The norm that determines the language of instruction in private institutions of education complies with the Satversme
On 13 November 2019, the Constitutional Court passed the judgement in case No. 2018-22-01 “On Compliance of Section 1(1) of the Law of 22 March 2018 “Amendments to the Education Law” with Article 1, the second sentence of Article 91, the First Sentence of Article 112 and Article 114 of the Satversme of the Republic of Latvia”.
The Contested Norm
Section 1 (1) of the law of 22 March 2018 “Amendments to the Education Law” (hereinafter – Amendments to the Education Law):
“In Section 9:
to add to this Section Part 11, worded as follows:
“(11) In private institutions of education, the general education and vocational education on the level of basic and secondary education shall be acquired in the official language.””
The Norms of Higher Legal Force
Article 1 of the Satversme of the Republic of Latvia (hereinafter – the Satversme): “Latvia is an independent democratic republic.”
The second sentence of Article 91 of the Satversme: “Human rights shall be realised without discrimination of any kind.”
The first sentence of Article 112 of the Satversme: “Everyone has the right to education.”
Article 114 of the Satversme: “Persons belonging to ethnic minorities have the right to preserve and develop their language and their ethnic and cultural identity.”
The Facts
Three cases were initiated at the Constitutional Court regarding the compliance of the contested norms with the Satversme on the basis of applications that were submitted by persons belonging to ethnic minorities, who were obtaining general education at private institutions of education, using the language of their ethnic minority as the language of instruction. The legal reasoning in the applications was based on similar arguments. To facilitate comprehensive and fast adjudication, the Constitutional Court decided to join these in case No. 2018‑22‑01.
In case No. 2018‑12‑01, which was initiated on the basis of an application by twenty members of the 12th convocation of the Saeima, the Constitutional Court decided to examine the compliance of the contested norm with the second sentence of Article 91 of the Satversme, Article 112 and Article 114 in the framework of the case No. 2018‑22‑01 under adjudication. Hence, in the present case, the Constitutional Court examined also the arguments expressed by twenty members of the 12th convocation of the Saeima in case No. 2018‑12‑01 regarding the possible incompatibility with the contested norm with the Satversme.
The applicants note that pursuant to the contested norm general education in private institutions of education will have to be acquired in the official language.
The applicants are of the opinion that the contested norm denies the persons belonging to an ethnic minority the right to obtain general education in private institutions of education, using the language of the ethnic minority as the language of instruction. Allegedly, this right of persons belonging to ethnic minorities follows from Article 114 of the Satversme, examined in interconnection with the acts of international law binding upon Latvia. It is maintained that the contested norm restricts the rights of persons belonging to ethnic minorities to education established in Article 112 of the Satversme since it could lead to diminished quality of education.
The applicants hold that the contested norm, in several aspects, is incompatible with the second sentence of Article 91 of the Satversme, which includes the principle of prohibition of discrimination. Moreover, it is alleged that the contested norm is incompatible with the principle of legal expectations falling within the scope of Article 1 of the Satversme.
The applicants hold that the restriction on fundamental rights included in the contested norm was not established by a law adopted in due procedure since it had not been properly considered and, in the drafting of the contested norm, the objections made by persons belonging to ethnic minorities had not been taken into account. Moreover, this restriction on fundamental rights is said to not reach its legitimate aim to reinforce the use of the official language and to promote societal integration.
The applicants underscore that the legitimate aim of the restriction could be reached by less restrictive measures, reinforcing the learning of the official language in private institutions of education. Moreover, it is alleged that society does not benefit from the restriction established in the contested norm since it divides rather than integrates society.
The Court’s Findings
On the legal norm to be reviewed in the present case
The Constitutional Court noted that Section 1 (1) of the Education Law provides that Part 11 is added to Section 9 in the respective wording. At the time of reviewing the case, Section 9 (11) has already entered into effect partially. Hence, the Constitutional Court, in examining the constitutionality of Section 9 (11) of the Education Law (hereafter – the contested norm) took into account the fact that the contested norm was entering into force gradually. [12.]
In view of the facts of the case and the applicant’s arguments, the Constitutional Court, first and foremost, established the content of the contested norm and then successively reviewed its compliance with Article 112 of the Satversme in interconnection with Article 114 of the Satversme, then – with the second sentence of Article 91 of the Satversme, and, finally, with the principle of legal expectations included in Article 1 of the Satversme. [13.]
On the content of the contested norm:
The Constitutional Court found that the contested norm was a part of a broader regulation that was introduced in the framework of a concrete reform in the system of education. Therefore, the Constitutional Court analysed the contested norm in the context of the regulation adopted in the framework of the concrete reform in the system of education. [14.]
The Constitutional Court found that, pursuant to the contested norms, general education in private institutions of education, in general, would have to be provided in the official language; however, the contested norm did not prohibit from using languages of ethnic minorities in the process of general education. I.e., the legal regulation introduced as the result of the reform in the education system provided for the possibility in the stage of basic education in private institutions of education to teach subjects in the minority language and to learn minority language and literature as well as curriculum linked to the identity of the ethnic minority in the stage of secondary education. [14.1. – 14.4.]
On compliance of the contested norm with the first sentence of Article 112 and Article 114 of the Satversme:
The Constitutional Court noted that in Case No. 2018‑12‑01 twenty members of the 12th convocation of the Saeima requested recognising the contested norm incompatible with the whole Article 12 of the Satversme. However, the applicants have provided arguments regarding its possible incompatibility with the right to education, included in the first sentence of this Article of the Satversme. Hence, the Constitutional Court examined the compliance of the contested norm with the first sentence of Article 112, in accordance with the principle of the unity of the Satversme, taking into account also general principles of law and the rights included in other norms of the Satversme. [15.]
The Constitutional Court found that general education was not limited to the acquisition of certain knowledge and skills by a learner. The aims of general education should be examined more broadly – it has to reach also several social aims at the same time. General education should ensure, inter alia, the skill to a learner to use the official language freely. [15.1.]
Pursuant to the first sentence of Article 112 of the Satversme, the right to education comprises a person’s right to choose to obtain general education not only in state and municipal but also in private institutions of education. The State should ensure that general education provided also in private institutions of education reaches its aims. Therefore the State has the duty to design the standards of education required for reaching the aim of general education and to apply these both to state and local government and private institutions of education and to recognise officially only such education, acquired in institutions of private education, that comply with these standards. [15.1.]
In education standards, the State must define not only the study subjects to be mastered but also appropriate requirements necessary for reaching the aims of education with respect to the process of education. The language of instruction is one of the essential elements in the process of general education, and the State has the right to regulate it. However, in regulating the language of instruction in private institutions of education, the State must respect the rights of persons belonging to ethnic minorities that follow from Article 114 of the Satversme. [15.1.–15.3.]
Hence, pursuant to the first sentence of Article 112 and Article 114 of the Satversme, the State should establish such regulation on languages used in the process of general education that ensures balance, which is appropriate for the national circumstances, between learning of the official language and protecting the rights of ethnic minorities in the process of general education in private institutions of education founded by persons who belong to ethnic minorities. [15.3.]
The Constitutional Court noted that the norms that defined the admissible share of curriculum related to the culture and identity of ethnic minorities or regulated the acquisition or use of minority languages in the process of general education in private institutions of education restricted the rights of persons belonging to ethnic minorities that followed from the first sentence of Article 112 and Article 114 of the Satversme to acquire education and to preserve and develop their language and identity. Hence, the contested norm restricts the aforementioned fundamental rights of a person. [16.]
The Constitutional Court found that the contested norm had been adopted in the procedure established in normative acts and that the legislator had abided by the principle of good legislation. [17.]
In examining the proportionality of the restriction on fundamental rights, the Constitutional Court found that every person needed to be proficient in the official language to integrate in society successfully. Moreover, it also protects the rights of persons belonging to the title nation to use the official language freely in all areas of life throughout the territory of the state. Hence, the restriction on fundamental rights has a legitimate aim – protection of the democratic order and the rights of other persons. The restriction on fundamental rights is suitable for reaching the legitimate aim and there are no other more lenient measures that would allow reaching it in the same quality. [18. – 21.]
In examining, whether the legislator’s actions were appropriate in establishing the restriction on fundamental rights defined in the contested norm, the Constitutional Court noted that, presently, there were no grounds to conclude that the contested norm and the legal norms systemically linked to it would cause diminishing quality of education. After the contested norms and the norms systemically linked to it enter into force, the private institutions of education still have the right to deliver in the stage of basic education minority education programmes, teaching a significant part of the curriculum of basic education in the language of an ethnic minority. Whereas in the programme of secondary education, the private institutions of education have the right to include a specialised course “Language and Literature of the Ethnic Minority”, as well dedicate a significant part of the workload to subjects that are not referred to in the standard of secondary education that are aimed at preserving and developing the identity of ethnic minorities and integration of persons belonging to ethnic minority in society. [22.1.; 22.2.]
The Constitutional Court noted that the contested norm and the regulation systemically linked to it should be interpreted to mean that both the specialised course “Language and Literature of the Ethnic Minority” as well as the specialised subjects that were not referred to in the standard of secondary education that were linked to the identity and culture of ethnic minorities were to be studied by using the minority language as the language of instruction. This use of minority languages in the process of general education ensures to the persons belonging to ethnic minorities the minimum rights for due acquisition of the minority language and preservation of identity. [22.2.]
In view of the special historical situation in Latvia that has developed as the result of prolonged occupation of the state and Russification, as well as the current situation in the context of official language use, the Constitutional Court found that the legislator, in regulating the use of the languages of instruction in the process of general education in private institutions of education, had ensured a balance between fostering the use of the official language and the right of persons belonging to ethnic minorities to preserve and develop their identity and culture. Hence, the contested norm complies with the first sentence of Article 112 and Article 114 of the Satversme. [22.2.]
On compliance of the contested norm with the second sentence of Article 91 of the Satversme:
The Constitutional Court examined the compliance of the contested norm with the second sentence of Article 91 of the Satversme, taking into account that the applicants’ arguments in this matters substantially do not differ from the arguments that the Constitutional Court already analysed in case No. 2018-12-01. The Constitutional Court did not identify violations of the prohibition of discrimination in the aspects indicated by the applicants. [23. – 23.2.]
On compliance of the contested norm with the principle of legal expectations:
The Constitutional Court found that the legal regulation adopted in the framework of the particular reform of the system of education with respect to the proportion of using minority languages envisaged significant changes to the proportion of minority language use in the process of general education in private institutions of education. [24.3.]
However, in the stage of basic education, the minority language still can be used as the language of instruction in compliance with the proportions defined, and the private institution of education can decide itself, which subjects will be taught in full or partially in the minority language. Whereas in the stage of secondary education, the minority language can be used as the language of instruction to teach the subject of this very language as well as other subjects related to the identity or culture of the ethnic minority. [24.5.]
The Constitutional Court noted that the legislator, in adopting the contested norm and the legal norms systemically linked to it, had ensured to private institutions of education and their students a transitional period that was at least a year and five months long from the date when the aforementioned legal regulation was promulgated until the day it entered into force. Thus, the legislator had defined a lenient transition to the legal regulation included in the contested norm and the legal norms systemically linked to it. Thus, the contested norm complies with the principle of legal expectations and, hence, also with Article 1 of the Satversme. [24.5.]
The Constitutional Court held:
to recognise Section 9 (11) of the Education Law as being compatible with Article 1, the second sentence of Article 91, the first sentence of Article 112 and Article 114 of the Satversme.
The judgment of the Constitutional Court is final and is not subject to appeal. The text of the judgement [Latvian] is available on the homepage of the Constitutional Court: https://www.satv.tiesa.gov.lv/web/viewer.html?file=/wp-content/uploads/2018/11/2018-22-01_Spriedums.pdf#search=
Linked case: 2018-22-01