INTRODUCTION: Laws Applicable To Universities.

All public universities in Malaysia are regulated by Acts of Parliament. The powers and functions of their Board of Directors and of their Principle Officers are derived from these Acts.

Laws Relating to IPTAs: The prominent Acts of Parliament relating to public universities are:

• University of Malaya Act, 1961 (No. 44 of 1961)
• Universities and University Colleges Act 1971 (Act 30) (as
amended)
• Universiti Teknologi MARA Act 1976 (Act 173) (as amended)
• Statutory Bodies (Discipline And Surcharge) Act 2000 (Act 605)
• Perbadanan Tabung Pendidikan Tinggi Nasional Act 1997 (Act
566)

Subsidiary Legislation: Under the authority of the above Acts of Parliament, a wealth of subsidiary legislation has been enacted to regulate the working of each IPTA.

Other Acts of Parliament: In addition to the above laws, all IPTAs are also affected by the operation of the ordinary rules of the land. The most relevant of these laws are: the Audit Act 1957, Statutory Bodies (Accounts and Annual Reports) Act 1980, Employees Provident Fund Act 1991, and Employees Social Security Act 1969, Employment Act 1955, Trade Unions Act 1959, Industrial Relations Act 1967, Government Contracts Act 1949, Public Authorities Protection Act 1948, Anti-Corruption Act 1997, Penal Code and the Official Secrets Act 1972.

Directives: The formal provisions of the law are supplemented by periodic directives from the Government and by informal understandings, usages and traditions that “supply the flesh to clothe the dry bones of the law”. Some of these traditions may be common to all the statutory bodies in the country. It is noteworthy, however, that directives, circulars, instructions and schemes framed by the JPA are not automatically binding on IPTAs because a university is a separate statutory body and is not part of the “public services of the Federation” as defined by Article 132(1) of the Federal Constitution. Only such directives from the JPA are applicable as are adopted by a university’s Lembaga Pengarah.

General Orders: IPTA employees are not “government servants” and are not part of the public services of the Federation as defined by Article 132 of the Federal Constitution. The General Orders of the federal government do not apply to IPTAs unless adopted by the IPTAs Lembaga Pengarah.

PROBLEMS, CHALLENGES AND OPPURTUNITY.

a.   The interpretation, harmonization and application of the above laws
and Directives require specialized legal expertise that cannot be
adequately supplied by ordinary administrators. An adequately
trained Legal Office is needed in each university to handle the legal
and corporate affairs of all institutions of higher learning.

b. Many other factors make it absolutely necessary for each IPTA to
have it own Legal Advisor or Legal Corporate Affairs Manager.
Among these factors are:

• rising student and staff population and the increasing number of
disputes relaing staff and student affairs;

• the very large number of MOUs and MOAs being signed by the
universities;

• the very large number of “building contracts” and lease signed
by the universities;

• the increasing amount amount of business, commercial and
corporate dealings due to the push towards “corporatisation” of
universities;

• the growing importance of research and consultancy contracts;

• the establishment of branch and city campuses, each with its
own set of legal problems and challenges;

• inter-university links between local and foreign universities; and

• link with franchise collages.

c. The previous practice of hiring Advocates and Solicitors as “retainers” as and when the need arose cannot be relied upon anymore as the volume of legal work has increased phenomenally. Often, the work required is so urgent that reliance on outside consultants is not feasible. Full times, in house, legal officers are, therefore, needed to attend to each university’s legal needs and to provide on-the-spot legal advice to the officers and administrative and academic units of the university.

d. Compared to government departments, other statutory bodies and local authorities, universities have been slow to establish their own corporate legal units. Even when such units are established, there is reluctance to provide adequate human and financial resources. This is contrast with the generous recognition and support given to Corporate Communications and Public Relations Units in universities. Similar support is hardly forthcoming in relation to the Office of the Legal Advisor. Often no separate financial allocation is made for the Legal Office and funds for its activities come from the funds of the Chancellery. The legal offices of most universities operate in skeletal staff.

Proposals

In the broader interest of universities, this state of affairs of not giving sufficient importance to the establishment of and provision for a Legal Advisor’s Office must be changed.

1. Each IPTA must set up a separate unit to be called “Pejabat Penasihat Undang-Undang Universiti”.
2. The Unit must be headed by a Penasihat Undang-Undang Universiti who shall be the thief legal officer of the University. A proposed organizational chart for the Pejabat Penasihat Undang-Undang is shown in Appendix 1.
3. After consultation with the JPA, the Penasihat Undang-Undang must be emplaced on a sufficiently high salary scale that recognizes the critical function of the office and is commensurate with the work load and responsibilities of the university’s chief legal officer.
4. The Penasihat Undang-Undang should enjoy operational independence in his professional function but must be answerable, in the performance of his/her functions, to the Naib Canselor.
5. Each University must allocate sufficient and separate funds for the Pejabat Penasihat Undang-Undang (PPUU).
6. Sufficient number of legal and non-legal staff should be allocated to the PPUU.
7. The appointment of the Penasihat Undang-Undang can be accomplished administratively. It is preferable, however, for each Lembaga Pengarah to act under the Universities and University Colleges Act 1971 (Act 30), First Schedule, sections 11, 12(1) and 45(2) to make this appointment. At UiTM the creation of the office can be achieved under sections 22A and 23 of the Universiti Teknologi MARA Act 1976. (Act 173). At UIAM, the University’s Memorandum or Articles may be employed to create the administrative unit of the Pejabat Penasihat Undang-Undang.
8. The duties, powers and functions of the Penasihat Undang-Undang may be determined administratively or may be prescribed by the statue of the University (Act 30, First Schedule, section 12(2), and 27(2). The section below outlines some proposed functions of the Penasihat Undang-Undang and his/her unit.
9. Except as may be prescribe by any statue of the University, the term if office of the Legal Advisor shall be three years (Act 30, First Schedule, section 23).
10. The Legal Advisor’s of all IPTAs should be joined together in a common association to be reffered to as the Majlis Penasihat Undang-Undang Institusi Pengajian Tinggi Awam. The Majlis can be established in two ways:-

• as a society under the Societies Act, or;

• by way of administrative prerogative of the Mesyuarat Jawatankuasa Naib-Naib Canselor/Rektor (JKNC/R)

In view of the Resolution of the JKNC/R of the 11^th March 2005, to support the establishment of such a Majlis, the second method (the administrative technique) should be pursued.