July 14, 2015

Constitutional Court overturns controversial law abolishing prep schools

The top court has annulled in a landmark ruling a much-criticized law that sought to close down privately owned prep schools, which help students prepare for standardized high school and university entrance exams, ruling that the closure would be against the Constitution.

The Constitutional Court, which annulled the law by a five-to-12 majority vote, said the law represented a violation of the Constitution regarding the articles related to the right to education and freedom of labor.

News of the annulment were broadcast as breaking news on TV channels late on Monday after the top court discussed the issue in a full day final session.

Ergun Özbudun, a professor of constitutional law at İstanbul Şehir University, finds the Constitutional Court's verdict aptly taken.

He said: “As was noted by the Constitutional Court, this law was to deal a blow both to the right of education and the freedom of enterprise.”

The court is expected to announce its reasoned verdict on the issue on Wednesday.

Acting Prime Minister Ahmet Davutoğlu, who is also the leader of the Justice and Development Party (AK Party), said the government would not change its stance regarding the prep schools.

“The authority to determine educational policies belongs to the government,” Davutoğlu said at a press meeting on Tuesday, adding that they would wait to see the reasoned verdict of the court.

The AK Party government decided, in a surprise move in the fall of 2013, to close down prep schools, stirring a massive debate concerning millions of people including not only young people and their families but also teachers.

The ruling party bill banning prep schools was passed by Parliament on March 7, 2014 and signed into law by then-President Abdullah Gül.

Nabi Avcı, minister of education, said on Tuesday he did not expect the court to announce such a verdict as the court had refused to stop the execution of the law when the appeal was first made to the court more than a year ago.

Avcı said the ministry would announce what it would do after the Constitutional Court gives its reasoned verdict.

If the Constitutional Court had not annulled the law, all prep schools would have been shut down by Sept. 1 of this year.

Zühtü Arslan, the head of the court, also voted for the annulment of the law.

The main opposition Republican People's Party (CHP) filed in April of last year a petition for the annulment of the law saying it was unconstitutional, a blow to the right to free enterprise.

“Everyone other than members of the AK Party government was aware that the law is against the Constitution,” CHP deputy Mahmut Tanal told Today's Zaman, noting that the AK Party is the first party in the world that sought to abolish such an educational institution.

The Constitutional Court underlined in its verdict that the amendment in the education law that seeks to abolish prep schools is against Articles 13, 42 and 48 of the Constitution.

Drawing attention to the fact that Article 13 notes under which conditions fundamental rights and freedoms may be restricted, the court said the law in question was not in line with the requirements of the article.

The court also said the law was in violation of Articles 42 and 48 of the Constitution, which address the right to education and freedom of labor, respectively.

The court underlined in its ruling that no one can be denied by law the right to education and the freedom of labor.

The verdict will go into effect following publication in the Official Gazette, which will be after the court prepares in its verdict the reasons for the ruling as well as the opinions of the dissenting members.

According to the law, prep schools were allowed to convert into regular schools within two years as long as they fulfill the requirements.

Following the Constitutional Court's annulment, those prep schools that have not made the switch to schools will be able to continue their activities as prep schools.

The prep schools that have already become regular schools will need to apply again to the Ministry of Education to reacquire the status of prep school.

The prep schools and teachers who have financially suffered because of the unconstitutional law are expected to sue the ministry for damages.

Noting that the Constitutional Court's delay in giving a verdict on the issue has paved the way for damages, the CHP's Tanal said: “All those who have suffered damages can file a suit for damages. The state has to compensate the damages suffered due to the law the unconstitutionality of which has been confirmed.”

According to official figures as of the beginning of the year, 1,048 of the nearly 4,000 prep schools had applied for transformation into regular schools, of which 748 have been accepted.

The top court put the law on its agenda more than a year after the CHP appeal. In a special session last Wednesday, the court took for the first time in its history opinions about an issue under discussion from the parties concerned.

The Güven Preparatory Schools Owners Association (GÜVENDER) and the Union of Private Preparatory Schools (ÖZDEBİR), whose members are owners of prep schools, as well as representatives of the Ministry of Education, and of the Pak Education and Science Employees Union (Pak Eğitim-İş), which was established by teachers who work for prep schools, delivered presentations to members of the top court in the session.

As far as Today's Zaman could gather, Education Minister Nabi Avcı failed to satisfactorily answer questions such as where the students who had already graduated from high schools would be able to attend courses to prepare for the university entrance exam.

“The annulment of the law is good news in the name of democracy,” CHP Deputy Chairman Sezgin Tanrıkulu told Today's Zaman.

Then-Prime Minister Recep Tayyip Erdoğan confirmed on Nov. 21, 2013, the government's earlier plan to shut down all existing prep schools, arguing that "they operate in parallel to the education system."

According to Ministry of Education figures, there are 3,858 prep schools in Turkey, attended by 2.2 million students. Out of the 739,000 high school seniors who must take the university entrance exam to continue their education, 550,000 attend prep schools.

Most Turkish schools have 40 hours of classes in a week, while prep schools offer 15-20 hours of extra weekly lessons.

The Constitutional Court rapporteur recommended in his report, which was delivered to members of the court two weeks ago, that the court rejects the CHP's appeal.

In order to support his argument, the rapporteur pointed to the closure of casinos in 1998 in Turkey, saying that these free enterprises were also shut down.

One of the most widespread objections to the closure of prep schools is that it contradicts Article 48 of the Constitution, which protects legal private enterprise, as well as international conventions that Turkey signed, such as Article 26 of the Universal Declaration of Human Rights (UDHR) and Article 2 of the European Convention on Human Rights (ECHR) concerning access to educational opportunities.

Prep schools, with their affordable fees, are regarded by middle- or low-income families as an equalizer for educational opportunities.

Ertuğrul Günay, a former AK Party deputy, called on the Ministry of Education, in a message over Twitter on Monday night, to increase the overall quality of the education instead of waging a war against prep schools.

Günay, who also served as minister of culture and tourism before resigning from the party, said: “The Constitutional Court's annulment is correct and natural as the law abolishing prep schools is blatantly against freedom of enterprise.”

A survey conducted by the Union of Active Educators (Aktif Eğitim-Sen) at the beginning of the year showed that 75 percent of students do not want the prep schools to be shut down.

A full 69.6 percent of the 3,321 students who participated in the survey think shutting down the prep schools will decrease the chances of getting into a good university for students from low and middle-income families.

According to a recent report by the Turkish Union of Chambers and Commodity Exchanges (TOBB), closing down prep schools would adversely affect the entire education system.

The report released last month noted that both state and private schools would be affected by the closures when more than 60,000 experienced teachers at more than 3,000 prep schools become unemployed.

The report drew attention to the fact that at least TL 1 billion ($0.4 billion) in investments to the sector would be wasted due to the potential closure.

Published on Today's Zaman, 14 July 2015, Tuesday