Academics under Covid Fatigue

 

By the Espact Team

I write this in admiration, respect, and on behalf of my many friends who are still actively carrying out their duties in private universities and colleges. They have worked against a confusing background of policies made and not made and policies made only to be changed. My friends and others have worked hard to discharge their contractual obligations deeply aware of their moral obligations to their students. During these past 18 months, they have worked, against the uncertain official policies mentioned earlier and the ambivalent responses from their institutions. They are all affected by fatigue created as much by the additional and different kinds of work they are required to produce in these difficult times, as by the confusion shown by officials in handling the current situation. The recurring complaints include a lack of institutional understanding of online processes and flowing from that, an absence of any useful guidelines issued to staff or students about the academic expectations in the new forum. General directions are issued to the academics to go online without anyone monitoring the impact of the online mode of instruction on teachers or students. Nor are there policies developed in the institution to align teaching and assessments in the online or an investigation of either process. There is no mitigation of the traditional chores of academics, but only the addition of new tasks in the new environment. For example, teachers are expected to ‘mark’ papers online, but no adjustments are made to the modes of assessment or time given to the staff to complete the marking. Regular faculty meetings to discuss the difficulties, if they had been held over the last 18 months would have helped, some of them say, but there have only been directions to comply without caring to examine the difficulties of compliance.

It has not helped that many institutions are in the dark about handling the situation. No one, to my knowledge, has organized any course to help staff cope with the current situation. Nor has there been any formal discussion on how the future of higher education is to be handled. The MOHE and the MQA must take responsibility for these processes but both agencies have been sitting on their hands. Institutions, hoping for more effective guidance from them have failed to receive any. Even pleas for help made to individuals have also brought little results.

I think we must face the prospect that the processes of higher education that we have grown up with are no longer sustainable in an environment that has been violently altered by the pandemic. In law, the concept of force majeure is a disruptive force that is unforeseen that fundamentally alters the obligations of parties under a contract. What was agreed to be done in a particular manner based on certain assumptions can no longer be done in that agreed manner because of unforeseen disruptions of those assumptions. When the Suez Canal was closed in the 1950s because of hostilities along the canal, shippers’ obligation to deliver cargo within a stipulated time estimated on the assumption that carriage will be through the canal, could no longer hold. Nevertheless, the carriage had to be completed, even if it meant that the carriers would have to take the longer route around the Cape of Good Hope.

Higher education regulators and providers must take a different route in delivering higher education. However, unlike the shippers in the Suez Canal situation, the hope for higher education may not lie in a longer route but a shorter one. This is a time to rethink higher education by jettisoning the trash, the debris, the bran, and the banter of courses that serve no purpose in education at the higher level. Maintain the ballast but review the cargo. It is time to reassess the number of subjects that are forced down the gullets of students and the mandated duration of the certificate, diploma, and degree courses. The suspensions forced on us by the pandemic give us the respite to think through the future. The city of Wuhan in China built a makeshift emergency hospital to treat patients infected with the coronavirus in just 10 days. Makeshift must not be regarded as a derogatory term in times like this.

We have no choice because, if as experts say the pandemic will be with us in different degrees for at least another five years, the future we must worry about is already with us. More productive and purposeful engagement between regulators, institutions, staff, and students must start now.

The Right To Be Heard

 

“If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him: and then he must be given a fair opportunity to correct or contradict them. It follows, of course, that the judge or whoever has to adjudicate must not hear evidence or receive representations from one side behind the back of the other. The court will not enquire whether the evidence or representations did work to his prejudice. Sufficient that they might do so. The Court will not go into the likelihood of prejudice. The risk of it is enough. No one who has lost a case will believe he has been fairly treated if the other side has had access to the Judge without his knowing.”

Lord Denning in B Surinder Sigh Kanda v The Government of the Federation Malaya 1962

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.