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.

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

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

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

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

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

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

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

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

Kuala Lumpur 25 March 2021

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

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

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

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

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

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

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

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

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

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