TAP CHi CONG THlTtfKG
THE UNIVERSITY COUNCIL INVIETNAM'S PUBLIC fflGHER EDUCATION INSTITUTIONS:
THE NATURE, VISION AND ACTIONS
• NGUYEN TUAN HUNG
ABSTRACT:
The year of 2020 marks a new chapter of the autonomy mechanism for pubUc universities in Vietnam under the Law on amendments and supplements to the 2012 Law on Higher Education (Law No. 34/2018/QH14) and the Decide No.99/2019/ND-CP detaihng and guiding the implementation of a number of articles of the Law on amendments and supplements to the Law on Higher Education. One of the key objectives of this Law on amendments and supplements is to address and remove institutional bottlenecks in the current university autonomy mechanism, including regulations on the university council. This paper examines the nature of a university council as well as the vision and practical actions that a public imiversity council should adopt in the coming time.
Keywords: Higher education, universit, public, university autonomy, university council.
1. The legal nature of the university council in public universities under the Law to amend selected articles of the 2012 Law on Higher Education
It has been a common trend in the world to have the university council in university governance structures. In Viemam, the council was first formally introduced in the Regulation on Universities 2003 (promulgated together with Decision No.l53/2003/QD-TTg dated 30 July 2003 by the Prime iVIinister) as the governing body of a university, which is responsible for making macro-level policies to exercise the university autonomy. Then, the Higher Education Law (HEL) 2005 established the council of a
higher education institution as the body which is responsible for deciding the institution's strategic direction, mobilizing resources for the institution and overseeing the use thereof, aligning die institution with the broader community and society, contributing to achievement of higher education goals. The concept of university council has since then been further elaborated in the Higher Education Law 2012 and the Regulation on Universities 2014 (promulgated together with Decision No.70/2014/QD-TTg dated 10 December 2014 by the Prime Minister) and in the Law to amend selected articles of the HEL 2012 (Law NO.34/2018/QH14. herein after referred to as Law No.34 for short).
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Under the Law No.34, the university council is expected to be a game-changer in university governance. In the structure of a public university, the council - by its legal nature - serves as the governing body of the university, representing the owner and other stakeholders. Essentially, the governance function of a university council involves selling the university's vision, mission and goals, making policies, overseeing the use of resources and investment, and overseeing the implementation of the university's strategic plans.
In addition, the council is also expected to monitor how the chancellor (or the executive head of the higher education institution) organizes ihe implementation of the institution's strategic plans and to review the chancellor's performance and accountability, ensuring that the institution is on track toward its stated goals and objectives. In line with such legal status, the council has ihe authority and function with respect to deciding ihe appointment and dismissal of the chancellor. This signifies the key distinction between the role played by the council and that played by the chancellor, who serves as the executive head of a university and is responsible for realising the strategic plans and goals of the university by means of developing the workforce, deploying resources and executing the planned work as set forth by the council.'"
Given this approach, Law No.34 states: "The university council of a public university shall be its governing body, representing the owner of the university and other stakeholders".'^' This statement reflects a major change in the legislative thinking, as universities are seen involving the interests of multiple parties (including the higher education institution itself, students, higher education regulators, and other stakeholders).
For Vietnam's public universities, in order for the university council to become a game-changer in terms of governance quality and effectiveness, legal issues about the council should be cleariy addressed in the Law, and implementation efforts with respect to legal provisions on the univer>^ity
council should be preponderant in a meaningful, complete, profound and convincing manner in the mind, belief and action of all regulatory authorities and all members of the university. This would mark a major change in the institution's corporate culture, as well as in the capacity of the institution itself and of regulatory authorities in running and managing higher education operations. Only by so doing, will we be able lo address the problem of "deficiency" in both capacity and performance of university councils as witnessed so far.
The importance of this cannot be stressed enough because, since the adoption of the HEL 2012, quality and effectiveness of university councils have remained a key concern in implementing university autonomy. Before the enactment of Law No.34 by the National Assembly, public universities diverged in their thinking and iheir approach with respect to the university council. Some public universities were reluctant to set up their councils due to ihe fear of
"splitting" the actual power in the institution between the council and the chancellor. Some others, though predisposed lo setting up a council, in fact felt indifferent about having or noi having the council. In some public universities, though the council was set up, it was virtually for ihe purpose of formalities - nothing beyond ensuring compliance with the organizational structure requirements set forth by the law. In those universities, external members were hardly involved in the council activities because ihey perceived their role as "a guest" in an ineffective institutional arrangement. The number of public universities with a well-functioning council has been very limited. This is mainly due to institutional bottlenecks, which have caused the mindset and culture in university management to lag far behind the university autonomy mechanism. This problem has been noted in the report reviewing the implemenlation of the HEL.
which was issued b\ the Ministry of Education and Training on 15 Januar> 2018 as part of their proposal on amendment to the HEL The report
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clearly pointed out: "The university council of a higher education institution is supposed to serve as the body with ultimate responsibility for the institution's strategic direction and accountability.
Article 16, Clause 2 of the HEL 2012 specifies the two roles of the university council, namely "the governing body" and "ownership representative".
But the Law is not clear about the functions, duties and powers of the council, and its interactions with the executive team of the university. This has made the university council a toothless tiger. Worse still, failure lo set up the university council does not subject public universities to any sanctioning, thus compromising the justness of laws. The regulation to tie "term of office" of the council to that of the chancellor has resulted in an incorrect implicit interpretation that the chancellor is higher than the council in the power hierarchy ".'^'
It is high time to address all of the above concerns so that the university council is no longer perceived as "the fifth wheel" of the executive cart'^' of public universities - in addition to the existing four wheels, namely the communist party committee, the management, the trade union, and the youth union. According lo Law No.34, the university council of a public university both serves as the governing body of the institution and the ownership representative of its stakeholders, and has the supreme power premised on the three fundamental powers, namely decision-making, rule-making and oversight powers as below:
1) The university council has the power to decide on important issues:
The institution's strategic plans and annual workplans; policy intentions to develop the institution into a full-blown university or to merge with another higher education institution;
- Plans for admission, new academic program offerings, joinl/cooperative academic programs, R&D, and international cooperation; policies for higher education quality assurance, and for industry-university linkages;
Organizational structure, workforce composition, creation, merger, division and dissolution of the institution's departments and units; ihe institution's job map and job profiles;
the institution's rules on recruitment, employment and management of teaching faculty and other staff in accordance with laws;
- Submission to the relevant authorities for issuing a decision lo recognize or dismiss the chancellor; appointment and dismissal of the vice chancellor on the recommendation of the chancellor; decisions related to other management positions subject to the university's internal rules on organizational and operational matters; annual performance review of the council chairperson and the chancellor; vote of confidence for the council chairperson and the chancellor in accordance with the internal rules on organizational and operational matters;
Policies to attract resources for capital investment; policies on tuition and financial aid, student assistance; approval of financial plans;
endorsement of annual financial statements and final expenditure statements for the university's various legitimate sources of funding;
- Policy intentions to invest in and use high- value assets pertaining to the authority of the university council; performance-based pay for holders of executive and managerial position and other decisions as provided for in the university's internal rules on organizational and operational matters.
2) The university council has the power lo make internal rules on governance, including: the university's internal rules on organizational and operational matters, rules on financial management, and rules on grassroots-level democracy, subject to the HEL and other applicable laws. This is the ultimate power exercised by the university council within the legal and governance framework in order to govern.
manage and operate the university autonomy mechanism in academic, organizational, personnel, financial and asset maners. With such vested power, function and mandate, the university council is in the best position to ser\ e as the pillar of governance in public universities
3) The council has the power to oversee die implementation of its decisions and the university's observance of law in all aspects of the
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university's operations. This oversight power goes together with the needs to be compliant and liable to the law, competent authorities and stakeholders for the council's decisions, to ensure openness, transparency and proper reporting, and also to be subject to inspections and audits by competent authorities. The university council should be held accountable within its scope of responsibility and power and should be subject to the oversight by the public and by individuals and entities internal to the university.
In a nutshell, at the core of the legal nature of the university council lies its ability to create and maintain an effective mechanism for driving, governing and controlling, in the best manner, the quality of all education and training activities of the university. It ensures concurrence in both the mindset and actions between the university council and "the remaining part" of the organization, and strikes a balance between autonomy and accountability of public universities to stakeholders, thereby ensuring democracy and transparency in every operation of the university - which are also demanded by the society and by law. This would also harmonize the interests of various stakeholders in higher education settings.
Each higher education institution should ensure that theh approach in creating and operationalizing the university council and harness its role as part of their move towards university autonomy is consistent with the legal nahire, operations model and paradigm provided for in Law No.34.
2. Realization of the vision and mission of the university council in public universities in line with the Law to amend selected articles of the HEL 2012
At the overall level, the university council is envisioned by the amended law (or Law No.34) as a body with the ultimate governing power m the organizational design of a public university, which closely approaches tiie model of university council widely adopted by universities over the world.
There are two fundamental provisions in the Law that would properly empower the university council and appropriately position it in the
organizational architecture of public universities:
1) The power to decide on matters that should, in essence, be decided by the university council but was granted to the chancellor by the HEL 2012 has now been retrieved and righUy vested with the council by the amended law.
2) The amended Law confirms the council's power to select, decide on and recommend for recognition of the personnel for the position of chancellor, who takes responsibility for managing and running the institution's operations in accordance with laws and the institution's internal rules.'^* These two important provisions reconfirm the "ultimate power" vested with the university council in public universities and serve as an important "lever" for the university council to become a real power in the university's governance structure.
To make such vision happen, moving forward, public universities would have to resolve a lot of issues for effective implementation of legal provisions on the university council, such as procedural matters related to creation or re-creation of the council; determination of council composition, membership and number of members; capacity building for the council;
planning and implementing a schedule for making internal rules governing the council's operations;
accountability and performance evaluation of the council chairperson; procedures for recommending for recognition of the council chairperson, council members, and the chancellor by competent authorities; and responsiveness to eligibility conditions for autonomy as set forth in Clause 2 Article 32 of Law No.34. For the aforementioned issues, public universities should:
First, ensure transparency in each and every academic operation of the institution: With the interwoven interests present in a public university, the role of governing, controlling and harmonizing stakeholder interests requires "objectivity" in managing and running the internal governance appratus, diereby ensuring democracy in every operation via the role of governing and representing ownership and stakeholder interests played by the university council.
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Second, maintain and ensure coordination, consistency and harmony between the university council and internal management structures. In legal terms, "the council shall not intervene in the day-to-day running and operations of the institution. The council shall primarily focus on strategic planning processes, review and approval of the institution's development strategy and workplans, and also on oversight of the work conducted by the chancellor as required by laws and the institution's internal rules on organizational and operational matters, making sure that the institution is well on track with respect to its mission and goals. The council shall be "loyal" to public interests as expected of a public higher education institution, striking a harmony of interests and responsibilities among all stakeholders".**' This is crucial to university autonomy, which should be aligned with accountability.
Third, resolve effectively the question of managing and developing the "tripartite"
relationship among the communist party committee vs. the university council vs. the chancellor in public universities. According lo Clause 2, Article of Law No.34, such Iripartiie relationship is governed by the institution's internal rules on organizational and operational matters. A common approach taken by a number of public universities is to create the university council and elect the council chairperson as part of the "personnel arrangements for the communist party committee" of the instimtion - which means the council chairperson is the chief of party ex-officio. All eligibility criteria for the elected council chairperson and matters related to the council fall within the purview of the party leadership and the institution's executive team.
The line agency is represented by a specified number of council members (say, one member).
Such arrangement enables the Communist Party committee to exert their leadership by cathedral thinking while the university council addresses the institution's strategy, operational plan, and big-picture decisions - thereby ensuring consistent efforts in driving the institution forward. The
chancellor is the executive head, who is responsible for day-to-day operations and managing implementation efforts to realize the vision and broad policy lines already endorsed by the Communist Party committee and approved by the university council.
It is important to note that the process of setting up and operationalizing the university council as required by Law No.34 would inevitably result in a "shift of power" from the chancellor lo the university council. A successful transition from the HEL 2012 to Law No.34 would demand strong political will from universities. Under current legislation, the chancellor of a higher education instimtion is its legal representative and account holder (Article 20, Clause 3 Sub-clause a), while the council works under the collegial principle and, by majority voting, decides all important matters of the institution. Therefore, who would be "the head" of a public university and take ultimate responsibility for all activities of the institution would it be the chancellor as an individual or the council as a team? This important questions should be clarified in the protocols of coordination between the council and the chancellor. Especially, public universities should make clear in their internal governance and management framework who would be held liable for the bad decisions or poor performance of the university council which harm the interests of the institution, smdents, the State and the public. This means that a capable, well-performing council is critical to public universities in their "long-run journey" toward university autonomy.
Fourth, a staged and law-compliant approach should be taken in creating, stienglhening or restructuring the university council. Inadequate capacity of the council as a team or of individual council members should not be an excuse for delaying the recreation or restrucmring of the council. Also, to avoid "rushing and hustiing", the Decree that guides the implementation of Law No.34 outiines a spectrum of "legal scenarios" as below:
1) For a newly established public university, the tine agency of such universu \ shall direct and
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lead the creation of its university council. The first step is lo appoint an acting chancellor, who will sit on, the interim/provisional university council, exercise the powers and implement the tasks conferred on the chancellor until a formal recognition decision is granted. The line agency determines the number of members, composition, and election procedures of the provisional council and issues a decision to recognize the provisional council and chairperson. The duration of a provisional university council is at maximum a year, since the issuance of recognition decision by the line agency. Upon expiry, the provisional council must be replaced by an official council constituted in accordance with the new law. The creation of a new council will be led and directed by the leadership team of the university (comprising of party committee, chairperson of the council, vice chairperson of the council - if any, the chancellor and vice chancellors)'^) in accordance with laws.
2) For an operative public university with no council, within 6 months from 15 February 2020 (the date on which Decree No. 99/2019/ND-CP entered into force), the leadership team must initiate the establishment of the council.
3) For operative public universities which already have their university council in existence, their actions would depend on whether, as of 15 February 2020, the remaining term of office of the council is less than 6 months or otherwise. If the remaining term is less than 6 months, the council continues to operate until the end of their term. In parallel, the leadership team must initiate a process for constituting the council for the next term of office in accordance with current laws. If the remaining term is 6 months or more and the council was created in accordance with Law No.34 and applicable rules of the Party, it will continue its operations until the end of office with full powers to decide on personnel arrangement for the chancellor position as well as otiier powers and responsibilities as specified by laws and by the institution's rules on organizational and operational matters. If the remaining term is 6 months or more but the council was not created in
accordance with Law No.34 and applicable rules of the Party, the leadership team must initiate the process for establishing the university council for the succeeding term of office to replace the non-compliant council. Note that, in this case, the university must also review and amend its internal rules on organizational and operation matters.
Once the new university council is constituted, it will exercise the decision-making power with respect to personnel arrangement for the chancellor position. Two possible outcomes could be expected from such action: either the incumbent chancellor remains in office or he/she is replaced by another personnel.
In terms of legal procedures, at least 30 working days prior to the expiry of their term of office, the leadership learn must prepare and submit relevant documentation to the line agency for recommending recognition of the council and chairperson for the next term of office.
Documentation includes the proposal on recommended recognition; list of recommended personnel for the council chairperson position and members, CVs and written agreement to participate of the recommended personnel;
meeting minutes, vole count minutes, wntlen notice by the line agency on appointment of their representative to sit on the council, and other relevant documents. Decree No.99/2019/ND-CP requires the line agency, within 30 working days from receipt of such submission from die university, to issue a decision of recognition. The hue agency may refuse to recognize the council, or refuse to recognize the recommended chairperson or any council members. Such refusal must be in writing and the reasons therefor must be clearly stated. Such "refusal to recognize" is a mechanism for the line agency to exercise die power of the owner (i.e. die State) as the regulator of higher education, and such power is only used where il is so required to prevent pubtic universities from
"crossing the limits" when crossing the limits jeopardizes their effectiveness as a provider of higher education and undermines the common interests. Therefore, what public universities .should do for the time being is to thoroughly
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consider and devise a well-thought, forward- looking strategy for personnel arrangements for the council chairperson and elected members, thereby ensuring a sound composition of the council with quality, reputation and right mix of skills and abilities, right balance of internal and external council members. Many recent studies reveal that among the most important skills required for a council member are generalization, environmental scan, constructive interaction, innovation and learning ability. Ability to generalize enables a council member to capture a broader view and to be more visionary. Similarly, environmental scanning skills help a council memeber to accurately assess the institution's issues in relation to both internal and external factors. AbiUty to interact effectively and lo judge personality help council members elect the right executives and cooperate with ihem. Ability to leam allows council members to quickly change the course of their thinking and action based on new information available to them or unexpected changes in
circumstances. Those are the quahties expected of a person involved in stiategic planning - tiiat is, council members. They are die ones who make strategies, set principles anc core values, and oversees the performance of the chancellor and of departments/units of the institution.
Public universities should be careful in selecting their council members, who should have a good insight into the institution and higher education management and have sufficient knowledge and skills for operating a university and driving it towards the staled goals, h is essential that the interests of council members are aligned with the institution's interests, because
"no model or solution would work if the people who are directly involved do not, for a start, assimilate the nature, meaning, pros and cons, and pre-requsites for the application of such model or solutionx".'^' Moving forward, public universities should, above all, aim for professionahsm of and merit-based remuneration for their council members •
NOTES AND REFERENCES:
<" Fielden John, Global trends in university governance. The World Bank, United Slates, 2008, p. 37. Bruneau William, Grosjean Garnet, Schuetze Hans G.. University governance and reform - Policy, fads and experience in intemational perspective, Palgrave Macmillan, United States, 2012, p. 4 - 6.
'^' Article 16, Clause 1 of the Law to amend selected articles of the HEL
'•" Minisu-y of Education and Training, "Report on reviewing the implementation of the HEL (as part of the Ministry's submission No.l2/TTg-BGDDTdated 15 January 2018), pp. 9-10.
'•" Pham Thi Ly, "The university council in university governance in Viemam: A business perspective ", Joumal of Education Sciences, Issue 137, Febmary 2017, pp. 6-11; Lam Quang Thiep, "The umversity council in Vietnam's public higher education institutions", Viemam's annual education report, 2012, pp. 402-422.
"' Article 20, Clause 1 the Law to amend the HEL.
'*' Ministry of Education and Training, "Report on reviewing the implemenlauon of the HEL (as part of the Ministry's submission No. 12/TTg-BGDDT dated 15 January 2018), p 10
"' Sub-Clause d, Clause 1 Article 7 Decree No. 99/2019/ND-CP.
"" Sub-clause c, Clause 1. Article 7, Decree No. 99/2019 ND-CP, providing detailed guidance iin implemenlation of selected articles of the HEL.
'*'' Pham Thi Ly, "The university council in university governance in Viemam". cited before, pp. 6-11.
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REFERENCES
1. Bruneau William. Grosjean Garnet, Schuetze Hans G. (2012). University governance and reform - Policy, fads andexperience tn intematiormiperspective. United States: Palgrave Macmillan.
2. Fielden John. (2008). Global trends in university governance. United States: The World Bank,
3. Pham Thi Ly. (2017). The university council in university governance in Vietnam", Journal of Education Sciences, 137, February 2017, pp. 6-11.
4. Lam Quang Thiep (2012), "The university council in Vietnam's pubBc higher education institutions", Vietnam's annual education report, pp 402-422.
Received date; July 1,2020 Reviewed date: July 17,2020 Accepted date: July 30,2020
Aulltor Information NGUYEN TUAN HUNG, IMA Hanoi Medical University
HOI DONG TRLfCiNG CUA CAC TRlfCfNG DAI HOC C 6 N G LAP TAI VIET NAM:
BAN CHAT, TAM NHIN VA HANH DONG
• ThS, N G U Y I N TUAN Hl/NG Tradng Dgi hoc Y Hd Noi
TOM TAT:
Nam 2020 tjl/dc xac dinh la di6'm xuat phat tiep theo cila viec tlllfc hien ctj che tU chu dai hpc d6'i vdi cac tn/5ng dai hoc cong lap tai Viet Nam, tren c(J sd cua Luat sii'a ddi, b6 sung mdt so' dilu ciia Luat Giio due dai hpc nam 2012 (LuSt so 34/2018/QHI4) va Nghj dinh so 99/2019/ND-CP quy dinh chi net va httdng dan thi hanh mpt sddieu cua Luat sijfa ddi, bd sung mdl so' dieu ciia Luat Gido due dai hpc. Mdt trong nhffng muc tieu quan trong khi su'a ddi, bd sung Luat lan nay 1^ nham thao g3, khiic phuc nhifng "diem nghen" ve thi che tif chu dai hpc hien nay, trong dd cd lien quan de'n hdi dong tnfdng. Bai viet tap trung trao ddi ve diie't che nay tff phiTdng dien ban chd't, lim nhin va hanh ddng thuc t l ma cae ffttdng dai hoc cdng lap 6 Viet Nam can lam thdi gian tdi.
Tiir khoa: Giao due dai hpc, hifdng dai hpc, cdng lap, ttf ehu dai hpe, hdi ddng ffifdng.
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