Higher Education Minister Khaled Nordin advanced two more reasons in Parliament why the Universities and University Colleges Act 1971 (UUCA) cannot be repealed.
Repealing the UUCA, he said, will nullify the establishment and administration of the 20 public universities. He then added that the UUCA is the source of authority that binds universities’ accountability 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, 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.
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Nineteen of the 20 public universities are established under the UUCA.
Universiti Institut Teknologi Mara or UiTM, which is one of the 20 listed as a public university, is not established under the UUCA but by its own special legislation, the Universiti Teknologi Mara Act 1976. It is to be noted that the provisions of the UUCA do not apply to UiTM.
Universiti Islam Antarabangsa Malaysia (UIAM), although established under the UUCA, is established under a special provision in the UUCA that does not incorporate the university. The provisions of the UUCA do not apply to the university, 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 the UUCA.
The other 18 universities that are established under the UUCA 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 the UUCA 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 the UUCA can only be annulled by the Agong revoking the incorporation order that established the university.
In the case of UIAM, although it is established under the special provisions of the UUCA, the university operates outside the ambit of the act. The closure of the university, if that is ever desired, must be determined by the provisions of the Companies Act 2016. The repeal of the UUCA will have no effect on the university.
Similarly, the repeal of the UUCA 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.
Government-public universities nexus
The minister’s view is that the UUCA is the source of authority that binds universities’ accountability to the government and society.
There are, no doubt, provisions in the UUCA that give the minister 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 the UUCA.
In any case, a repeal of the UUCA can only be achieved by passing another ct. There won’t be a vacuum in the law.
The new legislation that is passed to replace the UUCA can be drafted to accommodate the minister’s concerns.
But far more important than that is that a 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 the UUCA. – Gerak