This note is one of a series written on the amendments to the Private Higher Educational Institutions Act 1996 that were recently proposed by the Ministry of Higher Education (MOHE).
This note looks at the changes proposed to ss. 76 and 77 of the Private Higher Educational Institutions Act 1996 (the Act).
Regulatory legislation such as the Act will typically define the scope and area of its regulation and once that is prescribed, the legislation will proceed to prohibit the regulated activity and related activities unless they are carried out in accordance with the legislation.
The preamble to the Act describes its broad ambit as;
‘An Act to provide for the establishment, registration, management and supervision of, and the control of the quality of education provided by, private higher educational institutions and for matters connected therewith.’
The Act then deals with each of the different areas, setting out the regulations for the different processes, from the establishment of institutions to their closing down. Section 76 of the Act contains the main prohibitions on the establishment of private higher educational institutions and the operation of classes for ‘the teaching and learning of higher education’. Higher education is defined in the Act as ‘instruction or training on or teaching of a course of study leading to the award of a certificate, diploma or degree upon the successful completion thereof’. The operational effect of s. 76 when read in tandem with the establishment provisions of the Act is that, a private higher educational institution, meaning one that is not established or maintained by the government, may only be established in Malaysia in accordance with the provisions of the Act.
The section reads as follows;
76. (1) No person shall—
(a) establish, form, promote or carry on any activity for the purpose of establishing, forming, or promoting or towards the establishment, formation or promotion of a private higher educational institution;
(b) operate, manage or maintain any class for the teaching and learning of higher education in a private higher educational institution; or
(c) establish, form, promote, operate, manage or maintain a private higher educational institution by the use of the word “University”, “University College” or “branch campus”,
except in accordance with the provisions of this Act.
The MOHE’s proposed amendments add two further sets of prohibitions to the current list in s. 76, viz;
(d) carry on any activity leading to the award of certificate, diploma or degree; or
(e) award a certificate, diploma or degree without successful completion of a course of study.
The MOHE’s reasons for the amendments are to widen the scope of the section and to strengthen its enforcement.
The proposed 76 (1) (d) prohibits the carrying on of any activity leading to the award of certificate, diploma or degree, except in accordance with the Act. This would certainly widen the scope of s.76 as presently drafted, but one cannot help observing that the new subsection may have been cast too widely and may make illegal very legitimate activities that culminate in the award of the type of qualifications that are listed in it, particularly the certificate. Prohibitory provisions in any legislation that deal with descriptions of a general nature, such as the term certificate, must be carefully drafted to ensure that the prescribed prohibition does not exceed its specific purpose or the purpose of the legislation. In the case of the amendment in question, the MOHE could not have intended to invoke such a wide ban on any activity by any person leading to the award of a certificate, etc. but that is exactly what the proposed amendment would do because s. 76 is directed not only at private higher educational institutions established under the Act but at everyone, individuals and corporations. Certificates are awarded in many situations and for many purposes, all of which would be made illegal if the proposed provision is enacted. MOHE could only have intended to prohibit the awarding of qualifications purporting to be higher education qualifications that violate or subvert the provisions and regulations of the Act. To make it meaningful, the proposed s. 76 (1) (d) would have to be redrafted to narrow its application. But even this may not be necessary as section 24 (2) of the Universities and University Colleges Act 1971 may have already addressed the concerns underlying the proposed s. 76 (1) (d). The former section reads as follows;
Certain prohibitions in respect of “University” or “University College”
24. (1) No person shall establish, manage or maintain a higher educational institution with the status of “University” or “University College” unless it is a higher educational institution established in accordance with the provisions of this Act or the Private Higher Educational Institutions Act 1996.
(2) No higher educational institution or person shall issue to or confer on any person any degree or diploma purporting to be degree or diploma issued or conferred by a University or University College unless the issue or conferment is in accordance with the provisions of this Act or the Private Higher Educational Institutions Act 1996.
(3) Any person who contravenes subsection (1) or (2) shall be guilty of an offence and shall on conviction be liable to a fine of five thousand ringgit or to imprisonment for a term of three years or to both.
The section circumscribes the qualifications in question by the qualifying phrase, ‘purporting to be degree or diploma issued or conferred by a University or University College unless the issue or conferment is in accordance with the provisions of this Act or the Private Higher Educational Institutions Act 1996’. No doubt, the above section only deals with diplomas and degrees awarded by universities and university colleges, but the same language and approach may be used to incorporate safeguards to certificates and diplomas that are issued by private higher educational institutions that are not universities or university collegs.
 Section 2, the Act
 The concluding words of the definition of private higher educational institution in s.2 of the Act.
 S. 2, the Act.
 “course of study” means either a single course or a set of related courses leading to the award of a certificate, diploma or degree upon the successful completion thereof. S. 2 of the Act
Similar difficulties are also posed by the proposed s. 76 (1) (e). The subsection states that no person may award a certificate, diploma or degree without successful completion of a course of study in accordance with the Act.
The Act defines the terms, certificate, diploma and degree separately but on identical terms, which is that each of the qualification is ‘awarded on a person after successful completion of a course of study which is designed to lead to the award’ of the qualification. Although the Act does not directly regulate the award of higher education qualifications, it tightly controls the conduct of courses of study conducted by a private higher educational institution and through this means indirectly controls the award of qualifications.
Section 38 of the Act requires every private higher educational institution to obtain the prior approval of the Registrar General before it may conduct a course of study or training programme. A breach of this provisions will expose the offending institution to severe penalties under s. 38 (2).
Since it is already a requirement under the Act that a certificate, diploma or degree is awarded only on the completion of a course of study that is approved by the Registrar General, the new subsection is if anything, superfluous where private higher educational institutions are concerned. Any attempt to legislate the proposal in the terms proposed would also lead to ambiguities about certificates and other qualifications issued outside the regulated realm of private higher educational institutions.
The Act not only regulates the establishment and registration of private higher educational institutions, which term includes universities and university colleges but also the way in which courses of study are offered through them. However, as mentioned earlier there are no provisions that are specifically directed at the award or issuance of academic qualifications although a ‘course of study’ is defined in relation to its culminating award. Section 77 appears to be directed at this purpose as the headnote suggests, but there are problems with its provisions. This is how the section reads;
Offence and penalty relating to award of certificate, diploma and degree
77. A private higher educational institution which conducts any course of study or training programme for which a certificate, diploma or degree is awarded contrary to the provisions of section 44, shall be guilty of an offence and shall, on conviction, be liable to a fine not exceeding two hundred thousand ringgit or to imprisonment for a term not exceeding two years or to both.
The first difficulty with s. 77 is that it only deals with a private higher educational institution conducting a course of study or training for which a certificate, diploma or degree is awarded contrary to the provisions of section 44 and not in making any awards per se. If the institution is guilty only of issuing an award and not conducting any course of study, it is arguable that section 77 would not apply.
The bigger problem with s.77 though is that s. 44 which it relies on to establish the proper provisions for the award deals only with the question of the type of institutions that may award a degree. The latter section merely states that ‘Any private higher educational institution with the status of a University or a University College or a branch campus may award a degree.’ There is nothing in s. 44 that deals with how a degree or any other qualification listed in s. 77 is to be awarded or how a course must be conducted for an award to be properly made.
There is clearly a need to revisit the language of the amendments to make them respond to the MOHE’s intention as well as to harmonise the altered sections with the other provisions of the Act. It may also be advisable that in amending the Act the provisions of other legislation on higher education are also considered.