PRESS RELEASE CONCERNING THE JUDGMENT ON EXCLUSION OF PRIVATE TUTORING CENTRES FROM THE SCOPE OF PRIVATE TEACHING INSTITUTIONS
At its session dated 13/7/2015, the Constitutional Court;
annulled the regulations in the Law on Private Teaching Institutions concerning the exclusion of private tutoring centres from the scope of “private teaching institutions” and continuation of the functioning of current private tutoring centres until 1.9.2015,
rejected the request for annulment of the regulations concerning the appointment of Directors of Schools and Institutions by the Governor for a term of four years and per se termination of the office of certain Directors and Deputy Directors as of a specific date,
annulled the rule concerning the removal of officers at certain positions within the central organisation of the Ministry of National Education from office, except with regards to the phrase “Head of Group”,
rejected the request for annulment of the regulation concerning the appointment of National Education Supervisors and National Education Deputy Supervisors in charge at the Ministry of National Education to the positions of Education Inspectors and Education Deputy Inspectors by means of the new regulation.
A- Exclusion of private tutoring centres from the scope of “private teaching institutions”
Rules Constituting the Subject of Case
The exclusion of private tutoring centres from the scope of “private teaching institutions” included in the Law on Private Teaching Institutions” and continuation of the functioning of current private tutoring centres until 1.9.2015 are regulated in the rules constituting the subject of case concerning the Repeal of the Phrase “tutoring centres” in subparagraph (b) of the first Paragraph of Article 2 of the Law numbered 5580 along with the first Paragraph of Provisional Article 5.
Reason for the Case
In the petition of the case, it has been briefly alleged that the rules constituting the subject of case are contrary to Articles 2, 5, 13, 17, 35, 42, 48 and 49 of the Constitution, by noting that they have not been introduced due to a compulsory social need and that the total elimination of functions of private tutoring centres which encompass the right to education and learning, the freedom of enterprise, the right to work is disproportionate and undermines the essence, and that the right to private enterprise is totally abolished through the prohibition of private tutoring, whereas the State is obliged to strike a fair balance between the public interest expected from the restriction and individual rights and freedoms.
The Court’s Assessment
The rules constituting the subject of case have been examined by the Constitutional Court with regard to Article 42 of the Constitution titled “Right and duty of education and Learning”, Article 48 titled “Freedom of work and contract” and Article 13 titled “Restriction of fundamental rights and freedoms”.
With Regard to the Right to Education and Learning
According to the Constitutional Court, in democratic countries, the legislator has broad discretion concerning the determination of education policies and opting for institutional alternatives in terms of the implementation of these policies. The position of institutions offering preparatory education for exams in education policy as well as the law to which these institutions shall be subject and the power to determine its limits are also within this scope.
Whereas the power to determine fundamental policies and means of their realisation is vested with the legislator, the legislator’s power in respect thereof is limited by the Constitution and the regulations to be introduced should not violate the Constitutional principles and fundamental rights and freedoms. The idea of protecting the fundamental rights held by everyone inherently and due to being human despite the will of majority, and even of not being able to raise these rights and freedoms as issues for voting underlies the basis of constitutional democracy. In this sense, fundamental rights and freedoms form the constitutional boundaries of democratic political powers. The duty and power of supervising whether these boundaries are abided by law is undoubtedly vested with the Constitutional Court.
Democratic society requires an order in which the individual can live freely, realise himself/herself, freely make the decisions concerning himself/herself and retain his/her individual autonomy in the face of all kinds of pressure. Perhaps the most significant indicator of freedom is the existence of right to preference. There can be no mention of freedom in a place where the possibilities for persons to make a preference among different options are removed. In democracies, the duty incumbent upon the State is to enable the individual to have the opportunity to make a preference in a pluralist environment; notably, to refrain from attitudes targeting the elimination of this opportunity and to prevent negative interventions from others in this regard. While the right to preference can be restricted for legitimate purposes, this restriction should not be carried out in a way which shall eliminate this right of persons or render its exercise impossible.
Private tutoring centres function with a view to preparing students for an upper school or examinations for attendance in higher education, improving them in the courses of their preference and raising their level of knowledge, and serve the purpose of remedying students’ deficiencies or increasing their knowledge in the subjects included in school curricula. In other words, private tutoring centres satisfy a need towards obtainment of knowledge concerning subjects of school curricula.
Utilization of persons of education services provided by private enterprises in accordance with the law on the purpose of preparation for an upper school or attendance in higher education and thus their attainment of out-of-school education is within the scope of the right to education enshrined in Article 42 of the Constitution.
The right to education and learning in Article 42 of the Constitution has a feature of enabling the person to retain and improve his/her material and spiritual existence, along with other rights. The duty of the State, which is responsible for the supervision and inspection of education in accordance with the same article, is to enable everyone to enjoy the right to education and learning in the best possible way. Regulation of sphere of activity of private enterprise offering service in the field of education is a requisite of the obligation of the State to enable the proper and efficient functioning of education and learning.
It is obvious that the right to education as well as other fundamental rights assigns the State with certain responsibilities. The State should take the necessary measures in order to enable everyone to enjoy the right to education and learning. While the State is under no absolute obligation to establish institutions where out-of-school education can be received, it should refrain from regulations giving rise to the total elimination of services offered by private sector in this field within the framework of legislation, unless there is an obligation. In other words; no regulation, which shall abolish education and learning rights of persons and eliminate the freedom of enterprise, render their exercise impossible or restrict them disproportionately, can be introduced.
As a matter of fact, out-of-school education indicates a space where persons are able to act freely and where they can improve their material and spiritual existence in accordance with their preferences. The State should not intervene in this field, unless it is obligatory with regard to the democratic order of society. However, it is evident that the legislator has a power of discretion in the regulation of the field of out-of-school education, as Article 42 of the Constitution stipulates that education shall be conducted under the supervision and inspection of the State. This power of the State enables the legislator to introduce regulations in matters such as the name, structure, sphere of activity of the mentioned institutions and the rules they are to obey.
When the regulation introduced by the rules constituting the subject of case is examined, it is understood that no alternative solutions to satisfy the need of receiving out-of-school education are considered while the activities of private tutoring centres are terminated through their exclusion from the scope of “private teaching institutions”. On account of inclusion of “the stipulation of not having the characteristics of preparation for attendance exams for secondary or higher education” in the definition of “various courses” counted among “private teaching institutions” in the Law and as it is noted in the definition of study centres that these institutions are to be established to conduct activities for students “at and below the age of twelve”, it is obviously impossible to prepare for attendance exams for an upper school and higher education in the mentioned institutions. Within this scope, it is understood that the persons concerned are not granted with an option and that an opportunity for access to information, which is restricted with only the courses offered at schools, is provided. Thereby exclusion of private tutoring centres from education system without providing alternative out-of-school opportunities to meet the need of preparation for attendance exams for an upper school and higher education is a disproportionate restriction of the right to education and learning.
Seeking closure of private tutoring centres stemming from the system of education and exams and granted with a legal status by the State, instead of taking measures to prevent the drawbacks they bring about, through a complete ban of these institutions by means of the rules in dispute, eliminates the possibility for persons to receive an educational support from out-of-school private institutions within the scope of preparation for exams; therefore, violates the right to education and learning.
With Regard to Freedom of Enterprise
According to the Constitutional Court, the freedom of enterprise guaranteed under Article 48 of the Constitution, safeguards the right to economic enterprise of every real and legal person freely in the field of his/ her choice. As expressed in the reason for the Article, this freedom “has been regulated as an economic and social right with a view to providing the individual personally with his/ her economic peace and prosperity.” Again as provided in the reason, Article 48 “has both provided a guarantee for free enterprise, and has indicated in its second paragraph the restrictions that might be introduced.” Accordingly, the State can impose restrictions on the freedom of private enterprise in cases of public interest and as required by the national economy, and for social purposes.
When it is considered that private tutoring centres are enterprises which operate in the field of education, it is obvious that State supervision and inspection over them should be stricter. In this regard, it is possible for the administration to be able to apply sanctions on the enterprises acting against the laws and to be able to cancel their work permits when the legal requirements are met. However, complete ban/ shutdown of a private enterprise continuing its operation within the statutory framework for the reasons not stemming from free market conditions depending on supply and demand, hence, on the free will of the individual, without a compelling social need in respect of the order of a democratic society, leaves the freedom of private enterprise unprotected.
Private tutoring centres operating in the field of out-of-school education with the status of private enterprise are closed by the rules in dispute. Although tutoring centres are provided with the opportunities to transform into private schools within this period, the activities of the enterprises which are not included in the program of transformation or which do not accept the transformation are terminated. As provided in the explanations made within the scope of Article 42 of the Constitution, while regulations are being made on private tutoring centres by the legislator, different solutions should be considered in order to meet the needs of the individuals to receive out-of-school education in accordance with their choices. Without introducing a regulation of the specified nature and putting forward a compelling reason in respect of the order of a democratic society without resorting to less restrictive means which shall accomplish the purpose of restriction as well, closure of private tutoring centres with a completely prohibitive method is a restriction on the freedom of enterprise, which is unmeasured and not necessary in the order of a democratic society.
As a result, the Court has found that the rules on exclusion of private tutoring centres from “private educational institutions” and on the possibility of the activities of the current tutoring centres and study centres that does not transform to continue until 1.9.2015, contrary to Articles 13, 42 and 48 of the Constitution and has decided on their annulment.
B- The Other Rules
Appointment of Directors of Schools and Institutions for four years by the Governor
In paragraph (8) of Article 37 of the Decree with the power of law numbered 652, which is in dispute, the Constitutional Court, has not found the rules, concerning that Directors of Schools and Institutions shall be assigned by the Governor for a term of four years upon the proposal of the Provincial Director of National Education, as for Chief Deputy Directors and Deputy Directors, they shall be assigned by the Governor for a term of four years upon the letter of appointment by Directors of Schools or Institutions and upon the proposal of the Provincial Director of National Education, and concerning that the other procedures and principles on termination of these assignments before expiration of term of office, re-assignment of the ones whose terms have ended and on enforcement of this paragraph shall be regulated in a by-law, unconstitutional and has held that the request for annulment of the mentioned rules shall be rejected.
Per se termination of the office of certain Directors and Deputy Directors of certain Schools and Institutions as of a specific date
In paragraph (8) of provisional Article 10 added to the Decree with the power of law numbered 652, as from the date of enforcement of provisional Article 10 of the Decree with the power of law numbered 652, the Constitutional Court has not found the rules, concerning that the office of Directors, Chief Deputy Directors and Deputy Directors whose terms are four years and more shall terminate without any other necessary procedure as of the end of 2013-2014 academic year, that the office of those whose terms are less than four years shall terminate as of the end of the first academic year following expiration of these terms without any necessity for another procedure, unconstitutional and has held that the request for annulment of the mentioned rules shall be rejected.
Removal of officers at certain positions within the central organisation of the Ministry of National Education from office
In paragraph (3) of provisional Article 10 added to the Decree with the power of law numbered 652, the Constitutional Court has found the rules concerning that the office of those in the positions of Member of Turkish Education Board, Deputy Undersecretary, General Director, Head of Group of Construction and Estate and Head of Group within the central organisation of the Ministry of National Education and that of those in the positions of Provincial Director, Provincial Deputy Director of National Education and District Director of National Education within the provincial organisation of the Ministry shall terminate, without any necessity for another procedure, on the publication date of this article, that among these, the persons in the positions of Member of Turkish Education Board, Deputy Undersecretary and General Director shall be assumed to have been appointed to the positions of Ministry Advisor formed in the annexed list numbered (3), persons in the positions of Head of Group and Provincial Director shall be assumed to have been appointed to the positions of Head of Group and Provincial Director formed in the annexed list numbered (3), the others and those in the personal positions of Branch Chief on the basis of provisional article 3 shall be assumed to have been appointed to the positions of Education Expert formed in the annexed list numbered (3), without any necessity for another procedure, retaining their grades of current positions, that the positions formed in the annexed list numbered (3) shall be assumed to have been cancelled without any necessity for another procedure in case of their vacancy for any reason, contrary to Article 2 of the Constitution and has annulled these rules, except with regard to the phrase “Head of Group.”
Regulation concerning National Education Supervisors and National Education Deputy Supervisors in charge at the Ministry of National Education
The Constitutional Court has also not found the rules concerning the appointment of National Education Supervisors and National Education Deputy Supervisors in charge at the Ministry of National Education to the positions of Education Inspectors and Education Deputy Inspectors by means of the new regulation and removal from legislation of the titles “National Education Supervisor” and “National Education Deputy Supervisor” unconstitutional and has held that the request for annulment of the mentioned rules shall be rejected.
This press release prepared by the General Secretariat intends to inform the public and has no binding effect.