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.