Minister of Digital, Ministry of Digital – Mind the Language, Minister

 

The recent splitting of the Ministry of Communications and Digital into two new ministries with the creation of a new Ministry of Digital must have had more reasons than merely satisfying political pandering for more seats in the cabinet. It signifies the government’s acknowledgement of the critical role of digitalisation, data science, and AI in the country's future.

There could have been, however, more thought given to framing the title of the new ministry and minister. As they now stand, the titles given to the ministry and the minister sound sloppy. Digital is not an easy term to get around one’s thinking and there was probably an urgency in getting out the announcement of the cabinet reshuffle to spend more time on the title.

'Digital' is an adjective, not a full-fledged noun. Nor is the meaning of digital at all clear. In some contexts, it describes entire outputs emanating from digitalization. In others, it is about doing business in a new way. In another context, under the Personal Data Protection Act 2010, the term confuses the process of digitalization with the content that is digitalized. Even if the meaning attached to digital is still fluid because it is new, its improper use clouds the functions of the new ministry and how digitalization has to be aligned with the national vision and what needs to be done in the different economic sectors. Digital as embedded in the new ministry appears to be both the means and the end.

The significance of language goes beyond mere communication. Precision and clarity in language are not just crucial for effective communication between individuals but are equally vital for the accuracy and reliability of AI tools like ChatGPT which the new ministry and minister would have under their purview. If language becomes imprecise or lacks clarity, it can distort the efficiency of AI tools, leading to inaccuracies, misinterpretations, and misinformation.

Moreover, our proficiency in assembling, organizing, and creating information and knowledge heavily depends on the clarity and accuracy of language. If language loses its precision, our ability to convey thoughts, ideas, and information cogently may be compromised, affecting not only the efficiency of AI tools but also our capacity to effectively share and build knowledge.

We must not sacrifice proficiency in language for the sake of advancing our interests through new technology. Language and digital technology are closely wedded. Therefore, maintaining a keen eye on the importance of language, its rules, nuances, and precision is crucial. It ensures the reliability and effectiveness of digital tools and safeguards the integrity of information and knowledge creation in the rapidly evolving digital landscape. It's through the adherence to linguistic precision that we not only facilitate effective communication but also uphold the foundation upon which our collective understanding and knowledge thrive.

A Ministry of Digital Technology and a Minister of Digital Technology might sound better and also serve to give the breadth of vision needed for both minister and ministry.

UNDERSTANDING THE PERSONAL DATA PROTECTION ACT 2010

 

Espact's revised course on the Personal Data Protection Act 2010 takes into account recent cases on the Act that add clarity to some of the provisions of the Act. The course, however, keeps close to its original objectives which are to impart a practical understanding of the provisions of the Act and to help participants to establish a compliance framework within their organizations.

The course is designed for anyone who deals with or handles personal data, whether the data is about employees, customers or suppliers. It sets out the essential knowledge relating to data protection concepts and principles, data subject rights, the implementation of data protection policies and measures, and regulatory compliance.

At the end of the course, participants will be able to;

1. Understand the importance of protecting personal data against misuse;
2. Comply with the control mechanisms established by the Act,
3. Understand the rights of data subjects and how they are upheld.
4. Understand that company policies and methods should comply with data protection regulations and outline key technical and organizational measures to achieve this.
5. Understand how to respond to data breaches and the consequences of not complying with data protection regulations.
6. Establish a compliance framework within their organizations and develop policies and procedures for collecting, processing retaining, and disclosing such information.

COURSE OUTLINE

1.  The importance of protecting personal data. Other legal approaches to protecting personal data, including the General Data Protection Regulations (GDPR) of the European Union.
2. A glossary of terms that are applied in the Act.
3.  Personal data and sensitive personal data as defined by the Act.
4. Limitations to the definition of personal data.
5. Persons who are bound by the Act.
6. Registration of certain classes of data users.
7. Data User Forums and Codes of Practice.
8. The 7 data protection principles under the Act, their application, and limitations.
1. Consent of the data subject.
2. Notice and Choice.
3. Disclosure of personal data.
4. Security of personal data.
5.  Retention of personal data.
6. Data integrity.
7. Access to personal data
9. Rights of data subjects.
10. Liability for non-compliance of the principles.
11. Exemptions from the provisions of the Act. Balancing data rights with freedom of expression.
12. Complaints, investigation, and enforcement of the Act.
13. The Role of the Personal Data Protection Commissioner.
14. Transfer of data overseas.
15. Compliance with foreign legislation.
16. Implementing compliance procedures in the organization.

For more information, please call U K Menon 016 3957617, Ms Lee 011 1620 1129 or Christopher John 016 244 0397

Constitutional Morality and Societal Morality - Safeguarding Minority Rights*

As we strive for progress and inclusivity, it is disheartening to witness the ongoing demonization, criminalization, and mistreatment of the LGBT communities. These individuals, whose sexual orientations and gender identities diverge from societal norms, deserve respect, acceptance, and the same rights as any other human being. It is imperative that nations, governments, and individuals shift their perspectives and adopt a humane approach towards the LGBT communities, recognizing their fundamental rights and promoting equality for all.

In recent years, the Supreme Court of India has played a pivotal role in advancing the cause of LGBT rights, setting an inspiring example for nations worldwide. Two landmark cases, Puttaswamy v Union of India (2017) and Navtej Singh v Union of India (2018) have witnessed the Court adopting a constitutional approach to recognize and protect the rights of the LGBT communities.

In Puttaswamy v Union of India, the Supreme Court of India delivered one of the most enlightened decisions on human rights that also embraced LGBT rights. In 2017, a five-judge bench of the Indian Supreme Court delivered a judgement recognizing the right to privacy as a fundamental right protected by the Indian Constitution. 

The court held that the right to privacy is intrinsic to the right to life and personal liberty guaranteed under Article 21 of the Indian Constitution. The right to life is one of the fundamental liberties guaranteed by Article 5 of Malaysia’s Federal Constitution.

The Indian Supreme Court recognized privacy as an attribute of human dignity and emphasized its role in safeguarding personal intimacies. The court recognized that privacy is not merely a right, but an essential aspect of an individual's identity, autonomy, and dignity. The right to privacy safeguarded personal intimacies such as marriage, procreation, family, sexual orientation, and death. It emphasized that these areas of individual choice and personal autonomy are entitled to constitutional protection against unwarranted intrusion by the state or other entities. The court's judgment reinforced the significance of privacy in preserving the integrity and autonomy of individuals in these intimate aspects of their lives.

Against that background, the court declared that sexual orientation is an inherent aspect of an individual's identity and privacy. Individuals have a fundamental right to privacy in their sexual orientation and intimate relationships. 

The judgment emphasised the principles of equality and non-discrimination and held that discrimination on the basis of sexual orientation is a violation of constitutional rights. It recognized and affirmed the need for a more inclusive society that respects and protects the rights of LGBT individuals and promotes equality.

The court struck down the criminalization of consensual same-sex relationships, declaring it as violative of privacy rights. The Malaysian Penal Code still criminalises same-sex relationships on the grounds that it is unnatural.

Almost contemporaneously with the decision in Puttaswami, the same court in Navtej Singh v Union of India, unanimously held that Section 377 of the Indian Penal Code, 1860, which criminalised ‘carnal intercourse against the order of nature’, was unconstitutional in so far as it criminalised consensual sexual conduct between adults of the same sex. 

The Court reasoned that discrimination on the basis of sexual orientation was violative of the right to equality, that criminalizing consensual sex between adults in private violated the right to privacy, and that sexual orientation forms an inherent part of self-identity and denying the same would be breaching the right to life. The court dismissed the notion that fundamental rights can be denied on the ground that they only affect a minuscule section of the population.

Importantly, the court in the latter case made a distinction between constitutional morality and societal morality. Chief Justice Misra (on behalf of himself and J. Khanwilkar) relied on the principles of transformative constitutionalism and progressive realization of rights to hold that the constitution must guide the society’s transformation from an archaic to a pragmatic society where fundamental rights are fiercely guarded. He further stated, “constitutional morality would prevail over social morality” to ensure that the human rights of LGBT individuals are protected, regardless of whether such rights have the approval of a majoritarian government.

Decisions of the Indian courts are not binding on Malaysian Courts. Our courts are not bound to follow those decisions. However, Indian decisions, especially of the Indian Supreme Court have a persuasive influence in our judicial decision-making process. The reasoning applied in an Indian decision, especially one on an identical or similar statutory or constitutional provision as that found in our laws, is likely to be followed by our judges. 

The right to life is part of the Fundamental Rights encapsulated in Article 5 of the Federal Constitution. Malaysian Courts have regarded the right to privacy as part of that right following previous Indian decisions. The Puttaswamy decision expands on the meaning of privacy as safeguarding personal intimacies such as marriage, procreation, family, sexual orientation, and even death. It is a profound decision that defines and protects our individual humanity. Human dignity is based on the intimacies listed by the Puttaswamy court. The decision will be highly persuasive in our courts except for one reason, which is the conflicting attitudes prevailing in our state and federal laws on personal intimacies, particularly sexual orientation.

But, if we are a nation living by the Rule of Law, the law in Malaysia on LBGT rights may already have been changed with our courts accepting the right to privacy as a constitutional right.

* This article was published by Aliran on 16 May 2023

Higher Education Minister's Proposals on Hybrid Learning and other Matters Need Wider Consultation

The Higher Education Minister’s proposals to introduce hybrid learning and to shorten selected higher education programs (Malaymail.com-4 June 2023) are troubling for several reasons.

First, while it is important to continually prime the education system to meet the evolving needs of our society, any changes made for this purpose must be made through a comprehensive process involving the universities themselves and not peremptorily without disclosing how these decisions were derived at.

Changes to higher education must be based on a detailed study of student profiles and a thorough analysis of the potential impact on the entire process of higher education. The reasons for the proposed changes and their potential consequences should be openly discussed with all stakeholders in the higher education sector, including student representatives and employers.

University students come from diverse social backgrounds and from homes that in some cases may not be as conducive to learning as imagined by officials. Greater concern must be shown for the social impact of these decisions, especially on remote and rural communities. Changes to the system must not be made without the specific needs of these communities being considered and that those changes do not further marginalize them. Unfortunately, no consideration seems to have been given to these factors.

Higher education is undergoing a transition worldwide. The pandemic’s impact on higher education revealed inadequacies in the system that disadvantages certain groups of students over others. We have not yet established if strategies such as hybrid learning will solve or exacerbate those inequalities.

Artificial Intelligence is another challenge looming over education that must be understood before making changes of the kind proposed. Universities have not yet understood the full extent of its impact on higher education. Technology, if carefully applied, offers solutions that might be better than the changes proposed, or at least serve to improve them.

It is imperative that a more careful and comprehensive study of the proposed changes is conducted and their potential effect on education better understood before the changes are implemented.

Another troubling aspect is that the decision seems to have bypassed the processes of the National Higher Education System. Complex systems like the higher education system will only function efficiently if the different components of the system are allowed to play their respective roles. Only then will the checks and balances evinced by the system’s components be able to correct possible errors and flaws in the decisions made.

The National Higher Education System is the product of several Acts of Parliament passed around 1996. The National Council of Higher Education Act 1996 established a Higher Education Council vested with the policy-making powers on higher education. Under the provisions of that Act, all higher education policies must emanate from that body before being implemented by the Minister. Policies that are not made by the Council may be open to legal challenges.

Another vital component of the system is the Malaysian Qualifications Agency (MQA). The MQA is entrusted with the powers to oversee the standards and accreditation of higher education programs. Importantly, the agency is the keeper of the Malaysian Qualifications Framework, which by law, establishes the essential criteria for a program to be classified as a higher education qualification. Changes to existing accredited programs face the risk of their accreditation being withdrawn. MQA ensures that the quality and standards of higher education are upheld by fostering, inter alia, a well-rounded and effective learning environment.

The public universities, which are the most important components of the system, must also be direct participants in decisions altering the conditions on which they operate. Education, which is almost a mystical process, takes place in the classrooms, the lecture theatres, and in the general ambience of the physical space the university occupies. The experience, knowledge, and accumulated data of student experience that are embedded within the universities must ultimately be capable of endorsing the changes.

No one doubts the good intentions of the Minister, but changes to higher education programs must be made through a comprehensive, consultative, and inclusive process. We must prioritize the interests of our students, educators, and communities to ensure a strong and sustainable higher education system that meets the needs of our society both now and in the future.

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.

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.

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.