The Star
Comment by Prof Shad Saleem Faruqi
The newly-amended Universities and University Colleges Act is to provide students with more political space, but they are still prohibited from joining any political party and unlawful organisation.
DISCIPLINARY proceedings are reported to be pending at the Universiti Malaya (UM) against eight students who invited MCA and DAP politicians for a debate at the university without the prior permission of university authorities.
The UM cases are bound to test the extent and efficacy of the much-heralded amendments to the Universities and University Colleges Act passed by Parliament early this year.
One of the aims of the new law is to provide students with more political space, to trust them with more freedoms and to balance the might of university authorities with the right of university students.
Freedom of association: prior to the 2009 amendments, students were banned from joining any organisation outside or inside the university without the university’s prior permission. Under the new Sections 15(1) and (2) students are now entitled, individually and in groups, to “become a member of any society, organisation, body or group of persons” without the need for prior permission from anyone.
Hundreds of social, youth, human rights, consumer and women’s organisations and NGOs, whether national or international, are now within the reach of our students. However, this right to associate is subject to three exceptions.
Students are still prohibited from joining:
a) any political party;
b) any unlawful organisation; and
any organisation, body or group of persons which the minister has specified in writing to the vice-chancellor to be unsuitable for the interests and well-being of the students or the university.
Previously every affiliation was prohibited unless it was explicitly permitted; now every affiliation is permitted unless it is explicitly prohibited. A sea-change in the law has indeed taken place.
Serving politicians and working adults who enrol at universities to further their education may seek exemption from the vice-chancellor to be allowed to continue their political affiliation: Section 15(4).
Freedom of speech: the scope of freedom of speech has been expanded greatly. Previously students were forbidden from expressing any support for, sympathy with or opposition to any political party.
Under the new Section 15(6), students can make statements on any academic matter on which they are engaged in study or research. They can express themselves freely at seminars, symposiums or similar occasions, provided such occasions are not organised by the three categories of organisations listed in Sections 15(1) and (5).
Members of the committee who drafted the proposals for the minister were of the view that the new Section 15(6) was broad enough to permit student interaction with politicians and political parties on academic occasions.
Unfortunately, there is an omission in the law in that there is no express mention of who should do the inviting of outsiders for such academic occasions. Can the newly empowered students act on their own initiative, or must the invitation come from university authorities? This issue is at the heart of the proceedings at the UM.
We have to look to the internal statutes, rules and regulations of each university.
It is reasonable to argue that as universities are owners of their premises, they have a right to determine who is licensed to enter or not. They have a right to enforce public order and security requirements.
However, unlike private owners of land, universities are public bodies and must, therefore, use their discretion legally and act in good faith. They have a duty under Article 8 of the Constitution to treat everyone equally and to be impartial in granting or refusing permission to student invitees.
Any breach of this duty is likely to result in judicial review. For this reason, it is advisable for all universities to draw up clear guidelines for handling student invitations to luminaries from outside the campus.
Suspension of student organisations: previously, vice-chancellors had wide and summary powers to suspend or dissolve student organisations.
Now, suspension or dissolution of a student organisation must be preceded by a prior hearing: Section 16(1). Appeal to the minister against the VC’s decision is allowed: Section 16(2).
Decriminalisation: previously if a student violated any provision of AUKU, jail sentences and fines were in place. The amendments decriminalised the offence by removing all criminal penalties and substituting them with disciplinary measures by the university.
No automatic suspension or dismissal: AUKU 2009 removes the provisions for mandatory, automatic suspension or expulsion of a student who is charged with a criminal offence, convicted of an offence, or detained or restricted under preventive detention or restricted residence laws.
The university is given discretion to handle these cases as it sees fit, depending on whether the offence is a serious, “registrable” criminal offence or a minor offence unrelated to academic character: Section 15D.
Right to education: the new law recognises that education is a citizen’s fundamental right.
Students detained under preventive detention laws are not automatically dismissed from the university. They may, with the permission of the home minister and the university senate, take their examination at the detention centre: Section 15D(4).
A student acquitted of a charge in a court of law, released from a detention order or has served out his sentence has a right to return to the university, and his absence through suspension cannot be taken into account in calculating the maximum period he is allowed to complete his studies: Sections 15D(7) and 15D(8).
If a student is suspended or excluded from a public university, he has a right to enrol in a private institution. Alternatively he may, with the permission of the minister, enrol in another public university: Section 15D.
The university’s power to revoke a former student’s degree or diploma has been greatly narrowed down and subjected to procedural safeguards for the student concerned.
New disciplinary procedures: the new law provides for oral or written representation, the right to be represented by others, and the right to appeal to the board.
Strict time limits are imposed on disciplinary authorities to complete hearings and communicate their decisions to students expeditiously, so that students can get on with their lives: Section 16B.
It is clear, therefore, that the new law seeks to enhance students’ freedoms and rights. Whether it will actually usher in an era of more open campuses will depend on how far rights are exercised with restraint, and how far university authorities are willing to accommodate the spirit of the law.
Prof Datuk Dr Shad Saleem Faruqi is Emeritus Professor at UiTM and Visiting Professor at USM.
Freedom of association: prior to the 2009 amendments, students were banned from joining any organisation outside or inside the university without the university’s prior permission. Under the new Sections 15(1) and (2) students are now entitled, individually and in groups, to “become a member of any society, organisation, body or group of persons” without the need for prior permission from anyone.
Hundreds of social, youth, human rights, consumer and women’s organisations and NGOs, whether national or international, are now within the reach of our students. However, this right to associate is subject to three exceptions.
Students are still prohibited from joining:
a) any political party;
b) any unlawful organisation; and
any organisation, body or group of persons which the minister has specified in writing to the vice-chancellor to be unsuitable for the interests and well-being of the students or the university.
Previously every affiliation was prohibited unless it was explicitly permitted; now every affiliation is permitted unless it is explicitly prohibited. A sea-change in the law has indeed taken place.
Serving politicians and working adults who enrol at universities to further their education may seek exemption from the vice-chancellor to be allowed to continue their political affiliation: Section 15(4).
Freedom of speech: the scope of freedom of speech has been expanded greatly. Previously students were forbidden from expressing any support for, sympathy with or opposition to any political party.
Under the new Section 15(6), students can make statements on any academic matter on which they are engaged in study or research. They can express themselves freely at seminars, symposiums or similar occasions, provided such occasions are not organised by the three categories of organisations listed in Sections 15(1) and (5).
Members of the committee who drafted the proposals for the minister were of the view that the new Section 15(6) was broad enough to permit student interaction with politicians and political parties on academic occasions.
Unfortunately, there is an omission in the law in that there is no express mention of who should do the inviting of outsiders for such academic occasions. Can the newly empowered students act on their own initiative, or must the invitation come from university authorities? This issue is at the heart of the proceedings at the UM.
We have to look to the internal statutes, rules and regulations of each university.
It is reasonable to argue that as universities are owners of their premises, they have a right to determine who is licensed to enter or not. They have a right to enforce public order and security requirements.
However, unlike private owners of land, universities are public bodies and must, therefore, use their discretion legally and act in good faith. They have a duty under Article 8 of the Constitution to treat everyone equally and to be impartial in granting or refusing permission to student invitees.
Any breach of this duty is likely to result in judicial review. For this reason, it is advisable for all universities to draw up clear guidelines for handling student invitations to luminaries from outside the campus.
Suspension of student organisations: previously, vice-chancellors had wide and summary powers to suspend or dissolve student organisations.
Now, suspension or dissolution of a student organisation must be preceded by a prior hearing: Section 16(1). Appeal to the minister against the VC’s decision is allowed: Section 16(2).
Decriminalisation: previously if a student violated any provision of AUKU, jail sentences and fines were in place. The amendments decriminalised the offence by removing all criminal penalties and substituting them with disciplinary measures by the university.
No automatic suspension or dismissal: AUKU 2009 removes the provisions for mandatory, automatic suspension or expulsion of a student who is charged with a criminal offence, convicted of an offence, or detained or restricted under preventive detention or restricted residence laws.
The university is given discretion to handle these cases as it sees fit, depending on whether the offence is a serious, “registrable” criminal offence or a minor offence unrelated to academic character: Section 15D.
Right to education: the new law recognises that education is a citizen’s fundamental right.
Students detained under preventive detention laws are not automatically dismissed from the university. They may, with the permission of the home minister and the university senate, take their examination at the detention centre: Section 15D(4).
A student acquitted of a charge in a court of law, released from a detention order or has served out his sentence has a right to return to the university, and his absence through suspension cannot be taken into account in calculating the maximum period he is allowed to complete his studies: Sections 15D(7) and 15D(8).
If a student is suspended or excluded from a public university, he has a right to enrol in a private institution. Alternatively he may, with the permission of the minister, enrol in another public university: Section 15D.
The university’s power to revoke a former student’s degree or diploma has been greatly narrowed down and subjected to procedural safeguards for the student concerned.
New disciplinary procedures: the new law provides for oral or written representation, the right to be represented by others, and the right to appeal to the board.
Strict time limits are imposed on disciplinary authorities to complete hearings and communicate their decisions to students expeditiously, so that students can get on with their lives: Section 16B.
It is clear, therefore, that the new law seeks to enhance students’ freedoms and rights. Whether it will actually usher in an era of more open campuses will depend on how far rights are exercised with restraint, and how far university authorities are willing to accommodate the spirit of the law.
Prof Datuk Dr Shad Saleem Faruqi is Emeritus Professor at UiTM and Visiting Professor at USM.
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