Reflecting On The Law by Shad Saleem Faruqi
The spirit of the law is one of evolutionary change towards more open, free and democratic campuses.
AFTER a gestation period of nearly two years, the long-awaited amendments to The Universities and University Colleges Act 1971 are finally before Parliament.
Higher Education Minister Datuk Seri Mohamed Khaled Nordin deserves congratulations, in that immediately after assuming the mantle of leadership at the ministry, he set ambitious time-schedules, tackled some lingering, tough issues with aplomb and, with a very short notice, succeeded in placing the Bill before the Cabinet and Parliament.
As with all laws, the amendments are full of negotiated compromises. There is a mixture of idealism and pragmatism. Though there is some understandable caution, a lot of risks are being taken to trust the young with rights and freedoms hitherto unknown.
The spirit of the law is one of evolutionary change towards more open, free and democratic campuses. Of course, the critics will find many flaws. But there is something worthwhile for everyone in the proposals.
Consultative processes: The Amendment puts in place a number of democratic consultative processes as a pre-condition to the making of decisions on key university appointments.
The minister, in appointing the chairman and members of the board of directors, the Vice-Chancellor, Deputy Vice-Chancellors and directors of campuses, will now have to consult with a committee.
The Vice-Chancellor in appointing deans and heads will be obliged to hear out the faculty members. In addition, he will have to inform the board of his choices. All this should promote more transparency and more quality appointments.
Good governance: University autonomy is improved by transferring some ministerial powers to the university’s board of directors. For example, student discipline appeals, at present heard by the minister, shall now be heard by a committee of the university’s board.
The Amendment demarcates clearly the powers and functions of the board, the senate and the Vice-Chancellor. But if any jurisdictional dispute still arises there is in place a non-judicial dispute resolution mechanism.
Hitherto, the university senate’s powers were subordinate to that of the board. The Amendment changes this. The role of the university senate as the primary academic body of the university is strengthened.
On academic matters, the board can transmit its opinions to the senate. But the senate will have the final say.
Staff welfare: Employees with grievances can file appeals with the board on matters of appointment, renewal and promotion.
The minister is now authorised, on the application of a requesting organisation, to allow a consenting university employee to be seconded or transferred to another institution if that would serve the national interest in education and research.
This should facilitate greater sharing of expertise.
Democratic representation: At present, the Vice-Chancellor appoints 20 professors to the senate. The Amendment empowers professors and associate professors to elect 20 of their colleagues to the university’s senate.
In addition, it charts a new course by permitting a senior academician to sit on the board of directors. The university’s senate is empowered to nominate one of its elected senators to the board of directors to represent the academic perspective and to provide a link between the senate and the board.
There will now be an employee welfare committee of the board and employee association representatives shall be members of this committee. Likewise, student representatives shall have membership on the board’s student welfare committee.
Student rights: In a break with the past the new law reflects confidence in our students’ growing maturity to handle freedoms. Educationists have always known that young people can become whatever we expect them to become. The height of their achievement is often determined by the trust reposed in them.
The Act recognises students’ constitutional right to speech and association. In their individual as well as collective capacities, students will now be free to join youth and social organisations and non-governmental organisations. Unlike as at present, they will require nobody’s prior permission to make these affiliations.
However, on the authority of the Federal Constitution’s Article 10(3), which permits restrictions on freedom of association in the field of education, students are still forbidden from membership of political parties, unlawful organisation and any group that the minister has declared to be unsuitable for student affiliation.
However, serving politicians and working adults who enrol at universities to further their education may seek exemption from the Vice-Chancellor to be allowed to continue their political affiliation.
These provisions will, undoubtedly, be criticised. But what must be noted is that a sea change has indeed taken place.
Previously students could not join any outside organisation unless they made a formal application, which could be approved or refused at discretion.
Now, freedom is inherent. No prior permission is needed. Everything is permitted unless it is prohibited.
Previously, everything was prohibited unless it was expressly permitted!
The Amendment enlarges the space for free speech for academic research and comment. It permits student interaction with outside organisations, politicians and political parties on academic occasions.
The right to participate in student democracy and to dabble in student politics as a training ground for future participation in national politics is preserved.
The Amendment protects student organisations by surrounding the power of the Vice-Chancellor to suspend or dissolve a student organisation with procedural safeguards and permitting an appeal to the minister.
The new law de-criminalises the Act by replacing all criminal sanctions with disciplinary penalties.
It removes provisions for automatic suspension or expulsion of a student who is charged with a criminal offence or who is convicted, or who is detained or restricted under preventive detention and restricted residence laws.
The university is given discretion to handle these cases as it sees fit, depending on whether the offence is a registrable criminal offence or a minor offence unrelated to academic character.
The Amendment removes provisions that provide for presumption of guilt, criminal liability even without conviction and collective criminal liability of office bearers of student organisations.
It safeguards the fundamental right to education by providing that a student who is acquitted of a charge in a court of law has a right to return to the university.
If he was excluded from a public university he has a right to enrol in a private institution or, with the permission of the minister, in any other public university.
Extensive changes have been made to provide for fairer student disciplinary procedures. The grounds on which the university may revoke a student’s degree or diploma have been reduced and this exceptional power has been surrounded with procedural safeguards.
The electorate for student elections has been expanded by enfranchising post-graduate students.
Hopefully there is something in the amendment for every sector of the university community.
Dr Shad Faruqi is Professor of Law at UiTM