Finding of constitutionality on optimizing educational institutions
On 23 May 2013 the Constitutional Court of Moldova ruled on the constitutionality of Article I, p. 6, Articles III and IV of the Law No. 91 of 26 April 2012 regarding the change and amendment of a number of legislative acts, regarding the optimization of the education institutions (Complaint No. 37a/2012).
Circumstances of the case
At the origin of the case was the complaint lodged with the Constitutional Court on 16 November 2012 by the MP Serghei Sîrbu.
By the challenged norms there were amended some provisions of the Law on Education, of the Law on public finances and of the Law on the administrative decentralization, which refer to the local public administration authorities of the second level in the establishment, reorganization and dissolution of the elementary, secondary and high schools and out-of-school institutions, as well as transferring the financing responsibilities (maintenance) of these institutions from the local public administration authorities of first level [villages (counties), cities (municipalities)] to those of the second level [districts, Chişinău and Bălţi municipalities].
The author of the complaint claimed that the challenged provisions violate the principle of local autonomy, in the context of reorganization and dissolution of certain educational institutions and are therefore contrary to the Articles 1, para. (1), 2, 4, para. (1), 8, 109, 110, para. (1), 112, para. (1) and (2) and 113 of the Constitution.
The Constitutional Court ruled on the complaint in the following composition:
Mr Alexandru TĂNASE, President,
Mr Aurel BĂIEȘU,
Mr Igor DOLEA,
Mr Petru RAILEAN, judges
Conclusions of the Court
Hearing the reasoning of the parties, the Court mentioned that the principle of local autonomy holds an important place among other founding principles of the local public administration.
At the same time, the Court noted that the principle of local autonomy does not assume total independence and exclusive competence of the public authorities from the territorial-administrative units, these institutions being obliged to obey the legal regulations, generally accepted in the entire country.
Resulting from the provisions of the Constitution and of the European Charter of Local Self-Government, to which the Republic of Moldova is party , the law-maker is entitled to establish by law the competences of the local public authorities, to circumscribe the competences of the different levels of public administrative authorities, in line with the constitutional provisions, imposing state’s control, through specific forms, on the modality of their enforcement.
The Court held that the amendments, whereby the law-maker transferred to the local public administration authorities of the second level a part of the competences on the establishment, reorganization and dissolution of state’s educational institutions, were passed within the limits established by the Constitution.
The Court noted that education represents a national priority, and the right to education is guaranteed by the Constitution. The policy in the educational field is established by the state.
The Court held that, the educational field cannot be decentralized and transferred to the responsibility of the local public administrative authorities, since it is the exclusive competence of the state. The local public administration can be delegated, by law, only certain competences, while ensuring their proper financing.
Therefore, the Court underlined that the state has the right and the obligation to establish the means, the matter and the standards which shall ensure the optimal attainment of the right to education.
The Constitutional Court considered that assigning by law the local public administration authorities of the second level with the right to decide, in coordination with the Minister of Education, issues on the establishment, reorganization and dissolution of the elementary, secondary and high schools and out-of-school institutions, as well as providing proper financial coverage of these institutions represents an act of state’s competences delegation to these authorities.
The Court concluded that the legal challenged changes are not limiting the autonomy of the local public administrative authorities of the first level.
Judgment of the Court
Starting with the above mentioned reasoning, the Constitutional Court found constitutional the provisions of the Article I item 6, of the Article III and IV of the Law No. 91 of 26 April 2012 on ”Changing and amending a number of legislative acts”. The judgment of the Court is definitive, cannot be appealed, shall enter into force upon its passing and shall be published in the Official Journal of the Republic of Moldova.