On the proposed bill of National Academy of Law and International Relations Act, 2010

Dr Bipin Adhikari

(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 of National Academy of Law and International Relations Act, 2066/2009 organised on October 20, 2011)

Traditionally, universities have been established as major institutions for providing higher education and research opportunities, and are recognized as the most important investment in the country's future.

All universities, whatever their preferred area/s of specialization, contribute to the culture, socio-economic and environmentally sustainable development of individuals, communities and nations. As society is now becoming increasingly knowledge based, university education has become crucial in preparing a healthy, skilled and agile intellectual human force with facilities for life-long learning. This enables countries to continuously assess, adapt and apply new knowledge. As a result, the development of university education and research has been receiving high priority the world over.

In this background, a member of the parliament has brought forward a new Private Bill to establish the National Academy of Law and International Relations. This Bill has been drafted with the intention to provide for study related to law, international law, diplomacy, strategic studies, defence analysis and management in order to produce able manpower in this field by developing the existing private sector academic institution, Kathmandu School of Law, currently affiliated to the Purvanchal University, as the National Academy of Law and International Relations. Even though the word 'Academy' is used, what is intended is a full-fledged university, which will upgrade the law school in a variety of ways.

Section 3 of the Bill establishes the Academy with the aim to conduct studies on - National law, legal system and philosophy, international law and relations, diplomatic and strategic studies, defence analysis, humanitarian law and human rights, constitutionalism, management and good governance etc.

Section 4 mentions that the Academy will be an autonomous and independent institution, administratively and financially, and will also have perpetual legal personality. The Academy is inclusive of - Senate, Academic Council, Executive Council, Service Commission, Educational Institution, Board of Trustees and other agencies. Section 6 enumerates the functions, duties, and responsibilities of the Academy.

The Academy is empowered to - conduct studies up to the doctorate level and other diplomas of professional nature in the areas of studies as mentioned in Section 3, coordinate with international universities and organizations in its various activities, publish books, organize discussion and seminars etc. The Academy has to follow the National Education policy in presenting academic awards and conducting programs and can accept foreign students as well.

Section 8 provides for the functions, duties and powers of the Senate which is mandated to oversee the policy, plans, programmes, budget and rules of the Academy, present scholarship and other awards, direct the other agencies under Academy, advise the government on various matters etc. The Board of Trustees has various advisory functions towards the executive council and also recommends three candidates for the post of Vice Chancellor to the Senate (Section 10). An advisory committee may be created by the Senate inclusive of well known Professors, researchers and experts for matters related to resource management and gaining international recognition.

The Academic Council provided by the Bill is responsible for - conducting educational and research programmes, prescribing educational qualifications of the teachers, prescribing the curriculum, student selection, conducting examinations, determination of fee and other academic matters. The executive council has a number of functions, duties and powers as mentioned in Section 15 - to execute the decision and directions of the Senate and the recommendations of the Board of Trustees, present the annual budget, progress reports and audit reports to the Senate, coordinate and monitor the programmes conducted by the Academy, appointment of staff and other executive functions.

The Academy is empowered by Section 18 to open centers for studies and research on various subjects. The Academy is required by Section 30 to present and make public an annual report briefing its works and the achievements. The Academy may form Committees according to its need to fulfill responsibilities as provided in the Act. The Academy has not been allowed to grant affiliation to any other educational institution by Section 35. Section 38 provides for reservation of minimum of 10% of the seats for women and marginalized communities coming from rural background. Section 39 provides for full scholarship for a minimum 10% of students. The Academy must contact the government through the Ministry of Law and Justice and can make its own internal rules to implement the Act.

The idea behind opening such an Academy is commendable. It helps boost the confidence of private sector to institutionalize themselves and grow further. However, as it appears, the biggest obstruction that this Bill faces is that an umbrella Act is awaiting approval from the parliament which will supplant all the previous legislations regarding higher education institutions (Bill to Amend and Consolidate Higher Education Laws, 2010). Though enacting charters (specially targeted statutes) for individual universities is more preferable, this Bill will be nullified by the umbrella Act nevertheless.

The draft of the umbrella Act comes almost in the framework of Companies Act, or the Society Registration Act of Nepal, and is intended to provide legal regime for all universities in Nepal. It includes the universities established in the past under specific statutes. It intends to eliminate all such erstwhile statutory regimes, and provides a common framework to maintain uniformity in the working of all universities. Such an approach is presumably intended to enhance the quality and standard of the programmes and activities at the universities, to gain the respect and admiration of its constituents and the society, and ensuring that the universities performing similar functions have a common standard of operation. Despite this noble intention, such arrangements have some clear pitfalls as well. The basic comment is that universities are not companies in the common parlance. It is desirable to maintain pluralism in the pursuit of knowledge. Some variation in the university statutes to facilitate regional emphasis and also to provide them scope for innovation and experimentation is always encouraging. It would not be unnecessary to provide for umbrella statute as long as the state continues to provide special charters to universities (such as the proposed statute) and other specialized educational institutions, who do not want to be registered /established under such an umbrella.

Besides this major inconsistency, there are many improvements that can be made in the Bill. The Senate can be made more inclusive as currently the provision only reserves a maximum of two seats in the Senate for women either from social work or intellectual background. The Senate is a powerful body and representation of other deprived and marginalized communities must also be ensured. It is unreasonable that the term of the Chancellor and Vice-Chancellor and Registrar are different. Another question that comes up is why must the Academy contact the government through the Ministry of Law and Justice instead of the Ministry for Education?

While the present Bill tries to deal with several important aspects of university regulations, it is important to note that the universities in modern world have been performing many additional functions now a days, e.g., undertaking sponsored R&D and continuing education, providing knowledge-based advice and consultancy, preparation / publication of educational material like books / study reports / research papers and extending services to society. Of late, the world-wide advances, particularly in new information and communication technologies, are greatly influencing the university system. However, major issues like size, access, equity, relevance, quality and resource constraints continue to dominate the working of universities. Thus, in the 21st century, universities are becoming complex institutions with many distinctive features that set them apart from other social and business institutions. This calls for the adoption of an appropriate strategy for their governance, organization and management. On this issue, it must be noted how the Bill prescribes a very wide range of subjects that are to be taught in the Academy, while it is open to discussion whether the Kathmandu School of Law has the necessary infrastructure to make it possible. The fact that Law itself is a big field of study and international relations, defence analysis or strategic studies put additional demand on the Academy.

The role of the government from time to time to review the governance, organization and management of universities in the country in the larger public interest cannot be ruled out. The success of a university depends not on the statute only, but also on its personnel, their sense of dedication, discipline and responsibility, and the traditions/conventions they establish. It has also been observed that it is necessary for the academics and administrators of higher education to examine the matter of governance of universities and the content of university education from time to time, as social change has been taking place at a breathtaking pace now a days. Besides, experimentation should be the key essence of university education, as the content and teaching methodology has to keep pace with the explosive growth of knowledge.

If one goes by this Bill, it is easier to note the features which ensure autonomy of the Academy from external control, for smooth functioning; sufficient freedom to permit innovation/ experimentation, organization pattern to serve their true objectives, and structures in broad terms. What needs to be looked into more precisely is whether the Bill ensures internal democratic administration to enable active role for faculty; a grievance redressal system to take care of students, teachers, and staff, ease of coordination with the existing University Grant Commission; built in safeguards against abuse of larger public interest, and powers of the government to issue directives to the university, where necessary. Once there is clarity on this aspect of the Bill, there is no reason why the Academy should not be allowed to grant affiliation to other institutions as it is effectively going to be made a university. A private university can do it as much as any other public university.

The Bill is an important initiative. Once passed, it will help boost the confidence of private sector in the area of higher institution of education and learning. The need is to take these concerns into account before giving it exit.

Bipin Adhikari

Nepal Constitution Foundation