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TRANSITIONAL JUSTICE

 
Bill made to establish the Higher Education Act 2067

The Higher Education Bill had already been presented in the Legislative Assembly in 2067 BS. Due to various reasons the Bill was not discussed in the Legislative Assembly. The bill has great importance as it aims to unify all rules relating to higher education. When this Act is established it will effectively replace ten acts related to universities, placing them and any other university to be opened in the future under this Act.

The justification behind the creation of the bill is stated in the preamble as “in order to…amend and unify prevalent laws related to higher education so that opportunities for higher education and research through various different higher educational institutions may be created in a manner which develops the quality of higher education on the basis of competition making the country’s educational and academic sectors more healthier, honorable, and effective and to help in the regulation and management of the establishment of the higher educational institutions, their operation and management…”

With this in the background, if an umbrella act is to be created, it might be best to let those universities and institutions already created by the Acts established by the Legislature as they are, and only include new universities under the umbrella act. When the umbrella act is enacted and weaknesses removed if it is seen that the Act is capable those universities already established by the current Act could also be brought under this. This will help in reducing large scale negative impacts in the currently running system as well as manage to incorporate those areas pointed out by the new umbrella act, ie it will not prevent recognized universities, open universities, private universities, academies and other universities from opening.     

Some thoughtworthy aspects and provisions in the bill

Universities can be established either through Acts established by the Legislative or through umbrella acts. If the legilslative so wants and decides it could establish specific types of universities through separate acts. Even when establishing umbrella acts it is important that seprate umbrella acts be made for state, community, non-government, affiliated and open universities. As universities are different in nature they should not all be put in one basket.

Universities have their own specialities. Can Dang’s Sanskrit University and Chitwan’s Agriculture and Forestry University be categorized as being of the same nature? Would it be appropriate to judge the country’s oldest varsity Tribhuvan University and Kathmandu University? Should the eastern, mid western, far western and the Lumbini Universty be put in the same section? And yet these are only universities that have already been established.

Till date there are already ten universities that have been established and four more are on the pipeline. However at present there are clear provisions regarding the ownership of the university and what process with which to accept such ownership. It is not appropriate that offices of the Chancellor or vice-chancellor of universities be reserved for high level government posts such as that of the President, Prime Minister or even the Education Minister. The Chancellor of the University should be a respectable senior that society recognizes and accepts with the capability to develop the university in all aspects, including financially. At present there is no individual to take ownership of the law. The Act currently being made is essential precisely because of the poor situation of higher education. Independence without responsibility increases malpractices of free will. How will there be accountability with the present culture and practice of dividing seats politically? This bill has shifted the [decision making] rights from the legislature to the executive, which is not appropriate.

Article 22 of the bill has made provisions relating to the establishment of the university. It says that except for giving affiliation to campuses, established universities have all other rights while open universities must remain within this Act and have the right to conduct [affiliation accredited] classes through various campuses. It also states that except for the right to affiliate themselves with private sector campuses and establish partial campuses, academies have the right to operate classes until post graduate level in one subject. However it cannot be understood why academies have been prohibited from providing doctorate degrees.       

It has been stated that public and community universities will have the right to establish complete or partial campuses, provide affiliation to private sector campuses, and determine equivalence. However there are also special provisions stating that campuses that conduct classes on subjects that are not in its course can be banned from getting affiliataion. Article 22(3) states that campuses conducting classes not in its course shall be prohibited from getting affiliation, which is very negative. Although it looks appropriate it is not practical. It is therefore necessary to keep special conditions to make this provision open. Kathmandu University did not have a Department of Medicine but it had to take the responsibility of allowing three campuses to conduct classes in medicine. The success of the university and the responsibility it undertook must be taken into account. Creating laws that cannot give solutions to such difficult situations may create further problems in the future.  

Definition 2 (i) defines “private university” as one which has more than 50 percent investment from the private sector. However nothing is mentioned about relation/affiliation to /of private universities. Are private universities allowed to give affiliation to other campuses? These are still unclear. It has also not been considered important enough to differentiate about accepted, open, academy level universities in Article 21.

Article 23 mentions about the infrastructure necessary to establish a university which is indicated by the Annex. There are no provisions in the Annex regarding what infrastructures are necessary to establish a university. Article 28(3) states “…the properties of the private university shall belong to the organization operating/managing the university”. If the organization has been established by any private company the shareholders of the company will have the right to claim ownership of the properties. However Article 28 (4) states that “before establishing a university as per sub-section (3) a three member board of trustees which does not partake of any profits earned and which looks after investments needed for the university and its operation should be formed. The procedures for the creation of the board of trustees, its rights and responsibilities shall be as mentioned.” Here there are two contradictions – private universities and non profit taking. Secondly there is a provision stating that the constitution of the university must be presented as per Article 25 before establishing the university. In such a situation no harm will come if the bill itself determines the rights and responsibilities of the Board of Trustees and other related issues. Why should the Government of Nepal be making rules to manage this?

Article 3 of the bill states there shall be a higher education council to recommend to the GoN regarding “higher education policy making”. Looking at its formation procedure it looks very centralized and a preparation to bring the academic sector within the grasps of the government machinery.

Article 64 actually hints that the higher education policy formulated with the participation of the President of the country might be different from the National Education Policy(NEP). It states that it is the university’s responsibility to work as per the NEP. The GoN can direct the university to make necessary arrangements related to public interests, special issues and quality development. It is the responsibility of the university to follow the directions and make such necessary arrangements and inform the GoN. That there are will be two different agencies formulating the higher education policy makes it clear that there will be a confusion regarding which agency to follow.

This system is also weak technically. Article 3 (2) (3) provides for vice chancellors to be included as members. However article 3(3) of the Bill states that not all vice chancellors shall be members of the council. Article 4 states “If any nominated member does not fulfil their assigned responsibility the council may at any time remove the official from the post.” It is understood that a council will have a minimum of 20 members. How is it practically possible to remove one person from such a council?

It has already been stated in Article 3(1) that the council shall form the policies. However Article 5(P) states “If any university or any campus administration affiliated to any university acts in contradiction to this Act or to the rules made under this Act, or if it does not abide by the directions given by an official authorized by law to do so, the administration of such university or campus shall be dissolved and a new administration formed. Until such an administration is formed an ad-hoc committee shall be formed.

What is clear is that the council has taken the right to supervise all universities and campus administrations. In other words the council is a regulatory organization. If the council is to do this what is the Education Ministry going to do? Will not the council which aims to form the principle policy also not use it executive authority? Is this in line with the commission formed by the higher education bill? Article 6 states that the council shall meet at least twice a year. However no member of the council will be working full time. Is it appropriate for the council to take the responsibility of supervising upto campus level in such a situation? It is worth a thought.       

In Article 62 the Bill states that a mandatory provision to provide scholarships be included. The Article also indicates that the scholarship be provided in an inclusionary manner. Such scholarships shall be distributed as per the process fixed by the Education Ministry. Although this system is not new it is the first time it is being included in the Act. It is commendable that something which is already in practice has now been given space in the Act. In paragraph 3 of the Bill there is a provision to form a “higher education commission”. Looking at the structure of the commission it is not any different from any other government controlled commission. Article 9 states that an individual appointed by the GoN shall be the chairperson, member of the National Planning Commission who looks after education, a member, three individuals (including one woman) appointed by the GoN, secretary of the Finance Ministry or a first class gazette officer of the same ministry appointed by the secretary, and a first class gazette officer from the education service as member secretary. What this shows is that the commission is nearly equal to that of a department within a ministry.   

Until now universities are operated through Acts promulgated by the Legislature. A look at the Acts of any of the universities show that besides other matters the university has its freedom with regards to its professorships, finances, and administration. It can be said that universities do not have any independence at all. If the Higher Education Bill is to be promulgated the officials of the universities will have many different bosses in many different levels. If the regulatory body the council, commission, and education ministry is to start teaching about technical subjects such as medicine and engineering it will have to coordinate with all councils.   

AT the same time the country is heading towards federalism. It must be understood that the reason behind the demand for federalism is the resentment towards the centralized unitary governance system. Should local stakeholders define what sort of higher education policy is required in the provinces or will it be decided in the same old manner by the policy makers residing in Kathmandu? When the entire country wants a inclusionary participation in all development areas there is no doubt that this bill which is based on a centralized infrastructure will be criticized.

Stakeholders have time and again raised the issue of hinderances in the academic calenders and programs of universities and campuses due to party politics influence. Whenever leaders of political parties reach power they talk about depoliticizing the education sector. However Article 30 (j) states that in the senate of the chair of the teacher association and the chair of the free students union shall be appointed members, which goes to show that it is intended that politics be institutionalized within universities. This is not right from any angle.

Until and unless the new constitution of Nepal is promulgated this Act must not be passed. A bill which has been brought about without necessary discussions with stakeholders is an autocratic bill. The agency responsible for forming the service commission is under government control. The Council is not necessary at all. The Commision must be named as a Grants Commission to make it powerful and independent. Universities must be allowed to operate as both regular and open. It is not practical to merge two universities. Issuing an umbrella act is contradictory to the principle perspective of making universities independent by making the the Education Grants Commission independent and authorized. 

If the umbrella act is to be brought in to the Legislative the reason and basis to change the current higher education system must also be justified. There are many stakeholders in the radical changes that have been brought about in higher education. However there is no saying if the concerned stakeholders have been adequately informed about this. This will not only affect the current generation but also the ones to come in the future. Therefore even if an umbrella act as envisioned in the proposed bill, is to be brought in, it must not be done hastily and must be analyzed through different angles.

This investigation and recommendation was prepared by senior advocate Radheshyam Adhikari for the Nepal Constitution Foundation with inputs from women, indigenous communities, Dalit, Madhesi, youth and other pressure groups. The Foundation is grateful to to Dr. Sitaram Adhikari, Manprasad Wagle, K.N Giri, Tri Ratna Manandhar, Shyam Kumar Biswakarma, Tirtharaj Khaniya, Dr. Bijaya Sijapati, Kunti Kumari Shahi, Yogendra Narayan Barbariya, Prof. Dr. Ambar Panta, Rameswore Upadhyaya, Jeni Gurung, Abhishek Adhikari, Phurpa Tamang, and Dr. Bipin Adhikari.

This research has been supported by The Asia Foundation. Views and opinion expressedin this report are of the authors and don’t necessarily reflects of the Asia Foundation.  

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