LETTER | The Minister of Higher Education Mohamed Khaled Nordin advanced two more reasons in Parliament why the Universities and University Colleges Act 1971 (Auku) cannot be repealed.
Repealing Auku, he said, will nullify the establishment and administration of the 20 public universities. He then added that Auku is the source of authority that makes universities accountable to the government and society.
Gerak is concerned that the minister may have been wrongly advised on both points.
The term ‘public university’ is not defined by law. However, when read together with the Private Higher Educational Institutions Act 1996 (Act 555), public universities are those that are established and maintained by the government.
In total, there are 20 such universities, which is the number the minister gave in his statement.
Nineteen of the 20 public universities are established under Auku.
Universiti Institut Teknologi Mara or UiTM, which is one of the 20 listed as a public university, is not established under Auku but by its own special legislation, the Universiti Teknologi Mara Act 1976. It is to be noted that the provisions of Auku do not apply to UiTM.
Universiti Islam Antarabangsa Malaysia (UIAM), although established under Auku, is established under a special provision in Auku that does not incorporate the university.
The provisions of Auku do not apply to UIAM which, although public in terms of establishment and funding, functions under the aegis of a company registered under the Companies Act and is not bound by the terms of Auku.
The other 18 universities that are established under Auku are established as corporate bodies at formation.
This means that each of them is vested with all the attributes of a legal person including perpetual succession. They are independent entities, ruled by their own constitutions, with law-making powers, and autonomous.
So, in answer to the minister’s first point, repealing Auku will not nullify any of the public universities, regardless of how or by which statute they are established, because they are all corporate entities.
A university that is incorporated under Auku can only be annulled by the Yang di-Pertuan Agong revoking the Incorporation Order that established the university.
In the case of UIAM, although it is established under the special provisions of Auku, the university operates outside the ambit of the act.
The closure of UIAM, if that is ever desired, must be determined by the provisions of the Companies Act 2016. The repeal of Auku will have no effect on UIAM.
Similarly, the repeal of Auku will not affect UiTM, which is a creature of an act of Parliament. Any change in the status of UiTM can only be achieved through an amendment of the act that established the university.
Nexus between govt and public universities
The minister’s view is that Auku is the source of authority that binds universities’ accountability to the government and society.
There are, no doubt, provisions in Auku that give the minister the power to appoint the vice chancellor and other officials and supervisory rights over the accounts of public universities.
But these do not go as far as making the universities accountable to the government or to society. These are desirable provisions, but they are not part of Auku.
In any case, a repeal of Auku can only be achieved by passing another act. There won’t be a vacuum in the law.
The new legislation that is passed to replace Auku can be drafted to accommodate the minister’s concerns.
But far more important than that is that new legislation will also take into account the concerns raised by Gerak and others, which is for legislation that will correct all the present shortcomings of Auku.
The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.