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PUBLIC UNIVERSITIES:

AUTONOMY, GOOD

GOVERNANCE AND THE

LAW

Emeritus Professor Datuk Dr Hj Shad

Saleem Faruqi

Universiti Teknologi MARA

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INTRODUCTION

IN addresssing the topic it is proposed to examine not only “the law in the book” but also the “law in action” i.e. the de facto, existentialist realities on the ground.

The gist of what I have to say is that in the days of the University of Malaya Ordinance 1949 and the University of Malaya Act 1961 (Act 682), government control over universities was less pronounced than it is today. We can learn from the past to chart our future.

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The spirals of history are in motion again. In the last few years, we have begun to dream dreams of becoming the regional hub of education, achieving world class status, producing Nobel laureates, emphasising research and innovation, developing links with industries, commercialising our findings and generating more funds. The pendulum is swinging towards autonomy in selected areas.

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In 1996 the “corporatisation amendments”

were enacted to enable universities to

embark into commercial activities.

The conferment of ''research university''

and ''apex'' status, procedures for self

accreditation and ''one-line budgets'' are

steps in that direction.

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AUKU was amended in 2009 and 2012 to confer

more autonomy on the university community.

The government has allowed the setting up of

private universities and the establishment of

foreign university campuses on our soil. This is

leading to intense competition between the

public and private sectors.

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A creative ferment has gripped our

citadels of education. The basic aims of

tertiary education are being re-examined.

Some hallowed, framework assumptions

are under intense scrutiny. Speaking with

optimism, some good will definitely come

out of this intellectual questioning.

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AIMS OF EDUCATION

At one time, universities were regarded as ivory tower institutions aloof from society and wedded to the esoteric pursuit of knowledge for knowledge’s own sake. No one would support such a limited role any more. The horizons of university education are expanding at a breathtaking pace and more and more valleys and summits are coming within the university's vistas.

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Idealistic aims: A modern uiversity should be imbued with rich multi-facted functions – knowledge dissemination, knowledge generation, knowledge application, knowledge assimilation and knowledge evaluation.

Besides imparting professional skills, universities must build character. They should impart a social conscience and a social perspective.

The curriculum should be so devised that staff and students are involved in the amelioration of the problems of society and in social service.

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The university should assist in nation-building

and in fostering the understanding of and

respect for each other’s cultures and traditions.

In an age of internationalization, university

education should impart global perspectives. At

the same time, in an Asian context, third world

perspectives must not be ignored and the

prevalent Western bias must be corrected.

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In an age of economic booms and busts and high unemployment rates, there is growing disconnect between what students study and what their subsequent careers are. It is necessary to train students for multi-tasking, multi-disciplinary approaches; and to have split-degree courses.

The university must democratize education because education is the great equalizer of the human condition. The “quest quotient” should excite educational administrators as much as the “intelligence quotient”.

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Cusp of change: Idealism is giving way to pragmatism and functionalism. The question is being asked: are universities about education or utility?

The primary aim of universities today is to build careers and not characters. Education today is for earning, not learning. We have become mistresses to the Qualifying Boards of our professions. They dictate the character and content of our curriculum.

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Liberal education in languages, literature

and humanities is being ignored. Over-

specialisation has replaced broad-based

education. Students know more and more

about less and less.

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In Asia and Africa there is a problem of high graduate unemployment. The millions being churned out have no jobs waiting for them. Skepticism is growing about how much tertiary education can do to liberate lives. Should emphasis be shifted towards vocational training? Should tertiary education be reformulated to facilitate self-employment and entrepreneurship so that graduates of vocational institutes and universities create jobs for others and not flood the job-market themselves?

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Industry-varsity synergy is the new buzz word. Universities have become obsessed with markets, businesses and student employability. The Wilson Report in the UK shamelessly speaks of universities as part of a complex “skills and innovation supply chain business”!

The modern trend is for universities to force academics to promote enterprise and entrepreneurship as part of their work.

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There is much to be said for these

developments. However, the darker side is

that teaching suffers. The university

replicates the aims and objectives of a

commercial enterprise.

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Emphasis on business acumen influences and distorts staff development and recruitment policies. Vice-Chancellors, Deans and lecturers are being evaluated for their entrepreneurial skills and the number of grants they bring in. Universities are developing business models and are being forced to run like commercial organizations even though they are not primarily a business entity.

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Research has become the new raison d’etre of a university’s existence. Emphasis on research, while desirable, is leading to a number of adverse tendencies. Teaching is being neglected. Committed teachers are bypassed in tenure and promotions in comparison with entrepreneurial researchers.

Universities have become obsessed with rankings and the buccaneers in the rankings industry are reaping huge rewards.

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In sum, higher education is in flux. New

developments are bringing about radical

changes in the way some universities

conceive their role in society. There is

understandably no unanimity on the aims

of tertiary education.

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Yet the criteria employed for evaluation/ranking/research/apex status tend to treat all universities as alike. Surely, Universiti Petronas, Universiti Islam Antarabangsa and UiTM cannot have the same educational aims as Universiti Malaya. Different imperatives call for different measures of evaluation.

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LEGAL FRAMEWORK FOR

AUTONOMY WITH

ACCOUNTABILITY

The aims of education outlined above

require a legal framework that permits

initiative, enterprise and autonomy, and

balances these with the need for

responsibility, answerability and

accountability. The existing laws present a

mixed picture.

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Various dimensions of autonomy: Autonomy has at least two dimensions – first, autonomy of the university from external forces especially the government. Second, autonomy of the various units of the university (the campuses, the faculties, the various academic and non-academic centres) from control by the university’s LPU, Senate, the VC, TNCs etc.

The Universities and University Colleges Act 1971, while full of flaws, contains many unrealised and unutilised sections that confer a fair amount of operational independence on our public varsities.

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Statutory body status: Legally, all universities are semi-autonomous, statutory bodies. They have a corporate personality distinct from and independent of the Government. Their employees are not part of the “public services” under Article 132(1) of the Federal Constitution. Ramalingam v Chong Kim Fong [1978] 1 MLJ 83; Dr Chandra Muzaffar v University Malaya (2002) 2 CLJ 448; Sulaiman Mat Tekor v National Population & Family Development Board (2008) 10 CLJ 581; Dr Che Wan Fadhil Che Wan Putera & Yang Lain v Universiti Teknologi Malaysia (2010) LNS 2010; and Mckinney v University of Guelph [1990] 3 SCR 229.

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In theory, universities have wide

administrative and financial powers.

Government circulars and public service

General Orders do not apply to the

universities unless adopted by the

Lembaga of the University.

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Powers conferred by law: All universities are invested with a fair amount of operational independence in the areas of education, administration and finance. For example all Universities have the legal power to set up their own service schemes to attract and retain the best scholars and researchers.

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It has vast powers to make educational

decisions, regulate staff and student

affairs, commercialise its research

findings, enter into contracts and, with the

permission of the Minister, undertake

commercial and entrepreneurial activities,

set up trusts, companies and corporations.

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Possible exemption from AUKU: Section 28 of AUKU permits the Yang di-Pertuan Agong to exempt a university from the provisions of the First and Second Schedules (but not from the rest of the Act) or to vary or add to any of the provisions of these schedules.

Setting up companies: Under section 4A(1)(b) of AUKU's First Schedule, the Board, with the permission of the Finance Minister, can float companies under the Companies Act 1965.

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Setting up corporations: Under section

4A(1)(c) of the First Schedule, the Board, with

the permission of the Finance Minister, can

''establish corporations to carry out and have the

charge, conduct and management of any

property, project, scheme or enterprise which in

the opinion of the Board would be beneficial and

advantageous to the University''. .

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LPU, Senate and VC have power to delegate: Under existing laws, the LPU and the Senate (by Resolution) and the VC (by order) can delegate their existing powers to committees or individuals. Branch campuses, faculties, centres and units can thus be empowered in most areas of university life, whether administrtaive, financial, academic or disciplinary.

Campuses abroad: There is now power to set up campuses abroad. s. 12(1) AUKU.

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GOOD GOVERNANCE

Consultative processes: The AKU 2009 Amendment puts in place a number of democratic consultative processes as a pre-condition to the making of decisions on key university appointments. The minister, in appointing the chairman and members of the board of directors, the Vice-Chancellor, Deputy Vice-Chancellors and directors of campuses, will now have to consult with a committee.

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The Vice-Chancellor in appointing deans

and heads will be obliged to hear out the

faculty members. In addition, he will have

to inform the board of his choices. All this

should promote more transparency and

more quality appointments.

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Transfer of ministerial powers: University autonomy is improved by transferring some ministerial powers to the university’s board of directors. For example, student discipline appeals, previously heard by the minister, shall now be heard by a committee of the university’s board.

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Demarcation of powers: The 2009

Amendment to AUKU demarcates clearly

the powers and functions of the Board, the

Senate and the Vice-Chancellor. For

example it clarifies that the Board is the

“governing, policy-making and monitoring

body of the University” (s. 20(1)).

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However, the Board is not the de facto,

functional, executive agency of the

university. Its members, other than the VC,

are not officers of the University. Nine out

of eleven members are part-time. They are

outsiders.

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The VC is the chief executive officer of the University who is responsible for the overall administrative, academic and management functions and the day to day affairs of the University (s. 7(3)). The TNCs, Campus Heads, Registrar, Bursar, Deans and Centre Heads are answerable to the VC who in turn acts under the “general authority and direction of the Board and the Senate” (s. 7(1A)).

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It is also notable that unless explicitly stated otherwise, all powers of the Board belong to the Board as a whole. The Board must act through a quorum consisting of the Chairman plus four other members. The Board must meet only after the requisite notice has been sent to all members accompanied by the agenda. Informal discussions between members of the Board are legal but they do not amount to a decision of the Baord and are not binding on the University or its officers.

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Disputes: If any jurisdictional dispute still arises there is in place a non-judicial dispute resolution mechanism.

Upgrading the Senate: Hitherto, the university Senate’s academic powers were subordinate to that of the Board. The 2009 Amendment changed that.

Staff welfare: Employees with grievances can file appeals with the board on matters of appointment, renewal and promotion.

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Democratic representation: Previously, the

Vice-Chancellor appointed 20 professors to the

senate. The Amendment empowers professors

and associate professors to elect 20 of their

colleagues to the university’s senate. In

addition, it charts a new course by permitting a

senior elected academician to sit on the board of

directors.

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Staff Welfare: There is now an employee

welfare committee of the board and

employee association representatives

shall be members of this committee.

Likewise, student representatives shall

have membership on the board’s student

welfare committee.

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Student rights: In a break with the past AUKU (2009 and 2012) reflect confidence in our students’ growing maturity to handle freedoms. In their individual as well as collective capacities, students will now be free to join political parties, youth and social organisations and non-governmental organisations. Unlike previously they require nobody’s prior permission to make these affiliations.

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The new law de-criminalises the Act by replacing all criminal sanctions with disciplinary penalties.

It removes provisions for automatic suspension or expulsion of a student who is charged with a criminal offence or who is convicted, or who is detained or restricted under preventive detention and restricted residence laws. The university is given discretion to handle these cases as it sees fit.

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STATUTORY HURDLES IN THE

PATH OF AUTONOMY

Ministerial control

Control by other agencies

Permission of Finance Minister

YDPA’ spower to amend Constitution

Sections 18-20 of Act 605

Control over student activities

Appointment of Board

No security of tenure for VC

Student selection

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FINANCIAL CONTROL OVER

UNIVERSITIES

Most universities have very little income of their own and rely almost entirely on Parliament for operational and developmental expenses. Money comes with strings attached by the Ministries concerned.

To the popular notion that as long as universities do not become financially self-sufficient, they must do as they are told, a few observatios are in order. First, in strict law, allocations to universities come from parliament and not the Ministries.

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Second, the Ministries concerned hold the funds in trust for the recipients authorised by Parliament. The relationship between universities and Ministries is one beneficiary and trustee.

Third, receipt of public funds from Parliament does not necessitate subservience. The judiciary, the Auditor-General, the Election Commission, SUHAKAM and virtually all public authorities receive allocations from Parliament. That does not ipso facto justify civil service control over these organisations.

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Fourth, public universities around the

world receive public allocations. Yet, they

enjoy much greater autonomy than they

do in Malaysia.

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EXTRA-LEGAL BUREAUCRATIC

CONTROLS

Government Circulars: A more serious and surreptitious problem is that as a matter of administrative traditions of the ''bureaucratic state'', the cabinet, the prime minister's department, JPA, MOF, MAMPU, the Home Affairs Ministry, the Foreign Affairs Ministry and the Education Ministry issue periodic circulars, schemes, directives and instructions to all institutions of higher learning. Universities tend to comply.

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Note for example the Surat Pekeliling Am Bil. 3 Tahun 1988 called “ Garis Panduan Mengenai Peranan dan Tanggungjawab Kementerian, Lembaga Pengarah dan Ketua Eksekutif dalam Pengurusan Badan Berkanun Persekutuan” issued by the Jabatan Perdana Menteri on 21st July 1998.

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A great deal of administrative regulation of the universities by the civil service has no legal basis and is based on history, custom, extra-legal policies and acquiescence by university administrators. Some of it may be a violation of the Federal Constitution and of the principle of ultra vires in administrative law.

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For example there is an order to all universities that all lands for whose development public funding is being received must be transferred to the Federal Lands Commissioner. This violates Article 13 of the FC. It amounts to the imposition of an unconstitutional and ultra vires pre-condition to the grant of an allocation contrary to the Constitution and to the Supreme Court case of Sri Lempah Enterprises.

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There is a general misunderstanding in the top echelons of the civil service that they are entitled to issue periodic circulars, directives and instructions to all institutions of higher learning. Due to the weight of tradition, university administrators tamely comply with this practice. Bureaucracy triumphs. The law takes a back seat.

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The long list of do's and don't's includes

directives on financial, personnel and

academic matters. How many staff may be

hired or promoted and on what terms? At

what rate must consultants be paid? What

courses may be launched?

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What goods and equipment may be requisitioned, at what price and from whom? How many tenders must be invited? Almost all the above matters are legally within the university's powers but have been administratively snatched away and transferred to the higher echelons of the federal bureaucracy.

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Ranking exercises: Some international companies have tasted the sugary profits in this enterprise and employ primarily Western criteria to evaluate our tertiary institutions.

There are several reservations that an impartial observer may harbour against the ways universities are evaluated. First, how does one measure the intangibles that are at the heart and soul of a citadel of learning?

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To paraphrase Einstein, science cannot count everything that counts. Second, all exercises, whether local or foreign, of measuring the performance of our institutions of higher learning, tend to apply universal templates/blueprints/criteria to institutions with vastly different aims.

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SUGGESTIONS

AUKU powers are lying dormant: Though AUKU has many flaws, many of its power conferring provisions are under-utilised or not allowed to be utilised.

Unlocking powers that should not have been locked up: There must be efforts to restore legal powers that exist under AUKU but have become eclipsed by administrative and extra legal restraints.

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The view must be promoted that universities, as statutory bodies, are semi-autonomous legal entities that are akin to Government Linked Companies, quangos and public corporations and are invested with a fair amount of independence subject only to general policy. The Peguam Negara's advice should be sought on which civil service regulations applicable to the ''public services'' also apply to universities.

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Adequate hierarchies and structures: There is nothing seriously wrong with the structures and hierarchies that AUKU has created. Our problem is that we over-rely on the “systems approach” to solve our problems.

The “systems approach”: This approach judges institutions and organisations by the formal structures and procedures in place. However, systems are as good as the people who administer them.

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Top-class academicians: Unless human beings are given centrality, form instead of substance, facade instead of reality become dominant. Processes instead of products gain prominence. The crucial factor in a university’s eminence is qualified academicians with proven research abilities and a solid commitment to lead and inspire their wards to the summits of knowledge.

Staff recruitment policies, more than student recruitment policies, need thorough scrutiny.

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Improving legal literacy of University

management: University managements must

take concerted action to organise seminars and

colloquiums for their top brass to acquaint them

of the complex socio-legal position. The

Chairmen of all Boards and the Committee of

Vice Chancellors must resolve to act in concert

on the above matter.

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Set up an Inter-Varsity Committee: If we are serious about the quest for autonomy and to extend it even further due to the imperatives of a competitive, globalized age, a number of measures are necessary:

A broad-based inter-varsity committee must be appointed to collect, collate and analyse all government circulars, directives and schemes that impact on university autonomy. University Registrars, Bursars and Student Affairs Departments must be co-opted to provide their expertise and perspectives.

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Each “Pekeliling” must be examined and

reviewed by reference to the following

questions :

(a)Is it based on and derived from some

statute or legal authority (in which case it

has the status of subsidiary legislation), or

(b)is it purely administrative in nature?

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If Pekeliling is derived from law: If the Pekeliling is based on law, then it is a piece of subsidiary legislation and is prima facie binding. However, if it is in conflict with an existing university law, then complex issues are involved depending on the higher or lower status of the existing law vis-à-vis the conflicting Pekeliling.

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If the Pekeliling conflicts with Act 30 or any other

plenary or primary statute, then it is not binding

on the University. A piece of subsidiary

legislation cannot violate a primary law like

AUKU. If the Pekeliling is conflicting with some

other subsidiary law that is applicable to the

University, then complex issues of harmonious

interpretation apply.

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If the Pekeliling is purely administrative: If the Pekeliling is purely administrative and is not based on any legal authority, then it is not automatically binding. The issues then are:

Was it adopted by the university? If not, it is not binding on the University

Even if adopted, does it clash with any law created by Parliament? If it clashes, it is ultra vires. Adoption or confirmation of it by the university cannot breathe life into an ultra vires direction.

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It must be noted that in administrative law if a

university is vested with a statutory discretion or

power, it cannot abdicate its responsibility; it

cannot act under the dictation of another; it

cannot act under the ultra vires direction of an

authority, no matter how high or exalted, which

is not authorized to issue the ultra vires

direction.

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Dialogue with the civil service: Once the university community is sensitised to the legal issues, dialogues can then be held between university managements and the elite of the civil service to understand each others' views and to examine the law. Perhaps efforts will then materialise to make the imperatives of the law become the aspirations of the university community.

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Post decisional accountability: A

distinction must be made betwen pre-

decisional controls and post-decisional

accountability. Instead of pre-decisional

fetters the ministry should enforce post-

decisional accountability.

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A new Universities Act: The dawn of a new educational era requires fresh thinking. AUKU could be repealed and replaced by a totally new Universities Act to provide fresh measures for university governance, autonomy and accountability. Guidance could be sought from the University of Malaya Ordinance 1949 and the University of Malaya Act 1961 that were in force before AUKU was imposed. The new Universities Act could distil the wisdom of similar legislation around the world.

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In sum, the struggle for university autonomy will

be long and painful. Forces of status quo cannot

be expected to give up their de facto powers

despite what the law says. Freedom is never

given on a platter. It has to be sought. In the

interest of this country's educational future this

struggle has to be waged with passion and

persistence.