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 Malaysian regulatory services, and indeed the public are still steeped in outdated, elitist notions of entitlement and eligibility to higher education.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.