Webinar: Consumer Protection and Higher Education – A Summary

 Webinar: Consumer Protection and Higher Education – A Summary

by

Prof. Dr. Hj. Hazman Shah Bin Abdullah

 

The talk by Mr. Menon on Consumer Protection and Higher Education should be part of the high education management development scheme by AKEPT. It is not often that we get to listen to a higher education law expert who has vast top-level high ed experience. For all those who speak about a student-centered education, of students as customers whose needs HEIs must satisfy, Menon’s talk would have made them if indeed the students are treated fairly in the various higher education laws. Indeed, it is his opinion as many others would share, that students’ rights as citizens are diminished the moment, they enter the halls of the academe.

The following is a summary of the points made in the webinar.

1.                   The student-HEI relationship is founded on a contract. HEIs are required to provide students an education, regardless of the level, which is based on the minimum standards set by authorised agencies like Malaysian Qualification Agency and the various professional bodies.

2.                   The Consumer Protection Act 1999 (CPA) has in major ways strengthened the contractual position by laying out ways in which the contractual terms imposed by HEIs can be challenged and rendered void.

3.                   Menon explored some legal technicalities like whether education is commerce, trade, and whether education is a service; is the whole of the HEI a trade or it is just some parts of its activities which are patently commercial.

4.                   A key issue explored is the duty of care owed to students when delivering the programme. Do the HEIs and their employees owe this duty to students? How does this affect their right to seek redress if the HEIs or their agents fail in their duty? Although courts have eschewed evaluating the sufficiency of the service provided to the students, there are new grounds to expect a higher level of responsibility, accountability, and professionalism on the part of HEIs and their employees. Some recent cases have raised questions, in some circumstances about the culpability of HEIs and their employees when students fail to complete their programmes.

5.                   Another key point he repeatedly made is the role of the accreditation standards issued by MQA in establishing and understanding the duty of care to be exercised by HEIs. HEIs which fall short of these standards may be potentially culpable for not providing the service contracted with the students.

6.                   The talk also dealt with the requirement that under the implied terms imposed by the CPA, the HEI’s service or product must be fit for purpose. This requirement raises plentiful of risks for programmes designed and delivered by HEIs. Are they fit for the purpose? This opens a pandora’s box in higher education. What is the purpose; whose purpose; how to balance multiple purposes and myriad other questions.

Corporate Liability for Corruption – Should Private Universities and Colleges be concerned?

 Changes made to the laws on corruption in 2020 have generally gone unnoticed by private higher educational institutions and other providers in the private sector of higher education. The new provisions are directed at commercial organizations which clearly include the companies that establish and manage private higher educational institutions under the Private Higher Educational Institutions Act 1996 (Act 555).[i] The implications of the changes on the operation of private universities and colleges are too serious to be ignored.

Liability under s. 17A

The changes introduced through a new s. 17A of the MACC Act 2009 came into operation in June 2020, just as the Covid-19 pandemic was beginning to take hold in the country.  The new provisions make a commercial organization (a term defined by the Act to include registered companies or partnerships) strictly liable for the corrupt conduct of its officials, agents, and other service providers of the organization even if those acts were done without the knowledge of the organization or its officers. Any director, controller, officer, partner, or manager of the commercial organization is deemed personally liable for the same offence.

The penalties are severe. The commercial organizations and its officers are liable to a fine of not less than 10 times the value of the gratification, or RM1 million, whichever is the higher; imprisonment for a term of not more than 20 years; or liable to both fine and imprisonment.

Adequate procedures to prevent corruption

To counter the severity of the offence and the penalties attached to it, s. 17A provides commercial organizations a complete defence to a charge under the section if they can show that they had ‘adequate procedures’ in place to prevent corruption in their operations. Guidelines issued by the Minister indicate what constitutes adequate procedures. Generally, they require commitment at the top level of management and their involvement in the prevention of corruption. The procedures include risk assessment, undertaking control measures, carrying out systematic reviews of those measures, the monitoring and training of staff and the setting up of whistleblower procedures.

It is a defence for directors and officers to prove that the offence was committed without their consent and that they had exercised due diligence to prevent the commission of the offence. The due diligence defence available to directors, controllers and partners is linked to the establishment and monitoring of adequate procedures.

The rationale of s. 17A

The provisions of section 17A reflect a worldwide trend to shift the responsibility of preventing corruption from enforcement agencies to the business organizations themselves. The carrot and stick approach imposes heavy penalties on businesses that benefit from the corrupt behaviour of employees and associates whilst giving them complete protection if they can show that they had instituted adequate procedures in their operational space to prevent corruption. The section will require businesses to be vigilant of corruption risks not only from people within their organizations but of those outside the organisation who fall within the definition of associates.

Who are associates?

The term associates cover a very wide class of persons including those with tenuous links to the organisation such as those who perform services for the organization. Under the section, the question of whether a person performs services for the organization is to be determined not simply by reference to the nature of the relationship between that person and the organization but by reference to all relevant circumstances. The range of persons who would fall within the definition will have to be determined by the courts but the way the section defines associates will require businesses to review how their businesses are affected by agents, suppliers, and others in their supply chain.

Why PHEIs must be concerned

The risk of corruption has been observed to be highest among businesses whose dealings include regular interactions with government agencies. If the normal operation of a business is subject to obtaining regular official approvals and permissions, the corruption risk becomes greater.

PHEIs are creatures of law that are subject to tight regulation by government agencies. They can only be established with the approval of the Minister of Higher Education. The application process involves the submission of many documents to the Ministry and responding to different official inquiries. Once established, the PHEI must then enter another series of interactions with the same Ministry to register the institution. This in turn requires approvals from the local fire department and the local council where the institution is located. Once the institution is in operation, approvals must be obtained from the Ministry to teach a course of study or training programme. Applications must be made to the Malaysian Qualification Agency for accreditation and if foreign students are involved, applications must be made to the Ministry of Internal Affairs (KDN) and Immigration Department. Interactions with different government agencies will continue over the life of the institution. According to a MOHE circular, the Ministry alone processes 23 different types of applications from PHEIs. One of the risks that PHEIs face is the likelihood of government approvals being withdrawn or modified. Act 555 creates uncertainty in many of its provisions where an approval that has been previously granted to a PHEI is withdrawn.

High-risk industry

The range of interactions with government agencies makes the private sector a textbook case of a high-risk industry. This position is compounded by the multitude of contracts that the PHEI typically makes in the ordinary course of its business. These include contracts with marketing and recruiting agents, funding agencies, and foreign universities and their agents, advertisers, newspapers, and the list goes on. These arrangements bring with them people whose actions may not always be within the control of the PHEI but may yet fall within the class of persons defined as associates of the PHEI.

Protecting Senior Officials

Another reason why PHEIs must be concerned with the new law is the exposure of a category of its senior officials to liability under s. 17A. These are officials who are employed because of their academic standing and their role in the management of the institution is limited to the educational processes of the institution. However, because they are concerned in the management of the institution, if an offence is committed under the section they would be caught in the dragnet of the section and be held liable for that offence, even if it was committed by persons far removed from their area of responsibility.

PHEIs must also be concerned because of the heavy penalties the section imposes, which may have a terminal impact on the business.

For these and other reasons not explored here, it would be prudent for PHEIs, whether large or small to institute corruption proofing procedures as a shield against liability under the new law.

 

 

Espact’s team of legal and other specialists can assist you to assess your organization’s current position vis-à-vis the Act and develop adequate procedures in line with the Ministerial Guidelines. Espact’s team also provides briefings for directors and training for staff at all levels to meet the requirements of the defence. For a free consultation, please call 03 7865 5062 during office hours.

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[i] Under Act 555, only a registered company may apply to the Minister of Higher Education to establish a private higher education institution, whether a university, university college or a college (s.6)

Appointment to Universiti Malaya Board Sparks Controversy

 Appointment to Universiti Malaya Board Sparks Controversy

The appointment of a former student of the university to the board of Universiti Malaya sparked a broad range of responses on social media, online news sites, and chat groups of academics. Putting aside the vitriol, the racist remarks, and the personal attacks on the young man, one of the causes of the annoyance was that the appointment was political and that the appointee was too young for that position. Interestingly, the criticisms were targeted mostly at the appointee, not so much the Minister who was responsible for the appointment. University board appointments are matters of public interest and public scrutiny of the appointments will uphold good governance of universities and greater care taken in selecting the right people for the position. In this short blog, we talk about the role of the university board, the profile/composition of the board, the type of skills they must possess, and how they are appointed. We also show a chart showing the current composition of the board of the universities established under the Universities and University Colleges Act 1971 (the Act)

The University Board

Under the Act, the university board is the highest governing body at the university, overseeing all aspects of the university from finances to student disciplinary rules and even over some academic matters such as the appointment of staff. The extensive powers vested in the university are exercisable only by the board although there are limitations to how the power is exercised. First, the board must recognize the senate’s exclusive jurisdiction over academic matters and must avoid intruding into those powers. If there is a conflict between the board and the senate, there are provisions in the Act for the dispute to be referred to the Minister. Next, the board must recognize the principles of collegial governance that are integral to the Act. Unlike the boards of commercial corporations which have control over the entire company, the university board’s powers over the different constituents of the university such as faculties, institutes, centres, and even officers such as deans and heads of centres are limited by the powers and functions designated to those constituents. It will be misleading to describe the university’s governance structure as bicameral without at the same time mentioning the distribution of powers over the other constituents. In the nomenclature of the Act, the board is only one of many authorities established by the Act.

The Functions of the Board

Notwithstanding the limitations referred to, the functions ascribed to the board are extensive. The Act requires it to provide strategic planning-oversight of the educational character and mission of the University; it must promote efficient and effective management and provide an overall review of university operations; it is required to develop links with the community, corporate sector, and industry and finally foster global linkages and internationalization in higher education and research. As if these were not complex enough, in 1996, additional powers were vested in the board of a commercial nature. The 1996 reform of higher education laws gave the university extensive commercial powers that entitle the board to invest in shares, form partnerships, joint ventures and set up subsidiary corporations with commercial objectives. These powers are as extensive as those exercisable by any corporate business organization. Considering the board’s wide powers and the statutory expectations cast on it, it is obvious that great care must be shown in making appointments to the board and that the appointees are able to execute the statutory expectations. For this, the composition of the board must reflect the different functions ascribed to it. This is where the Act fails. In amending the Act to give the university those commercial powers, no attempt was made to change the statutory composition of the board to support the wider powers conferred on the university.

Membership of the University Board

The membership of the board as mandated by the Act is as follows.

i          A Chairman;

ii         The Vice-Chancellor;

iii       Two officers of the public service;

iv       One person to represent the community at the place where the University is located;

v         One professor of the University elected by the Senate from amongst the members mentioned in paragraph 17(d); and

vi       Five persons comprising three persons from the private sector, one person from the alumni of the University and one other person from within or without the University who, in the opinion of the Minister, have the knowledge and experience which would be of assistance to the Board.

vii     The Deputy Vice-Chancellors, Registrar, Bursar, and Legal Adviser shall be ex-officio members of the Board but shall not be entitled to vote at the meetings of the Board.

With respect, the prescribed profiles do not match the legislative powers and functions of the board.

Appointments to the university board

The powers of appointment to the board of directors are vested in the minister. Obviously, to comply with the statutory prescriptions, any appointment made by the minister must ensure that the appointee fits into the shape of the composition laid down by the Act. It is open to an argument that if a board is not constituted as legally prescribed, any power it exercises or decisions it makes may also be flawed and be challenged in a court.

Further, the minister is also bound by s. 4A of the Act to appoint a committee to advise in the appointment of a qualified and suitable person to the board. It may be worth reproducing the section in full to emphasize its provision.

4A.  For the purpose of selecting a qualified and suitable person for the post of Vice-Chancellor or for any other post to which the Minister has the power to appoint under this Act, the Minister shall, from time to time, appoint a committee to advise him on such appointment.

A recent decision of the High Court has held that the minister’s actions under the section are open to judicial review.

Current Appointments

In conclusion, what is clearly needed is greater transparency and observation of the law in making such appointments. Otherwise, public confidence will be lost in how our universities are managed. The attached chart tells a woeful tale of how appointments have been made without any considerations given to ethnic or gender diversity in the appointment of directors.

The University as an Arbitration Institution – Will it Support Collegial Governance in Public Universities?

Abstract

University Arbitration^[i] is a novel concept developed by a senior judge of the Malaysian Court of Appeal, Justice Datuk Dr Haji Hamid Sultan bin Abu Backer. When implemented, the concept would make radical changes to dispute resolution by arbitration, and equally importantly, to the purposes and role of the university as a social institution. Locating an arbitration tribunal in the university would also strengthen academic freedom and collegial governance which are two essential requirements of a university. The full concept with model rules of procedure governing the new arbitration process is described in a booklet entitled University cum Court Annexed Arbitration.^[ii]

Why annex arbitration to universities?

The concept’s main aim is to democratise arbitration, to offer the advantages of this form of dispute settlement to a larger section of the population, at a cost that is affordable and thorough procedures that are simple. The authors of the concept, with good reasons, believe this can be immediately achieved by annexing the arbitration institution to the university and leveraging on the latter’s resources. There are almost a hundred universities in the country, public and private. With at least one in every state, arbitration institutions can be rapidly established across the country and not only in the main cities. With the right collaboration, locating arbitration centres in universities will also minimise rental and administrative costs. The alignment of the two distinct types of institutions has a unique advantage in that the professoriate, with knowledge from across many disciplines, can be pressed to engage in the arbitral process. One of the acknowledged advantages of the arbitration process is that disputes are resolved by experts on the subject matter of the dispute.

This article examines how an arbitration institution in the university may fulfil an important need for an independent arbitrator to decide on intra-university disputes and foster the strengthening of academic freedom and collegial governance.

The university, to fulfil its role and duties to students and society must be assured of three important attributes – autonomy or freedom from external, especially government interference, a system of collegial governance that ensures the equal participation of the different components[iii] of the university, particularly, the academics and guarantee academic freedom. An independent tribunal within the university or another university will be eminently placed to arbitrate disputes arising between the different components of the university. 

Expanding the Purpose of the University

University arbitration sets to expand the purpose of the university as no other concept has done in recent years. The purpose of the university has always been to teach students, create new knowledge, and serve the community. Annexing an arbitration centre in the university contributes to all three of those traditional purposes. Firstly, arbitration can be taught as a course by itself or as part of a larger programme in the university’s offerings. The arbitration centre can then double as a place for practical training; the university’s research agenda can be enlarged using information generated by the arbitration centre; the arbitration centre with the support of students and academics can serve as a counselling and advisory centre for the local community.

A Short Note on the Different Types of Universities in Malaysia

 In Malaysia, the main legislation on universities, the Universities and University Colleges Act 1971 (UUCA), provides for the creation of two types of universities. The first type (UUCA universities), which includes all public universities, is established under s. 6 of the UUCA. The university thus established is an incorporated entity with all the attributes of a corporation. The second category, formed under s. 5A (2) of the UUCA is only a higher educational institution having the status of a university but is not incorporated. The next type of universities is those established under the Private Higher Educational Institutions Act 1996, (Private universities) which are by far the most numerous. These universities are also not incorporated. Private universities are established, owned, and managed by companies registered under the company’s legislation. The private university operates as a business of the registered company. Polytechnics, institutes of teacher education and other higher education institution all operate under the aegis of the government and are not individually incorporated. A final category includes those higher education institutions established by special legislation such as the University Teknologi Mara (UiTM) established under legislation bearing the same name passed in 1976, and the Akademi Seni Budaya dan Warisan Kebangsaan (ASWARA) established by legislation of the same name in 2006. ASWARA is a statutory body.

In this article, unless otherwise stated, references are to UUCA universities.

Dispute Resolution in the University

The idea of setting up an arbitration centre in the university has the potential to support and enhance collegial governance in UUCA universities, which is an important aspect of academic freedom. The two ideals are important cornerstones of the university and have been so from the time universities were first established.

The UUCA does not expressly articulate either of the traditional values. However, collegial governance may be implied from the way the Act distributes the functions and powers of the university. An important fact that is not often recognised is that the functions and powers are not concentrated in any one single person or group but across many groups and individuals described by the UUCA as Authorities and Officers. The UUCA university is made up of the authorities and officers.[iv] Also called, shared governance, collegial governance is distinct to universities. It means that the academics are not only protected in their employment with the university but also in their right to participate in the management of the university. Collegial governance also involves the recognition of the rights of the different authorities and officers. Academic freedom consists not only of freedom over matters of scholarship but also the way the university is managed.

The UUCA university, although established as a separate legal entity with corporate status, manifests an amalgam of many different interests. These include the interests of the administrators, the interests of faculties, departments and officers of the university, the academics, and other staff, interests of the students, factions within the student body and, finally, the interests of the alumni. Most of these different interests - they may be regarded as internal stakeholders, are represented through the authorities that make up the UUCA university.

The authorities of the university, as defined in the constitution scheduled to the UUCA (the Constitution), include the Board, the Senate, the Management Committee of the University, the Faculties, the Schools, the Centres, the Academies, the Institutes, the Studies Committee, the Selection Committees, the Employee Welfare Committee, the Student Welfare Committee and such other bodies as may be prescribed by Statute as Authorities of the University.  The officers of the university are the Chancellor, Pro-Chancellor, the Vice-Chancellor, the Deputy Vice-Chancellor, the Heads of Branch Campus, Deans of faculties, Heads of Schools, Centres, Academies, Institutes, the Bursar, The Registrar, the Chief Librarian, the Legal Adviser, and the holder of any office created by a university statute or otherwise. The composition, powers and procedure of the Authorities and officers are prescribed by the Act, the Constitution of the university and by university statutes, which are rules and regulations, made in accordance with the constitution of the public university.

These are not merely administrative divisions; they are a mark of the collegial governance structure of the university where authority is distributed across the divisions. Debate and dissent are vital to the functioning of the collegial system and are norms of the university. The distribution of power across authorities and officers ensure that decision making involves more than one person or one group. These ideals have fallen victim to the hierarchical systems that have been forged on to universities in recent years, mainly through political patronage. University governance has become authoritarian and has replaced the collegial ideal. Undermining the collegial processes have placed at risk academic standards, academic rights, student interests and the very meaning of the university. Academics and other staff, as well as students aggrieved in the processes, have little or no recourse within the UUCA university structure which has no independent authority to hear complaints such as an Ombudsman.

Arbitration

An arbitration centre in the UUCA university may contribute in a significant way to remedy the absence of an independent body to which grievances and disputes can be referred. The model that is proposed requires disputes to be filed in courts as a first step, which may not sit well with the temperament of university personnel. If this preliminary step is modified for intra-university disputes whereby disputants can refer directly to the arbitration institution in the university, the university annexed arbitration institution will play a transforming role in the way universities are managed. Not only will university disputes be resolved efficiently but the tribunals deciding the disputes may be able to develop a clearer understanding of the traditions, laws and regulations surrounding higher education through their accumulated decisions. It is not important that the concept is introduced in all universities. Arbitration centres in a few universities will be able to serve the needs of universities and higher education institutions that do not have such centres.

Private Universities and Colleges

As mentioned earlier these institutions are established under the Private Higher Educational Institutions Act 1996 (Act 555). Private universities established under this Act bear no resemblance to their counterparts established under the UUCA. The complex division of the university into authorities and officers found in the UUCA are not found under Act 555. As private universities are established by companies registered under the Companies Act, the governance of these institutions follow the governance structure of commercial corporations. There is little scope for collegial governance in such universities unless of course, the company decides to implement such a system as a corporate decision. Even then, legal responsibility will still lie with the two main organs of the company, which are the general meeting and the board of directors.

A general survey of reported cases shows that most disputes in private universities centre around questions of employment. In the circumstances, an arbitration centre in the university may not have the same impact on governance as it would in the case of UUCA universities. However, academics in private universities may find that they are entitled to some measure of academic freedom and rights under the regulations issued by the Malaysian Qualifications Agency. Access to an arbitration system may therefore also be of service to academics in private institutions to enforce their rights as academics.

The first arbitration centre is established in MAHSA University, a private university. That fact and the potential of the arbitration centre is worth publicising through a conference or webinar.

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[i] The full title of the concept is University cum Court Annexed Arbitration.

[ii] The full booklet can be downloaded from www.janablegal.com

[iii] More precisely, the authorities and officers of the university that make up the UUCA university.

[iv] The view held by many, that the Vice-Chancellor, the Board and the Senate have unfettered power over the affairs of the university does not fit the model of administration adopted in the UUCA. Power is not concentrated in any one authority of the university or in any single officer of the university.

Higher Education Minster Acted Ultra Vires Rules High Court

 

Section 4A, the Universities and University Colleges Act 1971.

For the purpose of selecting a qualified and suitable person for the post of Vice-Chancellor or for any other post to which the Minister has the power to appoint under this Act, the Minister shall, from time to time, appoint a committee to advise him on such appointment.

The Minister of Higher Education acted ultra vires and in violation of natural justice in terminating the appointment of a member of the statutory committee established to advise the minister on the appointment of Vice-Chancellors. This was the finding of the KL High Court following an application for judicial review (JR) of the minister’s action. The JR application was made by Dr Andrew Aeria, the member involved in the dismissal. The decision was delivered on 12 August 2021.

The Permanent Selection Committee for the Appointment of Vice-Chancellors

The committee in question is the Permanent Selection Committee for the Appointment of Vice-Chancellors (the Committee) which is established under section 4A of the Universities and University Colleges Act 1971 (the Act). The Committee’s function is to advise the minister in selecting qualified and suitable persons for the post of Vice-Chancellors in public universities. Section 4A was added to the Act in 2009 to ensure ‘greater accountability, transparency, professionalism and academic independence and autonomy in the process of the appointment.’ The section applies not only to the appointment of vice-chancellors and deputy vice-chancellors but also to other officials in the Ministry such as the Director-General of Higher Education and Deputies Director-General. However, the Committee only deals with the appointment of vice-chancellors.

The High Court Decision

Dr Aeria was appointed to the Committee in 2018 for a term of three years with a provision for earlier termination with 30 days’ notice. Notwithstanding those provisions, his appointment was terminated in April 2020 when a new minister took office, giving him only 4 days’ notice. Dr Aeria’s application for judicial review was filed in 2020 and the matter was heard in August this year. Apart from declaring the minister’s actions ultra vires and against natural justice, the court also issued a certiorari order to quash the minister’s decision to terminate Dr Aeria’s appointment. Further, the court declared that because of the quashing of the decision, Dr Aeria’s membership in the Committee was deemed to have continued from the date of his appointment to the date of the court’s order. Dr Aeria was awarded costs of RM 5000 and damages that are to be assessed by the court.

Wider Implications of the Case

The High Court’s decision may have wider implications than on the rights of reinstatement of someone wrongfully removed from a statutory committee. Despite the important role it plays, the Committee functions outside public scrutiny and oversight. Even insiders in the higher education sector are ignorant about how the Committee’s advice to the Minister is reached and communicated to the Minister. In fact, the very manner in which the Committee is presently constituted raises a few questions about whether there has been compliance with section 4A. The section directs the Minister to establish a committee ‘from time to time’ to advise him on the appointment of any official who the Minister is empowered to appoint under the Act. Section 4A makes no provisions for the constitution of the committee or how it is to function. In any case, what is envisaged by the section cannot by any stretch of the language used be described as a permanent committee. Nevertheless, what has transpired through bureaucratic processes in the Ministry of Higher Education (MOHE) is the establishment of a committee described as the ‘Permanent Selection Committee for the Appointment of Vice-Chancellors.’ Although it is the Minister who appoints members to the committee, there are documents (created by the MOHE) that deal with the terms of appointment, the responsibilities of members appointed to the committee and the criteria for the selection of Vice-Chancellors. The MOHE’s efforts in setting up the Committee and the attendant regulations no doubt contribute to good management and continuity in the Committee’s processes. However, if the criteria for appointment of VCs is set by the Ministry, would that not interfere with the independence of the Section 4A committee? A factor not considered by the High Court decision is the legality of any appointments to the seat of Vice-Chancellor that may have been made on the advice of the Committee during the absence of Dr Aeria from the Committee.

The substantive orders and declarations issued by the High Court in this judicial review would, it is submitted, support arguments in a future application to challenge the constitution of the Committee and perhaps even the decisions it makes in advising the Minister.

Judicial Review

Dr Aeria’s case establishes that the court’s willingness to inquire into the propriety of appointments and removal of members from the Committee under an application for judicial review. If this is the case, then in appropriate circumstances, a member of the Committee, or indeed any other party with an interest in the appointment of a Vice-Chancellor, may be able to apply for a judicial review of the advice that the Committee gives to the Minister under the section.

Judicial review is a powerful tool to subject official decisions to an independent review of lawfulness. Actions for judicial review play a key role in keeping those vested with statutory powers to act according to those powers. Not many in academia are willing to take such actions and as such the High Court decision, is a tribute to Dr Andrew Aeria’s willingness to challenge the Minister’s decision.

Unanswered questions aside, there is no doubt that the decision as delivered by the High Court will strengthen the role of the Section 4A Committee, prevents its manipulation by the Minister and ensure the independence of the members appointed to the Committee.

OECD Artificial Intelligence (AI) Principles for responsible stewardship of trustworthy AI

 The Recommendation on Artificial Intelligence (AI) is held out as the first intergovernmental standard on AI. The Recommendation was adopted by the OECD Council at Ministerial level on 22 May 2019 on the proposal of the Committee on Digital Economy Policy.

The recommendations are the outcome of OECD research and discussions carried out over a period of 3 years. OECD found that their work had demonstrated a need to shape a policy environment at the international level to ‘foster trust in and adoption of AI in society.’ The recommendations on AI complement existing OECD standards on privacy and data protection, digital security risk management, and responsible business conduct.

The Recommendation on AI contains five high-level values-based principles and five recommendations for national policies and international co-operation. It also proposes a common understanding of key terms, such as “AI system” and “AI actors”, for the purposes of the Recommendation. The following terms have been defined as shown below.

·         AI system: An AI system is a machine-based system that can, for a given set of human-defined objectives, make predictions, recommendations, or decisions influencing real or virtual environments. AI systems are designed to operate with varying levels of autonomy.

·         AI system lifecycle: AI system lifecycle phases involve:

i) ‘design, data and models’; which is a context-dependent sequence encompassing planning and design, data collection and processing, as well as model building;

ii) ‘verification and validation’;

iii) ‘deployment’; and

iv) ‘operation and monitoring’. These phases often take place in an iterative manner and are not necessarily sequential. The decision to retire an AI system from operation may occur at any point during the operation and monitoring phase.

·         AI knowledge: AI knowledge refers to the skills and resources, such as data, code, algorithms, models, research, know-how, training programmes, governance, processes and best practices, required to understand and participate in the AI system lifecycle.

·         AI actors: AI actors are those who play an active role in the AI system lifecycle, including organisations and individuals that deploy or operate AI.

·         Stakeholders: Stakeholders encompass all organisations and individuals involved in, or affected by, AI systems, directly or indirectly. AI actors are a subset of stakeholders.

Five high-level values-based principles

1.       Inclusive growth, sustainable development and well-being

a.       Stakeholders should proactively engage in responsible stewardship of trustworthy AI in pursuit of beneficial outcomes for people and the planet, such as augmenting human capabilities and enhancing creativity, advancing inclusion of underrepresented populations, reducing economic, social, gender and other inequalities, and protecting natural environments, thus invigorating inclusive growth, sustainable development and well-being.

2.       Human-centered values and fairness

a.       AI actors should respect the rule of law, human rights and democratic values, throughout the AI system lifecycle. These include freedom, dignity and autonomy, privacy and data protection, non-discrimination and equality, diversity, fairness, social justice, and internationally recognized labor rights.

b.      To this end, AI actors should implement mechanisms and safeguards, such as capacity for human determination, that are appropriate to the context and consistent with the state of art.

3.       Transparency and explainability

a.       AI Actors should commit to transparency and responsible disclosure regarding AI systems. To this end, they should provide meaningful information, appropriate to the context, and consistent with the state of art:

                                                               i.      to foster a general understanding of AI systems;

                                                             ii.      to make stakeholders aware of their interactions with AI systems, including in the workplace;

                                                            iii.      to enable those affected by an AI system to understand the outcome; and

                                                           iv.      to enable those adversely affected by an AI system to challenge its outcome based on plain and easy-to-understand information on the factors, and the logic that served as the basis for the prediction, recommendation or decision.

4.       Robustness, security and safety

a.       AI systems should be robust, secure and safe throughout their entire lifecycle so that, in conditions of normal use, foreseeable use or misuse, or other adverse conditions, they function appropriately and do not pose unreasonable safety risk.

b.      To this end, AI actors should ensure traceability, including in relation to datasets, processes and decisions made during the AI system lifecycle, to enable analysis of the AI system’s outcomes and responses to inquiry, appropriate to the context and consistent with the state of art.

c.       AI actors should, based on their roles, the context, and their ability to act, apply a systematic risk management approach to each phase of the AI system lifecycle on a continuous basis to address risks related to AI systems, including privacy, digital security, safety and bias.

5.       Accountability

AI actors should be accountable for the proper functioning of AI systems and for the respect of the above principles, based on their roles, the context, and consistent with the state of art.

Five Recommendations for Policy Makers

6.  Investing in AI research  and development

a)  Governments  should  consider  long-term  public  investment,  and  encourage  private  investment,  in research  and  development,  including  interdisciplinary  efforts,  to  spur  innovation  in  trustworthy  AI  that focus on  challenging  technical  issues  and  on AI issues. AI  research related  social, legal  and  ethical  implications  and  policy

b)  Governments  should  also  consider  public  investment  and  encourage  private  investment  in  open datasets  that  are representative and  respect privacy and  data  protection  to support an environment for and  development  that  is  free  of  inappropriate  bias  and  to  improve  interoperability  and  use of  standards.

7. Fostering a digital ecosystem for AI

Governments should foster the development of, and access to, a digital ecosystem for trustworthy AI. Such an ecosystem includes in particular digital technologies and infrastructure, and mechanisms for sharing AI knowledge, as appropriate. In this regard, governments should consider promoting mechanisms, such as data trusts, to support the safe, fair, legal and ethical sharing of data.

8.  Shaping an enabling policy environment for AI

 a)  Governments should promote a policy environment that tested, and scaled up, as appropriate. supports  an  agile  transition  from  the  research and  development  stage  to  the  deployment  and  operation  stage  for  trustworthy  AI  systems.  To  this  effect, they  should  consider  using  experimentation  to  provide  a  controlled  environment  in  which  AI  systems can  be tested, and scaled-up, as appropriate

b)  Governments  should  review  and  adapt,  as  appropriate,  their  policy  and  regulatory  frameworks  and assessment  mechanisms  as  they  apply  to  AI  systems  to  encourage  innovation  and  competition  for trustworthy  AI.

9.  Building human capacity and preparing for labour market transformation

a)  Governments  should work  closely  with  stakeholders  to  prepare  for  the  transformation of  the  world of work  and  of  society.  They  should  empower  people  to  effectively  use  and  interact  with  AI  systems  across the  breadth of  applications,  including  by  equipping  them  with  the necessary  skills.

b)  Governments  should  take  step c s,  including  through  social  dialogue,  to  ensure  a  fair  transition  for workers  as  AI  is  deployed,  such  as  through  training  programmes  along  the  working  life,  support  for those affected  by  displacement, and  access  to  new  opportunities  in the  labour  market.

c)  Governments  should  also  work  closely  with  stakeholders  to  promote  the  responsible  use  of  AI  at work,  to  enhance  the  safety  of  workers  and  the  quality  of  jobs,  to  foster  entrepreneurship  and productivity, and  aim  to  ensure that the benefits  of  AI  are broadly  and fairly  shared.

10. International cooperation for trustworthy AI

a)  Governments,  including  developing  countries  and  with  stakeholders should actively cooperate to advance these  principles  and  to  progress  on responsible stewardship  of  trustworthy  AI.

b)  Governments  should  work  together  in  the  OECD  and  other  global  and  regional  fora  to  foster  the sharing  of  AI  knowledge,  as  appropriate.  They should encourage international, cross-sectoral and open multi-stakeholder initiatives to garner long-term expertise on AI.

c)  Governments should promote the development of multi-stakeholder, consensus-driven technical standards for interoperable and trustworthy AI.

d)  Governments  should  also  encourage  the  development,  and  their  own  use,  of  internationally comparable  metrics  to  measure  AI  research,  development  and  deployment,  and  gather  the  evidence base to  assess  progress  in  the  implementation  of  these principles

Restoration of the Education System After a Previous Interruption – World War II

 “The whole educational system received a serious set-back as a result of the occupation by the Japanese. For almost four years of enemy occupation schooling declined to a very low level, both in quantity and quality, and institutions of higher education ceased to function. A formidable task of rehabilitation has faced the educational authorities since the territory was liberated in September, 1945, and we wish to record our admiration both of the achievements of the authorities and of the zeal of the pupils and students in renewing their studies.

Damage to school buildings was not on a large scale, but many of them were requisitioned by the services and there were long delays before they were available for school use. There have been very serious losses of furniture, equipment and books, but, in spite of all these difficulties, the schools have been brought into operation with commendable speed; within a few months of liberation schools in the Malayan Union had exceeded their 1941 enrolment figures, and in Singapore enrolment was doubled in the course of 1946. The problem of accommodation, already pressing in 1941, has thus become acute, for it has been necessary to provide for an accumulation of over-age pupils, whose schooling was interrupted by the Japanese occupation, and there is therefore an abnormal increase in enrolment. The pressure of pupils is so great that many English schools are compelled to work in two shifts daily. The difficulties have been greatly increased by the depletion of staff, as a result of death, retirement and change of employment; the wastage is particularly severe in European officers. Of other problems mention may be made of the shortage of transport, which affects everyone alike, whether inspectors, teachers or pupils. Nevertheless, education in the schools has made a fine recovery and it is noteworthy that it was possible to hold the School Certificate Examination in December, 1946. For some little time to come, rehabilitation will remain the foremost task of the education authorities, and this must govern the speed with which developments can move.”

From the REPORT OF THE COMMISSION ON UNIVERSITY EDUCATION IN MALAYA (1948)

Where Have All the Doctors Gone?

In a  previous post (The Doctors’ Dilemma) we wrote about how the Ministry of Health’s (MOH) handling of the employment of young doctors might alienate those doctors from developing a commitment to their vocation. The focus of that piece was what appeared to be apparent discrimination of doctors from private medical schools in Malaysia. Recent reports of doctors resigning from the medical service suggest that the disaffection may not be limited only to young doctors but may have deeper extensions that could impinge on the government’s ability to meet its public health responsibilities in the future. There is already talk of a strike by doctors.

The flight of the doctors was disclosed by the top echelon of the ministry at a news conference that was reported in the news portal Malaysiakini (https://www.malaysiakini.com/news/584259.) on 23 July 2021. The Selangor Health Director revealed that since January this year, 163 medical officers had resigned from the service. But that was not all. As if to allay any concerns over the alarming figures of doctors exiting the service, the Health Ministry secretary-general, who was also present at the news conference, explained that the resignations reported were in line with those of previous years. According to him, nine hundred medical officers had resigned from the service from 2014 to 2020.

The alarming figures of doctors quitting the public service require a more carefully studied response than the flippant and cynical reasons offered by the Selangor Health Director. The reasons he advanced – of better pastures in photography and selling computers, inheriting family clinics and a loss of interest in medicine – makes it a problem of doctors exercising their choices without attributing any responsibility to the Ministry. Does the ministry conduct an exit interview of doctors leaving? Are there discernible patterns in the age and other profiles of those leaving? Has there been a study of the management of the service, especially the rotation schedule? Has the ministry acted to develop intervention strategies to curtail the trends? The problem most probably lies with the service and not those leaving. Statements that have gone viral in the social networks show deep and entrenched problems in the service which alludes to incompetence and racist decisions. Instead of making glib statements about inheriting family clinics, those paid to manage the system must start offering solutions to a problem that threatens the health service.

How doctors are treated by the medical service will have important ramifications on the supply of doctors to meet national needs. Students’ choice in selecting a career in medicine will be adversely affected if the news trickles down to them of the shabby way doctors are treated by the government. The employers of doctors must be mindful that ultimately it is the people who make the sacrifices to take up vocations such as medicine. These social processes cannot be nurtured through petty strategies that are currently employed. The ministry’s current placid attitude and reactions to the exit of doctors are probably encouraged by seeing the steady and growing number of doctors entering the service each year. If the current stewards of the medical service do not wake up to the duties entrusted to them, their legacy to their successors in the service will be despair. 

The Doctors’ Dilemma

 

The ineptitude in the handling of the employment of young doctors in the medical service is mind-boggling. The healthcare system is collapsing in the face of the pandemic. Healthcare workers are being strained to the limit of their capacity. The daily count of infections and deaths does not put a number on the efforts of these valiant workers. Now, eighteen months into the pandemic, there is still no visible signs of when the pandemic will be brought under control. Instead, a danger looms of the system itself failing. Against this background, instead of treating the additional numbers of qualified doctors as a boon to the health system and the nation as a whole, decision-makers are embroiled in an unnecessary controversy about the tenure of these young doctors and their future careers. If matters are not quickly resolved the situation would alienate a whole generation of doctors and stifle their enthusiasm and motivations.

This country needs more doctors regardless of the doctor to population figure standing at 1:454 (2020). With a dispersed population and many living in rural areas, the WHO ideal of 1:400 does not say anything about whether public healthcare reaches those in remote and fringe areas. The ideal figures also say nothing about how these ‘ideal’ figures will cater for extraordinary situations like those created by a pandemic like that being experienced now. Total Covid-19 cases from March last year exceed 900 thousand. New positive cases reported daily exceed 10 thousand patients. The system is under great strain, not least because of the shortage of doctors. A sufficient number of skilled and motivated health workers is critical to the performance of any health system, particularly now in the COVID‑19 pandemic. Faced with similar situations, other countries, including OECD countries, have cut the bureaucratic red tape to press doctors who are outside formal systems into service to fight the pandemic.

Unfortunately, very often in this country, official decisions on important social matters as those now concerning the employment of doctors in the public service are often influenced by issues of race, religion, and political expedience. In the present case, an additional, widely held reason preventing a rational decision is that the doctors graduated from private universities. This is not based on the quality of their education but simply that they are the products of ‘money-making’ enterprises. For that reason alone, it is being proposed by some that the numbers qualifying from private institutions must be reduced in the future to prevent similar future predicaments. This is an untenable argument which, the sooner it is put to rest the better.

Private universities, including those with medical schools are the product of an evolution that was shaped by the unfulfilled demand for higher education. A large section of our population, at a critical moment in their lives, would not have had the opportunities for further education after school but for the offerings of private colleges. From around the 1980s, long before the law allowed the creation of private universities, private colleges in this country changed the very nature of higher education as traditionally defined to make it more accessible to learners. The innovations private colleges introduced (too many to repeat in this article), separated the substance of higher education from the physical trappings of the university and allowed a university-level education to be delivered outside the lecture rooms and even outside the country of its location. What followed was a historical transformation that democratized higher education and brought it within the reach of our school-leaving youth even as their growing numbers found them no place in local public institutions.

The private sector of higher education in this country must be respected for its contribution to higher education. Many of the owners of these private institutions are there not just to make money. They set up colleges and universities out of a commitment to providing education and with philanthropic motives. The development of the private sector of higher education, which now hosts more than half the tertiary education population in this country, no doubt, also played an important role in stilling potential social disquiet that would have arisen because of the unmet demand for higher education. Reviewing the sector in 2008, the EPU report entitled, Strengthening Private Education Services in Malaysia, 2009, described the private education landscape then as;

‘. . . a thriving sector widely recognized in international academic circles as one of the most innovative and progressive in the region. Education experts and investors consulted during the course of this project have highlighted Malaysia as one of the most “open” regimes and more “attractive” markets in Asia. Among its achievements are;

Split-degrees and international transfer programs, particularly the proliferation of ‘twinning’ programs with premier international institutions are often heralded as some of the innovations introduced by the private education entrepreneurs; Malaysia is the 10th largest exporter of education, catering to 80,000 foreign students or 2% of the global market share.

Most of the achievements reported by EPU were realized before the passing of the Private Higher Educational Institutions Act in 1996 (Act 555). The far-reaching policy changes implemented by the Act set the pace for the next big leap in the development of the private sector. The Act legitimized private education and assigned it an equal role with that of public institutions. It allowed, for the first time in the country’s history, for private universities to be established. The significance of that move was the government’s relinquishment of its long-held monopoly over universities. Because of this bold step and other reasons, Act 555 radically altered the landscape of higher education. The provisions on private universities also allowed foreign universities to set up branch campuses in this country. As a result of these changes the private sector of higher education today is so diverse that it represents all the main systems of the English-speaking world. The same factors that attracted foreign universities also attracted foreign students in large numbers into local universities and colleges. The stimulus for these radical developments was the presence in 1996 of a mature, locally developed, private higher education system that was recognized internationally. It was a system that was well prepared to build on the opportunities created by Act 555.

The private sector of higher education is subject to tight control by different regulatory authorities established by Act 555 and other legislation. An important part of the regulatory system is the accreditation of the courses which is by statute vested in an independent agency – the Malaysian Accreditation Agency (MQA). Under the MQA Act, medical and other professional qualifications can only be accredited with the approval of the related professional body. In fact, the relevant provisions of the MQA Act 2007 gives the MMA and the medical profession a greater say on accreditation than the Agency itself.

Many of the doctors at the heart of the present controversy would be graduates of the private medical schools established under the regime of Act 555. The predicament they face is not of their making but that of a failure by the Health Ministry to anticipate the increased output of doctors from the private sector. The doctors from private medical schools are entitled to the same treatment as their counterparts from public medical schools. Their absorption into the medical health service on traditionally established terms should not be delayed any further.

One final point. The first medical school in this country, the King Edward VII College of Medicine was established in 1905 only because of the persistence and funding provided by philanthropic businessmen of that era. Malaysia’s first university, Universiti Malaya now claims its ancestry to that institution.

The Predicament of Students Stranded Without Accreditation

 

The problem first reported more than two months ago about students from a university being stranded without accredited qualifications is still festering with no real solutions offered. No one in authority seems to realize the urgent need to relieve the hardships caused to the students involved. Typically, no official from any of the relevant ministries and agencies have stepped forward to help the students concerned. These students would have chosen to study in Malaysia not least because of official assurances given about the reliability of our higher education system on the internet and elsewhere. See, for example, educationmalaysia.gov., which is the official portal extolling Malaysian Higher Education to the world.

This issue over accreditation is a debacle that would not have happened if government regulators and owners of private universities understood better their responsibilities to students. Great sacrifices are made by parents and students in time and money to receive a university-level education. There are also the other costs that tend to be ignored - social and emotional, especially when students travel from afar from their home countries to study in Malaysia. They come here because of the promises made by our government and our higher education institutions. There is a moral obligation that neither of these parties has so far responded to.

The reasons for the students’ predicament lie first on those who manage the institution involved, and secondly, on badly drafted laws that govern the approval and accreditation of courses offered by private universities and colleges. Nevertheless, given the enormity of the problem, regulators cannot sit back as spectators hoping for things to resolve themselves. There are means available to them to break the present impasse and they must take them to do so immediately.

Approval of courses conducted in private universities and colleges are regulated by the Private Higher Educational Institutions Act 1996 (Act 555). Private Institutions are prohibited from conducting a course without the prior approval of the Registrar General of Private Higher Education, a position created by Act 555. Not complying with the approval requirements will subject institutions to a fine of up to RM 200,000 and a prison term of 2 years.

The procedure that is now adopted by the Ministry of Higher Education is that institutions wishing to conduct a new course must submit the course for evaluation by the Malaysian Qualifications Agency  (MQA). The MQA is an independent body that is not beholden to the MOHE. The MQA’s standard procedure is to issue a provisional accreditation certificate to the new course if it complies with the Malaysian Qualifications Framework and MQA’s guidelines on programme approval. Once provisional accreditation is given, the Registrar General of MOHE will as a matter of course, approve the course to be conducted by the applicant institution. The institution then proceeds to recruit students into the course collecting fees and other dues from them. Given the present laws and procedures, the students have no means to realise the danger looming that the course they have paid for may not be accredited. A course with provisional accreditation will only be assessed for full accreditation when the first cohort of students in the course progress to the final year. If the institution fails to secure full accreditation for the course, the worst of the consequences of that failure falls on the students. They realize too late that the course they studied and paid fees for is unaccredited by the only accrediting authority in the country. Living expenditures incurred in the process are lost. Scholarships are lost. Time is lost and the employment of the student delayed. Authorities such as foreign governments, embassies, and high commissions will not validate their qualifications which is an important requirement for foreign students. The MOHE is likely to withdraw the approval of the course paying no attention to the repercussion on students.

The underlying reason for all this is that penalties imposed by the laws that are passed to protect students’ interests are directed at the courses that flout the laws. The courses lose their academic value because of the laws. The students are left without any protection. A course that had secured the approval of the MOHE and which assured students of its standing is suddenly found to be worthless and unrecognized.

This is a situation that requires official intervention. Students registering for a course offered by a legally established institution cannot be forced to gamble with the prospect of the course being accredited. They are only required to work hard to fulfill the academic requirements of the course that they have paid for. Most urgently, the officials must resolve the students’ predicament and return to them the qualification they had contracted for. Once that is done, they must act against the institution concerned for any breach of the laws and finally, proceed to alter the laws as they now stand.

The students concerned may be facing a situation where the provisional accreditation has been nullified or withdrawn. Alternatively, the situation may be that the institution concerned failed to obtain full accreditation. Worse, they may have registered for a course that unknown to them was not even approved by the MOHE. All three situations leave no recourse for students to rectify the problem, and it is grossly unfair that those who were intended to be protected by the laws are the victims of those same laws. Neither legislation - Act 555 dealing with the approval of courses nor the MQA Act 2007 regulating the accreditation processes - protect the interests of students when institutions flout the laws.

Accreditation is only valid from the date it is given by the MQA, which means that students who have completed their course may still be left with an unaccredited programme, even if the course is accredited in the future. The quickest way to deal with the students’ predicament is to look closely at the exemption powers given to the minister by Act 555 and the MQA Act 2007, or even more expeditiously through a resolution of the MQA Council. If the authorities are not willing to take this step, the only other way to resolve the issue is through legislation, which drastic step, it is suggested,  may not be required in this case. The problem is not intractable. The interests of students are paramount. The reputation of the country as an educational hub must be protected.