The Private Higher Educational Institutions Act 1996 (the Act) defined all institutions established under its provisions as private higher educational institutions.
The Private Higher Educational Institutions (Amendment) Act 2017 introduced definitions for colleges and foreign branch campuses that are established under the Act. With the new definitions added by
the Amendment Act, PHEIs now fall into six
categories, namely; colleges, universities, university colleges, branch
campuses of private universities and private university colleges, branch
campuses of foreign universities and branch colleges.
The Amendment Act defines ‘College’
as a private higher educational institution without the status of a University,
University or University College or a foreign branch campus.’
The ‘Foreign branch campus’ is defined
as ‘a branch of a foreign University or University College that is established’
under the Act. The Act makes no further reference to a foreign branch campus in
any of its provisions. Neither are there any provisions in the Act to determine what would constitute a branch campus of a foreign university or for the need by the parent university to acknowledge its relationship with the
foreign branch campus. The Act does not stipulate criteria to qualify as a
foreign branch campus, except to include foreign branch campus in the general definition
of a private higher educational institution as shown in the last paragraph.
There are also no express provisions in the Act that classify the foreign
branch campus as a university. The Act defines University and University
College as a private higher educational institution conferred with the status
of a University or University. This is probably only an oversight. In any case,
the university status of the foreign branch campus may be implied from the
definition of College and the provisions of section 21 and section 44 of the
Act. The latter section, as amended, reads as follows;
“Award of degree
44. No private higher educational institution may award a degree unless
such private higher educational institution is a University or a University
College or a foreign branch campus.”(Emphasis
added).
The Amendment Act redefines ‘University and University College’ as ‘a private higher educational institution
conferred with the status of a University or University College under s. 21’ of
the Act. The definition before the amendment was, ‘“University” and “University
College” mean a private higher educational institution conferred with the
status of a University or University College under section 21, and include such
private higher educational institution which is affiliated to a University or
University College whether within or outside Malaysia, conferred with the
status of a University or a University College.’ It is doubtful if s. 21 of the
Act confers the status of university
on any institution. A literal interpretation of the section only requires
‘prior approval of the Minister’ to be obtained for the establishment of a
private higher educational institution with the status of a university, which
is the same requirement for the establishment of any private higher educational
institution under s. 6 of the Act. The Act does not empower the Minister to
confer any status on the institutions whose establishment he approves. The
Minister’s role in the establishment of any type of private higher educational
institution is limited to approving the establishment and no more. The decision
to establish a university or college or any other institution recognised by the
Act is on the applicant.
All private higher educational
institutions, whether university or college, fall within the general definition
of a private higher educational institution under the Act and they are all,
without exception, subject to all the provisions of the Act. (s. 23 of the
Act).
‘Private higher educational
institution’ is now redefined as ‘. . .
an organization or educational institution, including a University or a
University College or a foreign branch campus or College’, approved and
registered under this Act, which is not established or maintained by the
Government.’
With one exception, the Act is the
only regulatory instrument that permits the establishment of a higher
educational institution that is not established and maintained by the
government. The exception, is an institution established under s. 5A (2) of the
Universities and University Colleges Act 1971 (UUCA). Under that subsection,
the Yang di-Pertuan Agong may, on the advice of the Minister, by order
published in the Gazette, authorize the establishment of any higher educational
institution having the status of a University, whatever its name or style, if
he is satisfied that it is expedient in the national interest that such higher
educational institution should be established. There is an important difference
in the process and status of a university that is created under s. 5A (2) and
universities that are created under the provisions of s. 6, which is how all
public universities are created under the UUCA.
Under s. 6(1) of the UUCA, the
Yang di-Pertuan Agong may, on the advice of the Minister, by order published in
the Gazette, authorize the establishment of any higher educational institution
having the status of a University, whatever its name or style, if he is
satisfied that it is expedient in the national interest that such higher
educational institution should be established.
Section 7(1) of the same Act then
provides that ‘upon the coming into force of the Incorporation Order made under
section 6, a higher educational institution having the status of a University,
with the name and style assigned to it by the Order, shall be deemed to have
been established, and by which name the Chancellor, the Vice-Chancellor and the
members for the time being of the Board and the Senate shall be deemed to have
been constituted a body corporate’ with all the attendant powers of a
corporation. The establishment of the university and the incorporation of the
university are contemporaneous processes under the UUCA.
In the case of universities
created under s. 5A (2) of the UUCA, the Yang di-Pertuan Agong only ‘authorizes
the establishment of any higher
educational institution having the status of a University, whatever its name or
style’. The authorization does not incorporate the university, only that it may
be established. This by itself would not have prevented the university
established under 5A (2) from being established and maintained by the
Government. However, s. 5A (1) expressly declares that the provisions of UUCA shall not apply to any
higher educational institution with the status of a University which is authorized
to be established under subsection 5A (2). The result of this provision is that
a university established under 5A (2) is excluded from those provisions of the
Act dealing with Grants in Aid from the Parliament and other privileges in
respect of establishing a campus or acquiring land for the purposes of the
university. What is unusual in all this
is that the university created under s. 5A (2) is placed in a limbo between the
UUCA and the Private Higher Educational Institutions Act 1996 because neither
Act applies to it.
Apart from the unusual case of the university formed
under 5A (2), the Universities and University Colleges Act 1971 is a template
legislation for the establishment of public universities and university
colleges. But not all
government-funded universities are established under the UUCA. Government funded universities are also established through special
Acts of Parliament, as is the case with the University Institute Technology
Mara (UiTM).
Other than
universities and university colleges, public-funded higher education institutions
include polytechnics, community colleges, teacher training institutes and
scores of colleges.
