Act 605 May Not Withstand a Constitutional Challenge

 Act 605’s restrictions on criticism have had a chilling effect on academic discourse for more than a decade. This article contends that these provisions may be unconstitutional and calls for a principled re‑examination of the Act within higher‑education reform.

 The Statutory Bodies (Discipline and Surcharge) Act 2000 (better known as Act 605) represents the high‑water mark of the bureaucratisation of public universities. When Parliament enacted Act 605, its purpose was straightforward: to close a legal gap that had exempted employees of statutory bodies from the Public Service Department’s disciplinary code. In effect, Act 605 was designed to extend civil‑service‑style disciplinary control to officers of statutory bodies incorporated by federal law.

Act 605 came into force on 1 November 2000. Section 2(1) provides that the Act applies to all statutory bodies except those listed in the First Schedule. Universities established under the Universities and University Colleges Act 1971 (UUCA) are not listed as exceptions. The Act defines a statutory body broadly as any entity incorporated by federal law for the purposes of the Federal Government, excluding only local authorities. On its face, this definition appears wide enough to include public universities.

The first judicial consideration of Act 605’s application to universities arose in Universiti Utara Malaysia (UUM) v. Mutiara Mohamad & Others & Another [2011 8 MLRH 650. The case concerned the dismissal of a lecturer who had refused to sign the Aku Janji undertaking and failed to report for duty. A preliminary issue before the court was whether the disciplinary proceedings should have been governed by Act 605 or by the UUCA. At the time the case was initiated in 2007, the UUCA still contained its own disciplinary provisions under section 16A, which vested disciplinary authority in the university’s Board of Directors. These provisions were only deleted in 2009 through the University Colleges (Amendment) Act.

It was undisputed that UUM had conducted the disciplinary proceedings under Act 605. The university argued that it was a statutory body within the meaning of the Act and therefore subject to its disciplinary regime. The lecturer contended that UUM was merely a body corporate governed by the UUCA, and that Act 605 did not apply. The court held that a body corporate could also be a statutory body, and that Act 605 applied to UUM from the moment it came into force. Section 28 of Act 605, the court noted, expressly provides that disciplinary provisions in an incorporating statute cease to apply once Act 605 is in force.

Act 605 and the Nature of the University

While the court’s reasoning resolved the statutory interpretation question, it did not address a deeper issue: whether applying Act 605 to universities is compatible with the nature, purpose, and constitutional position of higher‑education institutions. The court did not consider whether the Code of Conduct imposed by Act 605, designed for general statutory bodies, was appropriate for universities, whose functions and freedoms differ fundamentally from those of ordinary government‑linked entities.

This omission is significant. The Code of Conduct under Act 605 prohibits officers from criticising the statutory body or the government, and penalises statements deemed “detrimental,” “embarrassing,” or “prejudicial” to the institution. These prohibitions strike at the heart of academic freedom. Universities depend on open discourse, debate, and the ability of scholars to question institutional and governmental decisions. A disciplinary code that prohibits criticism is antithetical to the intellectual mission of a university.

Act 605 and University Autonomy

Moreover, the application of Act 605 undermines the autonomy of universities, which Malaysian courts have recognised for decades. University autonomy necessarily includes the ability to determine disciplinary norms appropriate to academic work. While other statutory bodies may also have had internal disciplinary rules, university disciplinary frameworks serve a unique function: they define and protect academic freedoms, collegial governance, and the rights of scholars to engage in inquiry without fear of administrative retaliation. These features are not present in other statutory bodies, which do not share the governance architecture established under the UUCA in the schedule constitution.

Freedom of Speech and Act 605

Beyond governance concerns, Act 605 raises a serious constitutional issue that was not argued in Mutiara Mohamad. Article 10(1)(a) of the Federal Constitution guarantees that “every citizen has the right to freedom of speech and expression.” This right applies fully within universities. It protects academics, researchers, administrators, and students. It is foundational to academic freedom, institutional integrity, and evidence‑based policy development.

Parliament may restrict speech only for the specific purposes listed in Article 10(2): national security, friendly relations with other countries, public order, morality, parliamentary privileges, court proceedings, contempt of court, defamation, and incitement to an offence. These exceptions are narrow and intended to safeguard public interests—not institutional reputation or administrative convenience.

The constitutional argument is strengthened by the recent Federal Court decision in Amir Hariri Abd Hadi v PP (2025). The Federal Court reaffirmed that any statutory restriction on rights under Article 10 must satisfy the doctrine of proportionality, which is constitutionally grounded in Article 8(1). The Court emphasised that restrictions under Article 10(2) “are not without limit” and must be proportionate to legitimate aims such as security or public order. The Court’s analysis makes clear that disproportionate restrictions on constitutional freedoms are void under Article 4(1). Act 605’s broad prohibitions on criticism, aimed at protecting institutional reputation rather than any constitutionally recognised ground, cannot meet this proportionality threshold.

In light of Article 10 and the Federal Court’s reaffirmation of proportionality, the speech‑restricting provisions of Act 605 are unlikely to withstand a serious constitutional challenge. They do not serve any of the permitted constitutional purposes and are therefore void to the extent of their inconsistency with the Federal Constitution. As Malaysia undertakes a review of higher‑education legislation, it is essential to confront the implications of Act 605. Restoring university autonomy, protecting academic freedom, and ensuring that disciplinary frameworks align with constitutional rights are critical steps toward strengthening Malaysia’s higher‑education system and enhancing its global competitiveness.

AUKU Amendments - Nothing to Shout About

 Despite claims that they were intended to empower students, the recent amendments to AUKU (Universities and University Colleges Act 1971) which the Dewan Rakyat recently passed, make no significant changes to the rights of students in public universities.

The focus of the change is on the student disciplinary provisions of the principal Act dealing with the collection of money by students or student bodies.  Before the amendment, section 15A of the Act prohibited students or student bodies in a university from collecting money or other property from anyone. However, under those provisions, the Vice Chancellor of the University could, if he thought fit, exempt students from the statutory prohibition.

The amendment changes the words of the old section 15A by providing that a Students’ Representative Council of the University or any student body of the University may, subject to any written law, make, organise, or take part in any collection of money or receive money or any other contributions from any person or body of persons.

The new section 15A does not give students an unconditional right to collect or receive money. The right must be exercised in compliance with any regulations that the University Board may lay down. Thus, whereas under the original provisions, the Vice Chancellor could exempt students from the prohibition in the old section 15A, under the new section 15A, the right to collect money is subject to regulations that the University Board may prescribe.

This means that the extent of the new statutory right can only be established once the University Boards begin to lay down the terms upon which the students may exercise the right. Since the Act does not qualify the discretionary power of the Board to make regulations on the matter, it may well be that the ensuing regulations of the Board will simply revert to the position before the amendment.

The recent amendment may have its origins in one of the eleven New Year's resolutions announced by the previous Minister of Higher Education, Dato Seri Khaled Nordin when he took up his portfolio in early 2023. The previous Minister's eleventh resolution focused on student empowerment, which involved giving students more responsibility and decision-making opportunities within what the Minister said was a broader context of student rights. The Minister was concerned that students were increasingly living and interacting in virtual and digital environments, taking them away from the campus environment. To address this issue, the Minister proposed to allow students to govern campus life themselves, which according to his resolution would involve managing student unions and small businesses such as bookshops, cafeterias, and pharmacies. The Minister proposed that the earnings from these activities could be used to support student activities.

The current Minister of Higher Education, Dato' Seri Diraja Dr Zambry Abd Kadir also spoke about students in higher education in his inaugural speech at Universiti Malaya on 12 January 2024 (Landasan Hala Tuju Kementerian Pendidikan Tinggi 2024). The Minister’s focus was not on student empowerment but on the ‘shaping of minds and characters’ and making higher education a platform for "human transformation" and "culture building" to propel the country into becoming an advanced nation.

Regardless of the origins of the amendment to the Act, the notion that student empowerment merely revolves around the right to raise funds and conduct business activities on campus reflects a profound misunderstanding on the part of the authorities about what student empowerment really means.

Student empowerment within the campus must involve fostering an environment where students feel valued, respected, and empowered to voice their opinions, advocate for their needs, and contribute meaningfully to shaping their educational experiences. It involves fostering a culture of inclusivity, collaboration, and shared governance where students are recognised as integral stakeholders in the university community.

Beyond the campus, it means empowering them to become proactive members of society, capable of effecting positive change and contributing to the betterment of their communities. It's about instilling in students the confidence, skills, and sense of responsibility needed to prepare them to become informed, engaged citizens and leaders in their respective fields.

The amendment introduced by the Act focuses only on students' right to raise funds while overlooking other issues, such as restrictions in the UUCA and the university disciplinary rules that are contrary to the spirit of academic freedom and violate principles of free speech and assembly.

Genuine student empowerment entails recognising and respecting the diverse voices, perspectives, and aspirations within the student body, rather than simply delegating financial responsibilities without addressing the underlying structural barriers and power dynamics that hinder free speech and assembly within the campus.

Appointment to Universiti Malaya Board Sparks Controversy

 Appointment to Universiti Malaya Board Sparks Controversy

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

The University Board

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

The Functions of the Board

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

Membership of the University Board

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

i          A Chairman;

ii         The Vice-Chancellor;

iii       Two officers of the public service;

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

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

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

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

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

Appointments to the university board

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

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

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

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

Current Appointments

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

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

Abstract

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

Why annex arbitration to universities?

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

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

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

Expanding the Purpose of the University

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

A Short Note on the Different Types of Universities in Malaysia

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

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

Dispute Resolution in the University

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

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

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

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

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

Arbitration

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

Private Universities and Colleges

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

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

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

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

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

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

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

Higher Education Minster Acted Ultra Vires Rules High Court

 

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

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

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

The Permanent Selection Committee for the Appointment of Vice-Chancellors

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

The High Court Decision

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

Wider Implications of the Case

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

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

Judicial Review

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

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

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