30th July 2000
The return of the Universities Act
By: Kishali Pinto Jayawardene
In April 1999, when a Universities Amend-ment Bill was placed on the Order Paper of Parliament, an immediate hornets nest was aroused. Given the nature of that particular Amendment Bill, this was not surprising. Indeed, the horror expressed by the academic community in response to the Bill was reflected very well in the comment by one academic that it would have been hard to find, anywhere in the world, attempts as clumsy as this to politically subvert academic institutions.
Among other things, the Bill sought to politicise the appointment and removal of Vice Chancellors, to appoint two parliamentarians to the Council of each University and to give the Minister the power to close a University for six months in the event of its work or administration being seriously dislocated.
These were in complete variance to the provisions that existed in the original Act of 1978 where Vice Chancellors were appointed by the Chancellor on being elected by the Court of that University, the Council was comprised of university academics and administrators together with persons who have rendered distinguished service in educational, professional, commercial, industrial or administrative fields and the Minister was given restricted certain powers of closure where a University was in crisis.
Additionally, the Bill specified that Registrars and Bursars would be appointed not from the Council (the governing body of the University) but from the University Grants Commission. These officers were moreover informed that they would cease to hold office once the new Act comes into operation and that they may or may not be re appointed to their posts subsequently.
Not surprisingly, academics and university administrators trooped en masse to the Supreme Court protesting against the Bill. And in formulating its determination on the nine petitions before it, the Supreme Court ruled that all the above clauses were inconsistent with the Constitution.
In so deciding, it is interesting that the Court made specific reference to international standards and declared that states are under an obligation to protect higher educational institutions from threats to academic freedom and autonomy coming from any source. And autonomy, to cut a long story short, was defined to be that degree of self governance necessary for effective decision making by universities regarding their academic work, standards, management and related activities. In an all too common display of huffed pride, the Bill was withdrawn by the Government, even before the Court gave its determination.
One year later, it is of some importance that an entirely new Universities Act is currently doing the rounds for comments and feedback from academics and university administrators prior to it being presented before Parliament.
As to be expected, the draft Act is devoid of the specific clauses ruled to be obnoxious by the Supreme Court. Instead, there has been a return, not to what existed in 1978 (which one would naively but obstinately have wished for) but to the less pleasing position that existed after certain amendments were made to the original Act in 1985.
Thus, the Vice Chancellor of a University is to be appointed for a term of three years by the President upon the recommendation of the University Grants Commission from a panel of three names recommended by the Council and the Senate of that University. While ministerial discretion in this process has now been removed, it must be pointed out that what has remained is far from being perfect.
This has been obvious in the recent past where names recommended by the Council have been rejected by the President, resulting in the Council being called upon to suggest more names in an interminably delaying process, one such instance being the appointment of the Vice Chancellor of the Moratuwa University.
As stated at the outset, all this is, of course, a far cry from the original method of selection in those deliciously old fashioned days when the Universities Act was first enacted and the Vice Chancellor, as befitting the grandeur of the post, was chosen by the Chancellor on being elected by the Court of that University.
The rude introduction of a political element into the appointments came by amendment in 1985, a position which we have now returned. Again, the removal of the Vice Chancellor, originally by the Chancellor on a vote of censure passed by not less than two thirds of the total membership of the Court, at a special meeting convened for this purpose was changed in 1985 to the President being bequeathed this power after consultation with the Commission. The draft Act returns to this position.
In this context, it should also be noted that the draft Act retains the power of the Minister to close a troubled University for a period of six months which was a period argued in 1999 to be excessive and arbitrary. Earlier, ministerial power extended only to three months and was subject to parliamentary supervision.
The draft Act merely makes the cosmetic concession that the six month closure be approved by Parliament, raising the question as to whether in this period of manipulated parliamentary process, this safeguard will be sufficient. Similarly, the draft contains a rather amazing provision that the terms and conditions of employment of academics, officers and other employees will be reviewed by the University Grants Commission within six months of the new Act taking effect, with no guarantee that such review will not be to the detriment of such employees.
Meanwhile, some entirely new provisions have raised even graver concerns. The draft Act provides for the establishment of a grandly titled Accreditation and Quality Assurance Council with power to determine minimum standards for the purpose of granting degrees.
This Council will also assess and monitor the quality and standards of all higher educational institutions and will make recommendations to the Grants Commission regarding what institutions reach the required standards for accreditation. While one can have no quarrel in principle with a system of university accreditation, the problem comes rather in the nature of their appointments.
Accordingly, the Council is to consist of a Chairman and four members all of whom, as stated, "are to be appointed by the President". What is missing here very starkly is the lack of criteria ensuring the independence of the members and the absence of minimum standards that should be observed in the manner of the appointments. This is obviously unsatisfactory given the enormous discretionary power that members of the Council would wield in being able to virtually blacklist a University in the country.
The Council is given the specific authority to evaluate the quality of Universities and to submit the results of such evaluations to the authorities and to the public. All in all, the manner of its composition is very much at variance with the practices followed in appointing Accreditation Councils in other countries where the independence of such bodies is firmly secured.
Be that as it may, what is encouraging is that, unlike in 1999, time is being set aside for discussion of this draft Universities Act. That being said, one must not however forget the fact that in the case of the 1999 Bill as well, academics were reportedly informed of far reaching changes proposed to the Universities Act and were requested to send in their observations several months ahead.
Many observations had been in fact sent while others were in the process of submitting theirs when the Bill was presented in the House and slapped on the Order Paper, thus attracting the customary frenzied one week period within which Bills can be challenged.
At that stage, it was pointed out that the total lack of serious discussion about the proposed changes or any intimation whether observations sent in were in fact considered was a sad indictment on Sri Lanka's dangerously casual manner of passing legislation.
Reasonably, one would hope that this whole sorry process is not repeated this time around and that there would be a constructive dialogue between academics and ministry/Grants Commission officials before the draft Act comes before the House.
SRINAGAR, India, (Reuters) - The truth may never be known about Mohamad Rafiq, a Kashmiri shopkeeper who was killed on his way home from a wedding reception last month.
India's Border Security Force (BSF) says some explosives, a remote-control detonator and a grenade were found in Rafiq's car, and two or three members of his family had been linked with separatist militancy in the past.
But his family is convinced that BSF guards beat the 35-year-old father of three to death with chains and rifle butts because he refused to give them money.
"People were watching from the windows of their houses but they didn't say anything because they were too scared," says Rafiq's brother. "The people of Kashmir live in fear."
It's been several weeks since Rafiq died in Srinagar, summer capital of India's only Moslem-majority state.
But still his mother rocks quietly in a corner of the family living room in the heart of Srinagar, tears streaming down her wrinkled face. Someone unfolds a drawing of the dead man, and a wail goes up: women weep behind their veils, men dab their eyes.
"Ask the police if he was involved in the militancy. Even the district magistrate says he was an innocent person," says the brother. "But we can't get justice, all we can do is cry."
Nearly a dozen militant groups, which include foreign Islamic mercenaries, are fighting for Kashmir's independence from India or its merger with neighbouring Pakistan.
New Delhi — which accuses Pakistan of sponsoring the decade-old rebellion — now appears to be exploring diplomatic options for a solution to its festering Kashmir problem, talking about talks with separatist groups.
But rights activists and separatist leaders say indiscriminate force by the tens of thousands of security personnel stationed in Jammu and Kashmir state continues apace.
Parvez Imroze, a lawyer and human rights champion in the tinderbox Kashmir Valley, says that since the government adopted a more "proactive" approach to stifling militancy last year there has been a rash of extra-judicial killings and custodial deaths.
"Villages are burnt to the ground. Anyone suspected of being related to militancy or supportive of militancy is taken away and tortured. When they die their bodies are disposed of — we believe they are thrown into lakes or burnt."
Hatched by the PA, condoned by the UNP, the new Constitution is about to be pushed down the throats of unsuspecting citizens. Only a handful is in the know of the inner details of this top secret document. Among them are Varadarajah Perumal, Douglas Devananda, Sampanthan and the top brass of two or three foreign missions. It is reported that no cabinet minister, nor the Government or Opposition MPs have seen the document. Certainly the opinion of the Mahanayakes has not been sought and it is mere guess work whether this document is more or less the same one put forward in 1997.
Reliable sources report that the Government and the Opposition have agreed that the unitary state structure should be replaced by Federal States model i.e. states based on ethnicity would be granted full constitutional, executive and legislative powers. The secrecy therefore is to devolve power to 'ethnic' regions with minimum of discussions and debate. And so the 'rights' of the people on decisions of sovereignty is mere ballyhoo to the powers that be!
The strange logic of this hocus-pocus constitution is built on the false premise, that the strength of the LTTE lies in the fact that they represent the grievances of Tamil people and if these grievances can be constitutionally addressed, the LTTE will cease to exist instantaneously.
Kumbakarana has time and again pointed out the futility of the logic of this mechanical cause and effect. This same logic which put forward proposals for District Councils in 1981, Provincial Councils in 1988 and devolved regions in 1995 were successful in strengthening the LTTE but not in convincing the Tamil people.
Likewise the proposed Federal States is not going to make the LTTE pull down shutters on its lucrative income sources nor its gun running from the shores of Buddhist Thailand and Burma to Sri Lanka, nor would the socially dead, terrorised Tamil people rise against the LTTE. Lessons have been learned-in 1981 by the TULF and in 1988 other armed Tamil groups paid for their 'folly' in blood. Are the Tamil people being represented by LTTE?
During LTTE's Unceasing Wave III, where did the people of Jaffna and Chavakachcheri flee? They fled, please note, to the safety of the Sinhala areas under the protection of the army and not to the 'liberated' areas of the LTTE.
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