The Draft Law “On Higher
Education and Science” and the attached draft laws approved on the 3rd of December during the RA Government sitting have: 1)
unacceptable solutions in terms of content, 2) procedural issues related to
drafting and discussion.
Despite its public
importance, this legislative initiative was considered urgent, was included in
the agenda of the session as an unreported issue, and was adopted without
discussion.
I present a number of my
core observations on the Draft Law “On Higher Education and Science”, taking
into consideration the requirements of the right to education guaranteed by
Article 38 of the Armenian Constitution.
1. The Draft provides that in case of
reorganization, division, merge or newly established higher education
institutions (scientific organization), the head of the authorized body of the
relevant field appoints the rector (director) for a term not exceeding one
year, until the formation of the board of directors.
This implies that, the
Draft gives, for example, the Minister of Education, Science, Culture and
Sports the sole authority to appoint an acting rector of a higher education
institution or the director of a scientific organization.
2. This solution is very worrisome, primarily from
the point of view of guaranteeing the right of the higher education
institutions to self-government, and academic and research freedom.
3. Reserving such authority to the Minister of
Education, Science, Culture, and Sport, or any other head of an authorized body
is un acceptable and a gross interference in the Constitutional right to
self-government of higher equation institutions and scenic organizations, since
this prescribes the direct influence of the highest executive body in their
institutional management system.
4. The autonomy of higher education institutions is
at the core of the right to education, and the solution proposed by the Article
39 (13) of the Draft makes that autonomy vulnerable from the organizational,
academic, and resource management point of view.
After the entry into
force of this law, the head of the authorized body of the relevant field shall
appoint, for a term not exceeding five years, a rector (director) of higher
educational institutions and scientific organizations which, for the first time
until January 1, 2023, are reorganized by a change of the organizational form,
division or merger. The requirements of Part 2 of Article 31 of this Law shall
not apply to the rector (director) appointed in accordance with the procedure
provided in this part.” Moreover, this rule is presented as a transitional
provision of the Draft.
The authority of a
Minister, including the Minister of Education, Science, Culture and Sport, to
appoint the rector of a higher education institution or director of a
scientific organization contradicts the essence of the legitimate aim of
guaranteeing the right to education.
It is also unacceptable
to present such a requirement as a transitional provision and that a rector or
a director appointed by the Minister, may hold the office for a full five
years.
It appears that by the
virtue of the transitional provision, the Minister can appoint a person for the
same full term that could have also be done under normal circumstances.
This unacceptable
approach deepens the rule of the Draft that, in fact, the head of the executive
body, namely the Minister, has the right to appoint a rector or a director by a
sole decision, disregarding the requirements for candidates to fill the position.
5. These regulations of the Draft also contradict
the Great Charter of Universities, the European Association for Quality
Assurance in Higher Education (ENQA), the World Bank report on Armenia, and
other international requirements.
The Draft also contains such provisions that are vulnerable
to the autonomy of higher education institution, which relate to the proportion
of the composition of the Board of Directors of universities.
7Thus, the regulations of the Draft directly endanger the right to
education guaranteed by Article 38 of the Constitution of the Republic of
Armenia and contradict the right to self-government of universities, academic
and research freedom.
8. The solutions of the Draft also do not reflect
the public concerns of the field of education and science, higher educational
institutions and scientific organizations, as well as the concerns of the Human
Rights Defender separately presented to them. This also refers to the quick
approval of the Drafts, and disregarding of the issues by the Ministry of
Education, Science, Culture and Sports.
Moreover, as evident
from the December 4th statement of the Deans of the Yerevan State University,
it refers to many essential remarks, which are related to the development of
education and science in Armenia.
Such approaches of the
Ministry of Education, Science, Culture and Sports are absolutely unacceptable.
9. The Draft version submitted to the Human Rights
Defender for an opinion and those approved at today's Government session are
also fundamentally different. It does not fully reflect our observations.
10. In the current situation, the Government and,
first of all, the Minister of Education, Science, Culture and Sport, have a
duty to provide grounded clarifications about the reason for such unjustified
urgency in the adoption of this package of drafts concerning the issue of
public importance, including it as an unreported issue in the agenda of the
Government session and without discussing it. Besides, this happened in the
conditions when martial law continues to operate in the country, as a result of
the war many socio-economic and humanitarian issues have arisen that need
urgent solutions.
11. I, therefore, express the fundamental concern of
the Human Rights Defender in relation to the adoption of the Draft Law "On
Higher Education and Science" and the attached draft laws with such
content and an attitude of procedural haste.
12. Therefore, if the Draft is adopted by the
National Assembly in this version and without taking into account the remarks
of the professional community, I will consider the issue of applying to the
Constitutional Court, primarily on the ground of contradiction with Article 38
of the Constitution of Armenia which guarantees the right to education.
Moreover, I will consider submitting a motion to suspend the provisions of the
disputed provisions to the Constitutional Court together with the application.
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