The role of the constitutional judiciary in ensuring the independence of universities An approach between the decision of the Egyptian Supreme Constitutional Court No. 131 of Judicial Year 22 of 2002 and the case before the Federal Supreme Court No. 97 / Federal / for the year 2021
Mr. Dr. Ali Hadi Attia Al-Hilali, Dean of the College of Law – University of Bagdad
Translated from original Arabic
DATE: 15/08/2021
Universities are centers of intellectual radiation, and to supply society with its human and research needs with all specializations, and whenever the needs of society are renewed, it is necessary for universities to respond to these developments, so the local and international race has begun for universities to ascend advanced positions in international classifications that adopt several criteria, most notably:Research aspects, patents, obtaining awards, the development of the foundations adopted by universities in their work and their priorities, as well as their global reputation, as universities in the world are no longer places to obtain scientific qualifications for the involvement of their human outputs in various work factories, but rather they have become springs for the development of all aspects of life and their transformation from universities Expenditure, burdening the state’s expenditures to productive universities and its contribution to achieving revenues that feed the state treasury, and given the linkage of many of the rights and freedoms contained in constitutions and international charters to the tasks and objectives of universities, it was natural that ensuring their independence was framed within the scope of constitutions, which casts on the constitutional judiciary a new role to ensure that independence, which It makes the constitutional judiciary a contributor to the advancement of universities in advanced positions in international rankings.
The independence of universities is defined as: “the freedom of the university to manage its administrative, financial and academic affairs without any interference from any external party, whether the state or the institutions of society” (1).
The independence of universities is often linked to academic freedom, since the relationship is close based on interdependence and integration between them, as it is not possible to practice academic freedom without the presence of a certain type or degree of university independence (2).
The Egyptian constitutional legislator has always explicitly guaranteed the independence of universities in the 1971 constitution and the 2014 constitution (3). Therefore, the Egyptian Supreme Constitutional Court did not hesitate to extend its oversight over the complaints against laws that affect the independence of universities, and it did not hesitate to present its vision of the meaning of independence as it ruled: “The independence of universities and scientific research centers is inseparable and inseparable from the needs of society and production,” as well as the court showing and specifying the goal of universities’ independence, so it ruled: “Within the scope of the higher purposes of the law that aim to develop university education and enable universities to advance their scientific burdens”(((( 4) The court itself did not stop until it linked the principle of universities’ independence on the one hand and the freedom of scientific research when it found that the law of appeal, which is due retroactively, which changes the legal status of a full-time professor (retired) explicitly contradicts the guarantee of scientific research stipulated in the constitution, where it ruled: “As for the second aspect of violating the constitutional text, it is its violation of one of the basic freedoms guaranteed by the constitution to all citizens, which is the freedom of scientific research, because this freedom is one of the freedoms that are inseparable and inseparable from the person of the scientific researcher, so there is no difference between it and him and no entity or existence is imagined. independently of him” (5).
The Egyptian Supreme Constitutional Court draws for us the final goal of its judicial path in executing the law that intersects with the state’s duties in achieving the requirements of scientific research, most notably: the independence of universities and academic freedoms when the court linked its judicial path to the requirements of defending the purposes of the constitutional legislator when it ruled: “In appreciation of the constitutional legislature that the fruit of This freedom is scientific progress as the key to one and only hope to restore Egypt to its place and its civilized position” (6). As a result, Egyptian universities have recently achieved a clear presence in the international rankings of universities, especially in the classifications of (Chinese Shanghai, the British QS classification, the CWUR classification, and the US classification American News, and other ratings)
Unless it is deducted from other rights connected to it in an irreversible way, considering that it is necessary to achieve them or as a result of them, in addition to their connection to one fruit sought by the constitutional legislator, the right to education (7), and the right to encourage the state for scientific research and fostering excellence, creativity and innovation. (8) and the right to state sponsorship of cultural institutions ((9), these are rights from which the right to the independence of universities can be subdivided according to its connection with them and the necessity to achieve and integrate them with them. As for freedom of expression by all means ((10)), it is branched There are many freedoms related to the independence of universities and academic freedoms, most notably: freedom of scientific research, freedom of teaching, freedom of publishing, freedom of financial and administrative management, and intellectual freedom. But if what supports the advanced branching is the orientation of the ordinary legislator who ensured the administrative and financial independence of the universities ((11)), then do Iraqi universities have an area of independence in their scientific plans? Freedom of scientific research, freedom of teaching, freedom of publication, freedom of financial and administrative management, and intellectual freedom. But if what supports the advanced branching is the orientation of the ordinary legislator who ensured the administrative and financial independence of the universities ((11)), then do Iraqi universities have an area of independence in their scientific plans? Freedom of scientific research, freedom of teaching, freedom of publication, freedom of financial and administrative management, and intellectual freedom. But if what supports the advanced branching is the orientation of the ordinary legislator who ensured the administrative and financial independence of the universities ((11)), then do Iraqi universities have an area of independence in their scientific plans?
Those who follow the texts of the law find that universities propose plans (12) and unify these plans with one plan (13) and submit them to the ministry to include the educational policy in the government program, making universities work with one model of work and one comprehensive plan despite their disparity in material and human capabilities, including It makes the possibility of competition between them or between them and with regional, Arab and other universities diminishing, and as a result, the chances of attracting foreign students, hosting joint research, or achieving global academic reputation to improve the university’s rankings .. etc.
But what is the role of the Federal Supreme Court in ensuring the independence of universities in Iraq, and can it lay the foundations for independence and academic freedoms, enabling universities to reach the goal of their quest to reach international rankings?
The Federal Supreme Court tried to rely on the principle of educational public policy to clarify its vision in accepting the ruling request by a loyalty order to the plaintiff whose assignment as president of one of the public universities (14)), but is this basis sufficient to strengthen the foundations of university independence and academic freedom and keep them away from political and partisan interference and amendments Continuing in legislation and controls?
I think that the court needs to expand the scope of the evidence that supports its role in monitoring educational policy in order to advance a role similar to that of the Supreme Constitutional Court in Egypt. It is indispensable to search for implicit constitutional guarantees that are related to the principle of university independence and academic freedom and are not separated from it, meaning:It is hoped that the Federal Court will lay the foundations for the independence of universities in its constitutional framework so that universities can run their scientific, administrative and financial programs with stability and a clear vision to reach a striving to raise a rank in international rankings in proportion to the depth of the university experience in Iraq. Constitutional or supreme courts in the world play a clear role in drawing up Public policies, especially the educational policy, as well as its control over the formulation and implementation of that policy, so the Federal Court can block the way in front of political interference, hasty executive decisions and legislative amendments that intersect with the purposes of the constitutional texts related to the principle of university independence.
Notes
(1) Prof. Badr bin Juwaid Al-Otaibi. Developmental Needs for the Independence of Saudi Universities, Vision 2030, p. 105, Website: [https://jfust.journals.ekb.eg]
(2) Prof. Riyadh Aziz Hadi. Universities, University of Baghdad, Center for Development and Continuing Education, Volume Two, No. 2/2010, p. 78.
(3) Article 18 of the repealed 1971 Constitution of the Arab Republic of Egypt, and Article 21 of the amended and effective 2014 Constitution of the Arab Republic of Egypt
(4) Case 131 of 2002
(5) Case 131 of 2002
(6) Case 131 of 2002
(7) Article / 34 – first of the 2005 constitution
(8) Article 34-Third of the 2005 Constitution
(9) Article / 35 of the 2005 constitution
(10) Article / 38 – first of the 2005 constitution
(11) Article 10 of the Law of the Ministry of Higher Education No. 40 of 1988, as amended
(12) Article /16-1-b of Law No. 40 of 1988
(13) Article 3 of Law No. 40 of 1988
(14) Case No. 97/Federal/ for the year 2021
DATE: 15/08/2021