Comments on some solutions of the Bill on Higher Education in the context of comparative legal solutions in Serbia and Croatia
In recent years, there has been a trend in Montenegro to increasingly blur the distinction between private and public, to the detriment of the public, and that everything that is profitable or politically interesting is immediately placed first under the informal umbrella of party and interest groups, so after a certain time created situation and fits into the appropriate legal framework. The field of higher education is no exception to the above. In support of this claim, the best evidence is the Proposal for the Law on Higher Education, which, due to the explicit support of the ruling DPS and SDP, will, in all likelihood, soon be adopted by the Parliament of Montenegro. The text of the proposed law that was presented to the deputies is a somewhat modified version of the grotesque proposal, which at the public debate organized in May of this year caused undivided negative reactions from both formal and informal structures from the University of Montenegro, as well as a number of other important institutions, with the request that the proposal return the law to the draft stage.
In contrast to the ignorant and extremely problematic text of the draft law from the public debate, which treats higher education as a "butt" of the Ministry of Education, and not an area based on academic freedom, academic self-governance and university autonomy, this text of the draft law is more nicely "packaged" but retains the original goal, the essential abolition of the autonomy of the state university and its further degradation in a deliberately unequal market competition with private universities. The answer to the question why this is so is provided by the list of founders and lecturers at private higher education institutions.
In order to support with facts the extent to which the Government of Montenegro wants to provide (or, more precisely, maintain!) complete control over all processes that are important for the state university, I will point out several issues that represent a step backwards compared to the existing legal solutions in this areas in Montenegro, and especially in relation to our immediate surroundings, Serbia and Croatia.
- a) The proposal of the law on higher education (hereinafter: the proposal of the law) introduces a novelty in relation to the existing text of the law, as well as in relation to the way these issues are regulated in Serbia and Croatia, because it foresees the possibility of "establishing institutions according to the model of public-private partnership" . In neighboring countries, whose legal solutions we often and uncritically take over, this time it was not the case because they only know the division into public and private institutions. It's no secret that certain legal solutions in Montenegro are often written with specific "investors" in mind, and the wider academic community will remember the ideas and idea holders presented during the adoption of the previous law, which are legally enabled by this provision.
- b) The draft law regulates in a different way the selection of members of the Council for Higher Education, a body that also in other countries significantly influences the creation of the environment for higher education, so among other things, it proposes and gives opinions to the Government on numerous issues, as well as establishes standards, procedures and benchmarks in the field of higher education. Unlike the current Law on Higher Education, which stipulates that the Government appoints 11 members of the Council, and that the majority of members (6) are appointed at the proposal of the University, while the remaining 5 members are appointed from relevant institutions, the Draft Law fails to specify that the majority of the members of the Council should be represented by relevant representatives of the academic community, and it is also not specified who proposes these members, nor the election procedure. That this is not an accidental omission is indicated by the last paragraph of the same article (Art. 11, paragraph 5), which specifies the procedure for electing a member of the Council from among students.
In contrast to Montenegro, the attitude towards higher education in the environment did not succumb to political and private interests. Common to Serbia and Croatia is the legislator's effort to ensure a democratic procedure for the election of members of the Council for Higher Education, which, at least theoretically, should represent the last line of defense of general social interests. In the case of Serbia and Croatia, this is achieved by:
- by publicly announcing the invitation to propose candidates for membership in the Council,
- most of the members of the Council are distinguished members of the academic community who are proposed by the academic institutions themselves
- all members of the Council are elected by the national assembly.
In Serbia, it goes one step further, so the Government's role in the selection of Council members is reduced to proposing 6 (out of 21) Council members, and additional guarantees for the democratic implementation of the procedure are that a list with a proposal for a larger number of candidates than the number to be elected is submitted to the Assembly. , that before determining this list, a kind of public debate on the candidates is conducted (the list with the names of the candidates is made available to the public and a deadline is set for submission of comments and suggestions on the list - Article 10 of the Law on Higher Education of the Republic of Serbia). After the constitution of the Council, the role of the Government is reduced to the assistance of the line ministry in performing professional, administrative-technical and IT tasks for the needs of the Council. On the other hand, the Council is obliged to submit a Report on its work to the Assembly at least once a year.
In Croatia, the list of candidates is established by the Government, based on a publicly announced call for nominations, and the Croatian Parliament decides on their selection.
- c) Issues that also point to the possible displacement of influence in decision-making outside the academic community include the way of formulating the election of members of the governing body of the state university (Article 46 of the Draft Law), unlike e.g. resolution contained in the Law on Higher Education of Serbia, which stipulates that representatives of state higher education institutions make up 2/3 of the total number of members of the Council of higher education institutions, and that student representatives and founders are represented by an equal number of members up to full composition (Article 52). In this way, the necessary autonomy is preserved, and in Croatia, which foresees a significantly different solution, it is specified that members of the Senate and deans cannot be members of the University Council (Article 62 of the Law on Scientific Activities and Higher Education of the Republic of Croatia).
Where the University of Montenegro is now, and where it will be if the unchanged provisions of the Law on Higher Education are adopted, I leave it to the readers to judge.
For the texts of the mentioned laws from comparative law, see: http://www.uns.ac.rs/sr/zakon/zakon.html; http://www.propisi.hr/print.php?id=5767
Bonus video:
