What is the purpose of the Act?
i. The Universities and University Colleges Act 1971 (the Act), widely known as (the dreaded) AUKU, also as UUCA or as Act 30, is a general legislation for the establishment of government supported universities. It is a template legislation that sets out the procedures for the establishment of government universities, the legal status of the universities, their governance structure and the regulation of staff and students.
ii. At one time, universities could only be established under the UUCA, which established a government monopoly over the formation of universities. Today, because of changes in higher education policies over the last 50 years, universities can be established with the same ease as registering a company. The Private Higher Educational Institutions Act 1996 (Act 555) provides a simple mechanism for anyone to establish a private university. Policy decisions have also seen universities and higher education institutions being established by Acts of Parliament such as UITM (under the UITM Act 1976). Teacher education colleges, polytechnics and vocational colleges are established under the Education Act 1996, the same Act also establishes the National Education System.
What are the Minister’s powers in respect of higher education?
i. The power to establish and maintain a university was originally vested in the Minister of Education under s. 25 of the Education Act 1961. This was changed with the repeal of the 1961 Act by the Education Act 1996. Under s. 70 of the Education Act 1996, the minister ‘may provide higher education in higher education institutions in accordance with any written law relating to higher education and shall be responsible for the general direction thereof.’ This provision limits the minister’s powers over higher education in several ways.
ii. First, he may only provide higher education in higher education institutions in accordance with any written law on the subject, such as the UUCA or Act 555. The written law dictates what constitutes higher education, not the minister, who must act in accordance with the written law. Ideally, the provision should support continuity in higher education policies and prevents them from being altered at the whims of politicians appointed to the higher education portfolio. Contrary to that expectation, new appointees to the portfolio still refuse to implement reforms proposed by a previous incumbent.
iii. Secondly, since the written laws on education include the National Council on Higher Education Act 1996 (NCHE), the minister is bound to comply with the provisions of that Act. Under the Act, the NCHE is vested with the powers to determine higher education policies. The minister in exercising his powers of ‘general direction’ over higher education must act ‘in accordance with the national policies, strategies and guidelines for higher education formulated or determined by the NCHE.’ (UUCA s. 3). The minister cannot originate or alter any policies on higher education. Only the NCHE can do that, although the minister is also the chairman of the NCHE. Intentionally or otherwise, the National Council on Higher Education has not convened since 2013.
iv. Despite the above limitations, both the Act and the prescribed constitution are replete with provisions that involve the minister in the administration of universities and generally over the higher education system. For instance, the minister is vested with exclusive powers of appointment over certain positions, including those of vice chancellors, deputy vice-chancellors and to senior positions in the higher education bureaucracy. Other provisions variously require the minister’s approval and consent over matters specified in different sections of the Act. Another role vested on the minister is to hear appeals from those aggrieved by the decisions of functionaries in the bureaucracy and in some cases, from students.
The minister’s powers of appointment must also be read subject to the limitations imposed by section 4A of the Act. The section provides that, for the purpose of selecting a qualified and suitable person for the post of Vice-Chancellor or for any other post to which the Minister has the power to appoint under the act, the Minister shall, from time to time, appoint a committee to advise him on such appointment. Controversies have arisen around the section both, with regards to the appointments to the advisory committees, the minister’s adherence to its advice and to the removal of members from the committee. In some instances, legal actions have ensued for a judicial review of the minister’s conduct in dealing with s. 4A.
v. Section 4 of the Act empowers the minister to appoint any person or body to investigate any activities or the administration of any higher educational institution and to report to the minister with recommendations. These are very broad powers with no stipulations as to when, or for what reasons they may be exercised. The minister may, it seem, invoke them at his pleasure and for any reason. When read in the context of British universities, these powers bear some resemblance to those exercised by the University Visitor, a position that is found in the university systems of Britain and some Commonwealth countries. In Thomas v University of Bradford (1987), a decision of the House of Lords in England, Lord Griffiths had this to say about the scope of the visitorial jurisdiction:
‘The jurisdiction stems from the power recognised by the common law in the founder of an eleemosynary corporation to provide the laws under which the object of his charity was to be governed and to be sole judge of the interpretation and application of these laws either by himself or by such person as he should appoint as a visitor.’
It is doubtful that such extensive powers can be successfully claimed by the Minister of Education over the running of a public university in Malaysia, but one can see the potential in the section, if purposefully exercised, to check the mismanagement of universities.
How are UUCA universities established?
i. The power to establish a university is vested by the Act in the Yang di-Pertuan Agong. The Act allows for the establishment of two types of universities. The criteria for the establishment of both types of universities is that the Yang di-Pertuan Agong must be satisfied that it is expedient in the national interest that a university should be established.
What are the two types of universities that may be established under UUCA?
i. The Yang di-Pertuan Agong has the powers to establish two types of universities under the Act.
ii. The first type of university which includes all public universities except UIA, is established by an Incorporation Order. The order establishes the university as a body corporate for the purpose of providing, promoting, and developing higher education in all such branches of learning as are specified in the order. The Incorporation Order will also assign a name to the university and specify its location. These are better known as public universities.
iii. Under the second category, 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. A university ‘authorised’ to be established under this provision is not an incorporated body. The YdPA merely authorises its establishment. There is only one university established under this provision, the Universiti Islam Antarabangsa which operates as a registered company.
How are the two types of universities distinguished?
i. Only universities in the first category are established as body corporates. A university that is authorised to be established is not an incorporated body.
ii. The provisions of the Act, other than those that deals with their establishment do not apply to authorised universities.
iii. The mechanisms for funding the ‘authorised’ university are different from that which applies to the first category of universities. Public universities are funded by Grants in Aid which must be applied only to meet annually recurrent expenditure.
iv. The Statutory Bodies (Discipline and Surcharge) Act 2000 does not apply to authorised universities as they are not statutory bodies. Hence, employees of authorised are regulated by the employment and industrial laws that govern the private sector.
v. Students in an authorised university are not subject to the laws of UUCA.
Do the incorporated universities established under the Act respond to any known model of universities?
i. UUCA universities, broadly respond to the British model of universities in the way they are structured. The constitution of the universities which is prescribed by the Act, and which the universities are required to substantially adopt, provides for a bicameral system of governance, which is how British universities are structured.
ii. The two main authorities in the public university governance system are the Board of Directors and the Senate. The former is empowered to exercise all the powers conferred on the university, unless otherwise expressly provided [7(2) UUCA]. The Senate is the academic body of the public university with control over the general direction of instruction, research and examination and the award of degrees and other academic distinctions. The faculties, schools and institutes are also divided as under the British model.
iii. A point to note here is that the public university is described by the Act as being made up of the many authorities that are set up in the university. Each authority, which includes faculties and institutes is governed by the rules made under the powers of the university.
iv. The Malaysian courts have generally applied the British law on universities in matters affecting UUCA universities. However, radical changes made to the British laws on universities and higher education in recent decades make the link tenuous.
v. Some scholars have alluded to the Humboldt model of universities when describing UUCA universities. This is a debatable view.
Does the UUCA deal with institutional autonomy, academic freedom, and collegial governance?
i. Legally, corporate bodies are autonomous entities that are ruled exclusively by their own laws which they have the power to make. The UUCA does not expressly recognise public universities as autonomous bodies. However, in several cases, our courts have recognised them to be autonomous, subject of course to the laws that establish the universities.
ii. Neither are there any provisions in the UUCA dealing directly with academic freedom. Some universities, such as the Universiti Pahang have added academic freedom as one of the ideals they support. However, not all universities have taken this step.
- a. There are no judicial decisions directly on the point. Any attempt to argue that such a freedom exists in UUCA universities may turn out to be futile because of the provisions of the Statutory Bodies (Discipline and Surcharge) Act 2000, which were extended to public universities in 2009. Appendix A shows some of the provisions that touch on academic freedom. If the academic freedom claimed is one that is not abridged by Act 605, other provisions of the UUCA may be called in aid to support such a freedom. See the next point on collegial governance.
iii. Collegial governance is distinct to universities and is a crucial requirement that upholds the essential characteristics of such institutions. Sometimes described as shared governance, collegial governance is built on the participation of everyone involved in the university’s processes (colleagues) to make decisions. This form of decision making is markedly different from the top-down processes that apply in business organisations and even other statutory bodies that are established in this country.
- a. The governance structure of UUCA universities as provided in the Act and the prescribed constitution is clearly based on collegial principles. Important changes were made to these provisions, one of which replaced the appointment of Deans and Sub-Deans which was by election by faculty members to appointment by the VC. These derogations notwithstanding, the collegial principles in the constitution still play a vital role in defining the public university. This is often ignored by those in senior university management positions, including VCs who continue to think they are managing a business and that colleagues are underlings meant to obey the rules and not participate in their making.
b. Academics in UUCA universities looking for a base from which to mount an action to reclaim academic freedom will find such base in the collegial provisions of the constitution.
c. A separate document will provide a more detailed discussion of the university’s prescribed management structure.
What is the nature of the relationship between the academic and the UUCA University?
i. This is only a general description. It does not deal with the concept of tenure, pension rights, nor the many other regulations that dictate the relationship.
ii. The basic relationship is contractual, but it is not one of master and servant. The traditional idea of the university and the provisions of the Act, vest on academics, a ‘status’ that is based on factors including the collegial structure of the university mentioned above. As was stated in Fadzil Mohamed Noor v Universiti Teknologi, Malaysia, a lecturer employed by the University, has a status supported by statute and is entitled to the protection of a hearing before the appropriate disciplinary authority, including the right of appeal to the University Council from the decision of that authority. If that right is violated, as happened in that case, the Court may allow declaratory relief, enabling him to retain his employment, and continued eligibility to be paid his salary and all emoluments from the date of the purported dismissal.
iii. Although, as mentioned earlier, disciplinary matters of employees in UUCA universities are now subject to the Statutory Bodies (Discipline and Surcharge) Act 2000, these ground rules dictating the academic’s relationship with the university and their rights to natural justice, will continue to be applied to the extent they are not expressly excluded by the Act.
What is the nature of the relationship between academic staff and students at the university?
i. The Act does not deal with the staff-student relationship. The traditional view was that in academic matters, the student’s rights can only be asserted against the university and not against the academic staff concerned.
ii. But the situation is changing. With more regulatory control and the statutory prescription of standards for institutions and teachers, such as the minimum standards set by the Malaysian Qualifications Agency (MQA), the courts now have more purchase on how higher education is designed through curricula and about how teaching is conducted or must be conducted. Such objective criteria may dispel the earlier reluctance shown by the courts to inquire into the mechanisms of higher education. This means that education providers, including academics, may have a new regulatory force in the courts to deal with. An example of the changing attitudes of the courts can be seen in a 2012 decision of the High Court in Terengganu. In that case, Fauzilah Salleh v. Universiti Malaysia Terengganu (2012), the judge had to deal with the withdrawal of a degree awarded to a student two years after she was awarded the degree. The allegation was that significant parts of her thesis were plagiarised. Untypically, the judge took on the task of determining if there was plagiarism as alleged. He proceeded to examine the rules on plagiarism from universities across the world. The following is a verbatim reproduction of his lordship’s judgment dealing with the question of plagiarism. It is reproduced here because of the meticulous way in which the judge approached the issue of plagiarism and more importantly, for his observations on the responsibilities of the university and the supervisor on the handling of academic writing by students.
Issue of Plagiarism by Mohd Yazid Mustafa J.
‘Before deciding on this issue, it is significant that all parties are made clear on the nature of plagiarism. Plagiarism has been defined by The Concise Oxford Dictionary (9th edn, at p 1043) to be the act of taking and using the thoughts, writings, inventions etc as one’s own. Not satisfied with only one definition, I took the liberty of perusing the websites of old and respected universities of the world as to how they define, and as to what they construe as plagiarism.
Oxford University has defined plagiarism as the copying or paraphrasing of other people’s work or ideas into your own work without full acknowledgement. All published and unpublished material, whether in manuscript, printed or electronic form, is covered under this definition.
The various forms of plagiarism are:
i) Verbatim quotation without clear acknowledgement.
ii) Paraphrasing the work of others by altering a few words and changing their order or by closely following the structure of their argument.
iii) Collusion. This can involve unauthorised collaboration between students, failure to attribute assistance received, or failure to follow precisely regulations on group work projects.
iv) Inaccurate citation.
v) Failure to acknowledge.
University of Cambridge has defined plagiarism as submitting as one’s own work, irrespective of intent to deceive, that which derives in part or in its entirety from the work of others without due acknowledgement. It is both poor scholarship and a breach of academic integrity. Examples of plagiarism include copying, quoting verbatim another person’s work without due acknowledgement of the source; paraphrasing another person’s work by changing some of the words, or the order of the words, without due acknowledgement of the source; using ideas taken from someone else without reference to the originator; submitting someone else’s work as part of a candidate’s own without identifying clearly who did the work. For example, buying or commissioning work via professional agencies such as ‘essay banks’ or ‘paper mills’, or not attributing research contributed by others to a joint project.
University of Cambridge also pointed out that acceptable means of acknowledging the work of others (by referencing, in footnotes, or otherwise) vary according to the subject matter and mode of assessment. In this regard, Cambridge recommended that faculties or departments should issue written guidance on the relevant scholarly conventions for submitted work, and also make it clear to candidates what level of acknowledgement might be expected in written examinations. Candidates are required to familiarise themselves with this guidance, to follow it in all work submitted for assessment, and may be required to sign a declaration to that effect.
Yale University, a respected university in the United States of America defines plagiarism as the use of someone else’s work, words, or ideas as if they were your own. Thus, most forms of cheating on examinations are plagiarism; but Yale University usually applies the word to papers rather than to examinations.
Against the background of the extractions above, I find that 35% of the plaintiff’s thesis has been taken from the doctoral dissertation of one Prof Madya Dr Nik Kamariah (D10). I also note, however, that the plaintiff acknowledged her sources of information, among others . . . Notwithstanding her acknowledgement, it is noted that plaintiff has failed to footnote the information source on the relevant pages where the intellectual debt occurred.
My views are in line with those of the defendant’s witnesses who are PhD holders and possess vast experience as academicians, and are presently attached to various universities (UUM, UMT, UMP and UniSZA). They reached the similar conclusion that the plaintiff had plagiarised . . .
Besides the above, I also take judicial notice of the supervisor’s role in thesis writing. Firstly, thesis writing is an open process, in that, anyone who has any interest in the topic under research is not at any time precluded from viewing the work in progress. In fact a student writing his/her thesis must first obtain approval from the supervisor on the topic to be researched. And all along the writing process, the student’s work must be approved by the supervisor. (Kindly refer to the University of Cambridge advice on adherence to the university’s writing guidelines).
Based on the extractions on plagiarism as above, I find that it is the duty of the university (defendant) to issue to students writing their thesis with a proper set of writing guidelines. In this case I note that there was none. Even in the absence of a proper thesis writing guideline from the university or faculty, plagiarism would not have occurred if the plaintiff’s supervisor had done his/her job ie, reading and vetting the contents and writing style of the student. Plaintiff’s evidence that she was never guided was not challenged, and was accepted by this court.
Based on the above reasoning, while I find that the plaintiff has committed plagiarism, I also find that the defendant has partly contributed to the commission of plagiarism by failing to properly supervise the research, in particular the writing process of D9.’
iii. The decision of the High Court in Terengganu that academics owe a duty of care to their students they supervise is reinforced by the Consumer Protection Act 1999. Academics must now contend with these new approaches in law and pay more heed to the standards adopted in teaching and supervising students.
iv. In addition to what is stated above, academic staff must also be cognisant of the students’ private and civil rights. Listed below are some of the rights that academic staff must take cognisance of.
- i. Criminal laws on sexual harassment and physical contacts with students.
ii. Privacy and confidentiality laws that protect students’ expectations about privacy and confidentiality in respect of what they disclose to academic staff, whether in their capacity as university staff or during private encounters with students.
iii. That they stand in a position of undue influence over their students in all consensual transactions.
iv. Copyright and passing off laws when dealing with the artistic and intellectual works of students.
v. Students’ rights over their personal data that is protected under the Personal Data Protection Act 2010. Cases in other jurisdictions have held that students’ answer scripts and other written work submitted for assessment are personal information that students have a right to examine. Students also have a right to correct or register their objection to any expressions of opinion about them appearing in any personal data of theirs.
What provisions are there in the UUCA, and other statutes on the regulation of academic staff discipline?
i. University employee disciplinary rules were first introduced in 1975 through an amendment to the UUCA. Before that, disciplinary rules were made in accordance with the constitution of the university. Generally, the rules were borrowed from the then prevailing Public Officers (Conduct and Discipline) General Orders.
ii. The general framework of the rules provided for the establishment of a disciplinary authority, disciplinary procedures, and disciplinary punishment and empowered the Council to make the disciplinary rules.
iii. Act 605 came into force on 1-11-2000 vide P.U. (B) 361/2000. Act 605 provides for matters relating to the discipline of, and the imposition of surcharge on, officers of statutory bodies incorporated by federal law. UUCA universities fall within the ambit of Act 605.
iv. Prior to the application of Act 605, section 16A of the UUCA Act made the Board of Directors of the university the disciplinary authority over its employees. Section 16A was deleted with effect from 1-2-2009. The words in section 28 of Act 605 makes it very clear that the incorporating law of the statutory bodies relating to discipline shall cease to apply. The intention of Parliament was “to bring about uniformity of law and procedure in matters relating to the discipline of… officers of federal statutory bodies” as stated in the Explanatory Statement to the Bill.
v. All matters of discipline of officers of federal statutory bodies, including UUCA universities are to be decided in accordance with Act 605. Under the Act, the disciplinary authority is still the Board of Directors, but disciplinary procedures and even the disciplinary rules are now determined by Act 605. Appendix A shows some of these rules.
vi. A recent High Court decision has held that, notwithstanding the application of Act 605, the constitution of the university may add provisions to its disciplinary procedures that are not provided for in Act 605. In that case, Professor Dato’ Dr Mohd Fauzi Ramlan v. University Putra Malaysia & Ors (2021), it was held that investigations conducted prior to the commencement of the disciplinary proceedings in accordance with the constitution of the university were not relevant in determining the propriety of the proceedings under Act 605.
*Written for GERAK by U K Menon LLM, Barrister, Advocate & Solicitor (Malaya).
STATUTORY BODIES DISCIPLINARY REGULATIONS
Publication of books, etc.
17. An officer shall not publish or write any book, article or other work which is based on classified official information.
Making public statements
18. (1) An officer shall not, either orally or in writing or in any other manner—
(a) make any public statement that is detrimental to any policy, programme or decision of the statutory body or the Government on any issue;
(b) make any public statement which may embarrass or bring disrepute to the statutory body or the Government;
(c) make any comments on any weaknesses of any policy, programme, or decision of the statutory body or the Government;
(d) circulate such statement or comments, whether made by him or any other person.
(2) An officer shall not, either orally or in writing or in any other manner—
(a) make any comments on the advantages of any policy, programme, or decision of the statutory body or the Government;
(b) give any factual information relating to the exercise of the functions of the statutory body;
(c) give any explanation in respect of any incident or report which involves the statutory body or the Government; or
(d) disseminate any such comment, information or explanation whether made by him or any other person, unless the prior written permission, either generally or specifically, has first been obtained from the Minister.
(3) Subregulation (2) shall not apply to any comment, information or explanation made, given, or disseminated where the contents of the comment, information or explanation had been approved by the Minister.
(4) For the purpose of this regulation, “public statement” includes any statement or comment made to the press or to the public or in the course of any public lecture or speech or in any broadcast or publication, regardless of the means.
Prohibition on acting as an editor, etc., in any publication
19. An officer shall not act as the editor of, or take part directly or indirectly
in the management of, or in any way make any financial contribution or otherwise
to, any publication, including any newspaper, magazine, or journal, regardless
of the means by which it is published, except the following publications:
(a) departmental publications;
(b) professional publications;
(c) publications of non-political voluntary organizations; and
(d) publications approved in writing by the Director General for the purposes of this regulation.
PLEASE NOTE THAT THESE NOTES ARE MEANT AS A GENERAL INTRODUCTION TO THE TOPIC INDICATED. PROFESSIONAL LEGAL ADVICE MUST BE OBTAINED BEFORE ANY ACTIONS, LEGAL OR OTHERWISE ARE TAKEN.