Bill to amend and consolidate Higher Education laws, 2010

(This is excerpt of opening remarks given by Dr Bipin Adhikari as Chairperson of Nepal Constitution
Foundation at the bill review programme on the Bill to amend and consolidate Higher Education laws, 2010 organised on September 22, 2011)

The Bill to amend and consolidate Higher Education laws 2010 is a major legislative initiative in the area of university education. It is important that this Bill be discussed at the national level before the parliament takes initiative on it. As I understand, the government has registered the Bill with the Parliament Secretariat, but has not so far tabled it in the parliament. This means it has enough time to interact with the higher education community in the country on the overall policy and contents of the Bill. So far we are not aware of any policy document that serves as background to this Bill. It is natural therefore that many of the provisions of this Bill are difficult to understand as a matter of policy.

Having said that let me point out that the preamble of the Bill states that the measure has been drafted with the goal to improve the quality of higher education by developing a more competitive environment amongst the higher education institutions and regulate the establishment, running and management of such institutions by amending and consolidating the applicable laws.

"Higher Education" has been defined in Section 2(d) as education given to bachelor's degree level or higher. Section 3 sets up a Higher Education Council to act as an advisory body to recommend policy regarding higher education to the government of Nepal. The functions of the Council as mentioned in Section 5 include determining quality standards of higher education, monitoring infrastructures, recommending establishment of Universities, commence University Accreditation etc. Section 7 provides for establishment of an independent and autonomous Higher Education Commission. The Commission is mandated to - mainly aid and advise the Council regarding education policy, monitor and evaluate the performance of the Universities, classify the degrees provided by foreign universities etc (Section 12).

Section 21 classifies the Universities in three categories - Public, Community and Institutional (Public and Private Trust). Section 23 mandates the requirement of certain infrastructures necessary to establish any University as mentioned in the schedule to the Bill. According to Section 25 every institution along with the application must present a charter describing the organizational structure and other rules of the proposed institution. The University thus established is an autonomous and self-regulated body as per Section 26. All the property belonging to a public University will be considered as public property, that belonging to a community college will be considered property of the local authority and the community, property of private University will be considered belonging to governing institution. Chapter 5 provides the organizational structure including the Senate, Teachers Council, Executive Council, and Service Commission. Chapter 6 contains provisions for the University officials, teachers and staff.

Chapter 7 includes provisions regarding mergers and dissolving of Universities. A Merger is possible according to Section 48 based on the Higher Education Council's recommendation to the government. Universities can be dissolved by the government on the Council's recommendation according to Section 50. Chapter 8 prescribes penal sanctions and Chapter 9 contains provisions regarding University property, trust and audit. According to Section 56 the accounting process of each University needs to follow the procedural guideline provided by the government. Chapter 10 contains miscellaneous provisions regarding affiliations, requirement of providing scholarships etc. According to Section 64 it is a duty of the institutions to follow the government's directions regarding the national education policy. Section 75 mandates both the Commission and the Universities to present an annual report before the end of each financial year reporting all the work done in the previous year. The Council or any University must contact the government through the Ministry of Education. Section 80 revokes all the other University Acts but provides that the Universities that are already running will be deemed to have been established under this Act.

This Bill may be commented on many fronts. Though the intention of enacting this umbrella Act has been well received, the Bill has been criticized because of its centralizing and what some deem as undermining of the autonomous nature of the universities. It is feared that the Ministry of Education will assume too much power under the legal regime that the Bill proposes. The Bill, which has been drafted without the formulation of a national policy on higher education, is seen as contradicting the Constitutional policy of moving towards a decentralized federal structure of governance. It has been opined that the umbrella Act shouldn't go as far as giving so much power to executive institutions.

One such legislation is also seen as not doing justice to all the various types of universities that this legislation mentions. Though on positive side, the Bill makes mention of various types of universities like deemed universities, open universities and academies, it classifies the Universities into Public, Community and Institutional (Public and Private Trust). The idea of establishing community colleges has also been well received. It has been argued that even academies should be allowed to award doctorates if they have proper mechanism regarding research whereas they have been allowed to award graduation degrees in one subject only. Section 2(l) defines private universities but Section 22 makes no mention regarding the establishment and affiliation of such universities. Even the schedule makes no mention of the prerequisites for establishing private universities. According to Section 28(4) the board of trustees for private universities must be established with non-profit making goals. Such provision is said to be contradictory to the idea of private enterprise.

Though according to Section 3 the Council is made primarily to aid the government in policy matters, Section 5 (k) gives it powers of supervision as well. So the Council is involved in both policy making and regulation whereas even the Commission for higher education has been given similar regulatory powers in Section 15. Since the Council only meets twice a year, it is unjustified that it has powers of supervision even over the colleges. The provision for scholarship on an inclusive basis is laudable, but it is only available for technical subjects. Whereas the universities till now have been established on separate legislations, the administrative mechanism that the Bill creates results in too many government officers above the universities thereby is restricting their autonomous nature. Placing the older and bigger universities in the same plane as the younger and smaller ones is seen as unfair.

The enactment of an umbrella Act is seen as necessary because of the various irregularities in the current practice of many universities. The intention to ensure the accountability of higher education institutions cannot be faulted. However this Bill disregards the autonomy aspects of university institutions, and the impending federal structure that the nation is moving towards. On the other hand there are several legislations for establishing universities currently pending in the parliament which will be abrogated soon after they are enacted. Political interference in universities has been widely criticized. But Section 30, which provides for the inclusion of University Teachers Association Chairperson and Student Union's Chairperson into the University Senate, is seen as encouraging political influence. Therefore the Bill needs to be thoroughly reviewed by the government.

I welcome you all to take part in the discussion and help develop appropriate suggestion to the legislators.

Thank you very much!

Bipin Adhikari
Nepal Constitution Foundation

Head Section