What will change in the Law on Higher Education?
On June 11, in accordance with the parliament bureau decision, Georgian Parliament started considering amendments to the Georgian Law on Higher Education. The initiator of the bill is the Georgian government, with the ministry of Education and Science as its author. The initiator requested expedited discussion.
The bill was approved at the first hearing of the plenary session on June 12, while on June 13 the committee for Education, Science and Culture held the second hearing of the draft law. The bill did not find support among certain members of Parliament, in both the minority and majority. Discontent was also expressed by the public due to the contents and the procedural aspects of the bill. The fact that the expedited review of the draft law did not allow the stakeholders to get involved in the discussion process should be seen as a negative step.
Due to the increased interest surrounding this issue, Transparency International Georgia (TI Georgia) has come out with its own opinions on the bill.
1. Autonomy of Higher Education Institutions
Under the submitted draft law, the central government's powers regarding higher education institutions will undergo changes in two directions: (1) the appointment of the acting Rector becomes the Prime Minister's prerogative and (2) it will become mandatory for a number of issues to be stated in the charter, which will ultimately sharply increase the role of the central government in relation to educational institutions and give it additional possibilities to exercise its influence over them.
Appointment of an Acting Rector
According to the draft law, if the Rector’s powers are terminated prior to the expiration of his/her term in office, the Ministry of Education and Science defer to the Prime Minister for the appointment of the acting Rector.
Under the current wording of the law, the incumbent Rector is appointed by the Academic Council. The draft amendments, however, transfer this power to the Prime Minister. Another peculiarity is that the draft law does not provide for the exclusion from the law found in the 12 paragraph of Article 21; this states that the authority of appointment does indeed rest within the Academic Council. Also, the draft only includes the right of the Ministry of Education and Science to submit to the Prime Minister the candidacy of the acting Rector for approval; it says nothing about the acting Rector appointment procedures or other details to be implemented by the Prime Minister. It should be noted that the current change pertains to higher educational institutions that operate as state-founded Legal Entities of Public Law (LEPL) as well as Non-Entrepreneurial (non-commercial) Legal Entities (NELP).
The involvement of Central Government in the appointment of the interim rector is nothing new. Even before the introduction of the amendments, paragraph 2, article 22 on the Law on Higher Education states that: “Before approval of the first election of the head of a higher education institution established by the state, the Government of Georgia shall appoint an acting head.”
The public is also familiar with the desire of the ruling political groups to bring about certain changes within higher educational institutions following every government change. For example, in 2004, Parliament’s adoption of the law on higher education caused the termination of the powers of the Legal Entity of Public Law, as well as rectors and deans of higher education institution before the expiration of their terms. At the same time, an entry was made to the transitional provisions (Article 87.2), under which the President was granted the authority to appoint an acting rector. This rector, however, should be either the dismissed rector or a professor in the same institution. The President was also entitled to terminate the powers of the acting rector before the expiration of the term. This power, however, could be used only once.
The Increasing Role of the Higher Education Institution Charter
Both under the current and the proposed amended version of the law, charters of the state-founded higher education institutions are approved by the Ministry of Education and Science, whereas the charters of military, naval, artistic-creative, and sports higher education institutions requires the Ministry to issue the final opinion on the matter. This means that if the submissions were made earlier on by the higher education institutions themselves, then the final conclusion will fall within the field of authority of relevant ministries.
It is apparent that the ministry has now acquired a useful tool to influence the charter. At the same time, the bill highlights the following tendency: Currently the wording is such that certain rules may simply be reflected, rather than detailed, in the charter. The proposed bill, however, leaves no room for provisions and enforces the rule to be detailed in its entirety. furthermore, certain issues which should be decided by the representative bodies, are falling under the regulation of the charter. For example, if the current version states that “The Minimum Qualification Requirements for a candidate for the leadership can be defined by the education institution charter”, the submitted draft law sets an imperative requirement that the candidate for the position of a rector shall meet the terms defined in the higher education institution charter. Also, currently it is the relevant academic and representative councils who approve additional terms and conditions for electing a professor to an academic position, now it is the ministry that has the final say in approving these terms.
Requirements established for the Rector and Dean
In contrast to the current wording, under the draft amendments, only a person with a doctorate or equivalent degree is eligible for the position of Rector. As for the Dean, only a professor or associate professor of the relevant higher education institution’s core educational unit will be entitled to take up this position.
Similar standards can also be found in European Universities. In some countries (Portugal, Spain), the very title of Rector envisages that the candidate should hold a doctorate degree. Spain has an even more complicated standard and requires that the Rector to have obtained a doctorate degree at least 6 years earlier to taking up the position. In the Netherlands, the Rector must be a full professor. Even in countries which do not set strict requirements in this respect, the Rector, given his status, is in reality not going to be elected to this position without a doctorate degree.
The misunderstanding in the draft regarding the Dean pertains to the requirement that the candidate must necessarily be a professor or associate professor of the relevant university, while such requirement is not imposed for the Rector’s position.
It is also unclear why the initiator removed the entry prohibiting rector election-related discrimination, under which the state insures "Prohibition of all forms of discrimination in the field of higher education, among them on racial, gender, religious, political grounds and/or views, national, ethnic or social origin, economic condition or status, residence, citizenship and academic affiliation."
PhD students will not be able to take up Assistant Professor’s position
Under the current wording, the academic staff, i.e. professors, consist of full professors, associate professors and assistant professor. Both doctorate degree holders and doctoral students may be elected as assistant professors. The amendments now demand a doctoral degree for the position of assistant professor.
Improvement of the quality of education in the country is directly related to the level of teaching and the experience of both professors and teachers. Consequently, higher standards may in the future increase the quality of teaching to a certain degree. Be that as it may, the existing reality must be taken into account (such as the number of people with doctorate degrees) and if changes are to be introduced, they should be done so gradually.
Here it must also be noted that the bill does not regulate the fate of the current assistant professors who do not have a doctorate degree. The proposed changes will harden the situation for assistant professors, that is clear, as is the fact that the law should have no retroactive force. But then we are left with assistant professors who cannot meet the requirements of applicable law.
Emerging new academic position of an Assistant
The initiators of the bill are introducing a status of an Assistant. According to the draft, Assistant is "an academic position in a Higher Education Institution, the holder of which conducts seminars and research within the framework of the educational process in the core educational unit under the guidance of a Professor, Assistant Professor or Associate Professor." In fact, the Assistant will be doing the work that he/she is already undertaking as a doctoral student. This makes the reason lying by behind the introduction of this position even more obscure.
Full Professor being replaced by Professor
The initiator offers changes in the terminology with respect to a Full Professor and introduces simply the title of a "professor" as its alternative. This change is terminologically inconsistent. “Professor” is currently a generic term encompassing the positions of a Full Professor, Associate Professor or Assistant Professor. Under the proposed changes however, "Professor" will be no longer simply a generic term, but the title of an academic position as well.
Different terms for applicants for an Associate Professor position
The draft initiator’s motivation regarding an academic position’s election terms remains unclear. The terms for the election of an Assistant, Assistant Professor, and Professor are established by the institution's charter. Associate Professor, however, will be an exception to this rule. The initiator of the bill makes no mention of this in the higher education institution charter.
The draft defines the salaries of the Rector, Head of the Administration, Quality Assurance Supervisor and Dean. The underlying principle is the same in all cases and is linked to the salary of a professor at different levels. For example, the Rector's salary is defined within the bounds of the maximum amount of a professor’s salary, multiplied by no less than 1,15 and no more than 1,35 coefficient.
The principle behind this calculation has caused certain misunderstandings. The record suggests that the calculation should be made based on the highest salary for professors throughout the entire institution. Besides, the question arises as to whether it is altogether correct to speak about fixed salaries for professors, since this is typical for public service institutions. It is not necessary for professors to have fixed salaries so strictly defined in advance. Very often, such salaries are defined based on hourly load. It is also noteworthy that this clause applies to all institutions established by the state; although for LEPLs these positions are mandatory, NELPs have a certain freedom of action in this respect. Therefore, the enforcement of this law may bring about a collision.
Under the draft law, the position of Head of the Administration is incompatible with the academic position.
According to Article 24, subparagraph "e", Administration in LEPLs will have a reduced role in approving the budget and instead be restricted to its coordination and the engagement of Departments and Representative Council. In NELPs, on the other hand, nothing is changed in this respect, albeit Article 26, as opposed to Article 24, subparagraph "e", no longer specifies that this mode is valid only for LEPLs; to the contrary – the norm applies to both cases thus yielding a collision.
The bill abounds in various types of inconsistencies as well as technical and legal flaws. Some of which have already been discussed.
The draft includes the right of the Ministry of Education and Science to submit the candidacy for the acting Rector to the Prime Minister for approval. It says nothing about the procedure of appointment of the acting Rector by the Prime Minister amongst other important details.
If the initiator pursues the purpose to entrust the Prime Minister with the right to appoint the acting Head, then the 12 clause of Article 21, which stipulates that the above authority rests within the Academic Council, should be removed from the Law.
Article 7, subparagraph “h” of the first paragraph of the submitted draft has a technical fault caused by the merger of two clauses. The text refers to "the Representative Council or Collegial body", while Representative Council is itself a collegial body.
Iconvenience stems from the fact that the initiator uses the term "Professor" as a generic name for various academic positions, as well as one of the academic titles.
A requirement is introduced under which the Rector in NELPs should be head of a collegial body. If a given education institution has two collegial bodies, it is unclear which one should have the Rector as head. This entry also allows for the Rector to be the head of the Representative Council.
Salaries for some positions are determined according to the professors’ salaries; this is not obliged for NELPs however. In addition, there is no requirement for professors to have fixed salaries and their wages to be dependant on their hourly load.
The amendment to the first paragraph of Article 22 suggests that the head of the institution in NELPs should also be called the Rector.
It is unclear why the initiator abolishes the entry prohibiting discrimination regarding the election of the Rector which currently states the: "Prohibition of all forms of discrimination, be it racial, gender, religious, political grounds and/or views, national, ethnic or social origin, economic condition or status, residence, citizenship and academic affiliation."
As regards the Head of the Administration, the dismissal shall also be determined on the basis of "the grounds for the termination of the employment relationship under the Labor Code." Why the focus is on the Labor Code only when it comes to the Head of the Administration is unclear Besides, the current version already contains Article 41 which provides for administrative dismissals.
Amendments to article 24, subparagraph "e" and Article 26 are obscure and raise the question: Is the role of the Head of the Administration restricted to the coordination of the budget just in LEPLs, or NELPs as well?
Another uncertainty arises from the initiator’s decision to amend the 28th paragraph of Article 89. The clause contains a phrase "prior to the enactment of this law." Given the fact that the present draft law, in the event of its approval, will become part of the Law on Higher Education, this entry should mean December 21, 2004. If the initiator implies the date of the enactment of this specific draft, then the indication needs to be more obvious.
In Article 2 of the draft law, the initiator states that within 30 days after the effective date of this law, the powers of the governing subjects of institutions that do not meet the requirements of this law shall be terminated. It begs the question: If the termination of their powers occurs under the law, why then does the law not set a specific date? Why also does it include this 30-day period which gives the possibility to manoeuvre? If the initiator is not willing to specify the terms or the termination of power of office by the law, then the law must stipulate who and under what act can terminate the powers of persons in question within the 30 days.
Regarding academia, the problem concerns the fact that the draft does not stipulate how the situation should be brought into compliance with the requirements of the law. Once again a question emerges: Do the changes apply only to relations that originate after the entry into force of this law, or do they extend to the previous period as well? If the proper indications are not made then these changes will be detrimental to the status of the academic staff (especially that of PhD Assistant Professors); this should not be a retroactive law. But then we will have assistant professors who will not meet the requirements of the applicable law. The same pertains to Full Professors - this title will simply no longer exist. Therefore, the above circumstances should be reflected in the law.
Unfortunately, Transparency International Georgia, as well as the other interested parties, did not have the opportunity to get actively involved in the process of reviewing the draft at the first and second hearings due to its expedited consideration. Nevertheless, in order to advance the project, we express our readiness to cooperate with Georgian Parliament and the initiator of the bill.