Court ruling a breath of fresh air

The Court of Appeal’s decision triggers hopes of a free and vibrant student movement in universities.

The landmark Court of Appeal ruling on Monday that Section 15(5)(a) of the Universities and University Colleges Act 1971 (UUCA) that bars students from political participation is unconstitutional blows a breath of fresh air into the stultified campus world.

Although the UUCA law is in place, the Court of Appeal majority decision knocks the key provision in the law that had barred undergraduates from political participation.

It also speaks well of the Bench as it rises to fulfil its duty in a fearless manner as it ruled on the constitutionality of a legal provision that was put before it.

Four undergraduates who were threatened with disciplinary action by Universiti Kebangsaan Malaysia (UKM) for their participation in the Hulu Selangor by-election in April last year had filed the appeal after losing their case in the High Court last year.

They had argued that Section 15(5)(a) was unconstitutional, stifled freedom of expression and was ultra vires of Article 10(1)(a) which guarantees citizens right of freedom of expression.

In a 2-1 majority decision, a three-man panel ruled that UKM was in breach of Article 10 of the Constitution when it commenced disciplinary proceedings against the four students who were involved in the political campaign.

Section 15(5)(a) of the UUCA in part reads: “No student of the University shall express or do anything which may reasonably be construed as expressing support for or sympathy with or opposition to any political party, whether in or outside Malaysia.”

Justice Mohd Hishamuddin Mohd Yunus said he could not find a link between public order and morality, the justification for Section 15(5)(a), and the students’ freedom of expression.

He said students could vote, become directors of companies and even marry and give birth but are not allowed to give political expression to their beliefs.

He declared that provision unconstitutional, saying it was now “settled law” that Parliament could not make laws to restrict the freedom of expression in Article 10 unless they were reasonable.

Police had arrested the four students – Muhammad Hilman Idham, Woon King Chai, Muhammad Ismail Aminuddin and Azlin Shafina Mohamad Adza – and UKM proceeded to act against them under the UUCA.

The four had challenged UKM in the High Court for going against Article 10(1)(a) but the High Court threw out their bid, forcing the appeal at the Court of Appeal.

Justices Mohd Hishamuddin and Linton Albert were in favour while Justice Low Hop Bing, who headed the panel, dissented.

The judgment allows the younger generation to learn by experience, express themselves freely and make mistakes before they can, as future leaders, lead the nation.

The decision is also in keeping with the country’s climate of liberalisation ever since Prime Minister Datuk Seri Najib Tun Razak announced, on the eve of Malaysia Day, Sept 15, that even the ISA, which provided for detention without trial, would be repealed.

Other draconian laws, the Banishment Act and media laws would also be eased in stages until March.

Najib had said that the UUCA would also be reviewed. It was only a matter of time before Section 15 was also repealed, either by the Government or by the courts.

In fact, previous governments had mulled doing away with restrictive provisions in the UUCA but had not followed through for lack of political will.

After the tsunami of 2008 when the people spoke out for a freer, just and wholesome society, it was inevitable that such provisions that clearly stifled dissent would eventually die a natural death.

Politics is inseparable from undergraduates who feel that it is their right to question and evaluate anything and everything freely and participate in any issues of the day.

They need the space to grow and think and become tomorrow’s leaders.

A strong and confident government ruling with the people’s support will have no fear of undergraduates or their politics.

The UUCA is a piece of legislation that hopes to achieve the opposite and did so for more than a generation – create a bookworm class of undergraduates who did their lectures, course work and returned home at intervals.

Some students had long campaigned for a repeal of the UUCA since its promulgation in 1971, claiming it stifles freedom of expression and inhibits young minds at a time of growth and inquiry.

The law was amended in 1975 to include the politics ban in the wake of political demonstrations the previous year by university students protesting the alleged death by starvation of a family in Baling.

It was partly led by Datuk Seri Anwar Ibrahim, the current Opposition Leader.

Anwar eventually joined Umno and rose to become deputy prime minister before his 1998 expulsion.

A transformation process is sweeping the country in part because of the changes Najib had announced.

The transformation is also because MCA president Datuk Seri Dr Chua Soi Lek had offered a new deal and the repeal of the UUCA was part of the new deal.

Also, one of the resolutions approved by the delegates at the MCA Youth AGM this year was the repeal of Section 15 of the UUCA and to return freedom of assembly and association to undergraduates.

The Court of Appeal’s decision is, therefore, refreshing and gives hopes for the Bench and frees undergraduates from stultifying laws.