The Education Act 1996

The Education Act 1996 (EA1996)

The Act implements government policies on education that were first developed at the dawn of independence in the 1950s. These formative policies are expressed in two reports, the Report of the Education Committee 1956 (The Razak Report) and the Report of the Education Review Committee 1960 (The Rahman Talib Report). The Razak Report set out the education policy of the government formed after Independence and was given legislative expression through the Education Ordinance of 1957; The Education Review Committee set up in 1960 reviewed the policy set out in the earlier report and its implementation, as well as other matters. The Education Act 1961 was the outcome of the recommendations of the Rahman Talib Report based on the policies established in the Razak Report.

The next major legislative development in education took place in 1996 when the Education Act 1996 was passed. The intervening years had not been dormant on issues on education, but those issues were about the expansion of access through the building of more schools, retention rates, the expansion of higher education, and a review of the national curriculum rather than with the structures that had been established under the Education Act 1961.

The explanatory statement attached to the Education Bill 1995, states that the proposed Act seeks to repeal the Education Act 1961 and to introduce ‘a new law on education’ based on the National Philosophy of Education. To say that the EA1996 introduced a new law may be an overstatement as the Act neither introduces any new policies nor departs from any of the core policies introduced after independence that were part of the repealed 1961 Act.

The EA1996 has gone through several amendments since its inception, but nothing has profoundly changed or impacted the original policies manifested in the Act. Compulsory primary education was introduced in 2003 by the Education (Amendment) Act 2002. Amendments introduced in 2008 made important changes to teacher education colleges. Not only was their description changed to ‘institutes of teacher training’ but their educational powers were also expanded to award teaching degrees in addition to their existing powers to award certificates and diplomas.

The Education (Amendment) Act 2014 formalized changes that were made in 2012 to vocational secondary schools to upgrade them to vocational colleges. We reproduce the following from the explanatory statement attached to the Education (Amendment) Bill 2014.

‘This amendment is consistent with the vocational education transformation policy which is enunciated through the rebranding of the vocational secondary school to vocational college. This rebranding involves the introduction of a new curriculum known as The Vocational College Standard Curriculum which is used in all vocational colleges. This curriculum is designed in compliance with the requirements of the National Occupational Skills Standard under the National Skills Development Act 2006 [Act 652] and the Malaysian Qualifications Agency Act 2007 [Act 679] in order to ensure that the certificate or diploma which is to be awarded is equivalent with the certificate or diploma awarded by other vocational education providers and recognized by the industry.’

 

The Education Act and the contested space of education

Education occupies a controversial and heavily contested space in Malaysia with multiple claims made on it by what is still essentially a plural society; on issues such as mother-tongue education (vernacular schools), the medium of instruction, community, and home education, and the basic school curriculum. The Act attempts to balance these claims using nation-building and racial unity as mediating principles, but not all claimants are satisfied by what they find in the Act, or even with the argument that the NES has contributed to greater national unity. To the extent that some of the dissatisfaction stems from facing the monopoly of a single monolithic NES that left little choice to dissidents, that particular issue may have been somewhat mitigated in recent years by the new policy, (itself paradoxical, given the battle for a common education for all), of allowing the expansion of private schools teaching to different curricula imported from all over the world. The creation of choices in basic and secondary education and even in Islamic education is the most spectacular change taking place in the education landscape today. (Learners always had a choice in higher education, which developed through the private sector). The recently published Malaysia Education Blueprint 2013-2015 makes much of the diversity that is found in our education system;

Whether this will be for the better for everyone concerned is a question that only the future will answer.

The Approach of the Education Act 1996

The EA1996 attempts a comprehensive coverage of all matters concerning education although the temptation is to think of its content as dealing only with primary and secondary education. The EA1996 is nevertheless the locus of policies and direction on primary and secondary and the source of regulations of those two levels of education. The EA1996 Act retains most of the provisions of the 1957 and the 1961 legislation that created the foundation of the NES, albeit with some important changes and modifications. The main aim of the earlier legislation was to consolidate the different structures of education that had evolved during the colonial administration of the country to create a single system of education using the National Language as the medium of instruction. The most serious challenge to the creation of a single system were claims for mother-tongue education from the Chinese and Indian communities and the preservation of vernacular schools teaching in Mandarin and Tamil. As will be seen, the Malaysian Education System retains vernacular schools at the primary education level that use Tamil and Mandarin as the medium of instruction, thereby adding a diversity in education that is seldom found in other countries. That diversity is not found in official secondary schools but only in independent Chinese schools that operate outside the NES.

The EA1996 establishes a five-tiered (pre-school, primary education, secondary education, post-secondary education, higher education) NES that is described in detail below. The binding factors of the NES are full or partial government support, a common medium of instruction, except in the case of vernacular primary schools, and a standard prescribed curriculum.

The Role of the Minister

Under the Federal Constitution, the legislative and executive authority on education rests wholly with the federal government. Sections 8 and 9 of the EA 1996 confer on the Minister the power to give directions to officers appointed under the provisions of the Act, not inconsistent with the Act, on all matters that affect the National Education Policy. Besides the sections mentioned, there are other sections that impose a duty on the minister with regard to the provision of the different levels of education within the NES.

The Administration of the Act

Part II of the Act deals with the Administration of the Act. The educational system is made of four hierarchical levels of bureaucracy - federal, state, district and school. At the top of the system is the Federal Ministry of Education. Below that, each state has a Director for Education and each district, an Education Officer. Part II provides for the appointment and functions of the Director-General of Education, the State Directors of Education, a Registrar General of Educational Institutions and Teachers, the Chief Inspector and Inspector of Schools, and the Director of Examination.

The departments and divisions of the Ministry of Education may be found here; http://www.moe.gov.my/v/jabatan-dan-bahagian

Ministry of Education and Ministry of Higher Education

The Education Act 1996 is centrally administered by the Ministry of Education. A separate ministry for higher education was first established in 2008 under the Ahmad Badawi Government that dealt with the higher education sector including universities, university colleges, polytechnics, community colleges, and the burgeoning private sector of higher education. The two ministries were merged after the 2013 General Elections and divided again under the Najib Razak Government in July 2015 as part of a reshuffle of the cabinet.

The Regulatory Formula of the Act

The primary regulatory approach is to prohibit the running of any educational institution that is not registered under the Act or any other written law. The Registrar General is given wide powers under s. 102 of the Act to close down any educational institution that is not registered under the Act or any other written law. Under s. 2 of the Act, a very wide meaning is given to the term ‘educational institution’ - as “a school or any other place where, in the carrying on of the work of an organization or institution, persons are habitually taught, whether in one or more classes and includes a kindergarten and a distance education centre but does not include—

1. any place where the teaching is confined exclusively to the teaching of any religion; or
2. any place declared by the Minister by notification in the Gazette not to be an educational institution for the purposes of this Act.

A “school” means a place where ten or more persons are habitually taught whether in one or more classes but does not include any place where the teaching is confined exclusively to the teaching of any religion.

Not all educational institutions that are established in the country fall within the purview of the two ministries. One important area that falls outside the scope of the two ministries is skills training which is regulated through the National Skills Development Act 2006. Educational institutions such as the Akademi Seni Budaya dan Warisan Kebangsaan (National Academy of Arts, Culture and Heritage) and the Cooperative College, which are creatures of special acts of parliament, are not regulated by either the of the two ministries of education but the ministry for the time being responsible for the special area of education. Another category of educational institutions that do not fall within the purview of the Ministry of Education are colleges and educational institutions serving the needs of specific ministries or departments such as the police (Royal Malaysia Police College of Kuala Lumpur) and customs (Akademi Kastam Di Raja).

The three legislation that defines the scope of the Ministry of Education and Ministry of Higher Education are;

1. The Education Act 1996;
2. The Universities and University Colleges Act 1971
3. The Private Higher Educational Institutions Act  1996

The regulatory arm of the Education Act 1996 extends also to teachers and pupils as well as to those responsible for the governing of the educational institutions. Schools, governors, employees of schools, teachers, and pupils are all required to register under the Act.

National Education Advisory Council

A National Education Advisory Council is established under Part III of the Act, but the functions of the Council are limited, its role is only to advise the Minister whenever the Minister refers a matter to it for its advice.

The Education Ordinance 1957, expressed the role of the then equivalent body, the Board of Education in more purposeful language. The Board was mandated by the Ordinance to not only advise when requested but also to give such advice to the minister on matters connected with education as it thought fit. The Rahman Talib Education Review Committee 1960, however, felt that since the educational matters fell within the portfolio of a minister who reported to Parliament, it would not be appropriate for an advisory committee to dictate to the minister. (Report of the Education Review Committee 1960, Chapter XIII paras 243, 245)

Education institutions established and maintained by the Minister

The table below shows the education institutions that may be established and maintained by the Minister under the Education Act 1996;

A Duty to Provide Education?

The list of Fundamental Rights in the Federal Constitution does not include among the many rights it guarantees, a right to education. The Education Act 1996 speaks about a duty on the government to provide certain levels of education, but the conflicting provisions in the Act dealing with such a duty make it difficult to determine the extent or nature of such a duty or whether it would provide an individual a right of action against the government. We reproduce below the relevant sections dealing with the duty of the Minister with regard to establishing and maintaining educational institutions (emphasis added);

Section 27. It shall be the duty of the Minister to provide primary education in government and government-aided primary schools.

Section 28. Subject to the provisions of this Act, the Minister may establish national schools and national-type schools and shall maintain such schools.

Section 30. (1) It shall be the duty of the Minister to provide secondary education in the following national secondary schools:

(a) academic secondary schools;

(b) technical secondary schools; and

(c) secondary schools of such other descriptions as the Minister may from time to time determine.

(2) Subject to the provisions of this Act, the Minister may provide upper secondary education in any national secondary school.

31. Subject to the provisions of this Act, the Minister may establish and maintain any of the schools described in section 30.

Although the above provisions allude to a duty, section 123 of the Education Act 1996, limits the nature and extent of the duty.

Section 123. Except in so far as moneys are approved or provided for that purpose by Parliament or otherwise, nothing in this Act shall be deemed to impose any duty upon the Minister to establish and maintain an educational institution under this Act or to maintain wholly or partially an educational institution.

Also, the duty imposed on the Minister under the earlier provisions mentioned is not expressed in words to create a concomitant right on an individual or a community or even in terms of meeting the needs of any individual or group of individuals, say, for example, primary education for those of the school-going age. Under s. 27 of the Education Act 1996, the duty to provide primary education is a ‘duty … to provide primary education in government and government-aided primary schools.’ The Act empowers the Minister to establish primary schools at his own discretion but there is nothing in the Act to create a duty on the Minister to meet the needs of those who require the education. The statutory expression of the duty to provide primary education remains unaltered even after primary education was made compulsory in 2003.

Section 30 of the Education Act 1996 provides that 'it shall be the duty of the Minister to provide secondary education' in academic secondary schools, technical secondary schools, and secondary schools of other descriptions as may be determined by the Minister from time to time. A similar duty is not imposed on the Minster with respect to upper secondary education. Section 30(2) of the Act merely gives the Minister the discretion to provide upper secondary education in secondary schools. The provision of other levels of education such as pre-school education and post-secondary education is also not stipulated as a duty.

Registration as the main means of control

The Act requires all educational institutions to be registered under the Act (s. 79). The term “educational institution” is broadly defined in the Education Act as a school or any other place where, in the carrying on of the work of an organization or institution, persons are habitually taught, whether in one or more classes and includes a kindergarten and a distance education centre but does not include—

1. any place where the teaching is confined exclusively to the teaching of any religion; or
2. any place declared by the Minister by notification in the Gazette not to be an educational institution for the purposes of this Act.

The Act provides for the closure of any educational institution that is not registered under the Act or is being used in contravention of any conditions imposed by the Minister of Education (s. 102). However, as mentioned earlier, (see heading Ministry of Education above) the powers of the Minister of Education may not extend to educational institutions established by specific legislation. When an institution that is registered under the Education Act 1996 is re-established through a special Act of Parliament, the registration under the Education Act 1996 may be revoked by the latter statute.

Refusal to register an educational institution

The Registrar General has power to refuse the registration of an educational institution if he is satisfied—

1. that the educational institution does not satisfy the prescribed standards of health and safety;  
2. that the educational institution is used or likely to be used for a purpose detrimental to the interests of Malaysia, the public or the pupils;
3. that the name under which the educational institution is to be registered is, in his opinion, undesirable;
4. that existing educational facilities are already adequate in the area in which it is proposed to open the educational institution;
5. that a statement which was false or misleading in a material particular has been made in or in connection with the application for registration;
6. that the person applying for the registration of the educational institution fails or refuses to comply with any of the conditions imposed by the Registrar General under subsection 82(3); or
7. that the person appointed to be the chairman of the board of governors or head teacher is not a fit and proper or responsible person to act as chairman or head teacher, as the case may be.

The Act gives the aggrieved person a right to appeal to the Minister.

Cancellation of registration of an educational institution

The Registrar General has powers to cancel the registration of an educational institution if he is satisfied that it is expedient so to do on any of the following grounds:

1. that the educational institution does not satisfy the prescribed standards of health and safety;
2. that discipline in the educational institution is not being adequately maintained;
3. that the registration of the educational institution was obtained by reason of mistake or of any false or misleading statement;
4. that the chairman of the board of governors or any other person responsible for the management of the educational institution has made a false or misleading statement in a material particular in promoting the educational institution;
5. that there has been a breach of any term or condition imposed by the Registrar General under subsection 79(3);
6. that there is no chairman of the board of governors of the educational institution, or that the person appointed to be the chairman of the board of governors or to be a head teacher is not a fit and proper or responsible person to act as chairman or head teacher, as the case may be.

The process of cancellation is initiated by a notice of intention to cancel specifying the ground or grounds for the cancellation. The institution concerned is given 21 days to appeal to the Registrar General. If no appeal is made or if the appeal is rejected, the Registrar General may forthwith cancel the registration. A notice of an intention to cancel the registration may also be served if the Registrar General has reason to believe that a registered educational institution has ceased to exist.

Provisional certificates of registration of educational institutions

Under s. 81 of the Education Act 1996, the Registrar General has the discretion to issue a provisional certificate of registration in such form and subject to such conditions as he may impose pending the investigation on an application to register an educational institution. The provisional certificate of registration is issued to the person who is to act as chairman of the board of governors or the person responsible for the management of an educational institution. The Registrar General has the discretion to revoke the provisional certificate at any time by notice in writing served on the person to whom the certificate was issued.

No promotion of educational institution until registration

No person shall promote an educational institution, whether by advertisement, prospectus, brochure or otherwise unless it has been registered or a provisional certificate of registration has been issued under the provisions of the Act.

Registration of Governors and employees

The Act requires the registration of Governors and all persons employed by an educational institution. The Act defines an employee as a person employed by a board of governors, other than a governor, a teacher or such other person as may be employed or actively taking part in work connected with the running or the administration of an educational institution. (s. 2 EA1996). A person whose application to register as a governor or teacher is refused or if registered has his registration revoked, may appeal to the Minister in accordance with procedures laid down in the Act.

Registration of teachers

The Education Act 1996 provides that no person is to teach in an educational institution unless he is registered as a teacher under the Act. Exempted from registration are those who are members of the Education Service in Malaysia, teaching in a government or government-aided educational institution.

A teacher registered under the Act may teach in any school or educational institution but he is required to give notice to the Registrar General whenever he commences or ceases teaching in a school.

The Registrar General may refuse to register a person as a teacher if he is satisfied that the person—

1. is under the age of eighteen years;
2. has no qualifications to teach or has qualifications which in the opinion of the Registrar General are inadequate for the purpose;
3. has made a statement which is false or misleading or which he knew is false or misleading in, or in connection with his application for registration or has intentionally suppressed any fact which is material to the application;
4. suffers from some physical or mental defect or disease rendering him, in the opinion of the Registrar General, unsuitable to be a teacher;
5. has been convicted of an offence by a court of law and sentenced to imprisonment for a term of not less than

one year or to a fine of not less than two thousand ringgit; or

6. is not a fit and proper person to be registered as a teacher.

Right to Appeal

A person whose application to register as a teacher is refused or if registered has his registration revoked, may appeal to the Minister in accordance with procedures laid down in Part IX of the Act.

Registration of pupils

The governors, head teachers or other persons responsible for the management of an educational institution shall keep or cause to be kept, in such manner as may be prescribed, a register containing the prescribed particulars with respect to all pupils at the educational institution.