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