Analysis of Qualification Framework, Quality Assurance and Accreditation of Higher Educational Institutions Act

Introduction
The Bill is an Act to establish the Qualification Framework, Quality Assurance and Accreditation Board and the non-State Higher Education Council. The long title indicates that the Act will also provide for registration of Non-State Higher Educational Institutions and regulation of their activities. Other aims referred to are to provide for quality assurance and accreditation of all higher educational institutions so as to ensure quality higher education. Although the Bill provides for the establishment of a non-State Higher Education Council this is not reflected in the short title. The reason why is unclear. The Bill is problematic for state universities for several reasons: State universities are governed under the Universities Act No. 16 of 1978. This Act established the University Grants Commission to oversee university education in Sri Lanka. Under Section 3 of the Universities Act the objects of the UGC include the maintenance of academic standards in Higher Educational Institutions; Quality assurance in higher education is a recognized concept and accepted as a method of ensuring that service providers in the education sector conform to certain academic and professional standards of excellence. A depoliticized and independent institutional arrangement is therefore critical to the concept of quality assurance. Currently, an Accreditation Council functions as part of the UGC, the regulatory authority created by the Universities Act of 1978. The UGC and university Senates therefore have an internal and external role in ensuring academic standards. The present Act purports to create a new authority that will function outside the Universities Act of 1978. The Bill also gives increased powers to the Minister of Higher Education in relation to academic activities of universities. Under the Universities Act of 1978 the powers of the Minister were limited and Section 20 states only that The Minister may from time to time issue to the Commission such general written directions as he may deem necessary in pursuance of national policy in matters such as finance, university places and medium of instruction, to enable him to discharge effectively, his responsibility for university education and the administration of this Act. Every such direction shall as soon as possible be tabled in Parliament. The Ministers powers under the current Act extend to terminating or suspending any programme offered by a Higher Education Institution that is deemed not to meet the required quality standards. This is unprecedented and a matter of concern. A secrecy clause has been included in the Act, which requires virtually every person involved in the process of quality assurance under this Act to sign a pledge of secrecy in regard to any matters which may come to his or her knowledge. It is not clear why such a clause is necessary and it violates the right to information.

Some issues of concern regarding specific sections of the Bill Chapter 1 Establishment of the Sri Lanka Qualifications Framework Quality Assurance and Accreditation Board Section 3
3 (1) The Board shall consist of :(a) the following members to be appointed by the Minister (hereinafter referred to as appointed members):(i). One member possessing high academic qualifications who shall be the Chairman of the Board; (ii). three members holding a high academic post in any Higher Educational Institution, who have distinguished themselves in quality assurance in higher education, and

This section envisages appointment of the Chairman and three members by the Minister of Higher Education. (Members of the UGC are appointed by the President). The Chairman is to be a person possessing high academic qualifications The three members are to hold a high academic post in any higher educational institution. Higher educational institution is defined differently in the Universities Act and in the current Bill. The Universities Act of 1978 states that Higher Educational Institution means a University, Campus, Open University, University College, or Centre for Higher Learning established or deemed to be established under this Act. Section 67 of the current Bill says Higher Education Institution shall have the same meaning as given to that expression by the Universities Act No. 16 of 1978 and includes a Non-State Higher Educational Institution. This lack of clarity and clear guidelines as to who is eligible gives the Minister a wide discretion to appoint anyone whom he thinks conforms to this vague description.
3 (1) (b) The following ex-officio members:(i) Secretary to the Ministry of the Minister in charge of the subject of Higher Education or his nominee; (ii) Chairman of the University Grants Commission or his nominee, (iii). Chairman of the Committee of Vice-Chancellors and Directors or his nominee; (iv). Director-General of the Sri Lanka Institute of Advanced Technological Education or his nominee; (v) Chairman of the Tertiary and Vocational Education Commission or his nominee; (vi) President of the Institute of Engineers, Sri Lanka, and (vii) President of the Sri Lanka Medical Council

Seven members of this Board serve as ex officio members by virtue of their office under this section. However, apart from the President of the Institute of Engineers and the President of the Sri Lanka Medical Council, the others are not required to serve personally but can nominate a person of their choice to act in their place. This concept of nomination is extremely problematic given the powers and responsibilities of the Board. The choice of the ex officio posts is also problematic. The Chairman of the CVCD or his nominee is an ex officio member and this can give rise to a potential conflict of interest. (This is why Vice Chancellors do not serve on the UGC). There is over representation of technology and vocational education. The only other professions represented are medicine (President of the Sri Lanka Medical Council a Presidential appointed)

and engineering (President of the Institute of Engineers). Currently the Secretary of the Ministry of Higher Education does not serve on the UGC though he may be a member appointed by the UGC to a university Council. However, he or his nominee also serves as an ex officio member of this Board/

Section 5 Powers of the Board

Section 5 The Board shall have and may exercise all or any of the following powers:(a) recommend to the Minister on the issue notice suspending or terminating any programmes offered by a Higher Educational Institution that does not meet the required standards and quality as specified by the Board:

This is an infringement on university autonomy. No accreditation system has the power to suspend or terminate programmes.
Section 5 (h) Issue circulars to all Higher Educational Institutions and to their teachers and other academic staff, as many become necessary in the performance and discharge of its duties and functions

State universities come under the purview of the UGC and the Universities Act. The establishment of an institution which concurrently has powers to issue directives to universities on academic matters can give rise to problems.
Section 7 (1) The Board may delegate any of its powers, duties and functions to a Director, a member of any Advisory Committee or any officer or servant of the Board.

Given the broad powers exercised by the Board, this ability to delegate is problematic.
Section 8 (1) The Board may from time to time appoint such committees to assist it in the exercise, performance and discharge of its powers, duties and functions, consisting of such persons, whether officers or servants of the Board or not, as it considers necessary to be members of any such committee. (2) The Board may assign to any committee appointed under subsection (1) such of its powers, duties and functions, as it may deem appropriate, but may exercise, perform or discharge any power duty or function so assigned, not with standing such assignment. (3) The Board shall have the authority to amend or revoke any decision made by any committee appointed under subsection (1) (4). The members of every committee appointed under subsection (1) may be paid out of the Fund of the Board, such allowances as the Board may determine with the concurrence of the Minister.

While it may be necessary for the Board to appoint committees to assist it to carry out its powers, duties and functions, subsection (3) says that the Board will have the power to amend or revoke a decision of such committee which negates the purpose of appointing them.

Chapter II Qualifications Framework Agency

The Board will function through a Qualifications Framework Agency. It is not clear how persons to this Agency will be recruited and appointed. This is a matter of concern since the Board will exercise wide powers on the basis of the work of this Agency.
Section 11 (c) recommend to the Board on the formulation of rules with rules with respect to:(i) qualifications levels and nomenclature of awards granted by Higher Educational Institutions; (ii) format and language of transcripts of the awards granted by Higher Educational Institutions; and (iii) levels of knowledge, skills and competencies expected of qualifications holders of Higher Educational Institutions;

The functions of the QFA under this section infringe university autonomy and erode the powers of the Faculty Boards and Senates under the Universities Act of 1978. Such matters are decided by these bodies.
Section 12 (1) The Qualifications Framework Agency shall have an Advisory Committee consisting of five members who shall be appointed by the Board.

There are no specifications as to who would be qualified/competent/eligible to serve on the Advisory Committee of the QFA. Issues of conflict of interest are not addressed.
Section 13 Notwithstanding any requirements that may be imposed by or under any other written law, the Administrative Officer or the Chief Executive Officer, as the case any be, of every Higher Educational Institution shall to apply the Board for identification of qualification framework level of the qualifications offered by such Higher Educational Institution, expected levels of knowledge, skills and competencies and the format of certificates and transcripts of wards offered by such Higher Educational Institution and any other requirements necessary in order to comply with the Sri Lanka Qualification Framework developed under this Act, in such manner and form as shall be prescribed.

This section requires the CEO of a higher educational institution (the Vice Chancellor) to apply to the Board for identification of quality framework level of the qualifications offered by such Higher Educational Institution, expected levels of knowledge, skills and competencies and the format of certificates and transcripts of awards in order to comply with the framework. If this is merely a request for information it is not problematic. If this means something more, it must be pointed out that a Vice Chancellor of a state university is responsible to Faculty Boards and the Senate in regard to academic matters and cannot act unilaterally. There is a similar concern in regard to Sections 17 and 18 in relation to the Quality Assurance and Accreditation Council.

Chapter III Quality Assurance and Accreditation Agency

The Quality Assurance and Accreditation Agency will be a new agency functioning outside the Universities Act of 1978. Under Section 14 it has wide powers which erode the regulatory and standard setting role of the UGC. It will have an assessment and monitoring role in regard to educational quality under Section 14 (c) and it is not clear what this means. The Agency shall also recommend to the Board the minimum academic standards to be maintained by higher educational institutions, including standards relating to courses of study offered, examinations, equipment and other facilities to be made available to students. It is not

clear what this means, or how it would set these standards. This is a function carried out by Faculty Boards and Senates.
Section 15 (1) The Quality Assurance and Accreditation Agency shall have an Advisory Committee consisting of five members who shall be appointed by the Board

There are no guidelines as to who would be qualified/competent/eligible to serve on this Advisory Committee and who would not be eligible. Issues of conflict of interest are not addressed.
Sections 17 and 18 (17) Notwithstanding any requirements that may be imposed by or under any other witten law, the Administrative Officer or Chief Executive Officer, as the case may be, of every Higher Educational Institution shall be required to apply to the board for quality assurance and accreditation to carry out all its activities as a Higher Educational Institution, in such form and manner as shall be prescribed. (18) Where in contravention of the requirements imposed by section 13 or section 17, as the case may be, any Higher Educational Institution fails to apply to the Board for identification of qualification framework levels of qualifications offered or for quality assurance and accreditation, as the case may be fails to make such application, the Board shall:(a) where the Higher Educational Institution concerned is not a Non-State Higher Educational Institution, report such failure to the University Grants Commission, or (b) where the Higher Educational Institution concerned is a Non- State Higher Educational Institution, report such failure to the Council, and request such Commission or the Council, as the case may be, to take such action as it considers appropriate to ensure compliance with the requirements imposed by section 13 or section 17, as the case may be, and inform the Board of the action so taken.

The same comment as that in regard to Section 13 would apply.

Chapter IV Staff of the Board

Section 19 (1) The Board shall appoint an experienced person, who is suitably qualified:(a) in the field of Quality Assurance and Accreditation, to be the Director of the Quality Assurance and Accreditation Agency (in this Chapter referred to as the director); and (b) in Qualifications Framework, to be the Director of the Qualifications Framework Agency (in this Chapter referred to as the Director)

Experienced person is extremely vague. This lack of clarity and clear guidelines as to who is eligible gives the Minister a wide discretion to appoint anyone whom he thinks conforms to this vague description.

Section 21 (1) The Director of the Quality Assurance and Accreditation Agency with the prior approval of the Board, Shall (a) appoint a panel of Reviewers from amongst academics or any other persons who are suitably trained and qualified to function as Reviewers for the purpose of undertaking external quality assessments required to be carried out under this Act; and (b) lay down the procedures for the selection of Reviewers form among the panel of Reviewers from among the panel of Reviewers appointed under paragraph (a), to function in respect of any particular assignment. (2) Each Reviewer shall upon being appointed as a Reviewer, be issued with a letter of appointment and a contract by the Director of the Quality Assurance and Accreditation Agency. (3) A person who has been appointed as a Reviewer under this section may be paid out of the Fund of the Board such remuneration or allowances in respect of any assignments carried out by him, at such rates as may be determined by the Director with the concurrence of the Board.

Suitably trained is extremely vague. This lack of clarity and clear guidelines as to who is eligible gives the Minister a wide discretion to appoint anyone whom he thinks conforms to this vague description.

Chapter V Fund of the Board

Section 22 (1) the Board shall have its own Fund (2) There shall be paid into Fund of the Board:(a) all such sums of money as may be voted from time to time by Parliament for the use of the board; (b) all such sums of money as may be received by the Board in respect of any services rendered by it under this Part of the Act: (c) all such sums of money as may be received by the Board as donations or grants form any source whatsoever, whether within or outside Sri Lanka; and (d) all such sums of money as may be received by the board in the exercise of its powers, performance of its duties and discharge of its functions under this Act, including any sums of money realized by the sale of any movable or immovable property of the Board. (3) There shall be paid out of the Fund of the Board:(a) all such sums of money as are required to defray any expenditure incurred by the Board in the exercise of its powers, performance of its duties and discharge of its functions under this Act, and (b) any other expenses which are authorized or required to be paid out of the Fund by or under this Part of this Act.

According to this Section the Board will get government funding. In addition, it can receive donations from any source whatsoever. This could lead to potential corruption and conflicts of interest.

Part II Regulation of non-State higher educational Institutions

Chapter VI Establishment of the Council for non-State higher educational institutions It is not clear why such a council needs to be established. Section 25A of the Universities Act of 1978 provides for the recognition of degree awarding institutes. On the other hand Section 65 of the present Bill states the provisions of the Universities Act of 1978 shall not apply to non-state higher educational institutes. The possibility of establishing and regulating non-state higher educational institutions under the Universities Act and under the purview of the UGC should at least be explored.
Section 26 (1) The Council consist of :(a) the following members to be appointed by the Minister with the concurrence of the President (hereinafter referred to as appointed members):(i) two members to be the Chairman and the Deputy Chairman respectively of the Council, from among persons possessing high academic qualifications; (ii)_two members to represent registered Non-State Higher Educational Institutions; and (iii) three other members, selected from statutory organizations or institution s and representing the field of medicine, engineering or accountancy, or any other allied fields; and (b) the following ex-officio members:(i) Secretary to the Ministry of the Minister in charge of the subject of Higher Education or his nominee; (ii) the Secretary to the Ministry of the Minister in charge of the subject of Finance or his nominee; (iii) the Chairman of the Universities Grants Commission or his nominee; (iv) the Chairman or in his absence the director-General of the Sri Lanka Institute of Advanced Technical Education; (v) the chairman of the Tertiary and Vocational Education Commission or his nominee, and (vi) the Chairman or in his absence the Director General of the Sri Lanka Qualifications Framework, Quality Assurance and Accreditation Board, established by section 2 of the Act.

Among the appointed members are the Chairman and Deputy Chairman who are to be a persons possessing high academic qualifications This has not been defined. This lack of clarity and clear guidelines as to who is eligible gives the Minister a wide discretion to appoint anyone whom he thinks conforms to this vague description. The other appointed members include three selected from statutory organizations/institutions representing the fields of medicine, engineering and accountancy or any other allied field. There is no indication as to why these disciplines have been selected from the multitude of disciplines represented in higher educational institutions. The Chairman or in his absence the Director General of the Accreditation Board is also on this Council. This could lead to serious conflicts of interest and brings into question the independence of the Board.
Section 27 (1) Subject to the provisions of this Act, the functions and duties of the Council shall be to:(d) design and implement or support he implementation of, quality assurance, certification and accreditation schemes and other measures, in liaison with the Sri Lanka Qualification Framework, Quality Assurance and Accreditation Board established by section 2 of this Act;

The Council and the Accreditation Board work together to implement quality assurance schemes

in regard to non-State higher educational institutions. There is no corresponding provision in regard to State higher educational institutions.
Section 27 (1) Subject to the provisions of this Act, the functions and duties of the Council shall be to:(f) Advise the Government and any other public authority, on national policies and regulation of matters pertaining to higher education generally and to implement any national policies relating to the provision of higher education by persons regulated under this Act;

There is no apparent reason as to why a Council which regulates non-State higher educational institutions should advise the Government on national policies and regulation of matters pertaining to higher education generally.
Section 27 (2) In addition to the functions and duties conferred by subsection (1), the council may perform and discharge such other duties and functions not compatible with those specified in that subsection, as the Ministry may by Order published in the Gazette assign to the Council, and the provisions of this Act shall apply to and I respect of the performance and discharge of any duty or function so assigned.

This could potentially give the Council wider powers than the UGC.
Section 28 (g) With the written approval of the Minister, to form or participate in the formation of any company, partnership or joint venture or to become a shareholder of any company, with a view to carrying out any activities which are similar to or connected with the duties and functions entrusted to the Council by or under this Act;

A regulatory body such as this Council should be apolitical and non-commercial. It is not clear what the implications of this will be.
Section 28 (m) Receive grants or contributions from any source whatsoever and to raise funds by all lawful means and apply such funds in the performance and apply such funds in the performance and discharge of the duties and functions of the Council;

The Council is permitted to receive grants or contributions from any source whatsoever. This could lead to potential conflicts of interest and corruption.

Chapter VII - Regulation of non-State higher educational institutions

Section 36 (1) A Non-State organization or institution shall be eligible to apply to be registered as a Non-State Higher Educational Institution under subsection (1) of section 35, where such organization or institution:(a) is registered:(i) as a company, under the companies Act, No. 7 of 2007; or (ii). as a training institute, under the Board of Investment Law, No 4 of 1978; and (b) satisfies the academic standards specified and set out by the Quality Assurance and Accreditation Agency under paragraph (b) of section 14 and complies with such requirements that may be prescribed

for the purpose under section 45, of this Act.

This indicates that private universities will only be permitted on a commercial basis. There is no provision to have private higher educational institutions operating as non-profit or not for profit institutions, which could for example, be registered as a charitable trust.
Section 42 (1) Subject to the provisions of subsections (2) and (3) of this section, a Non-State Higher Educational Institution shall not offer or provide any study course, whether within or outside Sri Lanka and either by itself or in association or collaboration with or in affiliation with any other person or institution, except under the authority of a permit issued for that purpose by the Council and in accor4dance with the terms and conditions of such permit any other criteria as may be prescribed under section 45 for that purpose. (2) The requirement of obtain a permit under subsection (1) may be exempted in respect of the provision of such study courses as shall be prescribed. (3) A Non-State Higher Educational Institution may not offer or provide any associate, undergraduate ot graduate degree or any other similar degree or any diploma or certificate that is conferred in its own name, without the permission in writing of the Minister.

This section requires a non-State higher educational institution to obtain a permit to offer any study course and then provides for exemptions to this requirement. The grounds for such exemption or who would grant the exemption are not specified.
Section 44 (1) The council shall annually carry out an assessment of each study course for which a permit was issued under section 43, based on the following criteria:(a) academic standard of the study course (b) students entry qualification of following the study course; (c) academic competency of the staff conducting the study course; (d) standards of the learning environment; (e) student welfare, guidance and counseling that (f) governance and financial stability (2) where upon an annual assessment carried out under subsection (1), the study course for which a permit has been issued is found to be of not a satisfactory standard, the Council shall by a directive issued in that behalf, require the Non-State Higher Educational Institution concerned to take immediate action to raise the standard to the required level, within such time as shall be specified in such directive and where the Non-State Higher Educational Institution fails to comply with the directive within the time specified, the Council shall have the authority to suspend the permit issued, for a period not exceeding six months in total. (3) Where a permit is suspended by the Council under subsection (2) :(a) the Non-State Higher Educational Institution concerned shall be prohibited form enrolling any new students for the study course for which the suspended permit had been issued; and (b) the council shall take adequate measures ot inform the public of such the suspension.

This appears to conflict with the functions of the Accreditation Board. This is a matter of quality control. Would this oust the jurisdiction of the Accreditation Board and exempt the non-state universities from the powers of the Accreditation Board?

Section 45 The Minister can make regulations in respect of all or any of the following matters: Section 45 (f) - Secondary educational qualifications required for the purpose of entering a NonState Higher educational Institution; Section 45 (i) -Provisions relating to teachers and non-academic staff of Non-State Higher Educational Institutions;

Why is the Minister given the power to decide on such academic issues? Would qualifications for students to enter non-state educational institutions and recruitment criteria for teachers and others be lower than for State universities?

Chapter IX Fund of the Council

Section 48 (1) The Council shall have its own Fund (b) all such sums as may be received by the Council by way of donations, gifts or grants from any source whatsoever;

The Council will be funded by the government and may also receive donations, gifts and grants from any source whatsoever. There is potential for conflict of interest and corruption. Also refer Section 28 (m).

Part 3 General
Section 53 Every member of the Council, the Board each Agency, both Advisory Committees appointed under sections 12 and 15 to assist the two Agencies and other committees and every officer and servant of the Council and of the Board and every member of the panel of Reviewers appointed under section 21, shall, before entering upon his or her duties, sign a declaration pledging not to disclose any matter which may come to his or her knowledge in the exercise, performance and discharge of his or her powers, duties and function sunder this Act, except:(a) when required to do so by a court of law; or (b) in order to comply with any requirement imposed by or under this Act or by any other written law.

The reason for this section is unclear. There should be complete transparency as regards decisions made by these institutions, which should be accountable to the public.
Section 62 On the recommendation of the Board, the Minister may by an Order published in the Gazette, issue a notice to suspending or terminating any programme offered by any Higher Educational Institution, that does not meet the required standards and quality specified by the Board, by or under this Act.

This is a serious infringement on the autonomy of universities. Also refer Section 5 (a). Under the Universities Act of 1978 the Minister has no such power over universities, which are regulated by the UGC whose members are appointed by the President.

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