Sunday, 12 September 2021

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

Wednesday, 28 July 2021

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)

Saturday, 24 July 2021

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. 

Monday, 19 July 2021

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 COVID19 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.

Saturday, 10 July 2021

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.


Monday, 5 July 2021

Academics under Covid Fatigue

 

By the Espact Team

I write this in admiration, respect, and on behalf of my many friends who are still actively carrying out their duties in private universities and colleges. They have worked against a confusing background of policies made and not made and policies made only to be changed. My friends and others have worked hard to discharge their contractual obligations deeply aware of their moral obligations to their students. During these past 18 months, they have worked, against the uncertain official policies mentioned earlier and the ambivalent responses from their institutions. They are all affected by fatigue created as much by the additional and different kinds of work they are required to produce in these difficult times, as by the confusion shown by officials in handling the current situation. The recurring complaints include a lack of institutional understanding of online processes and flowing from that, an absence of any useful guidelines issued to staff or students about the academic expectations in the new forum. General directions are issued to the academics to go online without anyone monitoring the impact of the online mode of instruction on teachers or students. Nor are there policies developed in the institution to align teaching and assessments in the online or an investigation of either process. There is no mitigation of the traditional chores of academics, but only the addition of new tasks in the new environment. For example, teachers are expected to ‘mark’ papers online, but no adjustments are made to the modes of assessment or time given to the staff to complete the marking. Regular faculty meetings to discuss the difficulties, if they had been held over the last 18 months would have helped, some of them say, but there have only been directions to comply without caring to examine the difficulties of compliance.

It has not helped that many institutions are in the dark about handling the situation. No one, to my knowledge, has organized any course to help staff cope with the current situation. Nor has there been any formal discussion on how the future of higher education is to be handled. The MOHE and the MQA must take responsibility for these processes but both agencies have been sitting on their hands. Institutions, hoping for more effective guidance from them have failed to receive any. Even pleas for help made to individuals have also brought little results.

I think we must face the prospect that the processes of higher education that we have grown up with are no longer sustainable in an environment that has been violently altered by the pandemic. In law, the concept of force majeure is a disruptive force that is unforeseen that fundamentally alters the obligations of parties under a contract. What was agreed to be done in a particular manner based on certain assumptions can no longer be done in that agreed manner because of unforeseen disruptions of those assumptions. When the Suez Canal was closed in the 1950s because of hostilities along the canal, shippers’ obligation to deliver cargo within a stipulated time estimated on the assumption that carriage will be through the canal, could no longer hold. Nevertheless, the carriage had to be completed, even if it meant that the carriers would have to take the longer route around the Cape of Good Hope.

Higher education regulators and providers must take a different route in delivering higher education. However, unlike the shippers in the Suez Canal situation, the hope for higher education may not lie in a longer route but a shorter one. This is a time to rethink higher education by jettisoning the trash, the debris, the bran, and the banter of courses that serve no purpose in education at the higher level. Maintain the ballast but review the cargo. It is time to reassess the number of subjects that are forced down the gullets of students and the mandated duration of the certificate, diploma, and degree courses. The suspensions forced on us by the pandemic give us the respite to think through the future. The city of Wuhan in China built a makeshift emergency hospital to treat patients infected with the coronavirus in just 10 days. Makeshift must not be regarded as a derogatory term in times like this.

We have no choice because, if as experts say the pandemic will be with us in different degrees for at least another five years, the future we must worry about is already with us. More productive and purposeful engagement between regulators, institutions, staff, and students must start now.

Friday, 11 June 2021

The Right To Be Heard

 

“If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him: and then he must be given a fair opportunity to correct or contradict them. It follows, of course, that the judge or whoever has to adjudicate must not hear evidence or receive representations from one side behind the back of the other. The court will not enquire whether the evidence or representations did work to his prejudice. Sufficient that they might do so. The Court will not go into the likelihood of prejudice. The risk of it is enough. No one who has lost a case will believe he has been fairly treated if the other side has had access to the Judge without his knowing.”

Lord Denning in B Surinder Sigh Kanda v The Government of the Federation Malaya 1962

Tuesday, 20 April 2021

Gerak’s Judicial Review Application Rejected. No written reasons for the rejection

 An earlier post on this blog wrote about GERAK’s application to the High Court for a judicial review of the appointment of the VC of Terengganu. Gerak’s application challenged the appointment on the ground that it had not complied with the statutory requirements of the Universities and University Colleges Act 1971.  After hearing the arguments of lawyers appearing for the different parties on 25 March 2021, the High Court rejected Gerak’s application on 9 April 2021. The court’s reasons for rejecting the application were not given. High Court judges are only required to provide written reasons for their decisions if a party to the action decides to appeal the decision. Our information is that the executive committee of Gerak is considering appealing the decision.

The absence of any obligation on a judge to give written reasons for their decision may come as a surprise to many. It is, however, the position that judges owe no duty to write the reasons for their decisions; none is imposed by law nor by the extensive rules of court. The origins of the present position can be traced through how English common law was introduced into this country to the decisions of the courts in England in the 17th century on that point. The justification for not requiring judges to write their opinion is that the imposition will cause delays and ultimately the cost of litigation that will fall on the litigant.

Notwithstanding the absence of any obligation to do so, judges, even those sitting in lower courts do provide written reasons for their decisions and they are generally encouraged to do so by those administering the judicial system. Recently, Chief Justice Tengku Maimun Tuan Mat, speaking at an induction programme for new judges, highlighted the importance of judges writing the grounds of their judgment in court cases. The Chief Justice explained that written judgments would lead to more care in arriving at decisions and enable parties to know why they had won or lost a case and to also enable other lawyers to predict how future cases on a similar point may be decided by other courts.

Written judgments add clarity to laws whether they are found in statutes or the decisions of other judges. Written judgments also contribute to the development of the laws and make them better accord with social realities and needs. The judge deciding the application of the laws to a particular dispute at a given moment in history can mediate the laws to the needs of that moment. By writing reasons for a decision, the judge will provide a record for other courts to apply his reasoning or depart from it or modify it to the dispute before the court. Written judgments are important to define the legal rights and obligations of individuals. In the present case, a written judgment would have given the parties involved a better understanding of how s. 4A of the Universities and University Colleges Act 1971, the law at the centre of the challenge applies, its scope and its limitations.

An application for a judicial review ensures that those vested with legal powers to do something that affects the public interest, such as the appointment of a Vice-Chancellor, exercise those powers in compliance with the empowering law. The decisions of judges who review administrative procedures will also add greater clarity to the laws. Such legal actions do not come cheap to those initiating them and at the end of the day the very least they deserve, even if they fail in their application, is that they have a better understanding of the law.

A public statement of the reasons for a judgment is therefore owed to those involved in the action and to the community at large. If decisions are made without giving written reasons, as in the dismissal of the Gerak application, it will lead to a feeling of injustice among the members of the association and a reduced appreciation or understanding of legal rights and obligations. It also leaves Gerak in a quandary about appealing the decision.

Sunday, 28 March 2021

GERAK applies for Judicial Review of the appointment of the Vice-Chancellor of Universiti Terengganu

Kuala Lumpur 25 March 2021

The High Court in KL heard an application this afternoon from Gerak, a leading academic association, for a Judicial Review of the appointment of the Vice-Chancellor of Universiti Terengganu.

The application was made by Pertubuhan Pergerakan Tenaga Akademik Malaysia (Gerak) (Malaysian Academic Movement), Professor Zaharom Bin Nain as Chair of the Association, and Rosli Bin Mahat as Secretary of the Association. The respondents to the application are the Minister of Higher Education, Malaysia and Ybhg Dato’ Dr. Nor Aieni Binti Haji Mokhtar (Vice-Chancellor, Universiti Malaysia Terengganu)

The application was made on the alleged ground that the appointment of the Vice-chancellor was not in compliance with section 4A of the Universities and University Colleges Act 1971 (Act 30). Section 4A was added in 2008 through an amendment Act. The section reads as follows:

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. 

Gerak’s application states that the object of the new section at the time it was passed was to instill 'greater accountability, transparency, professionalism and academic independence and autonomy in the process of the appointment' of Vice-Chancellors of public universities. The contentions before the court this afternoon centered around two main issues which were,

  1. Whether Gerak had standing as a society of academics to apply for a judicial review (the standing issue), and
  2.  Whether section 4A of the Universities and University Colleges Act 1971 (Act 30) applied to reappointments of vice-chancellors or was only limited to first appointments. (the reappointment question)

On the issue of standing, Gerak’s lawyers argued that Gerak had satisfied the “adversely affected” test as required by law and therefore had standing to apply for the JR. It was argued that Gerak as an interest group representing academics has a real and genuine interest in ensuring the appointment of Vice-Chancellors is carried out openly and transparently with the advice of a committee appointed under section 4A. That section was introduced to strengthen academic freedom and the autonomy of universities, which are also some of Gerak’s objectives. Secondly, compliance with section 4A, it was argued, ensured that members of Gerak who aspired to apply for the position of Vice-Chancellor of a public university would have fair access to such a position whenever the position of Vice-Chancellor in a public university fell vacant.

The view of Gerak’s lawyer on the second point was that section 4A applied not only to the first appointment of an individual as Vice-Chancellor but also subsequent appointments.

Lawyers for the Minister and the incumbent Vice-Chancellor took opposing views on both questions.

The High Court will deliver its decision on the application on 9 April 2021.

Wednesday, 24 March 2021

Owner Beware! (of digital property, cybercrimes, data protection and IT security

 

The internet and the proliferation of computer technology have sprouted new opportunities for those who would engage in illegal activity. The new technology has also generated new varieties of criminal activity. It is also evident that legal systems that are relied on to combat criminal activities are not adequately equipped to deal with cybercrimes. The law takes a long time to catch up with new strains of criminal abuse. Not only governments, corporations and businesses are targeted by the new brand of criminals but also individuals. Because of these developments, individuals must reassess their understanding of what constitutes property and how even traditional items of property such as money and land are increasingly represented through the new technology. They must then assess the new risks that technology has created that will impact their property and take measures to protect that property.

In the following paragraphs, obtained from Mondaq.com, Stuart Mort, Global Head of Consulting & Chief Security Officer of Law in Order answers the question:

‘How should people increase their knowledge about data protection and IT security?’

This is a great question, and this answer might seem a little left field. Fundamentally it is to understand the risk equation by playing through scenarios. If I have an 'asset' (as an example, an email is an information asset), what is it 'worth', what can happen to it (the threat), how likely is that to happen, what would it mean if it did happen (the impact) and therefore, how can I reduce/remove those factors?

We do this every day. Crossing a road is a great example. You are the asset, you could get injured, it is likely to happen with fast-moving cars, less likely on a quiet road and we reduce the risk by using a proper crossing.

Applying this to your work laptop - it could get stolen/lost, it is likely as it is carried between work and home every day, it would significantly impact Law in Order as it stores data on employees' and customers' information. I can reduce the risk by never leaving it in the car unattended, ensuring that all data is encrypted and always screen-locking.

U K Menon

Monday, 15 February 2021

Private Higher Educational Institutions - Changes to Advertisement Regulations 1997

 

The Private Higher Educational Institutions (Advertisement) Regulations 1997 [P.U.(A) 543/1997], which came into force in 1997 were recently amended. The amendments to the regulations followed the amendments that were made to the principal Act by the Private Higher Educational Institutions (Amendment) Act 2017.

The amendments to the Advertisement Regulations came into effect on 15 March 2019. The original regulation 2 has been substituted with a new version which reads as follows;

"2. Particulars of advertisement.

(1) Every advertisement issued by a private higher educational institution shall contain the following particulars:

(a) the registered name of the private higher educational institution;

(b) the registered address of the premises of the private higher educational institution;

(c) the telephone number, electronic mail address, website address and social media link of the private higher educational institution, if any; and

(d) any other particulars as may be determined by the Registrar General.

(2) A private higher educational institution which contravenes subregulation (1) commits an offence and shall, on conviction, be liable to a fine not exceeding ten thousand ringgit or to imprisonment for a term not exceeding one month or to both."

The original regulation 3 has been substituted with the following:

"3. Advertisement on course of study or training programme.

(1) Without prejudice to the generality of regulation 2, every advertisement on an approved course of study or training programme issued by a private higher educational institution shall contain the following particulars:

(a) the full name, course code and date of expiry of the course of study or training programme;

(b) the accreditation status of the course of study and the reference code of the accreditation status;

(c) the registered name of the branch at which the course of study or training programme is conducted; and

(d) any other particulars as may be determined by the Registrar General.

(2) A private higher educational institution which contravenes subregulation (1) commits an offence and shall, on conviction, be liable to a fine not exceeding ten thousand ringgit or to imprisonment for a term not exceeding one month or to both."

Saturday, 23 January 2021

Two cultures and political divisions in education

 


It was reported that the National University of Singapore (NUS) had officially launched the College of Humanities and Sciences (CHS). https://news.nus.edu.sg/new-college-of-humanities-and.../

The object of the college is to introduce, what the report described, as enhanced undergraduate experience for students of the faculties of Science and Arts through interdisciplinary teaching and learning.

This report provoked a long discussion in a Whatsapp group that I am part of. Many saw this as a Liberal Arts programme. I thought I should share my responses on this Blog.
That is really the object of the merger.

Fusing together what C P Snow once described as two cultures - Arts and Science. It was a historical accident in education that separated them. 20th-century attempts to offer combined degrees was one attempt to fuse the two. In my university, we had Law and Engineering and other combinations across the two domains but these attempts did not integrate the faculties or disciplines.

Our universities, and it gives me no pleasure in saying this, have lost their direction and purpose. University leadership is made up of well-dressed mannequins that show no understanding of academic leadership, which is a responsibility to serve the needs of generations and the future of the nation.

The fusion occupies a central position in the agenda for the transformation of Higher Education that began at the beginning of this century in many universities, mainly in the US. This movement was significant enough for it to be reported in the headlines of the popular press.

We are left behind, not because we lag in academic talent but because of the divisive policies in this country that have forced the segmentation of many revered principles in education. Worse, we have made higher education in the model of rubber trees. Neatly lined, divided, and capable of producing only SMR - Standard Malaysian Rubber. Soft, pliable, and easily stacked.



Monday, 18 January 2021

Educational Malpractice

Educational malpractice, which is an offshoot of professional malpractice is a concept that has not taken root in the domain of education. What it involves is an assertion of professional negligence or the failure to provide services to a standard that can reasonably be expected. It assumes that the actors in the domain of education, like their professional counterparts elsewhere, must function to known or accepted standards and a deviation from those standards would impose liability on them if damages result from such deviations. Courts in all jurisdictions have been slow or reluctant to find teachers, officials, regulatory authorities, or institutions liable. This has been the position especially in cases where the allegations have been about unsatisfactory education or education that was alleged not to satisfy the expectations of students or their parents. Judges refuse to attempt to be educators. They abjure any knowledge or skills in education which they say is the province of teachers and institutions. Another reason they have often alluded to is the very nature of education. Unlike other professional services education relies on the active participation of the client-student over whose make-up and conduct are largely outside the institution’s control.

But the situation is changing. With more regulatory control and the statutory prescription of standards on institutions and teachers such as the minimum standards set by the Malaysian Qualifications Agency (MQA), courts now have more purchase on how education is programmed through curricula and even about how teaching is conducted or has to be conducted. Such published objective criteria may allay the reluctance of the courts, which means that education providers may have a new regulatory force to deal with. In 2012, the High Court in Terengganu had cause to thoroughly examine educational plagiarism and concluded with the opinion that if the student is guilty of plagiarism in her thesis, the thesis supervisor must also bear part of the responsibility for the student’s action.

Educational malpractice suits may equally be brought by staff against institutions and vice-versa. The earlier post describes a situation that could well have resulted in an action by the staff against the institution.

Sunday, 17 January 2021

WHO STANDS UP FOR THE ACADEMIC WHO STANDS UP TO PROTECT STANDARDS?

 A recent decision of the High Court on a matter on appeal from the Sessions Court highlights the unhappy position of the lone academic who stands up to defend academic standards in the face of faculty or departmental opposition.

The two decisions are used only for their facts. As this piece is not written as a case review, there is no intention to analyse the decisions. Neither will there be any reference made to the case name, case reference or names of the party or the university involved. (As far as can be ascertained, the High Court decision has not been reported in any of the law reports.)

The isolation and helplessness of a faculty member attempting to enforce academic standards in a university or college was one of the matters that were brought to the attention of the 2019 reform committee tasked to study the governance of higher education providers and to harmonize the Universities and University Colleges Act 1971 (Act 30) with other legislation on higher education. That committee’s view was that such issues are best handled by the office of a higher education Ombudsman. One of the reform recommendations of the committee was the setting up of a Higher Education Ombudsman.

The office of an Ombudsman had it been established would have provided an alternative remedy to the travails of the academic involved in this particular case and saved her the heartache and the costs of a lawsuit. In the circumstances, as there was no Ombudsman to turn to, the academic had to end up as the plaintiff in a lawsuit.

The plaintiff in the case is a professor with more than 30 years’ experience in academia. In June 2015, the plaintiff and a colleague were appointed by their head of department to review the work of three students who were in the final year of their undergraduate programme. The students’ works had been previously graded by their supervisors. Plaintiff and her co reviewer were to assess the work of the students against the grades awarded. After a viva where they interviewed the students, they found the work of the students unsatisfactory and not deserving the marks allocated by the supervisors. Having come to this conclusion they gave the three students a further two weeks to bring their work to a satisfactory level. The plaintiff and her colleague then wrote a report of their conclusions to the Department. What transpired after this led to a serious conflict between the plaintiff and her colleagues in the department that finally led to litigation between her and a colleague.

Instead of making the corrections as advised by the plaintiff, the students lodged a complaint with the Dean of the faculty that the plaintiff had been ‘unprofessional’ during the viva. Without informing the plaintiff or her colleague, the department proceeded to set up another committee to review the marks given to the three students. 

The facts also show that the plaintiff and her colleague wrote to the HOD to find out the marks that had been awarded by the new committee to the students involved. Not receiving any response on the matter, the plaintiff and her colleague raised the matter at a regular meeting of the department. Sharp words and allegations were exchanged between the plaintiff and the department leaders. There is however nothing in the facts of the sessions court judgment that shows any attempt by anyone attending the meeting to justify the course of action taken by the second committee or the marks that were awarded at the end of the second review. The plaintiff was asked to ‘move on’, obviously indicating that she could expect no further satisfaction on the matter.

The allegations against the plaintiff are serious enough to be not accepted without further investigation by the department. Appointing a second committee to review the works of the students tantamount to at least a tacit acceptance of the students’ allegations. Why else was there a need for a second assessment? If the allegations were reasonably considered by the Dean or other authority, it would have required a response from the plaintiff and her colleague who carried out the first review. Not seeking their view is not simply an act of discourtesy to them as colleagues, but an interference with their role and rights as academics, including academic freedom.

Academic staff must have sufficient autonomy over assessment procedures that involve their scrutiny. However, placing this within the concept of academic freedom does not make it simply a privilege of the academic. The integrity of assessment goes to the heart of a university’s credentialing process. Universities have a pact with society that the output of students will match society’s expectations of a highly educated person. If assessment by a staff is challenged in the way it way it was done in this case, the integrity of the process is undermined and any credentialing by the university becomes highly flawed. When there is an alteration made to the decision of an examiner, the staff involved must have been given the opportunity to reply to the challenge before a departmental decision is taken to alter it. But there is more. To accept the allegations made by the students has two other consequences. First, it would send a message to students in the faculty, if not the whole university, that assessment of their work can be altered by lodging a complaint rather than complying with the examiner’s decision. Secondly, allegations such as those made by the students would seriously harm the reputation of the staff involved unless due process through a hearing is accorded to the academic involved.

These larger and vital issues that were at stake found no place in the judicial decisions. Rather, the judges found the plaintiff’s insistence in having the processes observed unusual. The courts failed to recognize that the plaintiff’s sense of grievance was fully justified because, by going behind her back on revising her assessment, the university had acted in a manner that destroyed the relationship of trust and confidence that is inherent in an academic’s contract with the university. The action of all those involved at the departmental level to institute a second marking was an affront to her integrity that fully justified the plaintiff’s continued insistence in having the matter reviewed. In the process the courts may also have unwittingly approbated questionable academic practices. On the question of plagiarism that was alleged in one of the students’ work, the academic who was asked to review the paper simply stated that he found the paper to be free of plagiarism and the student ‘had used a different method of writing’. This lackadaisical approach to a serious ethical issue in higher education by a group of academic staff is worrying because it points to the possibility of serious flaws in our higher education system.

As to the unprofessional conduct that was alleged, the judge in the sessions court explained that this was based on the plaintiff giving only two weeks given to the students to make the corrections. It appears that the students were preparing to return home and that there were public holidays that fell within the two weeks. If such reasons are judicially seen as sufficient to constitute academic conduct that is unprofessional, it would seem that attempts to reform higher education has to embrace a much wider audience than just academia.

The need for a higher education Ombudsman has become even more urgent.