FOR many years, Gerak and other commentators have argued that the decline of Malaysia’s higher educational institutions, particularly our public universities, is a consequence of government control and interference.

This control and interference, as we shall show, exceed the provisions of the law. 

We call on the government to start discharging its role in accordance with the law.

Bureaucrats have mocked such complaints of interference by alleging that university governors are too incompetent to enjoy autonomy.

Such an allegation, if true, surely reflects the failure of the minister to appoint the right persons for the job.

What is clear is that disregard for the law and a paternalistic attitude towards higher education leaders will drive the public institutions to further decline. 

It’s a vicious cycle because the vice-chancellors tend to appoint middle managers such as deans not by merit but from a pool of sycophants. 

As a consequence, instead of focusing on their duties to uplift the university, these officials act to appease the government and seek its patronage. 

It is urgent that the government distances itself from the traditional processes that guide higher education institutions .

The regulatory system that emerged from the 1996 reform of higher education had three distinct components – the National Council on Higher Education (NCHE) as the policy formulating body, the National Accreditation Board (LAN, later morphing into the MQA) as the body to accredit institutions and higher education programmes, and the Higher Education Ministry as the implementing and monitoring body. 

As far as public universities are concerned, their governance systems were corporatised, giving the board of directors wider powers to supplement government funding.

Had the new system been adhered to, the NCHE would be deciding on policies on all matters concerning higher education as stipulated in the founding legislation. 

The ministry would have been the gatekeeper, approving and monitoring the establishment of higher education institutions, and the MQA, the accreditation body, would decide on quality and standards and the accreditation of educational programs.

But the system did not work like this.

Indeed, in 2012, the oft criticised Universities and University Colleges Act 1971(UUCA) was amended to establish a new bureaucracy to regulate public universities. 

Despite the intended 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. 

Then, sometime in 2011 or 2012, the NCHE became dormant. The NCHE is not an incorporated body. Its continuation is dependent on members being appointed to it. If members are not appointed, the NCHE ceases to exist. 

Unfortunately, this has been the case for a considerable period. Things were about to change under the 2018-2020 Pakatan Harapan (PH) government. But its premature demise put paid to such changes.

As it stands now, government influence is most felt in the way VCs, board members and other officers are appointed to the 20 public universities. 

The UUCA requires the minister to act on the advice of committees before making these appointments. But there is little transparency in the appointment process. 

The committees are appointed by the bureaucracy and members serve at the pleasure of the minister. But in a rare recent challenge to the way a member of such a committee was removed, the High Court in Kuala Lumpur held that the minister had acted ultra vires the powers conferred on her. 

Gerak believes there is a need to continue mounting such challenges to prevent bureaucrats and politicians from mocking the law and blatantly disregarding due process.

The MQA Act 2007 replaced the National Accreditation body (LAN) with the Malaysian Qualifications Agency (MQA) as the accrediting body. Unlike its predecessor, the MQA does not fall within the jurisdiction of the NCHE. 

With NCHE being treated so dismissively, it is not surprising that it has remained inconsequential for more than a decade.

The minister’s role in higher education is specified in several of the legislations on higher education. Under the Education Act 1996 (EA), 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 states 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 other levels of education are stated in the EA. 

The minister has a duty to provide primary and secondary education and discretion to provide post-secondary education and establish vocational colleges.  

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 also 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 second implication of section 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 on higher education are the Universities and University Colleges Act 1971 (UUCA) and the Private Higher Educational Institutions Act 1996 (PHEA). 

Each of these two acts describes the role of the minister in almost identical terms which echo section 70 of the Education Act. 

Under section 3 of the Universities and University Colleges Act 1971, 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”.

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 consistent with the provisions of the act. These directions may be in relation to matters in which national policies, strategies and guidelines on higher education have been formulated or determined by the NCHE. 

Section 70 of the Education Act also compels the minister to observe the provisions of the NCHE, which is also a written law on higher education. 

The NCHE Act reinforces this in section 12 (2) of the NCHE Act. 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”.

The NCHE is, therefore, a vital part of the national higher education system, particularly in relation to the powers of the minister. 

If the council is not operational, the system is incomplete and the minister may not be able to act on matters concerning higher education under any of the legislations.

It is clear under the law that the NCHE is central to the development of higher education in Malaysia. 

It is Gerak’s stand that the NCHE needs to be restored and its powers over matters concerning higher education need to be recognised and increased. 

Restoring the NCHE would also mean the selection of members representing the major stakeholders. Such selection, apart from being transparent, must not be solely determined by the minister or ministry bureaucrats. Ideally, the minister should only play a facilitator’s role and the various stakeholder organisations be given the freedom and authority to appoint representatives as they see fit.

These would certainly need to include respected scholars, active leaders of civil society, credible industry leaders with vision beyond making a quick ringgit, current and former student leaders, and, certainly, university academic union representatives. 

It is this NCHE then which Gerak believes should play a leading role in future appointments of VCs, DVCs and directors. 

It would be an informed NCHE that is designed to do a job well; certainly an NCHE with clout and a genuine desire to raise our higher education standards from the lows to which they have dropped. – January 14, 2023.

* Gerak is a civil society group.