Amending the UUCA — what’s needed?

ARCHIVES 2012

By admin-s On Feb 13, 2012

“We must remember that restrictions (to the freedom of expression) cannot be as Parliament deems necessary, not whatever Parliament wants, but as specified in the Federal Constitution,” Shad Saleem said in an 8 Feb 2012 forum at the Razak School of Government.

The Nut Graph

THE quest for greater academic freedom for Malaysian university students has seen an eventful past six months.

In October 2011, a landmark Court of Appeal decision declared section 15(5)(a) of the Universities and University Colleges Act 1971 (UUCA) unconstitutional. The section prohibits students from expressing support for, or opposition against, any political party. In November 2011, Prime Minister Datuk Seri Najib Razak said the UUCA would be amended to allow students to join political parties. Disappointingly, however, he also said the government would appeal the October court decision.

Kedah MB Azizan

University students want genuine reform of the UUCA. They’ve been arrested at flash mobs and demonstrations calling for greater academic freedom. Students in Kedah are currently threatening to rally against Menteri Besar Datuk Seri Azizan Abdul Razak’s refusal to intervene in the suspension of five students under the UUCA for participating in a protest.

So what actually needs to change about the UUCA? And will these changes be enough to ensure Malaysian university students are truly “liberated”?

Paternalistic and overprotective

Amendments to the UUCA are evidently needed as a first step in loosening controls on students’ freedom of expression. Although amendments decriminalising certain actions were made in the past, some overwhelmingly paternalistic sections remain. For instance, under section 15(1), students cannot join or be affiliated to any political party or unlawful organisation. This would include movements such as the Coalition for Clean and Fair Elections or Bersih 2.0, declared illegal by the home minister in July 2011.

The section also allows the higher education minister to prohibit students from joining any organisation he or she thinks is “unsuitable to their interests and well-being”. Talk about being overprotective.

Breaching these provisions could result in disciplinary action for students, with serious consequences such as being suspended or expelled.

Section 16(1) is similarly paternalistic. University vice-chancellors (VCs) are given the power to suspend or dissolve organisations they think are detrimental or prejudicial to the interests or well being of the university or its students and employees.

And the now infamous and unconstitutional section 15(5)(a) bars students from even expressing support, sympathy or opposition towards any political party.

Unconstitutional and irrational

Provisions such as these are arguably unconstitutional for going beyond the specified restrictions allowed under the Federal Constitution.

Dr Shad Saleem

Constitutional expert and Emeritus Professor Datuk Dr Shad Saleem Faruqi fully supports any attempts to constitutionalise the UUCA.

“Any law that restricts freedom of expression, whether it is the Sedition Act, Internal Security Act, or [the UUCA], must fall within one of the permissible restrictions specified in the constitution,” he continued.

Restrictions are allowed under the constitution in the interests of “public order or morality”, a clause often cited by government authorities as the basis for impinging on fundamental liberties. But public order or morality is not a catch-all phrase that can be used as the government or Parliament sees fit. There must be a genuine link that the actions being restricted pose a real danger to life, limb and property.

This was the view of the Court of Appeal in its October 2011 decision in the Hilman case regarding the UUCA. In delivering the court’s majority judgment, judge Datuk Mohd Hishamudin Mohd Yunus said that he failed to see how expressing support for, or opposition against, a political party relates to public order or morality. In declaring the restriction unconstitutional, he said it was not reasonable and, in fact, found the provision irrational.

Hishamudin said it was ironic that most university students, who were at least 18, could enter contracts, be sued, marry, become parents, become company directors and office bearers of societies; and yet, “cannot say anything that can be construed as supporting or opposing a political party”.

In Shad Saleem’s view, the Hilman decision marks a turning point. “It has shattered the myth that Parliament can do what it likes,” he said. “Parliament must stay within the perimeter of the Constitution.”

Executive interference

Clearly, all unconstitutional provisions of the UUCA must go. But would that be sufficient to ensure students have the space to express themselves?

As far as the Act goes, more needs to be done. There is too much room for interference from the executive, with the higher education minister making major appointments directly.

The minister appoints the VC on the advice of a committee. The VC post is important as he or she has charge of the overall running of the university. He or she has disciplinary authority over every student. Incidentally, the committee that advises the minister on the choice of VC is also appointed by the minister.

The minister also appoints all except one of the university’s board of directors. The board, in turn, has the power to make disciplinary rules “as it deems necessary or expedient” for student discipline. It also appoints members to student disciplinary appeal committees which hear appeals against decisions taken against students.

This differs greatly from universities in the UK, for example, which although publicly funded, are run autonomously from the government. VCs of UK universities are usually appointed by a university council or board of governors, which comprise university staff and, in some cases, students; and not by any government minister.