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.