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Monday, October 31, 2011

Court rules UUCA's Section 15 unconstitutional

The Court of Appeal today ruled that Section 15 (5) of the Universities and University Colleges Act (UUCA), which allows public universities to take disciplinary action against its students, is unconstitutional and violates freedom of expression.

ukm 4 challenge auku uuca 280910 bannersIn a landmark majority decision, two Court of Appeal judges overturned the Kuala Lumpur High Court's decision in declaring the UUCA as constitutional in imposing restrictions.

This was a majority decision, whereby Justice Mohd Hishamudin Mohd Yunus and Justice Linton Albert in their judgements 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 Kuala Lumpur High Court's decision on Sept 28 last year, that ruled Section 15 (5) of the UUCA was constitutional with the Federal Constitution.

The four ex-UKM students had sought a declaration that the UUCA is unconstitutional. Their application had earlier 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 - on when disciplinary action can be taken - does not infringe Article 10 of the Federal Constitution which deals with freedom of expression.

NONEThe four Mohd Hilman Idham, Ismail Aminuddin, Azlin Shafina Mohamad Adza and Wong King Chai - were arrested by police during the Hulu Selangor by-election for taking part in political events, an activity barred by the UUCA.

Muhammad Hilman, Muhammad Ismail, Woon and Azlin Shafina, popularly dubbed the ‘UKM Four’, had faced disciplinary proceeding initiated by the university on July 4 this year.

However, they were found not guilty by the board. Since then, all four political science students have graduated last month.

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

NONEUKM, which was represented by counsel Muhammad Shafee Abdullah, 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," he said.

Hishamudin said he failed to see how that 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 asked.

"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 ruled.

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," he ruled.

[More to follow]

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