The law could provide rules for a freer system of governance or could leave the drafting of the University Charter to the university’s board.
RECENTLY the government launched the apex university initiative. It accepted the recommendation of a panel of luminaries that because of its good track record, Universiti Sains Malaysia (USM), Penang deserves to be conferred with the coveted status of the nation’s pioneering apex institution. It is believed that the new status will come with considerable educational, administrative and financial autonomy and a new system of governance.
The university leadership has drawn up an ambitious road map and is prepared to transform USM into an exemplar of excellence in higher education and a candle that will light many lamps in other citadels of education in this country.
What is also being realised is that the new era and the new mission require a bold, new legal framework that is radically different from the one thrust on our institutions of higher learning by the Universities and University Colleges Act 1971 (popularly known as “AUKU”).
Specifically the following aspects of AUKU can be viewed as obstacles:
> Section 3 of AUKU empowers the minister to give general directions on higher education to universities. This power can be employed by the minister (and ministry) to compel conformity with ministry policies and to block innovativeness and initiative.
> Section 3 further subjects universities to “national policies, strategies and guidelines … formulated … by an authority established under any written law…” This means that besides the minister other authorities and institutions may demand the right to guide universities.
> Section 8 of the Principal Act empowers the Yang di-Pertuan Agong (in effect the minister) to amend the constitution of the university to make the university’s constitution fall in line with AUKU’s First Schedule. This power can stamp out any attempt to blaze new trails and to disallow any effort by a university to depart from the regulatory mechanisms of Schedules 1 and 2 of AUKU.
> Sections 15, 15A, 15B, 15C, 15D and 16 of AUKU impose crippling controls on student activities.
> There is no power to set up campuses abroad.
> In the First Schedule, section 4A, the “additional powers of the University” to venture into commercial and “corporatisation” activities require the consent of the Finance Minister.
> Under the First Schedule, sections 9, 13 and 14 the minister has wide discretion to appoint members of the board for a term of three years: section 14(1). The university has no right to be consulted, except on the appointment of the vice-chancellor.
> The vice-chancellor has no security of tenure: section 14(1). The minister can legally terminate the appointment of the VC any time. This exposes any dynamic vice chancellor to terrible pressures to fall in line.
> Staff discipline is subject to the Statutory Bodies Discipline and Surcharge Act 2000 (Act 605). Some provisions of the Act, like sections 18, 19 & 20 of the Second Schedule threaten disciplinary measures against any public expression of thought that is critical of official policies.
In addition, there is the reality that most universities have very little income of their own and rely almost entirely on the ministry and the treasury for operational and developmental expenses. Money comes with strings attached.
As a matter of administrative traditions of the “bureaucratic state”, the cabinet, the prime minister’s department, JPA, MOF, MAMPU, the Home Affairs Ministry, the Foreign Affairs Ministry and the Higher Education Ministry issue periodic circulars, directives and instructions to all institutions of higher learning. Universities tend to comply.
Despite the above hurdles, there are means of “breaking free” of some of the shackles of AUKU and for effectuating the desired changes.
Partial exemption from AUKU: Section 28 of AUKU permits the Yang di-Pertuan Agong to exempt a university from the provisions of the First and Second Schedules (but not from the rest of the Act) or to vary or add to any of the provisions of these schedules. The exemption can provide potential for establishing a new charter. for the apex university.
Setting up companies: Under section 4A(1)(b) of AUKU’s First Schedule, the board, with the permission of the Finance Minister, can float companies under the Companies Act 1965 to handle various university activities in a semi-independent way.
Setting up corporations: Under section 4A(1)(c) of the First Schedule, the board, with the permission of the Finance Minister, can “establish corporations to carry out and have the charge, conduct and management of any property, project, scheme or enterprise which in the opinion of the Board would be beneficial and advantageous to the University”.
This method of establishing autonomous, subsidiary bodies is as yet untested and untried. For this reason itself it is worthy of USM’s pioneering efforts.
A new Third Schedule in AUKU: parliament could by law exclude all apex universities from the provisions of the First Schedule that deal with the governance of universities. It could provide bold new measures by way of a new Third Schedule for apex university governance.
A new Universities Act: The dawn of a new educational era requires fresh thinking. AUKU could be repealed and replaced by a totally new Universities Act 2008 to provide fresh measures for university governance, autonomy and accountability. Guidance could be sought from the University of Malaya Ordinance 1949 and the University of Malaya Act 1961 that were in force before AUKU was imposed.
Apex University Act: If a totally new law for all universities is not acceptable then a new law for apex universities is needed. It is noteworthy that two universities, UIAM and UiTM, are not subject to the provisions of AUKU.
The new Apex University Act could provide detailed rules for a new and freer system of governance or could leave the matter of drafting of the University Charter to the Board of the University by way of subsidiary legislation.
Whatever modality of change is considered desirable is a matter of high government policy. What is certain, however, is that our universities have not done so well. New thinking is needed. New laws are needed to respond to the felt necessities of the times.
The apex university initiative provides an opportunity to break free from the shackles of the past. It is up to us to seize the moment. -
The Star Online
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