Centre for Civic Education (CCE) does not support the Draft Law on Higher Education, which was in public discussion until 23 December 2021, although the CCE had its representative in the Working Group for drafting this text.
For the sake of the public, it is necessary to point out the controversial aspects of drafting the Law on Higher Education, starting with the very slow dynamics of formal legal activities. In February 2021, a constitutive meeting of the Working Group was held, at which the problems in principle were discussed concerning the current Law and planning the road map for drafting a new text. There were no meetings after that, and consequently no draft version of the new law, although the Government planned to adopt it in the Parliament by the end of June 2021. The Working group was not informed about the reasons for the delay and non-holding of sessions. The delays were also due to changes in the originally appointed members of the Working Group from the relevant Ministry of Education, Science, Culture and Sports. Thus, only at the end of July 2021, in a significantly changed composition, the Working Group began intensive work.
CCE was committed to working in the Working Group, making many proposals that the Draft should contain, and actively participating in the creation of specific provisions. However, the important provisions proposed by the CCE, as well as other members of the Working Group, were not included in the text that went on public discussion.
For example, the CCE, as in previous legislative amendments and this text, suggested that the Law must prescribe clear provisions regarding the Council for Higher Education and its strengthening, both in terms of competence and composition, number and criteria for election and dismissal of members, length of office, re-election issues, etc. The Working Group agreed on that at the meetings, but the draft text of the Ministry annuls it. Furthermore, the proposal that the Council is appointed by the Parliament and not the Government, to avoid the concentration of the power of one body on this body and the risks of corruption, did not pass. The harmful consequences of these imprecise legal formulations, in terms of non-transparency, arbitrariness and arbitrariness in decision-making, as well as direct binding of the Council to the line minister, which opens the possibility of endangering public interest the Agency for the Prevention of Corruption pointed out in its opinion.
The situation is similar with the Agency for Control and Quality Assurance of Higher Education, for which the manner of electing members, presidents and directors, as well as certain competencies and deadlines for action is not clearly defined, which provides a wide discretion for misconduct of authority.
The Draft brings inaccuracies and contradictions in the election of members of the Board, Rector and Dean of the University of Montenegro (UoM). At the same time, the inadmissible influence of the Ministry and the Minister on the autonomy of the university is introduced through determining the conditions and manner of realization of the dual model of higher education, because this is planned to be regulated by Ministry acts instead of acts of institutions that conduct this type of education. The model of study remained unclear and incomplete, which will cause confusion in practice. The issue of hiring academic staff for an indefinite period is also inconsistent as there is no norm of restrictions, which can negatively affect the ambition of the staff to academically advance.
Furthermore, one of the conditions for establishing and performing the activities of the institution is discriminatory, ie that the institution must have secured academic staff elected to that title according to the regulations of Montenegro, which is problematic for deficient professions. This also limits any potential introduction of a new study programme for which Montenegro does not have prepared scientific staff. The provision on the obligation of a fixed number of academic staff to establish an institution is not realistically set and may not be applicable even to large institutions such as UoM. At the same time, it has no basis in regional practice, nor part of the European one, and it is inexplicable that it is applied in Montenegro, which already has a deficit of quality staff in the academic sphere and the problem of deficient occupations.
No anti-corruption measures related to conflicts of interest are envisaged, which is also pointed out by Agency for Prevention of Corruption.
Even the elementary expectation that the Working Group, before the draft goes to public discussion, will give its final judgment on the text of the law, behind which, as a rule, as the author should stand, has not been respected. In addition, many important solutions, on which there was agreement in the Working Group, have disappeared from the version of the draft text that was submitted for public discussion.
The CCE has no illusion that in the current constellation of relations and the situation in higher education, all proposals can be adopted. However, it is the responsibility of the relevant Ministry to explain to the Working Group why a proposal agreed within that body was not adopted. Demonstration of the arbitrariness of the relevant Ministry as the proposer, with worrying omissions in that text, part of which we point out, is not a qualitative change that this Government promised.
Snežana Kaluđerović, Senior Legal Advisor