31 October 2011

Section 15 of UUCA unconstitutional, rules court...

ukm 4 challenge auku uuca 280910 bannersThe Court of Appeal today ruled that Section 15 (5) of the Universities and University Colleges Act (UUCA) is unconstitutional and violates freedom of expression.

The provision allows public universities to take disciplinary action against students found to be involved in political activities.

In a landmark majority decision, two Court of Appeal judges overturned the Kuala Lumpur High Court decision that declared the UUCA as constitutional in imposing restrictions.

Today's ruling was a majority decision.

Justice Mohd Hishamudin Mohd Yunus and Justice Linton Albert allowed the appeal by four former Universiti Kebangsaan Malaysia (UKM) students.

Justice Low Hop Bing, who led the three-member panel, dissented.

Low upheld the KL High Court's decision on Sept 28 last year, ruling Section 15(5) of the UUCA as being in accordance with the federal constitution.

The four students had sought a declaration that the UUCA is unconstitutional. Their application had been dismissed by the Kuala Lumpur High Court’s Appellate and Special Powers Division.

The High Court’s Justice Aziah Ali ruled that Section 15 of the UUCA does not infringe Article 10 of the federal constitution which deals with freedom of expression.

NONE Mohd Hilman Idham, Ismail Aminuddin, Azlin Shafina Mohamad Adza and Wong King Chai had been arrested by police during the Hulu Selangor by-election campaign for taking part in political events, an activity barred by the UUCA.

Popularly dubbed the ‘UKM Four’, they had faced disciplinary proceeding initiated by the university on July 4 this year.

However, they were found not guilty by the board. All political science students, they graduated last month. The four students had named the Malaysian government, the higher education minister and UKM as the respondents.

What the decision means is that university students can now freely express their opinions as long as they do not violate public security.

The four UKM students were represented by lawyers Malik Imtiaz Sarwar, Ashok Kandiah and Jenine Gill.

UKM, which was represented by Muhammad Shafee Abdullah (left), has indicated that they will appeal the decision.


'For all individuals to enjoy'

Justice Hishamudin, in his 21-page judgment, wrote that freedom of expression is a fundamental right that all individuals should enjoy.

"It is fundamental to the existence of democracy and the respect of human dignity. This basic right is recognised in numerous human rights documents such as Article 19 of the Universal Declaration of Human Rights and Article 19 of the International Covenant on Civil and Political Rights.

"Free speech is accorded pre-eminent status in the constitutions of many countries."

Hishamudin said he fails to see how the section of the UUCA in question relates to public order or morality.

"I am at a loss to understand in what manner a student, who expresses support for, or opposition against a political party, could harm or bring about an adverse effect in public order or public morality," he said.

"Are not political parties legal entities carrying out legitimate political activities? Are not political leaders, including ministers and members of the federal and state legislatures, members of political parties?"

He said most university students are of the age of majority.

NONE"They can enter into contracts. They can sue and be sued. They can marry, become parents and undertake parental responsibilities. They can vote in general elections if they are 21 years old. They can be directors of company. They can be office-bearers of societies.

“Yet - and herein lies the irony - they are told that legally they cannot say anything that can be construed as supporting or opposing a political party," he noted.

Justice Hishamudin said that, in his opinion, Section 15 impedes the healthy development of the critical mind and original thought of students - objectives that seats of higher learning should strive to achieve.

"Universities should be the breeding ground of reformers and thinkers and not institutions to produce students trained as robots. Clearly the provision is not only counter-productive but repressive in nature."

Hishamudin also noted that in the parliamentary Hansard cited by the senior federal counsel representing the government, there was no mention of public order or morality.

Linton: Section 15 manifest absurdity

Justice Linton in his 15 page written judgment described the enactment of section 15 (5) (a) of UUCA as of manifest absurdity.

“It is not necessary to embark on a judicial scrutiny to determine its reasonableness because it is in itself not reasonable. What better illustration can there be of the utter absurdity of Section 15 (5) (a) than the facts of this case where students of universities and university colleges face disciplinary proceedings with the grim prospect of expulsion simply because of their presence at a parliamentary by-election.”

“A legislative enactment that prohibits such participation in a vital aspect of democracy cannot by any standard be said to be reasonable. In my judgment therefore because of its unreasonableness, section 15 (5) (a) of the UUCA does not come within the restrictions permitted under Article 10 (2) (a) of the federal constitution and is accordingly in violation of Article 10 (1) (1) and consequently void by virtue of Article 4(1) of the federal constitution.”

He pointed out Article 4 (1) states the constitution is the supreme law of the federation and any law passed after Merdeka Day which is inconsistent with this constitution shall to the extent of the inconsistency be void.

“Notwithstanding the presumption of constitutionality of a legislative enactment and the rule that the court must endeavour to sustain its validity, the validity of Section 15 (5) (a) of the UUCA is nevertheless patently unsustainable,” he said.

“For the reasons aforesaid, the appeal (by the students) is allowed with costs. The orders made by the High Court are set aside. The declarations prayed for in the appellants originating summons are according allowed,” he said.

Following the majority judgment, lawyer Ashok Kandiah, representing the students, asked that costs not be imposed as this was a vital case.

Justice Low made no order as to costs and noted Shafee’s application to appeal the matter at the Federal Court.

Certainly today’s decision manifests the university students’ rights to freedom of expression as protected under the constitution. It is seen to have severe ramifications on university administrations which so far had restrict students’ involvement, especially in opposition politics.

Mahkamah Rayuan: Seksyen 15(5) AUKU tidak sah


No comments: