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Sunday, July 3, 2011

Academic freedom and University autonomy: Are they about to collapse?

The Sunday Times 03/07/2011

Dr. Deepika Udagama

According to recent newspaper reports the Cabinet has approved a proposal made by the Minister of Higher Education to expand the membership of the University Grants Commission (UGC) from 7 to 15 through an amendment to the Universities Act, No. 16 of 1978. The minister has gone on record that the expansion of membership is proposed in order to inject expertise “from those who have rendered distinguished service in vocational and tertiary education, legal, financial, quality assurance, professional, higher educational, public and private sectors” (Daily Mirror June 10, 2011). Currently, the UGC consists of seven members appointed by the President. Generally, the appointees are serving or retired academics of distinction. It is not clear whether the minister had consulted the UGC and the CVCD (Committee of Vice-Chancellors and Directors) before securing Cabinet approval for the proposal.

The proposed reform to the apex regulatory body of the public university system comes at a time when the government has displayed a keen sense of reluctance to positively respond to demands by academics for better pay. Academic activities of most universities have ground to a halt due to the resignation of Heads of Departments over the issue for over six weeks now. However, the current demand for higher pay is palpably different to similar demands made in the past; this time around academics have linked the larger existential issues facing the university system to the salary issue.

The logic of that argument is irrefutable. Years of poor pay have bled the system of the crème of its talent with the inevitable enthroning of mediocrity and insecurity. That, coupled with deep and pervasive politicization of university administration, paltry budgetary allocations for higher education, lack of consultation (as in the “leadership” training programme for students) and the generally shabby treatment meted out to academics by word and deed of the higher educational authorities have all precipitated a sense of doom in the seats of higher learning. To top it all, the spectre of private universities being dangled as a threat or as a sweetener (depending on the context) was a tad too much.

The anger and concern strongly sensed at a recent march and meeting of academics organized by FUTA (Federation of University Teachers’ Associations) in Colombo on June 21 were very spontaneous and real. Despite their frustrations, the deep and abiding emotional attachment among the academics to the public university system was also very discernible.

Speaker after speaker (all academics) pointed out this was not a struggle just to inflate bank balances. The university system is at crossroads; it is our bounden duty to preserve it. We benefited; so should future generations. A “knowledge hub” cannot be created by denigrating and downgrading academics. The mood was one of defiance–an expression of new-found solidarity and empowerment. This difference in tone and spirit reflects a remarkable change within the academic community given the previous apathy and seeming indifference even as the system lay crumbling. If the authorities are smart, they will surely recognize the shift in mood.
In this backdrop, how could one view the proposed changes to the Universities Act? At first glance, bringing in a varied pool of expertise, possibly mostly from outside the university system, into the UGC seems to be a progressive step. The higher education system should not be insular. It requires inputs from various quarters in order to progress.

Those benevolent sentiments, unfortunately, quickly give way to skepticism. In this country we have become cynics not by choice. Far too often systems and rules have been blatantly subverted by blind politicization and cronyism. If indeed, the additional eight members are from outside the university system, they will play a pivotal role as the majority. Will such appointments be given yet again to pliant political favourites? Can the university system, already weakened and seething with righteous anger, afford such transgressions? Certainly not.

This corrosive crisis of confidence between the governor and the governed must change. And in order to change, fundamentals must be respected and observed, in particular by the political establishment. As Nobel Laureate Joseph Stiglitz ably demonstrates in his book Freefall (Penguin, 2010) --perhaps the most authoritative analysis of the recent financial meltdown in the west—‘when fundamentals are removed from any sector, even one as fast-changing as the financial sector, there is bound to be crisis’.

In the higher education sector the twin fundamentals are academic freedom and university autonomy. No higher education system worth its salt can be built disregarding those twin pillars. Policy makers and fads (e.g. higher education is about the job market) may come and go, but if the higher education system is to meaningfully develop and flourish, it has to be firmly rooted in those two fundamental principles.

In 1999 the Supreme Court of Sri Lanka delivered a historic judgment ( SC (SD) 5-12 /99, Supreme Court Minute of May 3, 1999 ) elevating the principles of academic freedom and university autonomy to constitutionally recognized principles that should guide the higher education system.

The judgment was consequent to a petition submitted to the Supreme Court challenging the constitutionality of a Bill presented in 1999 by the then government of President Kumaratunga to amend the Universities Act, No.16 of 1978. The court was petitioned by a group of academics, including the author, and a few other concerned parties. The petition was based on the premise that a number of provisions in the Bill violated principles of academic freedom and university autonomy and, in turn, resulted in the violation of several fundamental rights guaranteed by the 1978 Constitution. Concerns about the Bill were so intense that almost all the lawyers for the petitioners appeared free of charge. The judgment was firm and clear in its findings. The Bench comprising Justices R. N. M.Dheeraratne (who delivered the judgment), A.S. Wijetunga and Shirani Bandaranayake (the current Chief Justice) was unanimous in declaring that :

We agree that academic freedom and autonomy are essential requisites for the attainment of the objectives of any Institution of Higher Education…

We agree with the submissions made that any erosion made on academic freedom and autonomy would infringe on Articles 10 [freedom of thought and conscience] and 14 (1) (g) [ right to engage in an occupation of one’s choice].

The court cited with approval the definition and scope of academic freedom and autonomy offered by the Lima Declaration on Academic Freedom and Autonomy of Institutions of Higher Education adopted by the General Assembly of the World University Service (1988) and UNESCO standards (1997) . Significantly, the court noted that the UNESCO norms recognize that:
  • Autonomy is that degree of self-governance necessary for effective decision making by institutions of Higher Education regarding their academic work, standards, management and related activities, consistent with the system of public accountability, especially in respect of funding provided by the State and respect for academic freedom and human rights. However, the nature of institutional autonomy may differ according to the type of establishment involved.
  • Autonomy is the institutional form of academic freedom and a necessary pre-condition to guarantee the proper fulfilment of the functions entrusted to higher-educational teaching personnel and institutions.
  • Member States [Sri Lanka is a member of UNESCO] are under an obligation to protect higher education institutions from threats to their autonomy coming from any source.

The court then went on to examine the effect of each of the provisions in the Bill objected to by the petitioners and found most of them to be in violation of either Articles 10, 14 (1) (g) or 12 (1) [equal protection of the law] of the Constitution.

The Supreme Court held, among other things, the following:
  1. A provision in the Bill that empowered the minister to appoint two Members of Parliament to the Council (the governing authority) of each university was in violation of Articles 10 and 12 (1). The court accepted arguments that this provision will result in politicization of the Council, inhibit free discussion and pave the way for ministerial interference in affairs of the Council;
  2. A provision that required the minister (in addition to the UGC as is customarily required) to play a central role in the appointment and removal of Vice-Chancellors was found to be in violation of Articles 10 (because of encroachment on academic freedom and autonomy) and 12 (1); and
  3. The requirement that Deans and Heads of Departments who have resigned their posts should continue to serve until their successors are respectively elected or appointed was found to offend both Articles 14 (1) (g) and 12 (1). The Court pointed out that Article 14 (1) (g) is violated as “the freedom to engage oneself in an occupation also contemplates to (sic) freedom to disengage himself”. It also found the requirement to be arbitrary and unreasonable.
It is clear that the Supreme Court’s findings were informed by the prevailing political culture. They were not made in a socio-political vacuum. Early on in the judgment, Justice Dheerartne, citing previous jurisprudence of the court, pointed out that “in determining inconsistency with Articles of the Constitution, we must consider the effect of the Bill and its clauses and not its objects” (emphasis mine).

The Minister in charge of Higher Education has a defined role to play under the Universities Act. What the Supreme Court made clear is that any expansion of the powers of the minister (or for that matter, any authority) in a manner that encroaches on academic freedom and autonomy are in violation of the Constitution. Any future amendments to the Universities Act should necessarily be in compliance with that principle.

The judgment also implicitly makes the point that universities, as institutions of higher education, have a unique role to play based on fundamental principles peculiar to that system. Treating universities like any other government department or corporation defeats the purposes for which they were established. On the salary issue, for example, we constantly hear the argument that universities are not profit-making institutions and, therefore, academics’ salaries cannot be raised to the level of the Central Bank etc. Is it the function of universities to churn out profits ?!

What universities do is discover and disseminate knowledge and help develop skills with a view to enhancing the quality of human capital of a society (not only for the job market though). Ideally, educational institutions should be considered as the soul of a nation that help shape and mould mindsets. Especially in a society that takes so much of pride in its public education system, spurious arguments based on economic analysis alone do not go that far. For all the insults cast our way, take a close look at our alumni giving leadership to public, private and civil society sector institutions. Academics are constantly called on to contribute to national policy making, legal reforms, and so on. Around the same time that academics were recently castigated by the authorities, newspapers reported, for example, that the University of Moratuwa was called on to assist with the proposed automated visa system. How does one calculate profit in those contributions?

When the war in the northeast ended two years ago, Sri Lankans rejoiced. There was a tremendous outpouring of gratitude to the Commander-in–Chief and the military establishment. To many of us, the end of the war was not an end in itself; but was a means to several ends. In the higher education sector, as elsewhere, we expected the flowering of a post-war renaissance. We spoke of peace dividends. We expected huge public investments in the university system and the revival of a liberal ethos that would open up discussion and debate to propel us forward. How many of those expectations have become reality? We are reasonable enough to recognize that decades of devastation cannot be put right overnight. However, when the trajectory of new developments is clearly taking a wrong path, it is our bounden duty as citizens to point that out.

Even now, it is not too late to recognize the imperatives of academic freedom and autonomy; to build trust and develop mutual respect between the higher education authorities and the academic community; to get budgetary priorities right and invest more in the education sector; to develop the practice of consultation in place of imposing top-down decisions; to put our heads together and plan to preserve this priceless gem that has shaped our egalitarian society.

Dr. Deepika Udagama is attached to the Department of Law, University of Peradeniya. She has served as a Member of the Human Rights Commission of Sri Lanka (nominated by the Constitutional Council) and the Law Commission of Sri Lanka.