Religion and Education - Policies out of Sync

The education ministry’s recent circular permitting and supporting a religious group to carry out preaching activities in educational institutions once again shows that the ministry is not a reliable agency to deal with national education. Policies are made on the run.

They are not supported with authoritative advice or with findings from research, especially in areas such as religion in education.

There is no consultation with parents.

Or teachers.

Or the public.

They flout the very principles of education they are supposed to defend. Policies have become the whims and fancies of those who have the power to make rules. They appear not to realize the lifelong impact their policies have on children and the harm they will do them and the future of this country if policies are not carefully made.

Education is not the personal fief of the minister or any of its officials, whatever their rank. Their first duty is to observe and comply with the laws that created their office and their functions. The laws have established two national councils to consider and advise on policies on education. The Minister and the ministry have a legal duty to process policies such as this through those councils. Instead, they proceed as authoritarians as if they have a personal right over such issues as the proselytization of religion in educational institutions.

National unity, equality of access to education, the equal treatment of all citizens are some of the objectives of national education. How are these objectives served by the ministry’s circular on religious proselytism in educational institutions? 

If religion is an important part of education (there is a body of research that supports this), then why are the other religions not taught and preached. If the education ministry is only concerned with one section of the students, who are expected to care for the others?

The ministry cannot blow hot and cold on these policies and not expect

to lose their credibility as stewards of national education.

Culture of Silence

What has been amazing and simultaneously troubling is that there is complete silence from academics about what they have gone through in their lives and careers. There is almost no protest by those who have been denied legitimate positions in academics. Even those who have been at the receiving end have not come out in the open.

Silence among those who perpetrated havoc on others is understandable. One does not, of course, expect them to talk. But the others? The apparent oath of silence is akin to what we come across among cricketers who refrain from letting out what happens in the dressing room. The match-fixing and betting that is undoubtedly prevalent in cricketing circles and involves some of the players.
Educational institutions -- those that are administered by the state governments as also the central universities -- are being subjected to political interference that is steadily increasing.

The various kinds of fixing that happen in the Indian academic realm will put a cricketer to shame in terms of the sheer ingenuity and cussedness that is employed in academics. The cricketers may have strong and compelling reasons to guard their turf and maintain a convention by constantly increasing the size of the carpet under which their shenanigans get swept. But does it behove academics, whose coffers are almost always funded by public funds to keep a tight lid on how misuse, manipulation, and corruption prevail in this so-called noble profession. Not to mention sexual exploitation of women colleagues, research scholars and postgraduate students.

From The Closed Nature of Indian Universities by M. A. Kalam published in www. TheIndiaForum Nov 1 2019

Students' Rights - The Missing Link in Higher Education

There is something that is missing in the educational ecosystem.

Very little attention given to students' interests in the laws or the regulations that describe the rights of the student. This is surprising because education is about students more than any other 'player' in the system, say the academics, the administrators or the regulators of the education system. The laws that we now have are about the setting up of institutions, how many students in the class, the licensing of teachers, the governance of institutions, but nothing about the rights of students. What should they expect when they become a student? how should this expectation be realised? what rights do they have when the expectations are not achieved. There is a general understanding of what these expectations are, but they are not explicit in any of the laws governing education in this country. Outcome-based education, the applied theory in our HE system, requires the outcomes of education to be specified, but whether these outcomes have manifested in the student is not a student decision but part of the assessment system of which he/she is a subject. The examiners measure the outcomes through processes of their creation, but it remains vague if the student has any role in deciding this critical question.

If education is meant to change the student in some way or increase his quantum of knowledge, these are not part of the promises made to the student in the terms of the agreement between the student and the institution. The hype of the sale - 'world-class education', 'cutting edge knowledge' 'high employability program' are all trade puffs that have no litigation value. Courts will reject outright any claim from a student that his education was not world-class. Such phrases are regarded by the law as unactionable inducements, even if they have been relied on by a student when he chose that institution or a particular program. The arid definition of higher education in our legislation is that it is a course of study that on completion entitles the learner who registered for the course to a certificate, diploma or degree. Those are the tangibles he takes away on completion of his 'course of study.' The courts, afraid to intrude into the processes of academia have done little to add flesh to the bare bones of student's rights in education. If processes are followed, the judge will bow deeply to the teacher and depart. No court has ventured to decide what it means to be educated or whether a person going through the process has been educated. Even in jurisdictions where they have ventured into that terrain, they have made no attempt to examine that question but merely deferred to the wisdom of the teacher and his processes to decide it.

If students have little clue about their expectations, they are equally ignorant about the loss of some of their most important rights or in the diminution of their status when they 'become a student'. If the courts have been reluctant to decide on the meaning of education they have with great alacrity decided that the student's role is to study and not disturb the peace or bring disrepute to their institution. If the university decides that participating in a demonstration brings disrepute to the university, it is the university's right to decide the disrepute had occurred. The courts will bow out of that decision too.

Now, if you are a foreign student studying in this country under the relevant visa issued by the gatekeepers to this land, your status is even further diminished. You can be picked up on suspicion and detained without the normal safeguards that are accorded to the student who is a citizen.

We will dedicate a few posts in this Blog to examine the nature of the student's position and rights and whether these need to be reexamined in any reform of higher education. We shall consider in those Blogs;

• The traditional position of students in the university;
• The changing profile of students in HE;
• The contractual rights;
• The rights as a consumer of regulated service and
• The Statutory position of students.

Of Gandhi, Education and the Right to Information

The following is contributed by my friend, Murali Achan.

On the 2^nd of October 2014, as India welcomed Gandhi Jayanti, hundreds of girls from the village of Bhim, Rajasthan gathered outside their secondary school, in protest. Their demand was simply to be given the schooling that they were promised. For a period of seven years prior to the protest, the girls had to endure a shameful deficit in teachers in their school – 700 pupils were assigned only 3 teachers. Needless to say teaching and consequently learning was impossible. When asked why on Gandhi Jayanti? Their response was that Gandhiji taught them that they should demand their rights. The significance of the day was obviously not lost to them, as it often is in most of India.

As news of the protest spread, lockouts and strikes began to sprout in schools throughout Rajasthan. The pathetic state of education in Rajasthan was laid bare for all to see.  In a panic response, the State of Rajasthan assigned, wait for it, all of 4 more teachers to the school in Bhim.

But that, of course, is not the end of the story.

The courage displayed by the girls from Bhim and other children of Rajasthan became the catalyst for a broader campaign, known as Shiksha Ka Sawaal (SKS), to improve the state of schools and public education in Rajasthan. The SKS campaign strategy was to mobilize students and parents throughout Rajasthan to file applications (commonly known as “RTIs”) under the Right to Information Act 2005, demanding information from their schools. Six simple questions were posed in the RTIs:  “How many pupils are enrolled and how many are actually attending the school? What is the number of teaching positions compared with the number of students, and how many of those positions are vacant? Does the school have facilities for drinking water? Is there a playground with a boundary wall? Are there separate and functional toilets for boys and girls? Do the school management committee and the school development committee actually function?”

Thousands of RTIs were filed under the campaign. The answers to the questions further exposed the malaise in the education system in Rajasthan.

Although I am unable to report with certainty that the campaign had solved all of the problems faced by students in Rajasthan, some encouraging outcomes have however resulted from it. The Rajasthan government has announced that every school is required to have a monthly meeting between parents and teachers to deliberate on school issues. A dialogue between the media, school, teachers, parents and the education minister, along with education secretaries is to be held bimonthly.  A helpline is also set up to take all education-related complaints and a mechanism to address them was put in place. The government has also undertaken to build a boundary wall around the playgrounds in the schools.

The SKS campaign demonstrates how simple requests for information, with the backing of the law, can be an effective tool to agitate for progressive changes both in terms of initiating new policies and properly implementing existing ones. The benefits derived from free access to information cannot be understated. Citizen empowerment: information provides citizens with the means of participating effectively in matters of governance and hold the government accountable for their decisions. Expert scrutiny: information affords the opportunity for specialists from disciplines relevant to the information to scrutinize government policies and propose effective means of realising the objectives of those policies. Cultural change: access to information can, in the long term, foster a change from the “government knows best” culture that pervades many countries, including ours, to one that views its citizens as participants in the formulation and implementation of policies. These are but a few of the many advantages of a system in which the right to information is entrenched in the law.

In Malaysia too, many questions can be asked of the government and public universities. Here are a few of them. What is the basis of discrimination by which university seats are allotted? What are the objectives of these discriminatory policies and have those objectives been achieved? Who decides on the allotment? By what means is the quality of teachers in universities assessed? Are discriminatory policies present in the promotion of teachers? If so, what is the basis of the discrimination?

At present, there is no specific legislation in Malaysia that gives a general right to the public to access information from public authorities. The good news, however, is that the Prime Minister has recently announced the government’s plan to present a Freedom of Information Bill to Parliament in the near future. The question, however, is whether the Bill will contain progressive provisions that will in substance have citizen empowerment as its objective or will it be mere pretense; a toothless piece of legislation of limited scope and application that achieves nothing save for a tick on the PH manifesto checklist.

Whatever the motive of the government, the Prime Minister did say that there will be public engagement on the bill before it is finally presented to Parliament. This is a welcome move because it affords an opportunity for advocates for transparency and good governance to air their views on the kind of provisions they would like to see in the bill.  In this regard, advocates will be well advised to consider the Indian Right to Information Act, 2005 (“RTI Act”) as a possible model for a similar Act in Malaysia.

The preamble of  RTI Act sets out its objective: “An Act to provide for setting out the practical regime of right to information for citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority, the constitution of a Central Information Commission and State Information Commissions and for matters connected therewith or incidental thereto”. “Public authorities” are broadly defined to include any body owned, controlled or substantially financed directly or indirectly by funds provided by the appropriate Government. Under this definition public schools are public authorities on whom RTIs may be served. Every public authority is required to designate officer/s as Public Information Officers of the units under its control. It is the duty of the Public Information Officer to receive and attend to RTIs.  I would add here that one of the positive outcomes of the SKS campaign was that the school principals were held to be Public Information Officers. An applicant for information need not give any reason for requesting it. The Act, remarkably, also provides that if an applicant is sensorily disabled, he shall be provided assistance to enable access to the information. It also provides “notwithstanding anything contained in the Official Secrets Act, 1923 nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information if the public interest in disclosure outweighs the harm to the protected interests”. The Act also establishes information commissions at both the Central and State levels. The commissions among other things receives complaints in cases where the right to information is refused by public information officers. The commissions are also empowered to penalise public information officers who with mala fide denies requests for information or knowingly gives incorrect, incomplete or misleading information or destroys information which was the subject of the request or obstructs in any manner the furnishing of information.

The RTI Act in form and substance is truly a remarkable piece of legislation.  It would be a marvelous step forward for Malaysia to follow in the footsteps of India, at least, in terms of the legislative framework by which information is accessed by the public.

The International Student in Malaysia

The recent unfortunate demise of an international student in the custody of the Immigration Department created only the slightest ripple in the higher education domain. The deceased student’s university posted a notice of his death, a few students demonstrated outside the Nigerian Embassy, but that was about all that happened in a sector that has more than 100,000 international students. Unless I missed them, there were no expressions of concern from our universities and colleges or from student or staff bodies or from the many associations of universities and colleges.

Deaths in custody are not frequent occurrences, but even one death, when set against a background of regular student complaints of harassment by the authorities should cause enough concern among institutions to initiate some firmer actions to deal with the matter. If the existing system for the centralized management of international students is not functioning efficiently to prevent the wrongful detention of students, it is time to jettison it for one where there is an obligation on detention centers to contact the institution where the subject student is registered. Information on the centralized system is meant to be available to all enforcement agencies to help them verify the status of international students. That information should be enough to avoid improper detentions of students. If the system is not functioning to its purposes or worse still is not being relied upon by the enforcement agencies, these factors must be addressed by those who created the system and are responsible for its management.

UNESCO statistics show that annually, there are over 5 million students circulating the globe looking for a place to learn outside their own countries. Malaysia which is at number 10 in the UNESCO list of countries drawing incoming students, brought in more than 120,000 foreign students in 2016. Associations representing local educational institutions urge the government to grow the number of inbound students because of their contribution to the economy. Each student, they assert, contributes at least RM50,000 a year to the local economy, more than the average tourist and a great deal more than the foreign worker who sends out a part of his earning. A Government Report published in 2009 entitled, Strengthening Private Education in Malaysia also focuses on the economic value of the student in private institutions.

The value of international students lies not simply in the money they bring into this country or that they support the development of our education sector. International students add value to our social and cultural systems. They link us with distant communities, transform our classrooms and make international citizens of our students. The international student must leave this country not only with his scroll but with the memory of being amongst a friendly and kind people. It will be a terrible loss to this country and its people if they stop coming here because they fear for their safety.

The Demise of Orhions E. Thomas - a Student Who Came to Malaysia For His Studies

There is something deeply sad about a student dying in the foreign land that he had traveled to study. Journeys such as his are meant to end with his return to his homeland carrying the parchments of his qualifications. The journey is often made with great sacrifice by parents, but with the expectation that when the student returns with his new qualifications there will be a restoration for the family and new hope for those who are born after him. It is a story that we are very familiar with in this country, either as the journeying student or as the providing parent - the story of placing all hope on one and waiting. The immense sadness in learning that death in a foreign land has taken with it all hope is simply indescribable.

The death of Nigerian student Orhions Thomas from the Limkokwing University would have been a tragedy however his death had occurred, but to learn that it happened in the custody of the Immigration Department raises such anger that it even subordinates the tragedy.

Malaysians are no less racist than others, especially when it comes to people from Africa. Black is not a favored color with us. Our enforcement officers carry our prejudices. 20 years ago, there were two groups of students from the same college living in the same block of apartments, off Old Klang Road. One group was from Denmark and the other from Zanzibar. Regulalry, when the two groups walked down the road to the point where the college buses waited for them, the police would come by and pick up the Zanzibaris for questioning. The fact they were World Bank-sponsored scholars and Muslims made no difference. The Danish students were never molested. Apart from being racists, we also cringe to Europeans in a serious way. When the college protested, it was told that as they are Africans, they have to accept such actions by the police. The practices and the attitudes on which they are based continues unabated 20 years later and with more than 100, 000 foreign students coming to this country for their education. Our prejudices continue

The detention of students simply because they may have violated some immigration regulations is simply outrageous. You cannot criminalize carelessness. The arrest and detention of foreign students are not a once in a while occurrence. It is dangerous walking our streets if you are a student, even if you have a Student Visa Pass issued by the Immigration Department. Every college and university has a tale to tell about the privations foreign students are subjected to. This country invites students from around the world. We promise them a safe place, far from wars and other forms of brutalities. There are strict rules to filter the real students from those coming in for work and other reasons. If with all those regulations, we still lack the confidence in treating everyone fairly, we may as well close our borders completely. It is far worse to invite them, promising them safety and have them die in such circumstances than to not allow anyone coming in at all. The shame of it all.

Higher Education – Access and Equity

Building capacity alone will not address equity and access issues that confront a significant part of our population.

Institutions and regulatory agents must be more proactive in their roles to bring people with limited access and reach to higher education into educational institutions. Malaysian regulatory services, and indeed the public are still steeped in outdated, elitist notions of entitlement and eligibility to higher education. These notions are inherent in our social structures that are intensely hierarchical, almost like caste systems. Even now, in this so-called enlightened age, people are heard to say that not everyone needs to be educated, or in debates on language, that not everyone needs to learn English. These notions are also partly inherited from our colonial past. The British education system was until recent times very elitist. But even the colonialists have changed. The Dearing Report of the United Kingdom, published only 20 years ago in 1997, recognized that universities cannot hide any longer behind axioms like ‘education for its own sake’ and must take action to make higher education serve the interests of the individual and the nation.

Higher education policies in Malaysia do not give sufficient attention to this issue. Quality and standards and the reputation of universities are their main arguments to keep learners out. This must not continue. Regulators must look at new strategies to include a broader range of learners into post-secondary and higher education. And, if their skills are not adequate for higher education, to introduce measures that will bring those skills to par. Keeping people out is not a strategy to widen access nor to improve quality in education. The real measure of success of higher education institutions must be based on how they created strategies to improve access. Poverty, differentials in earning and the casting of status based on education, all social ills will be removed by broadening access. How to do this? The following policy changes will help;

Preparatory programs to bridge learners into higher education. The bridging course that played an important role in preparing those without formal entry qualification into higher education was outlawed by the Ministry of Education policies. Yet, such courses have been recognized the world over as a means to mitigate access issues;

To add to secondary education syllabus, a non-examinable preparatory course to tune students to think about education beyond the school;

Language, soft skills and Learning to Learn Courses to be run parallelly with substantive programs in colleges and universities;

Reexamination of the duration and content of part-time programs in all fields to encourage adult working employees into part-time higher education;

Permit secondary schools to conduct preparatory courses from private higher educational institutions or part of such courses in the school to mitigate the cost of travel, accommodation, etc.

Rethinking strategies for distance education that will allow universities and colleges to conduct part of their programs in the distance education mode, including in secondary schools with support of schoolteachers.

The irony is that this country is no stranger to improving access to education. It has already implemented successful strategies to improve access and equity in higher education. The special secondary schools, the Matriculation programs, the MARA colleges, and UiTM are all the products of a successful strategy to mitigate access issues. These steps are, however, not inclusive and for that reason remain ostracized from our perceptions of fairness and equity. 

None of these institutions or their underlying policies have to be sacrificed to introduce strategies of inclusiveness within the general educational institutions in the country. Both public and private sector institutions can be conscripted through encouragements and incentives to make space and create pathways to those left out of higher education. Recent strategies by public universities to recruit high fee students into normal programs and through part-time courses show that they have the capacity. What is sadly absent is a commitment from them to their most profound obligation – to improve access to those who are excluded. This must change.

Franchised Degree Programs - Pitfalls to Watch

The franchised degree is one of the most transformative concepts to have emerged in higher education. Its formulation as a legitimate mode of delivery of a university degree took place in the last decades of the 20th Century fostered by the rising demand for higher education in Asia and the problem of surplus capacity in UK and US universities. It changed the very nature of university education and the idea of the university by separating the educational program from the university offering it and making the program portable and delivered in places remote from the university. Starting with undergraduate degrees, the concept expanded to include postgraduate degrees right up to the doctoral level.

In the franchise concept, a local private college teaches the full three or four years of a degree program from a university, often a foreign one. They are described as '3+0' or '4+0' degrees to distinguish them from '2+1' or '3+1' Twinning programs. The full franchised course is delivered by the local college but the degree is awarded by the university. The university franchises the program to the local college under a written agreement that stipulates quality and other issues concerning the delivery of the program in the local college. The models of arrangement may vary from one university to another but generally, they would deal with the duration of the franchise, the selection of staff to teach the courses in the program, the required resources to teach the program and the management of student assessments are. In some arrangements, the university may also undertake to teach parts of the course in the local college assigning faculty from the university or another institution. Franchise agreements might also confer full assessment rights to the local college with supervision by the university or alternatively, the university may reserve those rights or part of those rights to itself.

Students in a franchised course are registered as students of the university and are subject to the rules and regulations of the university. Students must, therefore, pay special attention to the university's graduation requirements, its disciplinary rules and procedures. Local colleges may not explain this fact adequately to their students, relying instead on students reading the college's published regulations. The students must also note that they are at the same time bound by the college's regulations and local laws governing the conduct of students in local institutions (Private Higher Educational Institutions Act 1996). There may be conflicts and inconsistencies between the two sets of regulations and it is advisable that students are made aware of this. Ideally, a franchise agreement would deal with the duality of regulations affecting the students and make provisions in the franchise agreement to minimize or remove conflicts and inconsistencies. In any case, local laws cannot be overridden by the university's regulations or by the terms of the agreement between the college and the university.

The franchise agreement determines the mutual rights of the university and the local college. Important provisions on the duration of the franchise, the university's rights to terminate the agreement before the full term and the rights of students upon the occurrence of these events are all written into the franchise agreement. These terms have an impact on the students registered in the program but students are generally not informed of these terms. There have been instances when student rights have been seriously prejudiced by the early termination agreement of these agreements. Regrettably, there is very little in the regulatory laws of education that deal with such situations, leaving students with no alternative but to accept the solutions handed to them by the college.

Franchised programs must be approved by the Ministry of Education through the same procedures that apply to other programs delivered through a private higher educational institution. The admission requirements for the program will be determined when the program is approved by the Ministry of Education. Other conditions may also be imposed in order to make the franchised program conform to local regulations. The franchised program is also subject to all the quality assurance provisions under Malaysian laws. Typically, approval is only given if the program meets the standards for Provisional Accreditation as determined by the Malaysian Qualifications Agency or MQA.

The innovations in the franchise concept contributed significantly to the development of higher education in this country. It raised the status of private colleges to degree-teaching institutions and raised the status of teachers to university lecturers. Its continued presence adds a valuable dimension to Malaysian higher education by enhancing its international character. In this role, it stands at the same level as the foreign branch campuses that operate in this country

Reform and its Proponents

The New Government's promise to reform education took off in earnest this year with a flurry of activities centered around a number of committees that were formed to look into this and that in education. In higher education, the focus appears to be on the harmonization of the public and private sectors of higher education. The plurality of views on this issue come from different directions. From the top, the proposals are about autonomy, academic freedom and the freeing of universities from government control. From the other end, the concerns are more pedestrian, more practical, if you like. Issues like teaching permit, the speeding of bureaucratic processes and lesser control of the academic processes have been raised by representatives of the private sector. Surprisingly, I have not heard of any discussions on the harmonization of language policies across the sectors.

The opinions and 'findings' so far published only tinker with the issues. Any real proposal to harmonize the two sectors must examine the reasons for the division of the higher education sector and more importantly the root policies that forced that division. There is a serious misunderstanding underlying current discussions which is that the private sector was created by and for the well-to-do in our society and has no place for the poor. This is an inaccurate way to describe the origins of the private sector which evolved to meet the needs of a large section of our population that could not find its way into public sector institutions.

The main issue in higher education, which has always been controversial and constituted a large chunk of the political fodder for the racial polemics of this country is ACCESS to higher education. Any move towards harmonization must first deal with that very, very important issue. With over 800 post-school institutions in the country, we can no longer hide behind capacity issues. A fair and progressive approach to providing educational opportunities to all will ensure harmonization. Without a fair policy on access, nothing will really be harmonized, let alone reformed.

Constitutions Now Prescribed for Private Higher Educational Institutions

The Private Higher Educational Institutions (Amendment) Act 2017 and the Private Higher Educational Institutions (Constitutions) Regulations 2017 introduce new laws and regulations on, inter alia, the institutional constitution of PHEIs. The new 2017 Regulations introduces a set of template or model constitutions whose terms are to be adopted by the institutions.

Act 555 has always required PHEIs to be managed strictly in accordance with the institutional constitution and the Act. Indeed, it is a requirement of the Act (s. 11) that at the time when an application is made for the establishment of a PHEI, the Minister must be ‘satisfied’ ‘there is established a proper system of governance of the private higher educational institution with a constitution that shall be approved by the Registrar General’. An approved constitution is a prerequisite for the Minister’s approval to establish a PHEI. Once established, the institution must be managed in accordance with the terms of the approved constitution (s.30).

Act 555 as it now stands only requires the constitution to be approved by the Registrar General. There are no provisions in the Act or in any Regulations issued under the Act that stipulate the provisions that are to be included in the constitution other than the implied requirement in s. 11 of the Act that the constitution incorporates ‘a proper system of governance of the PHEI’.

The MOE’s preoccupation with the institutional constitution can be traced back to August 2009. The Ministry (then the Ministry of Higher Education), held a workshop to draft standard constitutions for private universities and colleges. To the Ministry’s circular inviting participants to the workshop (JPT/GS(R) 3000-600 (14) dated 19 August 2009) was attached a copy of a constitution of a public university. Participants in the workshop included representatives from both sectors of higher education as well as officials from the Ministry of Higher Education. The discussions of August 2009 produced the first set of two draft template constitutions for private colleges and universities. These were circulated to all institutions in the private sector at the end of 2009. The templates were based on the model constitution in Schedule I of the Universities and University Colleges Act 1971 with modifications ostensibly to fit the needs of PHEIs. The first versions circulated in 2010 were replaced with later versions in 2012 which are the current official ‘standard’ constitutions for private universities and colleges. Both versions were issued through circulars from the Ministry without any reinforcement through legislation or statutory regulations.

The 2017 amendments to s. 30 and the proposed issuance of new regulations on the constitutions appear to stem from doubts about the enforceability of the earlier circulars that issued the template constitutions. There are no provisions under the Act that empowers the minister to prescribe any provisions to be included in the institutional constitution. The Registrar’s powers, as noted earlier, are limited to approving the constitution, not determining what the constitution should contain. The Act is silent as to the provisions that have to be included in the constitution.

The lack of power is addressed through an amendment to the current s. 30. Section 10 of the Amendment Act replaces the current section with a new section that reads as follows;

“Constitution

30. (1) The constitution of a private higher educational institution shall contain provisions for such matters as may be prescribed. (emphasis added)

Subject to the provisions of this Act, every private higher educational institution shall be managed in strict accordance with its constitution.

The constitution shall not be amended without the prior approval of the Registrar General.

Any private higher educational institution which contravenes the provisions of this section shall be guilty of an offence.”

As mentioned earlier, the current s. 30 only provides that the ‘constitution shall not be amended without the prior approval of the Registrar General’. The amended section 30 requires the constitution of a PHEI ‘to contain provisions for such matters as may be prescribed.’

In May 2019, the MOE circulated two template constitutions to PHEIs for their feedback. The provisions in these constitutions are essentially the same provisions that were found in the documents circulated to PHEIs in 2012. The structure and provisions in the latest documents are still based on the model constitution of the University and University Colleges Act 1971 with modifications to fit PHEIs.

The governance system embedded in the proposed constitutions presents several problems. The most serious is that they are drafted on the erroneous assumption (it is submitted), that the private higher educational institution established under the Act is an entity capable of acting on its own. Based on this assumption, the draft constitutions ignore the role and position of the company that established the institution and instead directs all its provisions at the PHEI as if it can be separated from the company and be treated separately and exclusively. This is misconceived. Unlike the university established under the UUCA, the private higher educational institution is not an incorporated body with the attributes of a legal person. It must rely on the company to animate it, to give it the capacity to act. The institution emanates from the company and only the company can act on its behalf. The new s. 75A added by the 2017 amendments recognizes the PHEI’s dependence on the company. Any attempt to prescribe a constitution for the management of private universities and colleges must direct the requirements at the company establishing those institutions and require the company to apply the prescribed constitution in managing the institution it created. The PHEI is, in reality, a company carrying on the business of a university or college. Critical to that definition is the company’s status as an incorporated entity with all the attributes of a legal person. Further, since the institution exists under the aegis of the company, one must look to the locus of control in the company to carry out the activities of the PHEI, which is the Board of Directors of the company. Section 211(1) of the Companies Act 2016 provides that ‘the business and affairs of the company shall be managed by, or under the direction of the Board'. It is questionable therefore if a document such as the draft constitution which is issued through delegated powers of another enactment can transfer the management powers of a registered company to another body such as the BOG created under the draft constitution. Any attempt by the draft constitutions to place management functions on a Board of Governors will not be effective in law unless the BOG is created by the company and managed through its board of directors or under the direction of the board of directors. The BOG cannot usurp the powers of the board of directors of the company. For this reason alone, the regulations may not be enforceable under existing laws on the validity of such regulations.

Apart from issues concerning the legality of the provisions in the two constitutions, the bicameral governance system that is prescribed in them is unwieldy, bureaucratic and inefficient as a management structure and is not the only model available to PHEIS. The ‘prescribed’ constitutions with a single governance model may also not fit the vastly different ownership models that are found in the population of PHEIs.

Acceptance of Additional Languages in Higher Education – A Positive Turn to Multilingualism

Private higher educational institutions (PHEIs) in the country may soon be able to deliver their courses in more than one language with the approval of the Ministry of Education (MOE). This new policy is stated in a recent MOE circular that was sent to PHEIs asking them for their comments on a proposed set of standards and criteria that would be applied for the approval of additional languages.

The MOE’s move on additional language is about the most progressive step that it has taken since the inception of the Private Higher Educational Institutions Act 1996. The Act enforced the official National Language policy but allowed institutions established under the Act to conduct their courses in a language other than the national language. The original provision in 1996 allowed the Minister to approve the teaching of a course of study in English or teach Islamic religion in Arabic. In 2009, the law was changed to allow private institutions to conduct a course of study in any other language it deems appropriate subject to the approval of the Minister. The statutory concession on the National Language requirement imposed on institutions an obligation to teach the National Language as a compulsory language to students who followed a course of study or a substantial part of a course of study in a language other than the National Language.

 The politics of language in the country never allowed our rich diversity in language and culture to surface as valuable assets in our educational settings. Language use in education, instead of being decided by teachers and educationists, is always determined by politicians and sometimes by the courts. The highest court in the land did not have the mettle to separate language use in higher education from the politics of education - I refer to the Merdeka University case that was heard in 1981. It actually left higher education in disarray, forcing public universities to surreptitiously use English. The language problem continues to beset education and retard development at all levels. Language is one of the factors that divide the educational sector.

There is therefore much to rejoice in the new policy on the use of a second or additional language to deliver courses in private higher educational institutions. The decision creates the space to develop a multilingual system of higher education that will also help to build and maintain local cultures and languages. More than that, being situated under the great shade of China and Mandarin and amidst other great Asian languages, the new policy will create opportunities for the private sector to explore new ways to link with higher educational demands in the region.

The Ministry of Education must be complimented for this bold new move.

Classification of Institutions Under the Private Higher Educational Institutions Act 1996

The Private Higher Educational Institutions Act 1996 (the Act) defined all institutions established under its provisions as private higher educational institutions.

The Private Higher Educational Institutions (Amendment) Act 2017 introduced definitions for colleges and foreign branch campuses that are established under the Act. With the new definitions added by the Amendment Act, PHEIs now fall into six categories, namely; colleges, universities, university colleges, branch campuses of private universities and private university colleges, branch campuses of foreign universities and branch colleges.

The Amendment Act defines ‘College’ as a private higher educational institution without the status of a University, University or University College or a foreign branch campus.’

The ‘Foreign branch campus’ is defined as ‘a branch of a foreign University or University College that is established’ under the Act. The Act makes no further reference to a foreign branch campus in any of its provisions. Neither are there any provisions in the Act to determine what would constitute a branch campus of a foreign university or for the need by the parent university to acknowledge its relationship with the foreign branch campus. The Act does not stipulate criteria to qualify as a foreign branch campus, except to include foreign branch campus in the general definition of a private higher educational institution as shown in the last paragraph. There are also no express provisions in the Act that classify the foreign branch campus as a university. The Act defines University and University College as a private higher educational institution conferred with the status of a University or University. This is probably only an oversight. In any case, the university status of the foreign branch campus may be implied from the definition of College and the provisions of section 21 and section 44 of the Act. The latter section, as amended, reads as follows;

“Award of degree

44. No private higher educational institution may award a degree unless such private higher educational institution is a University or a University College or a foreign branch campus.”(Emphasis added).

The Amendment Act redefines ‘University and University College’ as ‘a private higher educational institution conferred with the status of a University or University College under s. 21’ of the Act. The definition before the amendment was, ‘“University” and “University College” mean a private higher educational institution conferred with the status of a University or University College under section 21, and include such private higher educational institution which is affiliated to a University or University College whether within or outside Malaysia, conferred with the status of a University or a University College.’ It is doubtful if s. 21 of the Act confers the status of university on any institution. A literal interpretation of the section only requires ‘prior approval of the Minister’ to be obtained for the establishment of a private higher educational institution with the status of a university, which is the same requirement for the establishment of any private higher educational institution under s. 6 of the Act. The Act does not empower the Minister to confer any status on the institutions whose establishment he approves. The Minister’s role in the establishment of any type of private higher educational institution is limited to approving the establishment and no more. The decision to establish a university or college or any other institution recognised by the Act is on the applicant.

All private higher educational institutions, whether university or college, fall within the general definition of a private higher educational institution under the Act and they are all, without exception, subject to all the provisions of the Act. (s. 23 of the Act).

‘Private higher educational institution’ is now redefined as ‘. . .  an organization or educational institution, including a University or a University College or a foreign branch campus or College’, approved and registered under this Act, which is not established or maintained by the Government.’

With one exception, the Act is the only regulatory instrument that permits the establishment of a higher educational institution that is not established and maintained by the government. The exception, is an institution established under s. 5A (2) of the Universities and University Colleges Act 1971 (UUCA). Under that subsection, the Yang di-Pertuan Agong may, on the advice of the Minister, by order published in the Gazette, authorize the establishment of any higher educational institution having the status of a University, whatever its name or style, if he is satisfied that it is expedient in the national interest that such higher educational institution should be established. There is an important difference in the process and status of a university that is created under s. 5A (2) and universities that are created under the provisions of s. 6, which is how all public universities are created under the UUCA.

Under s. 6(1) of the UUCA, the Yang di-Pertuan Agong may, on the advice of the Minister, by order published in the Gazette, authorize the establishment of any higher educational institution having the status of a University, whatever its name or style, if he is satisfied that it is expedient in the national interest that such higher educational institution should be established.

Section 7(1) of the same Act then provides that ‘upon the coming into force of the Incorporation Order made under section 6, a higher educational institution having the status of a University, with the name and style assigned to it by the Order, shall be deemed to have been established, and by which name the Chancellor, the Vice-Chancellor and the members for the time being of the Board and the Senate shall be deemed to have been constituted a body corporate’ with all the attendant powers of a corporation. The establishment of the university and the incorporation of the university are contemporaneous processes under the UUCA.

In the case of universities created under s. 5A (2) of the UUCA, the Yang di-Pertuan Agong only ‘authorizes the establishment of any higher educational institution having the status of a University, whatever its name or style’. The authorization does not incorporate the university, only that it may be established. This by itself would not have prevented the university established under 5A (2) from being established and maintained by the Government. However, s. 5A (1) expressly declares that the provisions of UUCA shall not apply to any higher educational institution with the status of a University which is authorized to be established under subsection 5A (2). The result of this provision is that a university established under 5A (2) is excluded from those provisions of the Act dealing with Grants in Aid from the Parliament and other privileges in respect of establishing a campus or acquiring land for the purposes of the university.  What is unusual in all this is that the university created under s. 5A (2) is placed in a limbo between the UUCA and the Private Higher Educational Institutions Act 1996 because neither Act applies to it.

Apart from the unusual case of the university formed under 5A (2), the Universities and University Colleges Act 1971 is a template legislation for the establishment of public universities and university colleges. But not all government-funded universities are established under the UUCA. Government funded universities are also established through special Acts of Parliament, as is the case with the University Institute Technology Mara (UiTM).

Other than universities and university colleges, public-funded higher education institutions include polytechnics, community colleges, teacher training institutes and scores of colleges.

Types of  Institutions Registered under the Private Higher Educational Institutions Act 1996

The Private Higher Educational Institutions Act 1996 (the Act) embraces all levels and types of  higher educational institutions from colleges to universities, irrespective of size and regardless of their mode of delivery, whether by it is by traditional, face to face methods, online, or by distance education and includes universities established in this country as branches of foreign universities. 

Even professional bodies that offer courses leading to membership in those bodies are brought within the scope of the Act. The PHEI may be a provider of higher education or distance education either by itself or in affiliation, association or collaboration with another higher education or a professional body. The affiliation may be with an institution, whether local or foreign. The full statutory definition is reproduced to show the extensiveness of the definition. The complex definition was adopted to bring within the purview of the legislation all the different types of institutions that were in operation in the private sector when the Act was first passed in 1996. It also reveals the innovative evolution of the private sector of higher education.

The definition is as follows;

‘private higher educational institution’ means an organization or educational institution, including a University or a University College or a branch campus, approved and registered under this Act, which is not established or maintained by the Government—

(a)  providing higher education;

(b)  providing distance education; or

(c)  providing higher education or distance education in affiliation, association or collaboration with—

(i) a private higher educational institution approved and registered under this Act;

(ii) other higher educational institutions—

(aa) whether or not established under other written laws; or 

(bb) whether within or outside Malaysia;

(iii) a University or University College established under this Act;

(iv) a University or University College established under the Universities and University Colleges Act 1971 [Act 30];

(v) other Universities or University Colleges—

(aa)                whether or not established under other written laws; or

(bb) whether within or outside Malaysia;

(vi) a branch campus; or

(vii) a professional body whether within or outside Malaysia leading to the award of    professional membership of such professional body;’

The regulatory provisions of the Act apply equally to all institutions established under its provisions regardless of the level of education provided or the mode of delivery adopted.  

Institutions in the private sector include both for profit and not for profit institutions. Ownership models range from pure business enterprises, some of which are listed on the Kuala Lumpur Stock Exchange (Bursa Malaysia) to Government Linked Companies, state governments, political parties, and philanthropic entities. A number of universities are established as ‘foreign branch campuses’ of foreign universities and carry the names of those foreign universities. These institutions are also established under the same regulations that apply to local institutions that are established under the Act. Apart from the private universities and university colleges, there are about 400 institutions registered under the Act, also described as private higher educational institutions that have no degree awarding powers. Most of these colleges offer only diploma or professional programs, but a few teach to undergraduate and postgraduate levels through arrangements with local and foreign universities.

The vast and varied landscape of the private sector of higher education as seen today is the result of the phenomenal growth of private colleges that took place over the last four decades. What is especially remarkable about that growth is that many of the larger private institutions that are in operation today, including some of the private universities are the offspring of individual-owned small institutions registered as tuition centres under the then prevailing law.  

Today, there are as many private tertiary/post-secondary institutions as there are public institutions. Private sector student enrolments match those in public institutions. The impetus for the growth of the private sector of higher education continues to lie in the profound demand in the population for higher education.

Reform of Education A Reason To Start Blogging Again

Have been away too long.

Maybe now is a good time now to start again with all the talk and plans to reform education in the country. The new government that came into power in May 2018 promised a reform of the education sector. One year down, the talk continues but there is very little to show by way action or any clear direction that will be taken. One, rather easy problem that has been a bugbear of the national education system is the recognition of the UEC examinations for admission to higher education. The qualification is a long-respected HE qualification recognized by almost all countries that have educational systems like ours, but the UEC is not recognized by local public universities. Recognition of this qualification whose legitimacy springs from the same source of law as other local qualifications should never have been an issue, but it has become a political issue gluing our feet to inaction.

Turning to other matters in higher education, there have been suggestions to harmonize the private and public sectors. Focus is on the two main legislation on higher education, the Universities and University Colleges Act 1971 and the Private Higher Educational Institutions Act 1996. How this will be achieved and whether the differentiation will be maintained between the public and private sectors are some of the issues that will be covered here.

So, as with all journeys, I hope this is an auspicious time to start and that I will have the fortitude and stamina to continue.