Minister of Education to reactivate the National Education Advisory Council (NEAC)

The newly appointed Minister of Education, Fadhlina Sidek, said yesterday that she will revive the National Education Advisory Council (NEAC) as part of her consultative approach to her functions as Minister. The Minister made this commitment in a media statement issued on 15 December 2022. The statement also listed seven areas her ministry will be focusing on to improve the national education system. We will address some of the areas of focus in this Blog, starting with this comment on the NEAC.

The National Education Advisory Council (NEAC)

"The new Minister of Education must be vigilant against opposition to her decision to operate transparently and through consultation with the stakeholders and not just the advice from the bureaucracy of the ministry."

The Education Act 1996 (the Act) provides for the establishment of the NEAC as an advisory body to the Minister. The statutory standing of the NEAC is, however, nebulous. The Act does not compel the establishment of the council. It merely states that the NEAC ‘may’ be established. In statutory language, the word 'may' does not compel the doing of the act specified. The person given the right to do the act has the discretion whether or not to carry out the act. The term ‘shall’ makes it mandatory for the act to be carried out. The NEAC, therefore, does not have the same legal presence as its counterpart in higher education – the National Council on Higher Education (NCHE/Higher Education Council) - with which it is often confused.

The  NCHE was established by an act of parliament as a permanent body to advise the Minister responsible for higher education. The National Council of Higher Education Act 1996 requires the Minister concerned to implement the policies formulated or determined by the Higher Education Council. The functions of the Higher Education Council are stipulated by statute and include the broad power ‘to plan, formulate and determine national policies and strategies for the development of higher education.’ Such is not the case with the NEAC.

Indeed, the NEAC’s powers are limited. The scope of NEAC’s powers to advise the Minister is limited to such matters as are referred to it by the Minister. The Act requires the NEAC to consider the matter referred to it and submit its advice to the Minister but imposes no obligation on the Minister to act on the advice as is the case with the decisions taken by the Higher Education Council.

Another ambiguity in the Act is that whilst it states that the NEAC may be established, it leaves open the question as to who may establish it. However, since the Act empowers the Minister to appoint the Chairman and other members, it may be implied that the power to establish the NEAC is also that of the Minister.

The new Minister’s determination to reactivate the NEAC is, however, all the more heartening because of the ambiguities surrounding the NEAC. It is hoped that the Hon Minister will also use her statutory powers to ensure a broad representation of stakeholders in the NEAC and invite the NEAC to deliberate on the important issues concerning education. Educational issues must not be left to politicians to decide.

Membership of the Council

The membership of NEAC is made up of a chairman, a deputy chairman and nine other members. The criteria for the appointment of the nine members, as stipulated in the related regulations are experience, knowledge and expertise in matters relating to education. None of the criteria stipulated in the Act or the regulations governing the NEAC include stakeholder representation such as teachers, parents or the private sector of education. On the other hand, several officials have a right of attendance at NEAC meetings such as (a) the Secretary General of education (b) the Director General of education (c) the Director General of Higher education; and (d) the Director General of the Department of Polytechnic and Community College.

A Consultative Approach

The new Minister has declared a holistic approach through a process of consultation with all stakeholders in the ‘entire education ecosystem.’ The NEAC is an excellent forum to achieve those commitments, even if some minor changes to the laws may be required. The effectiveness of a ministerial advisory council is, of course, dependent on the representation of all stakeholders in the Council. The Minister must ensure that the NEAC is representative of all stakeholders. 

It is also important that the NEAC is placed on a stronger statutory footing. If the establishment of such an advisory council is left to the minister’s discretion, there will always be a risk of the reigning minister exercising power without consultation or advice. Such an eventuality is not far-fetched. Even the NCHE, which is a creature of Parliament has been rendered inactive through administrative action. The new Minister of Education must be vigilant against opposition to her decision to operate transparently and through consultation with the stakeholders and not just the advice from the bureaucracy of the ministry.

GERAK PROPOSES FIVE HIGHER EDUCATION REFORMS

Professor Zaharom Nain, the Chair of the Malaysian Academics Movement (MOVE), also known as Gerak, has identified five areas for urgent reform of higher education in Malaysia. Professor Zaharom said that he had shared the proposals with the former Minister of Education, Dr Maszlee Malik, who agreed to support them if Pakatan Harapan is voted to power.

The five areas covered are, (1) the highly divided system of higher education which lacks unity and prevents the formulation of coordinated policies; (2) the Government’s interference in the administration of higher education institutions; (3) restoring universities their essential attributes such as institutional autonomy and academic freedom; (4) the rights and role of students in higher education and (5) inclusiveness in all matters, from the selection of students, the appointment and promotion of faculty and the selection of Vice Chancellors and appointments to the board of directors.

Following are the details of the proposals.

1.      The system is highly divided with different sets of policies and laws regulating the different divisions of the system.

There are at least six acts of parliament dealing with the establishment and management of higher education institutions. There are no less than eight different types of degree-awarding institutions and 6 types of universities. The divisions, including the public/private division, are the result of ad hoc policies devised by politicians out of political rather than educational considerations. There is currently no single authority to unite the system and coordinate its role in the development of higher education.

Harmonization of the system will require the establishment of a higher education commission or similar entity to regulate the different types of institutions, subject to the same standards, and bring them within a single funding regime. The National Council on Higher Education, established by an act of parliament in 1996, coordinated the policies on higher education, which the Minister was required to implement. The Council ceased to function in 2013, without any reasons being given. Widening the scope and constitution of the council and giving it powers of enforcement may be an alternative to the establishment of a commission. Whatever the solution, there have to be safeguards against noncompliance by the government with the laws it passes.

2.      Government interference in the governance and management of higher education institutions.

There is excessive interference by the government in the educational processes of higher education institutions. In the case of private institutions, the interference is written into Act 555 which regulates private universities and colleges. Public universities and higher education institutions, like Government Linked Companies (GLCs), are used by the ruling dynasties to reward political loyalists. The government’s power to appoint university VCs and DVCs and directors on the board of universities has impacted university governance and the accountability of senior officials of the university and the board of directors. Instead of focusing their duties on the university community of academics and students and the public, these officials act to appease the government and seek its patronage.

The appointment of VCs, DVCs and directors must be made by an independent agency such as the proposed commission or a reconstituted National Council on Higher Education.

3.      The main legislation on universities strips universities of their essential attributes. The institutions established are universities in name only.

There are attributes associated with universities without which they lose their special character. The Universities and University Colleges Act 1971 is silent on matters such as university autonomy, academic freedom and students’ right to participate in the governance of universities, all of which are important attributes for the university, the academics and the students to play their respective roles in the university.

These essential attributes must be legislated. The Universities and University Colleges Act 1971 or any new legislation that is passed must entrench these fundamental rights.

4.      Students.

Despite the rhetoric of student-centred education, current legislation on higher education provides little to safeguard the interests of students. Most of the provisions directed at students deal with discipline and what they are prohibited from doing. There is a provision under Act 555 which allows the MOHE to take action against the institution when students’ interests are under threat, but the provision lacks clarity to be of any practical use. There are no similar provisions in the other legislation.

Without any legislative safeguards, students have to rely on their contractual relationship with the institution. Although the Consumer Protection Act 1999 was amended 10 years ago to extend protection to students, recent cases where students were stranded with courses that were not accredited show that neither the MOHE, the MQA nor the Consumer Tribunal was able to adequately resolve the students’ problems.

5.      Inclusiveness

A root problem that affects not just the higher education system but many other aspects of civil rights are entrenched discriminatory practices to appointments to public office. Discrimination is rampant in our public universities and higher education institutions.

The solution is simple but its implementation requires a commitment from the government to change these discriminatory practices, not only in the admission of students but in the appointments of VCs and directors. Ignoring this weakness in the system will leave our universities simply as entities bearing that description. Like places of worship that have given up on their basic tenets.

UNIVERSITIES IN FEAR OF AN ARTIST

 

Some of our universities, including those described as apex universities appear to be in the grip of a fear that free speech may grow on their campuses. The source of their fear is an artist named Fahmi Reza (image above).

In actions repeated in several universities, the authorities acted to shut down student forums that were being conducted by Fahmi Reza. In at least one case, auxiliary police were summoned to assist the authorities in shutting down the forum.

It all started when Fahmi attempted to conduct his popular online forums on electoral politics in person on university campuses. Fahmi’s Kelas Demokrasi forum was conceived by the artist when Parliament was dissolved on 10 October this year. The aim of the forum was to educate emerging young voters on the complexities of electoral politics to help them understand and exercise their electoral rights in the forthcoming general elections. In elections that will see the participation of a large number of the young reaching the voting age, these forums clearly serve an important need.

However, those controlling our universities seem to think that such activities are averse to the purposes of the university and to the education of students enrolled in them. The interruptions of such forums in universities are so bizarre that they may well have been scripted by the artist himself.

Universities are meant to create the space for free speech and robust debate. University administrators and academics are duty-bound to uphold these ideals of the university. The free expression and exchange of different views without fear of punishment or interference, as in this case, goes to the very heart of democratic principles which are a vital part of higher education.

It will be naïve, however, to think that the interruptions of these forums are rare and an exception to the general environment of freedom in our universities. The truth is that our higher education laws have progressively scraped away almost all the essential attributes of a university, leaving in its wake bland statutory bodies that bear no resemblance to a university. Universities in this country are universities because that is how they are described by the law. Shapes without substance.

The tedious bureaucratic explanation that prior permission was not obtained for the Fahmi forums is nothing compared to the statutory mutilations that have been inflicted on academic freedom by the Statutory Bodies (Discipline and Surcharge) Act 2000 (605). Disciplinary rules make it an offence for an academic in a public university to criticize the government or the university. 

How cool is that for a university?

The High Roost of Vice-Chancellors by Hazman Shah

 

Quite some time ago, a Professor who is an architect from UTM observed that it is easy to identify where the VC and his top management team of the university rule from. It is the highest building or it is in the central zone or it is fabulously decored or something to that effect. His point was that the power within the university is symbolized in the physical campus which militates against the collegial leadership culture that is still claimed in public universities. Granted each VC brings his or her own style to the office but generally, the VC office and the chancellory tend to project the power and the privilege of the VC’s office. This is probably their job, orientation, and training. But is this collegial leadership that we often associate with universities?

The culture comes to the fore when the VC receives a title or when his birthday comes by, then his or her office goes into high gear. The celebration often gets a bit uncomfortable with every key academic leader expected to put out messages of congratulations which are sometimes followed by gifts. These days it is social media that carries a flood of felicitations. This practice gets replicated for the DVCs too. Is this an indication of common courtesy or a reflection of something more fundamental - the reification of leaders? You can make the argument both ways.

One obvious case of the reification of leaders was when the chancellory in one public university insisted on the portrait of the VC being placed beside those of the King, Queen, PM, and MB. The chancellory staff even went around checking if the portraits were up as instructed! One of the deans of the university got an earful for not abiding by the dictate. The announcement of the arrival of the VC at official functions could be easily mistaken for the arrival of the King! Overzealous staff or culture of reification of the office?

In comparison, the Presidents and provosts of private universities and international branch campuses are less reified. Their offices are much less ostentatious and are not in the center of their campuses. In fact, on some campuses, it is difficult to guess where the CEO’s office is located. The office, the references to them, and communication with them are much more reflective of a collegial culture. The VC is a colleague, albeit an important one!

Are there two noticeably different types of leadership in higher education as I have remarked? Is it historical, cultural, institutional, or simply individual? Which one is more amenable to the concept and idea of a university? Is the reference to VCs as CEO (like in a private company) in fact even appropriate? AKEPT may have some observations on these as it develops and conducts leadership courses for higher education.

Thinking Skills – Who Needs Them? by Dr Hazman Shah Abdullah

Employers have clearly, loudly, repeatedly, and globally asked for more thinking skills. WEF and other surveys have pointed to this and other human skills as the insulation against the onslaught of automation, robotics, and Artificial Intelligence (AI). It is now a standard feature of the national quality and qualifications framework. All universities and academic programmes proclaim their graduates are schooled in thinking skills and therefore ready to face the turbulent world of work. The commonalities and consensus end here.

There is a plethora of thinking skills that have emerged to compete for a space in the curriculum - thinking skills, critical thinking skills, systematic thinking skills, creative thinking skills, innovative thinking skills, design thinking skills, lateral thinking skills, scientific thinking skills, liberal thinking etc. The proponents insist that theirs is unique and superior to others. Few admit that it is complementary or just a fresh new label or branding. Within this array of thinking products, many are about the processes, protocols, and techniques, and others are also about how and what to think.

Where do our Malaysian universities sit on this spectrum? All programmes irrespective of level in higher education institutions (HEIs) must address cognitive skills as indicated under the Malaysian Qualifications Framework (MQF). In addition, programmes offer courses in critical thinking or design thinking, and creative thinking and some old fashion ones offer logic. Although not widely recognised all programmes based on their respective key disciplines teach thinking according to that discipline. Law, economics, engineering, sciences, psychology, sociology, political science, business studies, art and design, theology, arts, humanities etc. all have a discipline-based way of thinking about issues, problems, and solutions. Each places blinds on the brain’s eye. Is this as well recognised as part of the thinking skills? I don’t quite think so.

Then you have the university administration powerfully teaching students about thinking. It teaches that students should think more about their studies and show their thinking prowess to their lecturers but not to their university chiefs by questioning fees, housing, transportation, freedom of speech and cultural policies. What it means, basically is, do not think too deeply about the institution where you are learning how to think critically. Some “recalcitrant” students have challenged the university policies in the courts and won! But these, it is alleged, are minds and thinking poisoned by their teachers.

The student affairs departments, especially in public universities, but not limited to them, teach the students to think about thanking the government of the day for the blessings they have received. Think of your own race, religion, and culture, they demand of students. Undermining the hand that feeds is not mature or good thinking. In fact, as we speak, the student affairs in all public universities are in overdrive mode speaking loudly, silently and in some cases, threateningly about liberal thinking, which is a by-product of thinking skills. These threats are election priming, a time to shut down all thinking.

So, the question is - at the confluence of these confusing thinking skills lessons in a university, what thinking skills will or can emerge supreme? Will the employers like it? Maybe it is time for some critical thinking on thinking skills or are they creative thinking skills or scientific thinking skills. I am confused, Aren’t you?

Higher Education and Employability

 By Dr Hazman Shah Abdullah*

Employability is the primary mantra of today’s higher education institutions. For some, it is the raison d’etre, especially those who depend solely on students for their income and the primary attraction of their offerings is jobs, good jobs, and high-income jobs. The written purpose, philosophy, credos, principles, and values which adorn the halls of the institution and in their strategic documents fade when you really listen to the voices on the campus. It will be loud, pervasive, repeated, systematic, blunt, and blithe.

The primacy of employability of course places the needs of employers at the centre of the orbit of curriculum, teaching, learning, assessment, services etc. Regulators, quality assurance bodies, university management, ranking bodies etc. make this point palatably stakeholder engagement. Many faculties are still refusing to admit to this and fighting it in whichever way they can. I have urged them to be open but not reverential to the employers and the haloed practitioners. Challenge their orthodoxies for proof of relevance and scale of need. What do employers want and care about? Do they want more of the same? More than a decade ago, there was a European study which asked students, faculty and employers, to rank the different generic aspects of a bachelor's or cycle 1 programme as they call it under the Bologna Convention. One area where there was a visible difference was academic research. Faculty ranked this very highly but not students and employers. The European universities have not thrown formal research out of their curriculum because it’s the 2nd pillar of their mission. But tactically, you can always dismiss a study or findings that run counter to your own beliefs or interests with a million little arguments. Faculty members are trained in this art and science - how to challenge the credibility of facts or knowledge. We call it epistemology - the science of confirming good science or knowledge. They may not be as good at this as the policy-level civil servants who tend to accept their own findings and ignore the rest.

Employers do care about technical knowledge - the value a graduate brings to their organisation.  They want specialists but not a large army of them.  What they want are non-technical skills aka soft skills in copious amounts in all specialists but what they mean by it is not exactly what you find in textbooks. Leadership (less instruction, more independence), interpersonal skills (communicate with empathy and know your place as per company culture), resilience (able to take a lot of crap from peers, employers and customers), teamwork (play your part for the betterment of the company), problem-solving (satisfy the customers preferably with no cost to the employer), critical thinking (think hard and deep but always be mindful of the power and politics of the place), adaptable (do whatever is wanted of you), rapid and continuous learning (learn on your own and do it fast).

Universities are and have been good at teaching technical skills. Engineering science, medical science, design science, social science, management science, information science etc. are what the faculties are qualified to do and can potentially do well. When it comes to soft skills - hmmm, it is not something the faculties were taught or trained or qualified to do. But they try because it is part of the programme's learning outcomes. Seriously, the opportunity for developing soft skills is not always a planned one. In fact, many planned interventions are hopelessly ineffective. It is serendipity - chance learning. This seems to flourish in all universities but especially in badly managed universities!

Let us take a measure of what typically happens in a bachelor’s programme in developing soft skills. Communications skills - make repeated presentations (mastery of PowerPoint and not necessarily point making without fancy aids), interpersonal skills (discussions within groups - actually communication with familiar faces or friends), adaptability (live with class cancellations due to lecturers attending important meetings, and cancel your weekend life or in rare occasions a pandemic breaks and life changes radically! - serendipity), resilience (tolerate crap from your university and lecturers but this is not designed. It is serendipity.), leadership (if your group assignment is not making progress, step in and take over - serendipity ), teamwork (letting all group members including supervisors to take the same credit for work they did not contribute directly. It is plagiarism - undeserved credit. Lifelong learning (develop loyalty to further studies at the university). It is peripherally about searching endlessly and aimlessly on Google for ideas, references, assignments, and a desire to know more and outside the scope of the programme), problem-solving (the only real problem solving is solving the conflicts with your timetable  and managing time and academic overload - serendipity),  critical thinking (is asking searching questions in a case study but not about the curriculum, delivery, fees policy, lecturers’ conduct, university or public policies - it’s often about politically correct thinking but is it thanking!), ethics and professionalism (knowing the rules of good conduct - not observing the teaching that comes from the unethical environment of the university and beyond - its harmless classroom ethics) and digital skills (LMS use, troubleshooting in videoconferencing sessions,  have FB, IG and WhatsApp, PowerPoint, Word and  Excel in that order)

So much of soft skills are serendipitously acquired. Bad universities, ironically, create more opportunities provided you have good students! Good universities might inadvertently remove this serendipitous learning!

*Dr Hazman Shah Abdullah was a Professor of Administrative Sciences at Universiti Teknologi MARA until his retirement in 2018.  During his tenure at the university, he also served as the Assistant Vice-Chancellor (Quality Assurance). Dr Hazman was the Deputy Chief Executive Officer (Quality Assurance) of the Malaysian Qualifications Agency (MQA) from 2015 until 2018 and continues to serve as a quality assurance expert for MQA.

International English Proficiency Tests - How Reliable Are They?

 By Dr Hazman Shah Abdullah*

The Problem

The excerpts from an online news channel raise suspicions of mischief in language testing. There are also an increasing number of reports emerging from Malaysian institutions (also from those in the UK and Australia) that foreign students are turning with the required scores in recognised international English proficiency tests but in effect are unable to even hold a basic conversation in English. How would they follow lessons, read, think, communicate and write in English? 

What options do institutions have?

What should a responsible institution do?  Make these students take another internal test to ascertain for themselves the actual proficiency, or have these students take another international English test like MUET at the institution’s cost? This may be an option provided the terms of admission include a clause allowing this. Otherwise, the agent and the students might cry foul. What if the internal test reveals that there is a clear and worrisome difference in proficiency raising issues with eligibility? Report to the international English test service concerned? I am told that the institution might want to do this carefully and privately in order to avoid a defamation suit. Report to MoHE, MQA, EMGS, and to the embassy of the nation where the students come from or where they have taken the tests?

What else can the institutions do? The institution could help the students by offering low or no-cost English classes to raise their proficiency to an acceptable level to enrol in the programme. This would require dealing with EMGS and Immigration for change or extension of student visa. For obvious reasons, many institutions would not look forward to this option. 

Will translators in the classroom be a solution?

But apparently, institutions inspired by the agents who recruited these students for the institution have come up with another option - hire translators who will translate the lectures to the appropriate language of the students.

Sounds like innovative problem solving, doesn’t it?

But is this an acceptable option? Does it not run counter to the terms of approval and accreditation which include, among other matters, the medium of instruction? Will the teachers be able to carry out their role as educators and evaluators with the translators intervening? Does this option by design lead to plagiarism allegations? Is this option sound, and in compliance with established standards and regulations? 

Is acquiescence by regulators on these issues a vote in the affirmative of the solutions introduced? 

*Dr Hazman Shah Abdullah was a Professor of Administrative Sciences at Universiti Teknologi MARA until his retirement in 2018.  During his tenure at the university, he also served as the Assistant Vice-Chancellor (Quality Assurance). Dr Hazman was the Deputy Chief Executive Officer (Quality Assurance) of Malaysian Qualifications Agency (MQA) from 2015 until 2018 and continues to serve as a quality assurance expert for MQA.

Accreditation Agencies Owe a Duty of Care to Higher Education Institutions

A Brief Note on Majlis Perubatan Malaysia & Anor v. Asia Pacific Higher Learning Sdn Bhd [2022] MLRAU 186

The recent decision of the Court of Appeal (CA) in Majlis Perubatan Malaysia (MPM) & Anor v. Asia Pacific Higher Learning Sdn Bhd upheld the decision of the High Court at the first instance that accrediting agencies owed a duty of care to the institutions that submit their programmes for accreditation. An aggrieved institution may institute an action for damages against the accrediting body for a breach of that duty.

The action in the instant case was brought by the Asia Pacific Higher Learning Sdn Bhd (the Company) which owns and manages Lincoln University College (LUC). The action was in respect of LUC’s local medical degree programme and two of its offshore medical degree programmes which were submitted for accreditation by the Malaysian Medical Council(MMC/MPM). The Company sued the MPM for negligence, breach of statutory duty and misfeasance in public office in conducting the assessment of the three degrees. It alleged that MPM had breached the Guidelines of the Accreditation of Malaysian Undergraduate Medical Education Programmes (Accreditation Guidelines), the provisions of the Malaysian Qualifications Agency 2007 (Act 679) and the Medical Act 1971 (Act 50) when it conducted the evaluation.

This note summarises the main findings of the CA on the legal status of MMC’s Accreditation Guidelines, the role and the duties of the professional body and that of the representative of the professional body on the Joint Technical Committee (JTC). Although these findings are in respect of a professional programme, the principles of liability enunciated by the CA would apply even to non-professional programmes.

The defendants, in this case, were found liable under three grounds, viz., Negligence, Breach of Statutory Duties and Misfeasance in Public Office. This note only provides an overview of the liability in each case. It does not analyse the judgement on these three torts.

Accreditation of Professional Programmes

The Malaysian Qualification Agency Act 2007 treats professional programmes and qualifications differently from the general programmes and qualifications awarded by higher education institutions. Generally, the Act transfers the accreditation powers over professional programmes and qualifications to professional bodies. The Malaysian Qualifications Agency (the Agency) has only limited authority over professional programmes or qualifications recognised by professional bodies. This is seen in many of the provisions of the Act. For instance, section 2(2) of the MQA Act states that ‘(F)or the avoidance of doubt, it is declared that any accreditation granted under this Act shall not be construed as a recognition of the higher education programme or qualification, or higher education provider, for the purposes of eligibility to practise as a professional in any professional body.’ Again, under s. 9, which deals with the Agency appointing accreditation committees, an exception is made in the case of professional programmes or qualifications (s. 9(13). Under s.35 (2), it is the professional body and not the Agency that deals with such programmes with regards to their classification and maintenance under the Malaysian Qualifications Framework. Finally, under s. 50(6) and s. 51 of the MQA Acts, when an application for accreditation is received by the Agency, the Agency is required to refer the application to the Joint Technical Committee (JTC) that is appointed by the professional body concerned to make recommendations to the relevant professional body for the purposes of accreditation. There are thus, at least four steps that are prescribed by the Act when a professional programme or qualification is submitted to the Agency for accreditation. First, a JTC is constituted by the professional body concerned. The JTC then considers whether or not to accredit the programme. The JTC advises the professional body accordingly. If the professional body accepts a decision by the JTC to accredit the programme, the Agency is informed and the Agency issues a certificate of accreditation.

The statutory approach to professional programmes and qualifications raises fundamental questions about the integrity of the accreditation process generally and the competence of professional bodies to undertake that task. However, these issues will have to be addressed in a separate note. This note focuses only on the findings of the CA in the case under discussion. The CA was not invited to question the lack of consistency in the statutory provisions or of the encroachment of professional bodies into academic accreditation. The main focus of the decision was on the duties and liabilities of the JTC, its chair and the professional body in carrying out their respective roles in the accreditation process.

Professional programmes and qualifications

The Act does not define the terms professional programme or qualification except as part of the definition of a professional body. Such a body means ‘any body established under any written law for the purposes of regulating a profession and its qualifications or any other body recognized by the Government.’ This is an inadequate definition which is bound to raise difficulties when dealing with general higher education programmes covering disciplines coinciding with that of professional programmes. The Code of Practice of Programme Accreditation (COPPA) also assumes an understanding of professional programmes without clearly defining the term. The ambiguity is reflected in COPPA’s statement on professional programmes.

‘The MQA Act 2007 (Act 679) provides for the accreditation of professional programmes and qualifications to be conducted through the Joint Technical Committee of the relevant professional bodies. These include, among others, the medical programme by the Malaysian Medical Council, engineering programme by the Board of Engineers Malaysia, and architecture programme by the Board of Architects Malaysia. The Act also allows these bodies to develop and enforce their own standards and procedures for these programmes, albeit broadly in conformance with the MQF. However, MQA and the professional bodies maintain a functional relationship through a Joint Technical Committee as provided for by the MQA Act. ’ (COPPA 2^nd Edition, page 4).

It is not enough for the Agency to maintain a functional relationship, it has to be at the centre of the accreditation, whatever role is allocated to the professional body. And in any case, ‘functional relationship’ does not explain the Agency’s exclusion from the process.

Accreditation of Professional programmes

Chapter 2 of Part VIII of the Act deals with the accreditation of professional programmes. Under the prescribed provisions, accreditation is conducted through Joint Technical Committees that are established by the professional body concerned. This process, in fact, creates a separate accreditation machinery that is dictated by the professional body. The earlier quoted COPPA statement only offers a partial justification for the different processes.

Section 51 of the MQA Act mandates a representative of the Agency to be represented on the JTC, but the section allows the professional body to determine who else and how many more are appointed. Further, the Act is silent on the role of the Agency’s representative on the JTT. Also, under s. 51 of the Act, the JTT makes its recommendations to the professional body which then determines whether or not to grant the accreditation. The Agency has no role in the process than expediting the approval by issuing the certificate of accreditation. The professional body is also empowered to withdraw accreditation if recommended to do so at some later stage by the JTT. As stated earlier the powers vested on the JTT encroach on the powers of the MQA as prescribed by the MQA Act. It is unlikely that these powers will withstand a legal challenge if such is brought.

The Case before the Court of Appeal

As noted earlier the case on appeal before the CA originated in the High Court when the Company that owned Lincoln University College (LUC), brought an action against the Majlis Perubatan Malaysia (MPM) and the representative of the MPM on the JTT regarding the accreditation of two medical programs of LUC. MPM, a statutory body established under the Medical Act 1971 to regulate the medical profession is also responsible for the recognition of medical degrees awarded by local and foreign universities and the registration of medical practitioners.

The institution claimed that the MPM and its representative on JTC were negligent, in breach of statutory duty and misfeasance in public office in rejecting its application for accreditation of its medical programme. The specific allegation was that MPM and its representative were in breach of the Guidelines of the Accreditation of Malaysian Undergraduate Medical Education Programmes (Accreditation Guidelines), the provisions of the Malaysian Qualifications Agency 2007 and the Medical Act 1971 in the process and conduct of evaluation of its local medical degree programme and two of its offshore medical degree programmes.

Important conclusions reached by the CA

The following aspects of the decision have an important bearing on the accreditation of professional programmes and the responsibility of the professional body, the JTT and its members in the way they carry out their respective roles.

The Accreditation Guidelines

The CA accepted the High Court’s interpretation of the status and role of the Accreditation Guidelines. The MQA Act, it noted was silent on the procedures and does not prescribe any criteria to be applied by the MPM for the purpose of accreditation. Hence the adoption by MPM of the Accreditation Guidelines meant that the Guidelines established the basis for assessing medical programmes for accreditation. Importantly, the CA held that the Guidelines provided guidance to the plaintiff as a provider of medical programmes, on how MPM exercises its powers under the MQA Act to grant or to refuse accreditation of its local and off-shore programmes. In the CA’s opinion, even if the Guidelines did not have the force of law, in that there were no punitive consequences that followed from its non-observance, the MPM was duty bound legally to comply with the Guidelines in conducting the accreditation exercise.

The Functions of the Professional Body

The CA’s observations on the roles respectively of the professional body, in this case, the MPM, the JTC and the MQA in the accreditation process are instructional about how professional programmes are processed for accreditation. The CA noted that under the MQA Act, the Agency is required to refer any accreditation of a professional programme to the relevant professional body. The professional body is then required to establish the JTC whose members must include an officer of the MQA and such other persons as may be deemed necessary by the professional body. These other persons, the CA held, are to be determined by the first defendant. It is the role of the JTC to consider the application and advise the professional body on whether to approve the accreditation of the programme concerned or to refuse accreditation. According to the CA,

‘This simply means that the JTC needs to deliberate and make recommendations to the first defendant (the MPM) before the first defendant makes a decision whether to approve or refuse accreditation. It must be borne in mind that the JTC only makes recommendations to be considered by the first defendant. The first defendant, however, is not bound by the recommendations of the JTC. Be that as it may, it will be wrong in law for the first defendant to make a decision to approve or refuse accreditation without going through the JTC. The law requires the first defendant to make a decision under subsection 52(1) (of the MQA Act) only after receiving recommendations from the JTC.’

The CA goes on to conclude that the accreditation is granted by the professional body (the MPM in this instance) and not the JTC or the MQA.

Consequences of noncompliance with the Guidelines

1.       Action in Negligence

The CA held that the MPM in exercising its power under subsection 52(1), was under a legal obligation to consider the recommendations by the JTC. Further, both the MPM and the JTC were required to adhere to the criteria and procedures set out in the Accreditation Guidelines in making the recommendations. Non-compliance with the Guidelines constituted a breach of the duty owed to the institution as it was settled that a common law duty of care can arise in the performance of a statutory function, as in this case.

The Company’s claim for negligence was based on the breach of the Accreditation Guidelines during the First and the Second Survey Panel Visits by the JTC. These visits were prescribed in the Accreditation Guidelines, and they were to be carried out during different stages of the delivery of the programme after it was approved. Visits were to be made after approval, after the recruitment of students, a pre-clinical visit, a post-clinical visit and a visit for full accreditation of the programme when the first batch of students graduate.

In respect of the first visit, the Company’s allegation of negligence was based on the grounds that the JTT had failed to give the institution the stipulated four months’ notice prior to the visit. The plaintiff was only informed on 5 May 2011 of the visit to evaluate the programme MQA/PA 0927 on 13 May 2011 and 14 May 2011.

The court found that the failure on the part of the TTC to observe the guidelines in respect of the conduct that constituted the breaches alleged by the plaintiff amounted to a breach of the duty owed to the institution. Failure to comply with the Accreditation Guidelines had denied the plaintiff on both occasions, adequate time to prepare for the visits. In both instances, the plaintiff was given barely one week to prepare for the visits. The CA rejected the MPM's argument that the Guidelines only applied to the full accreditation visit and not the first and second visits. It held that the 4 months' notice is applicable to all visits for the accreditation of a medical programme as it gave the institution the time to prepare the documentation for the visit.

There was also a failure to give a 4 months notice for the Second Survey Panel Visit from 29 to 30 April 2013. Notice was only issued on 22 April 2013.

Apart from the failure to give adequate notice, the plaintiff Company also raised other instances of non-observance of the Accreditation Guidelines by the MPM and its appointed officer on the JTC. The CA regarded all these breaches of the guidelines as acts of negligence by MPM (the first defendant) and its officer on the JTT panel (the second defendant) as they breached the duty of care, they owed to the plaintiff Company.

2.       Is the professional body responsible for the actions of its representative on the JTC?

It was argued on behalf of the defendants (the MPM and its representative on the JTC) that the relationship between the first (MPM) and second defendants (MPM representative on the JTC) is not akin to employment so as to make MPM vicariously liable for the negligent act of its representative on the JTC. The court found that the second defendant was at all material times a member of the first defendant nominated pursuant to s. 3 of Act 50 and he was a representative of the first defendant for the two Survey Visits. He did not draw any salary or allowance from the first defendant and neither did he have any contract of employment with the first defendant. The High Court in the first instance had imposed vicarious liability on the first defendant for the tortious act of the second defendant. The CA did not disturb the High Court’s finding on this question but reinforced the MPM’s liability on the grounds that its representative on the JTC was its agent. ‘The second defendant was directly under the control of the first defendant in so far as it concerned the two Visits and the negligence took place while the second defendant was conducting the Visits as instructed by the first defendant.’ The MPM and its agent on the JTC were therefore both liable for negligence.

3.       Liability under other grounds

The MPM was also found  liable for breach of statutory duties concerning their duties under the MQA Act and under the Medical Act. The second defendant (MPM’s representative on the JTT) was held liable for the tort of misfeasance in public office. The CA held that the members of the first defendant on the JTC would be regarded as public officers for the purposes of the tort of misfeasance in public office. Sections 5 and 6 of the Medical Act and ss 109 and 110 of the MQA Act recognised the members of the first defendant as public servants/public officers in the discharge of their duties as members.

Some final points

The decision of the CA has important implications for the higher education accreditation process as laid down in the MQA Act. First, both institutions and accreditation bodies have to take the various guidelines seriously and adhere to their provisions both in applying for accreditation ad in the running of the programmes. Although in the instant case, the court was only dealing with the MPM'’s Guidelines of the Accreditation of Malaysian Undergraduate Medical Education Programmes, the same reasoning can be applied to other guidelines such as the Code of Practice for Programme Accreditation (COPPA) and Code of Practice for Institutional Audit (COPIA). Because of the legal status attributed to them, these guidelines may also be relied upon, it is submitted, by the staff of higher education institutions and the students registered with them to ensure that the educational process and the conduct of those managing the institutions and the regulatory authorities adhere to their provisions. In other words, institutions can be compelled to conform to applicable guidelines and any conditions imposed on institutions by accrediting bodies.

Outside the issues raised in the case lies the important question of the role of professional bodies in the accreditation of educational programmes. There is a real concern that the MQA Act’s provisions on professional programmes and qualifications may embolden further encroachment by professional bodies into the realm of higher education. That, it is submitted, is a development to be discouraged.

DESIGNING A COURSE ON CRITICAL THINKING SKILLS

Information is shoved at us daily from every direction, unceasingly. From the popular media, from the incessant messages that are pumped into our phones every minute, or more seriously, from the information that comes in the form of laws and policies that bind and restrict us. To submit to the barrage of information without critically examining it is a sure way to surrender our freedom. Critical thinking skills have become survival skills in the face of the information onslaught.

Critical thinking skills will help us maintain our freedoms, which is sufficient reason to acquire those skills. But it will do more. It will help us to deal with information more effectively and to innovate and create new ideas from the knowledge we extract from the information. Critical thinking will help us become more effective learners who can build on the large amount of knowledge that is being unleashed by the information.

Critical thinking is important not only in educational or professional contexts but as a living skill. It is an indispensable skill to understand and analyze information and make important decisions in our lives. Never in our history have we encountered information as today. Information technology will multiply the amount exponentially every few days. Much of that information is not abstract or detached from our daily lives. It affects the decisions and the choices we make.

In designing this course, we have taken into consideration the cultural traditions in this country that tend not to support critical thinking and regard a critical approach as being rude or disobedient. Our education system has contributed to this by encouraging rote learning and rewarding the regurgitation of information without critical analysis. Unfortunately, even in higher education, there is very little encouragement to critically analyze what is being taught. Only in a few institutions or programs is critical thinking taught as an independent subject or as part of the syllabus of any subject.

School teachers we have spoken to tend to think that critical thinking is a difficult skill to teach. Many of them believe that students are not ready to absorb such skills and must be content with obtaining knowledge that is found in the textbooks and formalized through syllabuses. Many have also alluded to the fact that critical thinking can only be taught after the learner has had a sufficient command of the knowledge and It is the role of teachers to equip students with the knowledge. What also emerged from our discussions is a reluctance amongst teachers, brought upon by fear of official retribution, to introduce any form of critical approach to education. Control and conformity and rigid adherence to the status quo seem to be the unalterable canons of education. Critical and creative thinking are aspirations stated in the Malaysia Education Blueprint 2013-2025. A new curriculum has been proposed that will add these elements to the education meted out in schools. To make that happen, there has to be a reorientation of the attitudes of not only the teachers but the whole bureaucracy of education and of those in government, making policies on education. One thing that must cease is the punishment of individuals for artistic and literary expression. We have become a society with increasingly thin skin. Criticism has been criminalized.

Our institutions of higher education are no better. They are highly regulated, and contrary to the official rhetoric, the education provided in universities and colleges is not student-centered. Rigid adherence to outdated prescribed syllabuses does not cater to student needs. Dissemination of book-based knowledge is the main objective of higher education. As in primary and secondary education, tertiary teachers also believe that students are not ready to engage in any critical examination until they are sufficiently apprised of the knowledge that is imparted at the different levels of higher education. The containment of education in the classrooms is reinforced by laws that restrict the academic freedom of the professoriate. We cite only one set of such laws – the laws regulating university staff discipline that prohibit any form of criticism of the government or its policies and the university and its policies.

This course is driven by the belief that a disposition to critical thinking will benefit both the individual so disposed and the nation ultimately. A disposition to examine everything critically will increase creativity and productivity, whether individually, in groups, or in the workplace.

 Course Outline

1.       What is meant by critical thinking?

2.       Why teach/learn critical thinking?

3.       Bloom’s Taxonomy of Cognitive Skills.

4.       The origins of critical thinking – in philosophy, in psychology, in education.

5.       Example of how knowledge developed through critical thinking.

6.       Dispositions, attributes, and behaviour that support critical thinking.

7.       Critical thinking tools

8.       Knowledge

9.       How emotions affect thinking

10.   Imagination as the mental projection of possibilities which transcend time and space and offer what could be rather than what is.

Are Private Universities and Colleges Really Private?

 Abbreviations used in this article

Act 555 - Private Higher Educational Institutions Act 1996

EA – Education Act 1996

PHEI - private higher educational institution

UUCA - Universities and University Colleges Act 1971 (Act 30)

 

The Question

Are private universities and colleges established under Act 555 private, in the sense that they are not government institutions? Or are they hybrid institutions, established and funded by private companies but controlled and managed by the government through the office of the Registrar General of Private Higher Educational Institutions? These are not idle questions but arise from provisions of the Act that deal with the management of private higher educational institutions (PHEIs). The  answers to the questions may have far-reaching implications on who bears the responsibility for breaches of duty and other failures by the institution.

Act 555

The Act enables the establishment of a higher education institution by almost anyone, so long as the application to establish is made by a registered company, local or foreign, and in accordance with the establishment procedures laid down in the Act. The Act defines PHEIs to include all levels and types of higher education institutions, from colleges to universities, irrespective of size and regardless of their mode of delivery, whether by traditional face-to-face methods, online, or by distance education and includes universities established in this country as branches of foreign universities. The single definition also embraces within its scope, professional bodies that offer courses leading to membership in those bodies. The Private Higher Educational Institutions (Amendment) Act 2017 added two new definitions to the Act. A foreign branch campus is now defined as a branch of a foreign university or university college. College, which was a term that was not defined before the passing of the Amendment Act, is now defined as a PHEI without the status of a university, university college, or foreign branch campus.

When passed in 1996, the Act made ground-breaking changes to the way higher education has since developed in this country. Its most important contribution to that development is the establishment of a framework for private higher education institutions that had the immediate effect of legitimising an already vibrant private sector that had existed for many decades without any roots in any enabling laws.

The Company and the PHEI it establishes

Institutions established under the Act are private because they are defined, inter alia, ‘as not established or maintained by the government’. The definition, does not, however, stipulate where control and governance of these institutions lie. A reasonable assumption would be that the PHEI is managed and controlled by the company that established the institution. But such an assumption is not supported by the provisions of the Act. Instead, many provisions of the Act treat the PHEI as if it is a legal entity capable of acting on its own with powers of its own and without the agency of the company. Every imposition in the Act that in any way concerns the delivery of educational programmes is directed at the PHEI and not the company. It is doubtful whether these provisions as currently worded can be enforced against the company which is the legal entity carrying out the business of higher education. The statutory impositions on a PHEI must be imposed on the company that established the PHEI and not on the PHEI which does not have the capacity to do anything in law. The error in the Act probably arises because of the assumption that a PHEI is like a university established under the UUCA, which is an incorporated body.

The attempt to correct the anomaly

The Amendment Act 2017, attempted to correct the anomaly by introducing a new section 75A, which provides that ‘Where the Act requires a private higher educational institution to do or prohibits it from doing something, the obligation to comply is imposed on the company . . .’ This is at best only a limited solution as it still treats the company and the PHEI as two separate entities. It is also unlikely that the section will be enforceable because a PHEI, not being a legal entity, cannot be required or prohibited from doing anything. Hence, the company establishing the PHEI cannot be made liable to do something which cannot be done.

The Chief Executive

Section 31 of the Act requires every PHEI to have a chief executive appointed by the company. Section 33 provides that the chief executive is to exercise general supervision over arrangements for instruction, day-to-day administration, and the welfare and discipline in the PHEI.  Under s. 46 of the Act, the chief executive is also the disciplinary authority over student discipline. In all these matters concerning the powers/duties of the chief executive, the Act makes no reference to the company or its rights or obligations over those same powers that the chief executive is empowered to exercise.

An ordinary interpretation of the sections referred to will make the chief executive the sole governor and administrator of the PHEI. Section 46 confers on the Chief Executive the right to delegate his disciplinary authority, but he is not given any delegatory powers in respect of his other duties/powers. The prescribed constitutions allow for the board of directors of the company to be included in the management, but notwithstanding that, the statutory powers of the chief executive are not ousted by those provisions. There is also nothing in the Act to make the Chief Executive answerable to the board of directors of the company nor is there any provision that gives the board powers over the chief executive. When the chief executive is in a quandary as to who to obey, he will have no choice but to comply with the statute.

The PHEI as a separate entity

We earlier remarked on the position of the company as the animating legal entity, but the Act is ambivalent on that point treating the company and the PHEI as separate entities. The sections in the Act that treats the PHEI as separate from the company might also support a conclusion that in law that it is the Minister, Ministry, and the Registrar General who are responsible for the proper management of the PHEI.

Minister’s and Registrar General’s powers over the chief executive

Such a conclusion is strengthened by the provisions of section 5 of the Act. The section states that (the) Minister may, from time to time, give a board of directors, a chief executive, or an employee of a PHEI directions, not inconsistent with the provisions of this Act, in relation to matters in respect of which regulations may be made under this Act, and such board of directors, chief executive or employee shall give effect to every such direction. 

To add to the confusion and the unenviable position of the chief executive, s. 37 of Act 555, gives the Registrar General wide powers over the chief executive which include, giving the chief executive directions in writing as to the exercise of the latter’s powers and the discharge of his duty.

Registrar General’s Responsibilities over PHEIs

Part VI of the Act, and the sections dealing with the chief executive specifically, suggest that the Registrar General is duty-bound to monitor the conduct of the chief executive and give him the appropriate directions. Read together, these provisions appear to impose on the Registrar General not only the power of overseeing the management of PHEIs but also a duty to ensure its proper management. Any failure in that duty may therefore impose on the Registrar General liability for any loss suffered by the shareholders.

Act 555 in an attempt to maintain control PHEIs, may have imposed unintended liability on the Registrar General and the Ministry for the failures of the chief executive and the company establishing the PHEI.

There is an urgent need to reevaluate Act 555 as it now stands.

Dormant Policymaking Body Unsettles the Malaysian Higher Education System

 Dormant Policymaking Body Unsettles the Malaysian Higher Education System

By

U K Menon LLM, Barrister and Lee Yin Su, MBA (UTAR)[1]

 

Abbreviations used in the article

EA - Education Act 1996

ITM Act – Universiti Teknologi Mara Act 1976

MQA Act –Malaysian Qualifications Agency Act 2007

NCHE Act - National Council on Higher Education Act 1996

PHEA - Private Higher Educational Institutions Act 1996

The Council – The council established under the NCHE Act

UUCA - The Universities and University Colleges Act 1971

Warisan Act - Akademi Seni Budaya Dan Warisan Kebangsaan Act 2006

 

Introduction

The National Council on Higher Education (the Council) is the policymaking component of the higher education system in Malaysia. The statute establishing the Council, the NCHE Act, is the only unifying instrument in an utterly diverse system that has at least four different acts of parliament regulating the establishment and governance of higher education institutions. Each set of laws manifests a different purpose and a different governance model. None pays any heed to the actual delivery of higher education or to student interests. The Council was to have played a coordinating role focusing on policies and strategies for the development of higher education. However, despite its important role, the Council has not been active for over 10 years. Without the Council to coordinate policies, higher education in the country will continue to be pulled in different directions with no prospect for a unified approach to the development of this most important engine of human development.

In this article, we examine the composition and functions of the Council and propose that the Council be reactivated. The Minister of Higher Education, announced in September 2021, that the National Council on Higher Education Act 1996 (Act 546) was being reviewed.  There is still no news of the fate of the Act or the Council.

Background

The National Council on Higher Education (the Council) was established through the NCHE Act. The NCHE Act was part of a package of legislation passed that year to restructure the higher education system in the country.[2] The Council’s role was to formulate national policies and strategies for higher education which the Minister of Education was required by law to implement. The other statutes in the package were the EA, the PHEA, and the National Accreditation Board Act 1996 (Replaced by the MQA Act in 2007). Changes were also made to the UUCA to enable the corporatization of public universities by expanding their commercial powers. The regulatory system that emerged from the reform had three distinct components – the Council as the policy formulating body, the National Accreditation Board as the body to set standards on higher education, accredit institutions and higher education programs, and the Ministry of Higher Education (with new roles added to it by the aforementioned legislation) as the implementing and monitoring body.

If each of these authorities functions in line with the legislative intent, the three components will add checks and balances to the higher education regulatory system, ensuring its legitimacy, fairness in its operations, and predictability of its processes. Together, the higher education legislation covered policy formulation and implementation, the establishment and regulation of higher education institutions, and the accreditation of higher education courses and institutions. Together they established  a sustainable system to develop higher education in the future.

The system, however, did not function to intended expectations. Legislation alone, it is revealed cannot ensure efficiency of systems. It requires the commitment of leaders. Despite the demarcation of roles, the Ministry encroached into the policymaking preserve of the NCHE, issuing new policies, and changing existing ones through circulars and subsidiary legislation. What is even more surprising is that the role of the Council is completely ignored in the report that was intended to be the most important review of higher education – the Malaysian Education Blueprint 2015-2025 (Higher Education).  The Blueprint, ignoring the provisions of existing laws, blithely declares the Ministry as the policymaker. The authors of the Blueprint were either not aware of the structure of the higher education system or simply ignored it.

In 2000, the Institut Teknologi Mara was upgraded to a university through the ITM Act. Whether the upgrading of the former Institut Teknologi Mara to a university was a matter that was placed before the Council is not clear.[3] However, the ITM Act proclaims the university as being established under Article 153 of the Federal Constitution as an institution established to serve the purpose of Article 153.[4] Other provisions of the ITM Act incorporates the university and confers on it powers that are identical to universities established under the main legislation on universities, the UUCA. Although the ITM Act specifically states[5] that the provisions of the UUCA shall not apply to the Universiti Teknolgi Mara, there are no provisions in the Act to exclude the university from the jurisdiction of the Council.

In 2006, the Akademi Seni Budaya dan Warisan Kebangsaan Act established the Akademi Seni Budaya dan Warisan (ASWARA) was established through the Warisan Act. ASWARA is a higher education institution with powers equivalent to that of a university, but its founding legislation makes it an institution sui generis. The Warisan Act expressly excludes the EA, the UUCA and the PHEA in the regulation of ASWARA. However, as in the case of Universiti Teknologi Mara, there is nothing to indicate that the establishment of ASWARA was considered by the Council.  

The role of the Council in higher education was also ignored when legislation was passed in 2007 to replace the National Accreditation Board which was formed in 1996 with the Malaysian Qualifications Agency. Unlike its predecessor, the MQA does not make any reference to the NCHE Act or the Council.

Finally, sometime in 2011 or 2012, the NCHE itself was made dormant. As the Council is not an incorporated body, it can only function if members are appointed to it and meetings are convened. The Council is made up of 14 members.[6] Six are appointed by virtue of their official position.[7] The remaining 8 members are appointed by the Minister from the universities, both public and private.[8]

The National Council on Higher Education

The Council’s functions over higher education policies are defined broadly under s. 12(1) (a) of the Act, which is to plan, formulate and determine national policies and strategies for the development of higher education.  Higher education is defined in the NCHE as education provided by a higher educational institution.[9] Higher educational institutions are defined to include ‘educational institution whether or not established under any written law and including a private educational institution providing higher education leading to the award of a certificate, diploma, degree or the equivalent thereof.’[10] These definitions give the Council a jurisdiction over higher education that is wider than that of even the Minister as it includes institutions that are not established under any written laws. The prescribed composition of the Council reflects its broad remit. Council members are appointed from both public universities and private higher education institutions.[11]

The policymaking functions of the Council are listed in s. 12(1) of the Act. The functions appear to cover every aspect of higher education from the formulation of higher education policies to determining policies on the entry of students, the areas of studies to be undertaken and even setting guidelines on fee structures. Although the functions do not expressly include questions concerning the establishment of higher education institutions, their numbers or location, such functions may be implied from 12 (1) (a) and (c) as shown below. The full list of the functions of the Council is;

(a)          to plan, formulate and determine national policies and strategies for the development of higher education;

(b)          to co-ordinate the development of higher education;

(c)           to promote and facilitate the orderly growth of institutions of higher education;

(d)          to determine policies and set criteria for the allocation of funds to higher educational institutions;

(e)          to determine policies relating to the entry of students to higher education institutions;

(f)           to determine policies and set guidelines on matters pertaining to the salary structure and personnel management system of Universities and University Colleges established under the Universities and University Colleges Act 1971;

(g)          to determine policies and set guidelines on fee structure;

(h)          to determine policies and set guidelines on the areas or courses of study to be undertaken by higher educational institutions;

(i)            to determine policies and set guidelines on the conduct of any course of study or training program by higher educational institutions jointly or in association, affiliation, collaboration or otherwise, with any University or institution of higher education or other educational institution or organization within or outside Malaysia;

(j)           to determine policies and set guidelines for the involvement in business activities by universities in accordance with the powers conferred under the Universities and University Colleges Act 1971; and

(k)          to take such actions or do such things as it deems fit or necessary to enable it to carry out its functions and powers effectively.

The Minister and the Council.

Our view, with respect, is that the Minister in charge of higher education will be unable to exercise his powers over higher education except in accordance with the policies and guidelines issued by the Council.

The Minister’s role in higher education is specified in several of the legislation on higher education. Under the EA,[12] the parent legislation on education, the Minister bears the responsibility for higher education and the general direction of higher education. Section 70 of the EA provides that the,

‘Minister may provide higher education in higher educational institutions, ‘in accordance with any written law relating to higher education.’

This is distinctly different from the way the Minister’s powers over the other levels of education are stated in the EA. The Minister has a duty to provide primary education[13] and secondary education,[14] and discretion to provide post-secondary education and establish vocational colleges.[15] Under the EA, the Minister is also vested with the discretion to establish and maintain colleges and polytechnics other than colleges with the status of a university or university college established under the UUCA. As for teacher education colleges, the Minister’s approval is required for their establishment and maintenance, but the Minister may establish and maintain such colleges.

The implications of section 70 when read in conjunction with the other provisions of the EA are first, the Minister has no powers to establish higher education institutions other than those provided for in the Education Act, and that as far as higher education is concerned, the Minister is bound to act in accordance with any written law relating to higher education. The other implication of s. 70 is that the provision of higher education in the country is to be determined by specific legislation creating such institutions.

The two main legislation establishing higher education institutions are the UUCA and the PHEA. Each of these two acts describes the role of the Minister in almost identical terms and they echo section 70 of the Education Act. Under section 3 of the UUCA, the Minister is responsible for the ‘general direction of higher education and the administration of the Act, which shall be in accordance with the national policies, strategies and guidelines on higher education formulated or determined an authority established under any written law for such purpose (emphasis added).’ Under section 4 of the PHEA, the Minister is empowered to give directions to the Registrar General of Private Higher Education on matters that are not inconsistent with the provisions of the Act[16] and that the directions may be in relation to matters in which national policies, strategies and guidelines on higher education are formulated or determined by the Council.[17]

Section 12 (2) of the NCHE Act reinforces the provision in section 70 of the EA. The subsection states that ‘upon the formulation or determination by the Council of the national policies, strategies, and guidelines in relation to its functions under paragraphs (1)(a) to (k), the Minister shall implement the policies, strategies and guidelines accordingly (emphasis added).’

The National Council on Higher Education is, therefore, a vital part of the national higher education system, particularly in relation to the powers of the Minister. Without the Council the system is incomplete, and the Minister may not be able to act on matters concerning higher education under any of the legislation if they concern policy over which the Council has jurisdiction.

The Council was established in 1997. The establishment requires the appointment of members to the Council as stipulated in the NCHE, which is the statutory duty of the Minister. The Council is made up of the Minister, who is the chairman and other members who are appointed by the Minister. As such, it is the Minister’s duty under the Act to appoint the members of the Council (see s.3 and s.4 of the NCHE). Not establishing the Council amounts to non-compliance with the NCHE Act. The Minister has no discretion on the matter. Section 4 of the NCHE Act stipulates the individuals who are to be appointed as members. It must be emphasized that the appointment of members to constitute the Council is not a discretionary matter for the Minister. It is a requirement of the law.

However, at some time in 2011, the Council ceased to function. This could only have happened if members were not appointed to the Council and those acting in ex-officio capacities failed to fulfil their obligations under the NCHE. It would appear from the report in the Star[18] that there are doubts about the membership of the Council because of a confusion of ministries. When the NCHE was passed, there was only one ministry in charge of education. With the establishment of the Ministry of Higher Education, there are now two ministries with oversight on education. Some of the ex-officio appointments to the Council under the NCHE Act are of officials from the Ministry of Education when the appropriate ministry now is the Ministry of Higher Education. This is a matter that could have been resolved by an amendment to the NCHE Act. It cannot be a reason to suspend the NCHE Act and the Council. Such amendment was proposed by the committee appointed by the Minister in 2019 to review the higher education system and recommend provisions for harmonization of the laws.

The same news item that was mentioned earlier reports that the functions of the Council are now being performed by a committee described as the Higher Education Advisory Committee (JPPT). This would only exacerbate the situation because there will now be a group of persons purporting to perform statutory functions of the Council without legal authority. Any policy or actions emanating from the JPPT will clearly be open to challenge. The statutory functions of the Council cannot be performed by any other person or entity. The Ministry will be usurping the powers of the Parliament by attempting to do so.

Reasons for reactivating the Council

The reasons for reviving the National Council on Higher Education must be obvious from what has been discussed so far. But there is also some urgency in restoring the Council because, without the Council, policies that have been made in the interregnum when the Council was not functioning may be open to legal challenge and made void. The absence of the Council may also draw criticism that the Minister is avoiding the oversight of a council established by Parliament to formulate policies and guidelines for higher education. Also, because of the integral role a policy-making body plays in the system of higher education, its absence leaves the system weak if not dysfunctional.

 

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[1] The authors are CEO and Executive Manager respectively of Espact Education Services www.espact.com.my

[2] Surprisingly, there is no single official document to explain the purpose of the several acts that were passed especially since it was the first attempt to give legislative shape to the higher education system. Also, and more importantly, the establishment of private universities which was being facilitated by the Private Higher Educational Institutions Act 1996 was a policy move that abrogated government monopoly over the establishment of universities in the country. The closest to an official statement on the reforms that were being made appears in a keynote address delivered on 22 April 1996, by the then Minister of Education, Dato’ Seri Najib Tun Abdul Razak at a seminar on the management of higher education institutions at the Petronas Training Centre in Kajang. The Minister described the passing of the five acts as a ‘great milestone in the history of higher education in Malaysia’ and that there had never been a reform of the scale that was being attempted with the five acts of parliament. However, his address does not go on to explain how the different acts would lay the foundation of a higher education system. Instead the rest of his comments deal mainly with the changes being made to the UUCA and what appears to be concerns he perceived in the proposal to corporatize public universities. His answers to these concerns were that corporatization will make universities more efficient and improve the salaries and working conditions of those who worked there. He also allayed concerns that the move might lead to universities charging fees. The Minister makes no mention of the important systemic changes that the statutes would bring about or how there would be a separation and balancing of the powers over higher education.

[3] One of the weaknesses of the NCHE Act is that its actions are not transparent. There are no provisions imposing any obligation on the Council to publish its policies or issues raised before it. The Council’s functions under s. 12 of the NCHE Act, including the determination of policies and guidelines do not create any obligation on the Council to publish its decisions.

[4] Article 153 of the Federal Constitution makes it ‘the responsibility of the Yang di-Pertuan Agong to safeguard the special position of the Malays and natives of any of the States of Sabah and Sarawak and the legitimate interests of other communities in accordance with the provisions of this Article.’

[5] ITM Act, section 3A.

[6] NCHE Act, section 4.

[7] The six members appointed by virtue of their official position are the Minister as Chairman, the Secretary General of the Ministry of Education the Director General of Education, the Secretary General of the Ministry of Finance, the Director General of the Economic Planning Unit and the Attorney General.

[8] The other eight members, appointed by the Minister of Education are three Vice-Chancellors of any of the Universities or University Colleges established under the UUCA, not more than two persons who are the chief executive officers of any private higher educational institution and not more than three persons who because of their knowledge and experience would in the opinion of the Minister be of assistance to the Council.

[9] National Council on Higher Education Act 1996, section 2.

[10] Ibid.

[11] National Council on Higher Education Act 1996, section 4.

[12] Similar provisions are found in the Universities and University Colleges Act 1971 and the Private Higher Educational Institutions Act 1996.

[13] Education Act 1996, section 27.

[14] Education Act 1996, section 30.

[15] Education Act 1996, sections 33A-33D.

[16] Private Higher Educational Institutions Act 1996, section 4(1).

[17] Private Higher Educational Institutions Act 1996, 4(2).

[18] Please refer to footnote 1 above.