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Content updated: 21-05-2019 13:05

The provisions of the Law Amending the Law on Science and Studies that are related to the evaluation of study fields and their provisional accreditation declared unconstitutional

19-06-2018

By its ruling passed today, the Constitutional Court has recognised that the provisions “Until 1 March 2018, study fields are evaluated and provisionally accredited in accordance with the requirements and procedure approved by the Minister of Education and Science. The term of a provisional accreditation of study fields is set by the Minister of Education and Science. If an evaluated study field does not comply with the requirements established by the Minister of Education and Science, the higher education school may not admit students to studies in that field, while the further study opportunities of those studying in the said field are determined by the Minister of Education and Science” of Paragraph 26 (wording of 13 January 2018) of Article 2 of the Law Amending the Law (No XI-242) on Science and Studies (hereinafter referred to as the Law), to the extent that these provisions provide for the evaluation and provisional accreditation, to be completed by 1 March 2018, of study fields that are being carried out, are in conflict with Paragraph 2 of Article 5, Paragraphs 3 and 4 of Article 40 of the Constitution, as well as with the constitutional principles of a state under the rule of law and responsible governance.

A group of members of the Seimas, the petitioner, based its doubts on the constitutionality of the impugned legal regulation essentially on the fact that the said regulation formed the preconditions for the evaluation and accreditation of study fields that are being carried out at present, as well as assigned the Minister of Education and Science the task of establishing the related requirements for studies that are being implemented, thus, according to the petitioner, consolidating the retroactive effect of the legal act. Meanwhile, in the opinion of the petitioner, by establishing by means of a legal regulation new requirements for the evaluation of study fields, a sufficient (rationally reasonable) period of time must be given to higher education schools to prepare for the application of the new requirements by correspondingly reorganising the study fields, i.e. to prepare in an appropriate manner for the planned changes. However, according to the petitioner, in establishing the impugned legal regulation, no such period had been granted to higher education schools.

The provisions of the Constitution that are significant to the case

In its ruling, the Constitutional Court noted that, under Paragraph 3 of Article 40 of the Constitution, higher education schools are granted autonomy, which means their right to determine in an autonomous manner, among other things, the procedure of science and studies, as well as study programmes. However, the autonomy of higher education schools does not deny the right of the state (which forms and pursues a higher education policy and is under the obligation, arising from Paragraph 4 of Article 40 of the Constitution, to ensure the effectiveness of the higher education system) to establish quality standards for higher education provided by institutions of science and studies, as well as measures for evaluating the quality of studies and of their implementation, their compliance with the established quality standards for higher education, including periodically applied measures for the quality evaluation of studies. As needs for progressive development of the state and society for a certain period change, under Paragraph 4 of Article 40 of the Constitution, the quality standards for higher education provided by institutions of science and studies should be changed accordingly, thus ensuring that higher education schools effectively carry out their mission, linked with their autonomy, in training professionals in various fields with higher education and perform their responsibility for higher education quality.

The Constitutional Court stressed that, when establishing, or changing established, quality standards for higher education provided by institutions of science and studies and measures for evaluating the conformity with these standards, the legislature must respect the Constitution, among other things, the requirements implied by the constitutional principles of a state under the rule of law and of responsible governance, including the requirement not to establish such a legal regulation that would demand impossible things, and the requirement for envisaging a reasonable period of time (vacatio legis) from the moment of the official publication of the law laying down such new standards and such new measures until its entry into force (date of its application) during which higher education schools would be able to prepare in an appropriate manner for the implementation of the changed requirements, resulting from the said law, for the quality of studies and of their implementation. Otherwise, not only the constitutional principles of a state under the rule of law and of responsible governance would be disregarded, but also, inter alia, the duty of the legislature, implied in Paragraph 4 of Article 40 of the Constitution, to regulate the activities of higher education schools in such a way that assures higher education quality would be performed improperly; in addition, the right of higher education schools to establish the procedure for science and studies would be violated and no preconditions would be created to effectively carry out their mission in training professionals in various fields with higher education and perform their responsibility for higher education quality. Thus, autonomy guaranteed to higher education schools under Paragraph 3 of Article 40 of the Constitution would be ignored, and, correspondingly, Paragraph 2 of Article 5 of the Constitution, according to which the scope of power is limited by the Constitution, would be disregarded.

The legal regulation impugned in the case and its implementation

The Constitutional Court noted that, according to the provisions of the Law on Science and Studies, the quality of studies is assured, among other things, by applying the external evaluation and accreditation of studies. The Law on Science and Studies as set out in its new wording (i.e. this law set out in its wording of 29 June 2016) consolidates a new measure for assuring the quality of studies – the evaluation and accreditation of study fields – instead of the former accreditation of study programmes.

Under the impugned Paragraph 2 of Article 26 of the Law, the general procedure for the external evaluation and accreditation of studies, as established in the Law on Science and Studies, among other things, in Article 48 thereof, had to be applied as from 1 March 2018. Prior to the beginning of the application of this procedure in accordance with the impugned Paragraph 2 of Article 26 of the Law, a special provisional procedure for the evaluation and accreditation of studies was established, by which the evaluation of study fields and their provisional accreditation was provided for until 1 March 2018. When interpreting the impugned provisions of Paragraph 2 of Article 26 of the Law in conjunction with Paragraph 4 of Article 48 of the Law on Science and Studies, the Constitutional Court pointed out that, under Paragraph 4 of Article 48 of the Law on Science and Studies, higher education schools may not implement studies in such a study field that has not been accredited not only through the general procedure for the external evaluation and accreditation of studies, but also through the special provisional procedure, as provided for by the impugned provisions of Paragraph 2 of Article 26 of the Law, i.e. it is stipulated that a failure of a study field to receive accreditation brings about the same effects in both cases: the prohibition precluding the higher education schools from admitting students to studies in a non-accredited field of study.

With this in mind, the Constitutional Court held that there is no reason to assess the impugned legal regulation, laid down in Paragraph 26 (wording of 13 January 2018) of Article 2 of the Law, as one establishing transitional provisions intended for the preparation for the general procedure for the external evaluation and accreditation of studies. Quite to the contrary, the impugned provisions consolidated a completely new, albeit provisionally applicable, legal regulation governing the evaluation of study fields and their provisional accreditation, the consequences of whose application were the same (including the prohibition precluding higher education schools from admitting students to studies in a non-accredited field of study) as in applying the general procedure for the external evaluation and accreditation of studies, which had to be applied as from 1 March 2018.

The Constitutional Court noted that the impugned legal regulation, which is entrenched in Paragraph 26 (wording of 13 January 2018) of Article 2 of the Law, came into force on 24 January 2018. According to Paragraph 26 (wording of 13 January 2018) of Article 2 of the Law, the implementation of the appropriate special powers granted to the Minister for Education and Science to approve the requirements and procedure for the evaluation of study fields and their provisional accreditation is a necessary condition for the application of the procedure for the evaluation of study fields and their provisional accreditation (special provisional procedure). Thus, the specific period during which the study fields of all higher schools had to be evaluated and accredited through the special provisional procedure by 1 March 2018 depended on when the Minister of Education and Science would approve the above-mentioned requirements and procedure for the evaluation of study fields and their provisional accreditation.

Therefore, in the context of the constitutional justice case at issue, the actual circumstances of the implementation of the impugned provisions of Paragraph 26 (wording of 13 January 2018) of Article 2 of the Law are very important:

– the Minister of Education and Science, in invoking the impugned provisions of Paragraph 2 of Article 26 (wording of 13 January 2018), adopted the order approving the Description of the Procedure for the Evaluation of Study Fields and Their Provisional Accreditation on 26 February 2018 only. This order was officially published on 27 February 2018 and came into force on 28 February 2018. Thus, this description was approved four days before 1 March 2018 and was officially published three days before the said date on which the applicability of the provisional procedure for the evaluation of study fields and their provisional accreditation expired; this description could be applicable only two days;

– the Minister of Education and Science, in invoking the impugned provisions of Paragraph 2 of Article 26 (wording of 13 January 2018), approved the Description of the Procedure for the Evaluation of Residency Study Fields and Their Provisional Accreditation on 27 April 2018 only, i.e. almost after two months after the expiry of the applicability of the impugned provisions of Paragraph 26 (wording of 13 January 2018) of Article 2 of the Law and after the provisional accreditation of studies through the special provisional procedure had to be completed;

– some of the study fields were evaluated and received a provisional accreditation after the expiry of the period of granting a provisional accreditation, which is provided for in Paragraph 26 (wording of 13 January 2018) of Article 2 of the Law, i.e. after 1 March 2018, when the provisions on the evaluation of study fields and their provisional accreditation could no longer be applied, despite the fact that the general procedure for the external evaluation and accreditation of studies, which was envisaged, inter alia, in Article 48 of the Law on Science and Studies (wording of 29 June 2016), should have been applied; for example, some of the study fields were evaluated and received a provisional accreditation by the orders of the Director of the Centre for Quality Assessment in Higher Education of 2 March 2018, 7 March 2018, 2 May 2018, and 24 May 2018 for granting a provisional accreditation to study fields.

The assessment of the impugned legal regulation in the context of the provisions of the Constitution

When assessing the compliance of the impugned legal regulation with the Constitution, the Constitutional Court took into account both the content of the legal regulation itself and the aforementioned circumstances of the implementation of Paragraph 26 (wording of 13 January 2018) of Article 2 of the Law.

The Constitutional Court held that the provisions of Paragraph 26 (wording of 13 January 2018) of Article 2 of the Law made substantial, albeit provisional, changes to the legal regulation aimed at assuring higher education quality, which led (could have led) to the extremely adverse consequences for higher education schools, among other things, the prohibition precluding them from admitting students to studies in a non-accredited field of study; however, a very short period of time was envisaged for higher education schools to prepare for the future substantial changes in the accreditation of studies. As mentioned above, higher education schools had only three days to prepare for the evaluation of study fields and their provisional accreditation.

In view of the fact that the impugned provisions of Paragraph 26 (wording of 13 January 2018) of Article 2 of the Law provide for a very short period of time that is intended for higher education schools to prepare for the future substantial changes in the accreditation of studies, as well as in view of the said actual circumstances of the implementation of Paragraph 26 (wording of 13 January 2018) of Article 2 of the Law, the Constitutional Court assessed the impugned provisions as requiring impossible things, i.e. higher education schools were required to prepare, within three days, for the evaluation of study fields and their provisional accreditation, and the Centre for Quality Assessment in Higher Education was required to evaluate and accredit all study fields of all higher schools within two days. Consequently, the legislature did not comply with the requirements, implied by the constitutional principles of a state under the rule of law and responsible governance, not to establish such a legal regulation that would require impossible things, as well as to provide for a sufficient period of time from the moment of the official publication of the law laying down new measures enabling the evaluation of the quality of studies and of their implementation until its entry into force (date of its application), during which, among other things, higher education schools could prepare for the implementation of the requirements, stemming from this law, for the quality of studies and of their implementation. Thus, the legislature improperly implemented the duty, implied in Paragraph 4 of Article 40 of the Constitution, to regulate the activities of higher education schools in order to assure higher education quality, ignored the autonomy guaranteed to higher education schools under Paragraph 3 of Article 40 of the Constitution, and disregarded Paragraph 2 of Article 5 of the Constitution, according to which the scope of powers is limited by the Constitution.

The legal consequences of this ruling of the Constitutional Court

The Constitutional Court emphasised that, under the Constitution, it administers constitutional justice and guarantees constitutional legality and the supremacy of the Constitution in the legal system. The concept of constitutional justice, which stems from the Constitution, implies not a perfunctory and nominal administered constitutional justice, but such final decisions of the Constitutional Court that are not unjust according to their content. Otherwise, without creating an opportunity for the Constitutional Court to adopt, in accordance with the powers conferred upon it, such a final act that would meet the criteria of justice, the supremacy of the Constitution in the legal system would not be guaranteed, the administration of constitutional justice and the ensuring of constitutional legality would be prevented.

The Constitutional Court noted in this ruling that the powers of the Constitutional Court to administer constitutional justice and ensure constitutional legality are inseparable from the imperatives of the constitutional principle of a state under the rule of law, including the requirements for the protection of legitimate expectations, legal security, legal certainty, justice, and reasonableness, as well as the requirements not to establish such a legal regulation that would require impossible things and not to require doing something that is impossible.

The Constitutional Court also emphasised that, under the Constitution, among other things, the constitutional principle of a state under the rule of law, a law that requires impossible things must not produce legal consequences for subjects of the legal relations regulated by the said law, since they would be obliged to do something that could not be done at all. Accordingly, under the Constitution, among other things, the constitutional principle of a state under the rule of law, the subjects of the legal relations regulated by such a law must not be subjected to any legal consequences by attempts to implement the provisions of the said law by substatutory acts, as well as by acts of the application of law.

Therefore, the Constitutional Court held that the application of the impugned provisions of Paragraph 26 (wording of 12 January 2018) of Article 2 of the Law, inter alia, by adopting substatutory acts and acts of the application of law, does not give rise to legal consequences for subjects of the legal relations regulated by them, as well as for schools of higher education. Moreover, according to the Constitution, no legal consequences can arise from attempts to implement the impugned provisions of Paragraph 26 (wording of 12 January 2018) of Article 2 of the Law after the expiry of the term of their application after 1 March 2018, i.e., as stated by the Constitutional Court, in the absence of any legal basis for the application of these provisions.

A different interpretation would not allow administering constitutional justice and ensuring constitutional legality, since the negative consequences for subjects of the legal relations arising from the fact that they did not abide by such a legal regulation that required them to do something that they would not be able to do at all, or that there was an attempt to implement something whose implementation was not possible at all, would be recognised to be in conformity with the Constitution.

In the context of the constitutional justice case at issue, this means that:

– the orders adopted by the Minister of Education and Science on the basis of Paragraph 26 (wording of 13 January 2018) of Article 2 of the Law, confirming the Description of the Procedure for the Evaluation of Study Fields and Their Provisional Accreditation and the Description of the Procedure for the Evaluation of Residency Study Fields and Their Provisional Accreditation, as well as the orders of the Director of the Centre for Quality Assessment in Higher Education, issued on the basis of the said orders adopted by the Minister of Education and Science, on a provisional accreditation of study fields, should be deemed, under the Constitution, not to have produced any legal consequences for higher education schools;

– even prior to the adoption of this ruling of the Constitutional Court, the study fields of all higher education schools had to be accredited by applying the general procedure for the external evaluation and accreditation of studies, as stipulated in the Law on Science and Studies (wording of 29 June 2016), among other things, in Article 48 (as amended on 12 January 2018) thereof. This procedure applies to all higher education schools, regardless of whether the study fields carried out by them were evaluated and provisionally accredited by the orders of the Director of the Centre for Quality Assessment in Higher Education before 1 March 2018 or after this date;

– the provision of Paragraph 4 of Article 48 of the Law on Science and Studies (wording of 29 June 2016) that a higher education school may not implement studies in a non-accredited study field cannot be interpreted as preventing the implementation of studies in a non-accredited study field (i.e. studies according to the study programmes of that study field that were accredited on the basis of all legal acts in force at that time) until the first accreditation of studies in that study field in accordance with the general procedure for the external evaluation and accreditation of studies, which is entrenched in the Law on Science and Studies (wording of 29 June 2016), inter alia, in Article 48 (as amended on 12 January 2018) thereof. Consequently, according to the valid regulation laid down in the Law on Science and Studies (wording of 29 June 2016), higher education schools may implement studies according to all accredited study programmes until the first accreditation of study fields by applying the general procedure for the external evaluation and accreditation of studies, which is established, inter alia, in Article 48 (as amended on 12 January 2018) of this law;

– based on the constitutional principle of responsible governance, the Minister of Education and Science must implement, within the shortest possible time limit, the powers, laid down in Paragraph 5 (wording of 12 January 2018) of Article 48 of the Law on Science and Studies (wording of 29 June 2016), that are necessary for the application of the procedures of the external evaluation and accreditation of studies, i.e. the powers to approve the description of the procedure for the external assessment and accreditation of studies, the assessed areas, and indicators, in order not to hinder the execution of the accreditation of study fields in accordance with the general procedure for the external evaluation of study fields and their provisional accreditation. Otherwise, no preconditions will be created to ensure, among other things, that higher education schools effectively carry out their mission, linked with their autonomy, in training professionals in various fields with higher education and perform their responsibility for higher education quality.

The Constitutional Court also noted that the legislature, when having regard to the Constitution, may also establish special provisions for the preparation and implementation of the general procedure for the external evaluation and accreditation of studies; based on these provisions, a reasonable time for the first accreditation of all study fields in all higher education schools could be established. In doing so, the legislature must pay regard, among other things, to the requirements implied by the constitutional principle of a state under the rule of law and by the principle of responsible governance, as well as to the requirement not to establish such a legal regulation that would require impossible things and the requirement to provide for a sufficient period of time during which higher education schools could prepare for the implementation of the changed requirements, stemming from this law, for the quality of studies and of their implementation.