Applicants are Right, the Ministry is Wrong: Naira Zohrabyan

Bright Armenia party MP Naira Zohrabyan writes on her Facebook page: I have discussed today with various specialists and lawyers regarding the turmoil surrounding the admission exams and I have sought professional advice from Gevorg Danielyan. Summarizing the opinions of the experts, I assert that the applicants are correct.

I am attaching the professional conclusion regarding the legality of the legal bases for the admission process and I want to be assured that the ministry will draw conclusions from the specialists' assertions.

Conclusion on the legality of the legal bases for the admission process in state and non-state higher education institutions

The admission process for state and non-state higher education institutions is currently defined by the Government's decision No. 826-N, dated May 21, 2020, titled “On the Approval of the Admission Procedure for State and Non-State Higher Educational Institutions in the 2020-2021 Academic Year (by Bachelor's and Continuous and Integrated Educational Program) and the List of Specialties and Entrance Exams for Higher Educational Institutions (by Bachelor's and Continuous and Integrated Educational Program) for the 2020-2021 Academic Year.”

Currently, one of the most controversial norms of this decision is the provision established by point 59: “For applicants who did not pass the competition for the first designated specialty, the competition is conducted in accordance with the order of the specialties indicated in the admission application, provided that there are vacant places in the specified specialties.”

In our opinion, the aforementioned sub-legal act is problematic both in terms of content and in terms of the scope of issues subject to legal regulation, based on the following justifications:

1. First, the right to education is enshrined in Article 38 of the Constitution, which indicates that it is a fundamental right, and according to Article 75 of the Constitution: “In regulating the fundamental rights and freedoms, the laws establish the organizational structures and procedures necessary for the effective implementation of those rights and freedoms.” Thus, for the effective implementation of a fundamental right (and the admission process is an essential component of the right to education), procedures could have been established not by a government decree but solely by law. The necessity of exclusively regulating by law is also emphasized in part 2 of Article 38 of the Constitution: “Everyone has the right to receive education in state higher and other professional educational institutions on a free basis under the conditions and procedures established by law.” It is noteworthy that the government's decision also relates to the legal grounds for free education.
2. In this case, the government has not yet been aligned with Article 14, part 5 of the “Law on Higher and Postgraduate Professional Education” and parts 1 and 5 of Article 15 of the “Law on Education”, which contradicts the norm of Article 3 of the Constitution, which states: “Public authority is limited by the fundamental rights and freedoms of man and citizen as direct enforceable rights.”
3. The government's decision does not guarantee the competitive principle, which is enshrined in Article 38 of the Constitution, since the preference is given not to merit based on examination results but solely to the order in which preferred specialties are indicated in the admission application. As a result, it is considered accepted not those who have gathered higher scores in the same specialty (merely in different orders) but only those who indicated that specialty as their first choice in their application.
4. As has been shown in recent days, ignoring the principle of real competition enshrined in the Constitution has led to the admission of applicants who scored significantly lower marks. Such a policy is in serious conflict with the principles of the constitutional order enshrined in the Constitution: “The state promotes the development of culture, education, and science” (Article 15, part 1). It is beyond doubt that giving preference to those with lower performance has no relation to the mission of developing education and science.

Possible legal outcomes.

Despite all its vulnerable and problematic aspects, the government’s decision has created legal consequences for thousands of individuals. Therefore, a legal solution could be one that does not disrupt the expected status of both already accepted applicants and those who have scored higher. Especially since applicants with lower scores enjoy the right to trust in a legal act, in which case their rights cannot be limited either.

A balanced solution is to recognize those who have scored higher marks (with their agreement) as accepted through an administrative act according to the order of specialties, regardless of the current availability of vacant places. Such a solution is not only lawful but can also contribute to ensuring the principles of competition in future studies, as the opportunity to continue further studies will only be preserved for those who have shown genuinely necessary advancement.