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Content updated: 21-05-2019 13:04

The Seimas resolution on the reorganisation of Lithuanian Sports University declared unconstitutional

29-06-2018

By its ruling passed today, the Constitutional Court has recognised that the Seimas resolution of 12 January 2018 on the assent to the reorganisation of Lithuanian Sports University by way of incorporating it into the Lithuanian University of Health Sciences is in conflict with the provisions of the Constitution and those of the Law on Science and Studies. The provisions of the Law on Science and Studies that regulate the reorganisation or liquidation of state schools of higher education have also been declared unconstitutional (despite the fact that they have not been challenged, these provisions have been significant in resolving this case).

The assessment of the compliance of the provisions of the Law on Science and Studies with the Constitution

The Constitutional Court has held on more than one occasion that, when administering justice, a court must not apply a law that is in conflict with the Constitution, and that the presumption that a substatutory legal act must be in line with an unconstitutional law would be erroneous in substance, as such a presumption would deny the concept (consolidated in the Constitution) of the hierarchy of legal acts, on the top of which is the Constitution, since this would distort the very essence of constitutional justice itself. Thus, having established the unconstitutionality of the provisions of a law whose compliance with the Constitution is not impugned by a petitioner, but in terms of which the compliance of a substatutory legal act is impugned, the Constitutional Court must state that such provisions are unconstitutional. A legal act that conflicts with the Constitution must be removed from the legal system.

Under Paragraph 1 of Article 38 of the Law on Science and Studies (in terms of which the compliance of the Seimas resolution of 12 January 2018 has been impugned), a decision concerning the reorganisation of a state university is, on the recommendation of the university council or the recommendation of the Government, taken by the Seimas after assessing the opinion of the university council.

The Constitutional Court noted that the constitutional principle of a state under the rule of law implies various requirements for law-making subjects, including the fact that legal acts must be passed in accordance with the established procedural law-making requirements, among other things, the requirements, arising from the Constitution, for the initiative of the adoption of laws and other legal acts. Under the Constitution, the will of the Seimas regarding the adoption of decisions may not be expressed otherwise than by vote of members of the Seimas at a sitting of the Seimas and the adoption of a particular legal act. The adoption of a legal act of the Seimas may be initiated only by submitting a draft of this legal act to the Seimas. Under Article 68 of the Constitution, the right of legislative initiative belongs to the members of the Seimas, the President of the Republic, the Government, as well as 50 thousand citizens who have the electoral right. Only these entities have the right of initiative of the adoption of laws and other legal acts of the Seimas, except for individual cases established by the Constitution where drafts of legal acts other than laws may be submitted to the Seimas on certain issues by entities other than those specified in Article 68 of the Constitution.

The Constitutional Court held that the council of a state school of higher education is not mentioned in the Constitution, in particular, in Article 68 thereof; thus, it is not an entity having the initiative of the adoption of a law and/or other legal acts of the Seimas.

Consequently, by the legal regulation established in Paragraph 1 of Article 38 of the Law on Science and Studies, according to which a decision concerning the reorganisation of a state university is taken by the Seimas on the recommendation of the university council, the powers to initiate the adoption of this decision of the Seimas are granted to an entity that, according to the Constitution, does not have the right of the initiative of the adoption of laws and other legal acts of the Seimas. Such a legal regulation also violates the requirement, arising from the constitutional principle of a state under the rule of law, to observe legislative procedural requirements, among other things, to comply with the requirements arising from the Constitution for the adoption of laws and other legal acts.

In view of this, the Constitutional Court held that Paragraph 1 of Article 38 of the Law on Science and Studies, insofar as this provision prescribes that a decision on the reorganisation of a state university is taken by the Seimas on the recommendation of the university council, is in conflict with Article 68 of the Constitution and the constitutional principle of a state under the rule of law.

On the basis of the same arguments, the Constitutional Court also declared unconstitutional the analogous provision of Paragraph 1 of Article 39 of the Law on Science and Studies, according to which the council of a state university has the right to initiate the adoption of the decision of the Seimas on the liquidation of this state university, as well as the provision of Item 9 of Paragraph 2 of Article 27 of the same law, insofar as, under this provision, the council of a state school of higher education has the powers to initiate the approval of a plan for the reorganisation or liquidation of this higher education school by submitting to the Seimas a draft relevant legal act.

The assessment of the compliance of the Seimas resolution with the Constitution and the Law on Science and Studies

In assessing the compliance of the Seimas resolution of 12 January 2018 with the Constitution and the provisions of the Law on Science and Studies, the Constitutional Court held that this resolution of the Seimas, which had consolidated the decision to reorganise Lithuanian Sports University by way of incorporating it into the Lithuanian University of Health Sciences, was adopted by taking into account the government resolution of 22 November 2017, which proposed that these universities, but not the Seimas, consider the concrete way of integrating Lithuanian Sports University into another institution of education and science, i.e. its reorganisation by incorporating it into the Lithuanian University of Health Sciences. However, the specific proposal (recommendation) made by the Government for such a reorganisation had not been submitted to the Seimas, i.e. no draft legal acts on the reorganisation of Lithuanian Sports University had been submitted to the Seimas by the Government. Thus, in the opinion of the Constitutional Court, the Seimas resolution of 12 January 2018 was adopted in the absence of the recommendation of the Government regarding the reorganisation of Lithuanian Sports University in the aforementioned concrete way.

The Constitutional Court also held that, as it is apparent from the preamble of the impugned resolution of the Seimas and from the circumstances of its adoption, it was adopted without considering the opinion of Lithuanian Sports University, whose reorganisation is planned. Only the opinion of the Senate and the Council of the Lithuanian University of Health Sciences, which had been submitted, inter alia, not to the Seimas, but to the Ministry of Education and Science, was taken into consideration.

In view of the overall legal regulation laid down in the Seimas resolution of 12 January 2018, the Constitutional Court assessed this resolution of the Seimas as a law-applying substatutory act, which included the decision to reorganise Lithuanian Sports University in the concrete way – by incorporating it into the Lithuanian University of Health Sciences – and which at the same time provided for the actions required for this reorganisation – the preparation of documents necessary for its execution and the conduct of its independent expert evaluation.

The Constitutional Court also held that, when the Seimas takes decisions on the reorganisation of state universities, the requirements, established in Paragraph 1 of Article 38 of the Law on Science and Studies, regarding the initiation of a reorganisation must be observed regardless of how a Seimas decision on the reorganisation is expressed: the reorganisation of a state university is approved while at the same time providing for the actions required for this reorganisation (including the preparation of necessary documents) or it is decided to reorganise a state university by simultaneously approving documents necessary for carrying out the reorganisation.

The provision of Paragraph 1 of Article 38 of the Law on Science and Studies (which is in compliance with the Constitution) that a decision concerning the reorganisation of a state university is, on the recommendation of the Government, taken by the Seimas after assessing the opinion of the university council makes it clear that the Seimas, when adopting a decision on the reorganisation of a state university, must pay regard to two requirements: it may adopt such a decision only after receiving the relevant recommendation of the Government and only after assessing the opinion of the university council.

Having assessed the circumstances of the adoption of the impugned resolution of the Seimas and its content, the Constitutional Court held that this resolution of the Seimas had been adopted in breach of the said requirements, which means that, in view of the procedure of its adoption, this resolution of the Seimas is in conflict with Paragraph 1 of Article 8 of the Law on Science and Studies, which stipulates that universities have autonomy, based on which it is necessary to assess an opinion of the university council on the reorganisation of the relevant university, as well as with the provision of Paragraph 1 of Article 38 thereof that a decision concerning the reorganisation of a state university is, on the recommendation of the Government, taken by the Seimas after assessing the opinion of the university council.

According to the Constitutional Court, the violations of the requirements laid down in Paragraph 1 of Article 38 of the Law on Science and Studies that had been committed in adopting the impugned resolution of the Seimas were substantial ones, because there had been no recommendation from the entity (the Government) required by law and the requirement established by law to assess the opinion of the council of the university whose reorganisation was envisaged had not been observed. Consequently, the requirement, enshrined in Paragraph 1 of Article 69 of the Constitution, to follow the procedure established by law in adopting legal acts of the Seimas, as well as the requirements, arising from the constitutional principle of a state under the rule of law, to pay regard to legislative procedural requirements and to respect the hierarchy of legal acts, had been disregarded.

The Constitutional Court also held that, in adopting the impugned resolution of the Seimas, the autonomy of higher education schools, consolidated in Paragraph 3 of Article 40 of the Constitution, had been ignored because of the disregard of the obligation, related with the said autonomy, of state institutions (which, according to the laws, perform the functions of the state as the founder of state schools of higher education and as the owner of their property) to assess, by giving reasons, an opinion expressed and proposals made by the governance bodies of a state school of higher education regarding the reform of the system of state schools of higher education, including their reorganisation.

When interpreting the provisions of the Constitution that were applied in the case, the Constitutional Court noted that the autonomy of higher education schools, which is guaranteed in Paragraph 3 of Article 40 of the Constitution, does not deny the right of the state (which, under the Constitution, inter alia, Paragraph 4 of Article 40 thereof, forms and pursues a higher education policy and has the duty to establish a system of state schools of higher education) to reform the system of state schools of higher education, among other things, to reorganise or liquidate them, by taking into account the interests of society and its changing needs and in order to fulfil the constitutional obligation to ensure the effectiveness of the system of higher education.

At the same time, the Constitutional Court noted that, in reorganising the system of state schools of higher education, it is necessary to pay regard to the right of the collegial bodies directly representing the academic community of a higher education school and exercising its self-governance to independently solve strategic and other major issues related to the governance of the higher education school. This means that these bodies of self-governance of state schools of higher education and other institutions that are formed or appointed by the said self-governance bodies and perform the functions of the governance of higher education schools should be given the opportunity to express their opinion and submit proposals regarding the reform of the system of state schools of higher education, including their reorganisation or liquidation, as well as to prepare or participate in preparing documents necessary for such a reorganisation or liquidation. The autonomy of higher education schools, which is enshrined in Paragraph 3 of Article 40 of the Constitution, implies the duty of state institutions (which, according to the laws, perform the functions of the state as the founder of a state school of higher education and the owner of its property) to assess, by giving reasons, this opinion and proposals of the state school of higher education. However, the state institution that performs the functions of the state as a founder of a state school of higher education has the right, under Paragraph 4 of Article 40 of the Constitution, to take a final decision on the reform of the system of state schools of higher education, including the reorganisation or liquidation of a state school of higher education even if this higher education school does not approve of this decision.

The Constitutional Court also held that the impugned resolution of the Seimas, disregarding both the autonomy of higher schools, guaranteed under Paragraph 3 of Article 40 of the Constitution, and the requirement, consolidated in Paragraph 1 of Article 69 of the Constitution, to observe the procedure established by law in the course of adopting legal acts of the Seimas, also at the same time disregarded the requirement, arising from Paragraphs 1 and 2 of Article 5 of the Constitution, not to extend the powers of state institutions, which are limited by the Constitution.

Taking account of this fact, the Constitutional Court held that the Seimas resolution of 12 January 2018, in view of the procedure of its adoption, is in conflict with Paragraphs 1 and 2 of Article 5, Paragraph 3 of Article 40, and Paragraph 1 of Article 69 of the Constitution, as well as with the constitutional principle of a state under the rule of law.

The Constitutional Court emphasised that, when the state decides to carry out a reform of the system of state schools of higher education, among other things, to reorganise or liquidate state schools of higher education, it is necessary in the course of implementing these decisions to observe the requirements arising from the Constitution, among other things, from the constitutional principles of responsible governance, reasonableness, the protection of legitimate expectations, legal certainty, and legal security, as well as to respect, among other things, the legitimate interests and legitimate expectations of the members of the community of a state school of higher education, including those of the persons working and studying at this higher education school.