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On the evaluation of study fields and their provisional accreditation

The ruling of the Constitutional Court of the Republic of Lithuania of 19 June 2018

ON THE EVALUATION OF STUDY FIELDS AND THEIR PROVISIONAL ACCREDITATION

Summary

By this ruling, having considered the case subsequent to the petition of a group of members of the Seimas, the Constitutional Court declared unconstitutional 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.

The Constitutional Court noted that the autonomy of schools of higher education, which is granted to them under Paragraph 3 of Article 40 of the Constitution, is traditionally conceived as the right to independently determine and establish in their regulations or statutes the organisational and governmental structure, relations with other partners, the order of research and studies, study programmes, the procedure of student enrolment, as well as how to resolve other related questions. On the other hand, the principle of the autonomy of schools of higher education must be balanced with the principle of responsibility and accountability to society, other constitutional values, with the duty of schools of higher education to observe the Constitution and laws. Providing autonomy to higher education schools does not relieve the state from the constitutional obligation to ensure the effectiveness of the system of higher education. Therefore, the autonomy of schools of higher education does not mean that the activity of such schools may not be subject to state control. Quite to the contrary, this activity, since it is related to the implementation of the constitutional human rights and freedoms, as well as with the use of state budget funds, must be subject to regulation and supervision. This also arises from Paragraph 4 of Article 40 of the Constitution. However, the right of the state to regulate the external relations of higher education schools must not restrict the freedom of scientific and educational activities of higher education schools.

The Constitutional Court emphasised that the autonomy of higher education schools, which is granted to them under Paragraph 3 of Article 40 of the Constitution and which means that they have the right to independently determine, among other things, the order of science and studies as well as study programmes, 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 aiming to ensure 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.

When establishing or changing quality standards for higher education provided by institutions of science and studies, as well as establishing or changing measures making it possible to evaluate the quality of studies and of their implementation, as well as their conformity with the established quality standards for higher education, the legislature must respect the Constitution, inter alia, 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 (lex non cogit ad impossibilia) and the requirement for envisaging an appropriate vacatio legis – a reasonable period of time 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, inter alia, 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.

When overviewing the legal regulation impugned in this case and the related legal regulation, 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 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; before the application of the general procedure for the external evaluation and accreditation of studies, which is laid down in the Law on Science and Studies (wording of 29 June 2016), inter alia, in Article 48 thereof, the impugned legal regulation had consolidated special provisions that envisaged a provisional procedure (which was different from the general one established in the Law on Science and Studies and which provided for the evaluation of study fields and their provisional accreditation) for the external evaluation and accreditation of studies; a failure of a study field to receive accreditation according to the impugned special provisions consolidated in Paragraph 26 of Article 2 of the Law brings about the same effects as in a failure of a study field to receive accreditation according to the general procedure: it results in both cases in the prohibition precluding the higher education schools from admitting students to studies in a non-accredited field of study. Having regard to this, the Constitutional Court did not assess the legal regulation laid down in Paragraph 2 of Article 26 of the Law as one establishing the transitional provisions intended to prepare for the application of the procedures for the external evaluation and accreditation of studies under the Law on Science and Studies. On the contrary, Paragraph 26 of Article 2 of the Law established a completely new, albeit provisionally applicable, legal regulation of the evaluation of study fields and their provisional accreditation.

The Constitutional Court held that the provisions of Paragraph 26 of Article 2 of the Law had envisaged a very short period of time for higher education schools to prepare for the upcoming substantial changes in the accreditation of studies; its exact duration depended on the moment of the implementation of the powers granted to the Minister of Education and Science by Paragraph 26 of Article 2 of the Law to approve the requirements and procedure for the evaluation of study fields and their provisional accreditation.

The Minister of Education and Science 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 in the Register of Legal Acts on 27 February 2018 and came into force on 28 February 2018). Thus, this description could be applicable only for two days, i.e. until 1 March 2018, when the evaluation of study fields and their provisional accreditation had to be completed. In addition, the Minister of Education and Science approved the Description of the Procedure for the Evaluation of Residency Study Fields and Their Provisional Accreditation on 27 April 2018, i.e. almost after two months after the deadline for the implementation of the powers granted to him to approve the procedure for the evaluation of study fields and their provisional accreditation; part of the study fields were assessed after the expiry of the period of provisional accreditation, which was provided for in Paragraph 26 of Article 2 of the Law.

In view of the fact that the provisions of Paragraph 26 of Article 2 of the Law, which established a new, albeit provisionally applicable, legal regulation of the evaluation of study fields and their provisional accreditation (i.e. 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) and provided for a very short period of time intended for higher education schools to prepare for the upcoming substantial changes in the accreditation of studies, as well as in view of the actual circumstances of the implementation of these provisions, the Constitutional Court assessed these provisions as requiring impossible things, inter alia, 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.

Thus, when establishing the impugned provisions, the legislature did not comply with the requirements, implied by the constitutional principles of a state under the rule of law and of responsible governance, not to establish such a legal regulation that would demand impossible things (lex non cogit ad impossibilia) and to envisage a reasonable vacatio legis, 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.

In view of the above, the impugned legal regulation was declared to be in conflict with Paragraph 2 of Article 5 and 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.

Defining the legal consequences of declaring unconstitutional the provisions of Paragraph 26 of Article 2 of the Law, the Constitutional Court noted that the concept of constitutional justice, which stems from the Constitution, implies not a perfunctory and nominal constitutional justice, but such final acts of the Constitutional Court that are not unjust according to their content. Otherwise, if the Constitutional Court could not 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 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, among other things, the requirements for the protection of legitimate expectations, legal security, legal certainty, justice, reasonableness, impossibilium nulla obligatio est (there is no obligation to perform impossible things), and lex non cogit ad impossibilia (legal acts may not demand impossible things).

Under the Constitution, inter alia, 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. Also, no attempts to implement the provisions of such a law by means of substatutory acts (including those of the application of law) produce legal consequences for such subjects.

Therefore, having held that the provisions of Paragraph 26 of Article 2 of the Law did not meet the requirement, arising from the constitutional principle of a state under the rule of law, not to establish such a legal regulation that would demand impossible things, the Constitutional Court also held that the application of these provisions, inter alia, by adopting substatutory acts (including those of the application of law), does not give rise to legal consequences for subjects of the legal relations, including higher education schools. In addition, under the Constitution, no legal consequences can arise from attempts to implement the impugned provisions after the expiry of the term of their application after 1 March 2018, i.e. in the absence of any legal basis for the application of these provisions. This means that the orders adopted by the Minister of Education and Science approving 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. 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 could not 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.

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. 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. Under the valid regulation laid down in the Law on Science and Studies, higher education schools may implement studies according to all accredited study programmes until the first accreditation of study fields according to the general procedure for the external evaluation and accreditation of studies, which is established in the said law.

Since, after the entry into force of the Law on Science and Studies as set out in its wording of 29 June 2016 and after the application of the procedures for the external evaluation and accreditation of studies under this law had come due, the Minister of Education and Science approved neither a description for the procedure of the external evaluation and accreditation of studies nor the areas and indicators subject to evaluation, as required for the application of the said procedures, the Constitutional Court emphasised in this ruling that, according to the constitutional principle of responsible governance, the Minister of Education and Science is obliged to do so within the shortest possible time so that there would be no obstacles to carry out the accreditation of study fields in accordance with the general procedure for the external evaluation and accreditation of studies. Otherwise, no preconditions would be created to ensure 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.