22 December 2014
Centre for Civic Education (CCE) assesses that the deadline of less than four (4) days for a public debate on the proposed Draft text of the Statute of the University of Montenegro (UoM), which was published on 15 December 2014 on the website of the UoM (http://www.ucg.ac.me/) along with the public invitation for engagement of academic community in public discussion, is utterly inappropriate.
As a reminder, the public debate procedure is applied in accordance with the Decree on the procedure and manner of conducting public debate in preparing laws, where Article 7 provides that procedure of consultation with interested public begins by publishing a call on the website, and that the call for participation in consultation is being referred to bodies, organizations, associations and individuals who are deemed interested in the matters governed by that law and shall keep records regarding it, while the deadline for submission of initiatives, proposals, suggestions and comments in written and electronic form, shall not be shorter than 20 days from the date of publication of the call and it can certainly be longer than 40 days. All of the above mentioned, in exception to public call, has in the case of the Draft Statute of UoM was omitted.
The text of the Draft Statute itself does not comply with the Law on Higher Education, and the same is nomotechnically underived, flawed, with norms mutually inconsistent, discriminatory set in relation to the academic staff, since one part of the academic community is almost excluded from academic life. Additionally, unclear institutes are being introduced, such as institute of “parentage”, which judging by the essence of substantive text of the Statute should mean activity.
Also, the UoM Managing Board (MB) acquires almost unlimited management power by the Draft Statute, and among other things, it will be deciding upon establishment of a public-private partnership (Article 25, paragraph 1, point 9), at the proposal of the Senate and the Rector. It consequently gives a possibility that UoM itself can be organized as a public-private partnership if the MB makes such a decision without the consent of the Government for any such venture. Finally, the MB has taken over one of the powers of the Senate – determining admission policies without the proposal of the Senate.
Detailed observations and suggestions in relation to certain parts of the Draft Statute
Article 26 limits, in a discriminatory manner, the selection of members of the Managing Board. The provision according to which members of the MB of UoM can be only full professors of UoM, as well as the reduction of the number of representatives of the academic staff, and increase of representatives of the founder (the state), creates space for manipulation and renders meaningless the adequate participation of academic staff during making decisions of importance for the functioning and future of UoM.
Furthermore, representatives of assistants in the MB should not be chosen by the Student Parliament, but by some of the organizations of teaching assistants at the UoM, as it is provided for Councils of faculty units (Article 63, paragraph 1, point 4), or to the Senate from the ranks of assistant-students of master and doctoral studies in accordance with its rules. In addition, the number of professors in relation to the number of assistants in the election for members of the MB of the UoM must be clearly delineated. Finally, it is necessary to stop the practice that in Managing Board and the Senate sit self-financed student representatives, but they must be full-time students who have achieved a high average in studies.
Article 31, paragraph 1, should be deleted in its entirety: “The Managing Board shall perform duties of its jurisdiction and make decision at the sessions, except in urgent and other particularly justified cases, when at the proposal of the President, with previously obtained consent of majority of the members it may decide upon certain issues.” It is clear that such a provision leaves broad space for abuse of public interest in favor of particular interests, and that it may pose a limitiation for the quality of decision-making of the MB.
In Article 42, paragraph 3, point 10, a possibility should be left that the Rector may suspend the execution of the acts of the managing body not only of organizational units, but of the MB if they are in conflict with the law. Namely, the practice has shown in the past year and a half, that the Rector has been carrying out unlawful decisions of the MB that were related to the method of funding and withdrawal of up to 45% of resources from the faculty units at the expense of the UoM, thereby violating the applicable Statute and Article 109 which provides a withdrawal of 20% of the tuition fees for University.
Article 44, paragraph 2, which provides that the Rector shall be elected by the MB of the UoM at the proposal of the Senate and from the ranks of full professors who are in employment relationship, is a discriminatory and restrictive provision.
Article 45, paragraph 2 does not comply with Article 44, paragraph 2, since it is not clear from the Article 45, paragraph 2 that these are full professors, while the notion that these may be only persons with 5 years experience in management positions in higher education narrows the circle of people who in future mandates may be elected for rector, which is also a potentially manipulative provision that for a limited number of persons a managerial position is being drawn, instead of having this set up in a broad competitive basis.
In Article 69 it is necessary to add two more points by which the dean/director has an obligation to: 1) control the regularity of teaching; and 2) take into account the legality of work engagement on the organizational unit and beyond.
Article 91 provides that conditions and criteria for selection to the academic title are prescribed by the Council for Higher Education and the Law on Higher Education. However, the Law merely taxatively enumerates the academic titles, but not the conditions and criteria for selection to academic titles, which is why we believe that precisely Statute of UoM must specify the criteria and conditions, such as it was clearly prescribed by the applicable Statute and Article 87 which in the new Statute should be only legally strengthened. The question remains what were the reasons of lawmakers to opt for the most important criteria concerning higher education not to be found in the Statute of the UoM. The statute is the highest legal act of the UoM, which must develop and regulate issues such as conditions and criteria for selection to academic title, as well as other important issues that have not been widely stipulated by the Law, but derive from it. Also, having in mind that in the composition of the Council for Higher Education do not enter solely narrowly specialized academic staff and doctors of science as full and associate professors, but the “Council members are appointed from among prominent experts in the field of higher education, science, art, among the students and the field of economy, social affairs and other relevant areas”, it remains unclear to what extent is the composition of the Council for Higher Education competent to determine and adopt criteria and conditions on the selection to academic titles.
Instead of a manner of financial operations, which should be defined in Article 138, the draft Statute states that „the set Proposal of solution for financing and relation in the distribution of income between the University as a legal entity and organizational unit as parts of that legal entity shall be defined throughout the work of the Working Group, consisting of representatives of the Government and the University, in accordance to the Resolution of the Government no. 08-2841/2 of 27 November 2014″, which is yet another example that there was no need to hasten a public debate when the essence of what could be discussed in the public debate and taken a stand for – a manner of financing – does not offer any solution to the academic community, thereby one gets an impression that something is being planned in a non-transparent manner. The future Statute must clearly specify which amount of funds from tuition fees the UoM is being funded from, and which amount remains freely to the organizational unit. Namely, it is necessary to stipulate that the university, academy, institute and college, as well as any other organizational unit of the UoM is obliged to allocate 20% of the revenue generated from tuition fees into the budget of the UoM. The remaining funds shall be allocated to the sub-account of the organizational unit of the UoM and implemented in accordance with its financial plan and a special act passed by the dean or director of organizational units of the University, with the consent of the Rector.
It is unclear in the Statute whether the same person may be both members of the MB and the Senate of the UoM.
Since the manner of financing, from the Article 109 of the applicable Statute as an essential part of the new text of the Statute, has not been proposed and given to the public debate, therefore it is necessary to repeat the process of public debate on the Draft text of the Statute when members of the working group prescribe funding model and there should be allowed a reasonable deadline for initiatives, proposals, suggestions and comments in writing manner, which may not be less than 20 days.