Reforms needed to university laws

PRIME Minister Datuk Seri Anwar Ibrahim has declared that all provisions of the Universities and University Colleges Act 1971 (UUCA) that restrict the freedom of staff and students will be amended or repealed.

Higher Education Minister Datuk Seri Khaled Nordin has gone further to observe that related laws will also be studied as part of a comprehensive review.

However, both leaders have asserted that the Act as a whole cannot be repealed because it deals with many other matters, including the establishment and governance of public universities. This view is supportable because the Act and its First and Second schedules contain 120 sections, and only 15 deal with student freedoms, discipline, and etc.

But student and staff freedoms are not the only areas that need review. There are others like university autonomy in which we need to break away from the Act’s top-down, iron-fist rule of 51 years. The extent of the needed changes is so broad that fresh new legislation, which avoids the stigma of the past, may be a good idea.

Broadly speaking, reform of the laws that govern universities is needed in three areas. First, public universities must have more autonomy from the government. Second, academic staff must have greater freedom to think and write, and constructively criticise social reality without fear of reprisals. Third, students must be allowed to articulate ideas, listen to diverse opinions, participate in the governance of their lives and organise their own associations.

Each of these three areas deserves a separate treatment, and this article will be confined to university autonomy.

Under the law, though not in reality, all universities are invested with a fair amount of operational independence in the areas of education, administration and finance. UUCA and the Universiti Teknologi Mara Act 1976, while flawed, contain many unrealised and unutilised sections that confer a fair amount of operational independence on public universities.

In law, all universities are separate body corporates distinct from the Federal Government or its ministries. For this reason, all public service circulars and general orders do not apply to universities unless these are compatible with university laws and adopted by the University’s Board in part or whole.

University employees are not public servants under Article 132(1) of the Federal Constitution. As such, their appointment, transfer, terms of service, promotion and discipline are not covered by rules applicable to public services.

Under UUCA, universities have power over staff matters, discipline of students, academic decisions, regulation of student affairs, research and publication, and twinning programmes.

Since 2009, professors and associate professors have been electing 20 of their colleagues to the University’s Senate. The vice chancellor (VC) appoints the deans and heads, but he is required to consult with the academic staff.

Despite these provisions, there are many hurdles in the path of university autonomy. Foremost are the following.

The minister has the power to appoint top university leadership, including the chancellor, pro-chancellor, chairman, members of the Board, VC, deputy VCs and campus heads. Unlike the members of the Board, the VC has no fixed term and no security of tenure. It is noteworthy that out of 11 members on the Board, there is a guarantee of only one academician on it.

There is a strong sentiment that the University Senate, its alumni and staff must have some say in the appointment of their Board of Directors and top management. As Prof Ahmad Murad of the International Institute of Islamic Thought and Civilisation says, “the electoral process must be in place at all levels from the governing councils to the deanship”.

The minister has other powers to give general directions to the university. He can order any investigation; transfer or second the service of a university employee; approve the transfer of recurrent expenditure to capital expenditure; and permit the establishment of campuses in Malaysia or abroad.

Besides the minister, many other agencies, like the Malaysian Qualifying Agency (MQA) and the qualifying boards of professional bodies, exert significant control over university courses and curricula.

In commercial matters, universities are subject to extensive control by the Finance Minister, whose permission is needed to set up companies or corporations. Even taking on a lease requires prior permission from the minister.

Staff discipline is not entirely in the university’s hands. Several disciplinary committees and appeal committees exist and their composition includes the minister, secretary-general and legal advisor of the ministry. There is no reason to believe that the university cannot handle its own disciplinary matters.

Most universities have very little income of their own and rely almost entirely on Parliament for operational and developmental expenses. And money comes with strings attached. Under Section 13 of the Financial Procedure Act 1957, the minister concerned has power to authorise or limit or suspend any expenditure authorised by Parliament.

In addition, there is extra-legal bureaucratic control through circulars, schemes, directives and instructions from many government agencies, including the Public Service Department (JPA), which has considerable control over staff matters. Due to the weight of tradition, university administrators tend to comply.

Bureaucracy triumphs and the law takes a back seat.

For example, there is an order to all universities that all lands for which development public funding is received must be transferred free of cost to the Federal Lands Commissioner.

This Circular may be violating the university’s right to property under Article 13 of the Federal Constitution.

It can be stated that the regulation of universities has a history going back to 1949 under the University of Malaya Ordinance 1949 and the University of Malaya Act 1961.

Government control over universities was less pronounced then. By way of recommendation, we can look at the past to chart our future.

As the Higher Education Minister has noted, there are other laws that impinge on staff and student freedoms and need a review. Among them are the Statutory Bodies (Discipline and Surcharge) Act 2000, and the Universiti Teknologi MARA Act 1976.

The government must distinguish between pre-decisional controls and post-decisional accountability. Instead of pre-decisional fetters, the ministry should enforce post-decisional accountability.

For example, under Universiti Sains Malaysia’s “apex law”, there should be financial independence from the treasury except in relation to grants-in-aid from Parliament. The university’s self-generated income must be under its own control.

In sum, the dawn of a new educational era requires fresh thinking. UUCA could be repealed and replaced by a totally new Universities Act to provide measures for university governance, autonomy, accountability and more staff and student freedoms.

Emeritus Professor Datuk Dr Shad Faruqi is Holder of the Tunku Abdul Rahman Chair at Universiti Malaya. The views expressed here are the writer’s own.