Guidelines pose legal issues

ON Saturday, The Star reported that the Higher Education Ministry has drawn up guidelines for entertainment activities including concerts at higher educational institutions. However, due to some backlash, the ministry is graciously reviewing these guidelines (“Relook at concerts in universities”; online at bit.ly/star_relook).

The reported intention of the ministry is “to protect the peace and safety of students and the rest of the campus community during such events”. This intention is noble and in good faith.

However, the 16-page guideline raises significant issues of law about the autonomy of our universities – 20 of which are public universities, 50 are private universities, 34 are university colleges and 10 are foreign university branch campuses operating in our dazzlingly diverse multi-ethnic, multicultural and multilingual society.

There is also the question about who – the ministry or the individual universities – has jurisdiction over student activities and discipline.

Some student bodies may also raise the issue of the right to freedom of speech and assembly under Article 10 of the Federal Constitution. That will require a separate treatment; today’s column will be confined to the engaging and perennial issue of university autonomy.

Unless the 16-page guideline was meant to be purely advisory and non-binding, it may amount to an unintentional encroachment on the powers of the universities for the following reasons.

Firstly, all public and private universities that are established under their respective laws are semi-autonomous statutory bodies, distinct and separate from the departments and units of the Higher Education Ministry.

The relevant laws are the Universities and University Colleges Act 1971 (Act 30) and Private Higher Educational Institutions Act 1996 (Act 555).

Take public universities as an example. Under the First Schedule of Act 30, they are a distinct body corporate under section 3.

They have vast powers and functions conferred by sections 3 to 4C of the Schedule. They have their own board of directors and other university authorities (sections 12 to 23 of the Schedule).

Second, the power to regulate student activities resides within the university itself.

Under section 15(5) of the main Act, it is provided that “the university shall regulate the activities of students or group of students of the university within the campus”.Third, the power to make rules about student discipline is allocated by Act 30 to the board of the university under section 16C(1) of the main Act and section 4(1)(p) of the First Schedule.

Despite its good intentions, the ministry has no power to make rules for student discipline.

These university rules can exist by way of University Statutes, Rules and Regulations, and are subject to variable requirements of gazetting (sections 25 to 31 of the First Schedule).

Fourth, given the semi-autonomous, statutory body status of universities, government circulars and public service general orders do not apply to the universities unless adopted, with or without variation, by the university’s board of directors.

Regrettably, most boards tend to adopt government circulars without much scrutiny of the constitutionality of these circulars or their legality under Act 30.

It is submitted that a great deal of administrative regulation of the universities by government departments has no legal basis and is based on the administrative traditions of the bureaucratic state, customs and extra-legal policies.

The general misunderstanding in the top echelons of the civil service that they are entitled to issue periodic circulars, directives and instructions to all institutions of higher learning needs to be questioned.

Due to the weight of tradition, university administrators tend to comply. Bureaucracy triumphs. The law takes a back seat.

Fifth, though under section 3 of the main Act, the higher education minister is “responsible for the general direction of higher education and the administration of this Act”, that very section subjects the minister’s broad powers to “the provisions of this Act”.

From a legal point of view, whatever powers are assigned to other authorities of the university cannot be exercised by the minister.

Sixth, under the principles of administrative law, if an authority has been conferred a power or jurisdiction by a law, then the buck stops at its door. It is not legally permissible for it to take dictation from anyone – no matter how high and mighty that someone may be.

On the principles of administrative law, acting under the dictation of another is an abdication of responsibility and would be caught by the irrationality dimension of the doctrine of ultra vires.

Seventh, from the point of view of the doctrine of the rule of law, it is a fundamental principle that there must be a government of laws and not of absolute discretion. The 16-page guideline must be anchored in some provision of Universities and University Colleges Act (UUCA) and must not be regarded as an inherent power of the government.

Perhaps a closer look at UUCA may unearth some of such provision.

Eighth, if a group of students organises a concert or some other form of entertainment and there is immoral behaviour, the situation can be adequately handled by each university’s existing Student Disciplinary Rules and Dress Code, etc. In serious cases, if there is a threat to law and order, then the police can invoke the Penal Code or the Peaceful Assemblies Act.

In all cases, the existing laws are more than adequate to deal with the situation.

Ninth, enlightened amendments to UUCA in 2009, 2012 and 2019 reflect the ministry’s growing confidence in our students’ maturity to handle freedom.

The present minister, Datuk Seri Mohamed Khaled Nordin, himself piloted some of these scintillating changes.

The law today is that in their individual as well as collective capacities, students are now free to join political parties, youth and social groupings as well as NGOs.

Since 2009, discipline under UUCA has been decriminalised.

All criminal sanctions have been replaced with disciplinary penalties. The 2009 amendment removes provisions for automatic suspension or expulsion of a student who is charged with a criminal offence, or who is convicted.

The university is given the full discretion to handle these cases as it sees fit.

The 2023 guidelines seem like a regression to the authoritarian past about attitudes towards students’ maturity. The guidelines also reflect a lack of confidence in our universities’ ability to handle student indiscipline.

I believe that our student body is generally well-behaved when compared with those in many other nations. Our university leadership is more than capable of handling any infractions of disciplinary rules.

Furthermore, given the dazzling diversity of our nation, the universities should be trusted to enforce their laws to suit the values, traditions and sense of propriety that prevails in their own regions.

It will be improper to enforce on universities in Sabah and Sarawak the standards we enforce in Kelantan and Terengganu.

Emeritus Prof Datuk Dr Shad Faruqi is Holder of Tunku Abdul Rahman at the Faculty of Law, Universiti Malaya. The views expressed here are the writer’s own.