Legislation for Higher Education in Balkan Countries

Final Research Paper

Knowledge does not sell at market stalls. Academic autonomy is a vital requirement.
Lord Ralf Dahrendorf

In the period between 1990 and 1995 higher education in our country was regulated by the Academic Autonomy for Higher Educational Establishments Act. The end of December 1995 saw the passage of the Higher Education Act (now in force) and its publication in the Official Gazette. It not only revoked the Academic Autonomy for Higher Educational Establishments Act, but actually infringed the academic and university autonomy in this country in a fully legal and legitimate way. Let us try to find an answer to the questions: How is the autonomy, hypothetical for us at present, possible? How to make possible the eventual, prospective self-government of Higher Educational Establishments in our country?

What Act will ensure real university autonomy?

The very etymology of the word 'autonomy' suggests that it refers to some legal entity with a law of its own. At present we have a single and common to all Higher Education Act (HEA), which pretends to speak of academic autonomy and freedom, of academic self-government and independence, and at the same time enacts the same provisions for all. A lot has been written about the present HEA. Some criticized it very reasonably while it was being worked out and argued against its principles and passage procedure. Prof. Georgi Shishkov was particularly persistent in deprecating it in the press .

According to others it is modern and European enough. Anna-Maria Totomanova, for example, in the preface to her newly published book, states that we have "a modern Higher Education Act and a good strategy for its development" .

I subscribe to the view of sociologists and jurists like Georgi Dimitrov, Ivo Christov and Julia Dimitrova who define the present Act as unfit and unsatisfactory. In their joint research entitled "What does the present Higher Education Act validate?" - carried out by means of a quantitative analysis of the participation share of different social subjects in the discussions between the two readings of the bill, substantiated with many charts, data and figures - the authors explicitly voice their conclusion, that the present Act abrogates the autonomy of our higher schools in a fully legitimate way - and fully irretrievably, at that . This is not the result of accidental mistakes on the part of the lawmakers, but rather of a deliberate and systematic socialist ideology, underlying all the texts of the law, according to which "public" means "state", and social interaction is conceivable only in terms of administration" . After the analysis of the participation of different individuals and institutions in the debates on the different chapters of the Act, the authors of the research discuss the general spirit of Chapter Two - State Functions in the Management of Higher Education, and Chapter Four - Academic Autonomy. Undeniable, and unfortunately still valid, are their statements, that:

1) "The attitude of the state to higher schools is not the attitude of a consumer and a partner, but one that implies subordination and control";

2) HEA aims at, and succeeds in ensuring absolute domination of political and party-based bodies (such as the Parliament, the Council of Ministers, the Ministry of Education and Science, the National Agency for Assessment and Accreditation) over the "autonomous" higher schools;

3) The process of setting up, transforming and closing higher schools becomes a hostage to the political situation and the administrative control, since the present Act has it that this process is regulated not by the court, which is an independent institution (or at least is supposed to be one), but by the Parliament, which is always a temporary political constellation;

4) Art. 9, paragraph 3, endows the Council of Ministers with unlimited power to control and run the single and common NATIONAL policy in the field of higher education;

5) Apart from institutional, political party bodies also exercise functional control over the content and the results of the educational process through the uniform state requirements;

6) A number of articles, making provision for the number of students taught in different universities and specialities to be defined by the Minister, infringe upon the constitutional right to education for all;

7) Another paradox is that the Ministry of Education, Science and Technologies (MEST) not only entirely performs the operational control and management of higher education in Bulgaria, but is also something like an arbiter (!?) between state administration and the "autonomous" higher schools. This is also an infringement upon the constitutionally guaranteed principle of division of power and of independent court arbitration control power;

8) An enormous gap in the Act is the lack of regularity in the relations between MEST and the Council of Ministers - the area of manifestation of public relations;

9) The principle of state political control and management minimizes the autonomy and the academic self-government and debases them to administrative self-government of operative order , similar to the self-government of a squad under military statutes;

10) The main method of legal regulation in the field of higher education is the imperative one. "Higher schools - regardless of their organizational form, main activities, structure and type (state and non-state) - are looked on as addressees of imperative rules they are obliged to follow in order to be "free". Despite some timid attempts at introducing contractual relations between the state and the higher school, which, at least legally, imply equality, permissiveness is the last thing that regulates these relations according to this Act."

11) The state also exercises its absolute control by being treated not as one of the consumers of higher education, but as a supreme "determinant" of educational product quality. This implies that such a mechanism can only function in a social environment where the state represents a hierarchically posed main mediator between the higher school and public needs, openly treated as state needs;

12) It is not coincidental that in regulating all possible sources of higher education financing and funding, budget subsidies come first and all other forms and ways of "free and independent self-financing and economic activity are left out… The reason is prosaic - not to allow the existence of economically independent higher education and to hold it in a direct financial dependence on the central fiscus."

On the basis of all this I venture the generalization that the present Higher Education Act is not in compliance with: 1) contemporary social and educational European realities; 2) the historical traditions of European universities; 3) our own Bulgarian university tradition established in the first half of the last century. As my colleagues Georgi Dimitrov, Ivo Christov and Julia Dimitrova have pointed out, the Act is an adequate and worthy continuation solely of "the disgraceful national tradition of ours for political power to infringe upon academic autonomy" .

However, I have to go further than that. This Act, as was mentioned at the beginning, was passed and promulgated at the end of 1995. It is a product of the 37 Common National Assembly, and we all remember what political constellation it was in. The next 38 Common National Assembly pursued and completed successfully its 4 years' constitutionally stipulated term of office. Meanwhile the new political constellation made amendments to half the articles in the Higher Education Act and added new chapters and paragraphs to some of the already existing. To our great amazement it can be observed that almost all "amendments" (the majority of which were made in the summer of 1999 and promulgated in the Official gazette, issue 60 from the same year) not only failed to amend, but even consolidated the principles of: 1) total substitution of public for state; 2) total totalitarian control over the "autonomous" higher education sphere on the part of the political oligarchy (The Parliament, The Council of Ministers and the Ministry of Education and Science - MES); 3) total state interference going to the extreme of extending to private universities as well.

Evidence:

I. The old political constellation had stipulated 10 powers of the Council of Ministers in art. 9 par. 3. The new political constellation expanded four of them and added another three. One of them refers to the absurd specification of "the total number of students in private higher schools"(par. 6). The other novelties are that the Council of Ministers ratifies State requirements for students' admission (par. 10) and that the Council of Ministers once more ratifies uniform state requirements regarding the content of the main documents, issued by higher schools (par. 11). Needless to say, it is the Council of Ministers again that ratifies the Regulation on the activities of the National Accreditation Agency (par. 12). The powers of MES have also been expanded and increased, as were the personal powers of the Minister of Education and the Prime Minister.

II. The most important statutory regulation in the educational sphere of a modern (not necessarily) European country, is defining how society is to control the quality and essence of what happens in and is offered by different higher schools, colleges, polytechnics and universities. In Chapter Ten, the old political constellation had worked out the following: Higher Schools Accreditation (art. 75 - 88): principles and rules of what is the most important indicator for the different competing universities in all modern countries. How to determine their rating and to assess their quality? This chapter substituted once again the public for the political and state. It was thoroughly repaired by the new political constellation… along the lines of getting education under the total control of political factors:
1. The number of the Accreditation Council members has been reduced form 23 to 9;
2. The number of higher schools representatives in it has been reduced from 14 to 4;
3. The number of the representatives of the Bulgarian Academy of Science and the Agricultural academy has been reduced from 7 to 2;
4. The number of MES representatives - needless to say - has remained 2, and they are no longer termed "MES representatives", but sole representatives of the Minister (on this, see art. 78 from the old version and art. 84 from the new version of the Act).
5. The old political constellation, in step with the good old tradition of the one-time party congresses, assigned a four-year term of office for the National Accreditation and Assessment Agency. The new political constellation - "democratically" and "after the European fashion" - extended the term to 6 (in words: six) years!
6. The old political constellation had assigned commissions of experts to the Agency. Obviously, the new political constellation was even more affectionate towards the old party pyramidal institution models and therefore added "permanent commissions on professional fields" to the commissions of experts. According to art. 87, par. 2, "The permanent commissions control the work of the commissions of experts and accept their reports". No comment.
7. The old version of the Act made provision for appeal before the Supreme Administrative Court and under the Administration Procedure Act (art. 86). In the new version the statutory principle, underlying all modern legislation systems - the possibility to appeal against a decision before an independent higher instance - is withdrawn and it is God alone that remains above NAAA. Those without accreditation or with unsatisfactory one are to have recourse to Him.
8. The old version of the Act laid it down that one of the 23 members of the Accreditation council should democratically nominate one of them as the chairman (art. 78 par. 4). In the present version there is no democratic nomination. Through the party, "The Prime Minister appoints the chairman of the agency on a proposal from the Minister of Education and Science."

I could not in good conscience deny that the old version had at least one provision after the European fashion - the three higher education degrees: Master, Bachelor and Doctor, and in the new version of the old neosocialist Act there are another two positive innovations. Par. 4, added to art.6: "Higher schools are to develop and implement a system of assessment and maintenance of education and academic staff quality, including inquiry into the students' opinion" (the italics are mine). Art. 23 was also altered, "generously" letting the Rectors' Council come up with standpoints, opinions and suggestions.

In the end, I dare to conclude that as a result of the over 100 (in words: a hundred) alterations, additions and "amendments" to the Higher Education Act, which were introduced during 1999, it transformed from openly neosocialist into tragicomically neototalitarian. There is not a single text in the Act relating to how society, not state administration uses, consumes, regulates and controls education. The functions of the executive power and state management have hypertrophied and metastasized throughout the Act. Higher schools are curbed as subsidiary institutions of MES, just like in "soc" times. Thus, the sphere of higher education witnessed the opposite of what was going on in our society as a whole. Falling and then picking itself up again, with grazes, bruises, or sometimes even fractures, society - in all remaining spheres - was changing. Economy was clearly undergoing a process of privatization and was steadily heading towards denationalization. With us - the opposite. Nearly all spheres of life stimulated private venture and enterprise, with us - the other way round: what had been achieved before 1999, was aggressively done away with in the course of the following two years. In many spheres of society reform was being carried out - sometimes successfully, sometimes less so; with us - the opposite: deformation and degradation.

Conclusions:

1. In case some day, God willing, it dawns upon Bulgarian higher schools that- in step with centuries-long European traditions - they should be autonomous universities, an entirely new Act of academic autonomy will be needed. The very definition of a university and the object of academic education should be formulated differently. Not to mention state functions, procedures for setting up, transformation and closing down of higher schools, means of financing and maintenance, competition and taking account of its results in the so-called accreditation.

2. In case some day our universities aspire to be worthy of the name, it would be useful to recall the history of Sofia University during the first half century of its existence. And particularly the fact that whenever educational legislation was concerned, SU Academic Council, followed by the Higher Educational Council (operating till May 1945), took the legislative initiative and came up with a bill of their own, competing with that of the former Ministry of Education. In many cases the two competing bills resulted in a rather satisfactory final legislative regulation.

3. In case some day we witness this cherished new educational law making, our higher schools should remember the pre-socialist tradition of diversity and not allow standardization and uniformity any more. At present, they have uniform prescriptions for one and the same structure (department - faculty) and identical organization of the educational process, equally long, four-year terms of office for administrative posts and bodies.

In Europe it is different. Universities there differ. Sometimes even the separate colleges of a single university institution, such as Oxford, not only have different tradition, structure and administrative methods, but also different titles for elective posts. The head of the college, for example, is called differently in different colleges: Warden, Master, Principal, Dean, President, Rector, Provost, and Regent.

At the time when higher education in Bulgaria was autonomous and self-governing, not only did the separate educational centres differ form one another, but also different departments within a single university used to have their own internal regulations. The then university staff was perfectly aware that standardization and uniformity were not possible even within a university, particularly when it comprised teaching of natural, applied, humanitarian and social sciences.

Hence, the maximum programme for really autonomous higher education in this country would include not only the passage of a new Act of academic autonomy (which can but outline the framework and the rules for higher schools competition), but also the passage of separate, different Acts for those of them that would like to be universities sensu stricto, not simply higher schools. They would have different structures, different length of terms of office for elective posts and general assemblies, different ways of organizing and conducting the education process, different Ph.D., assistant and academic degrees competition procedures, and so on. And all these things are going to determine their rating and competition ranking, which has to be done yearly - if we want to be like Europe and the rest of the world - not every five years, as it is the case with accreditation under the present Act.