The recent Court of Appeal’s 2-1 majority decision to declare Section 15(5)(a) of the Universities and University Colleges Act 1971 (UUCA) unconstitutional should not only be viewed as a victory for all local university students but should also be rejoiced upon by all Malaysians. The unconstitutionality of the said provision signifies that it is no longer applicable and cannot be enforced in our country. Section 15(5)(a) of the said oppressive Act reads “No student of the University and no organisation body or group of students of the University which is established by under or in accordance with the Constitution 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 ”.
This declaration made by the court that the said provision is null and void has been a long time coming as it violates the freedom of speech and expression which is provided under Article 10 of the Federal Constitution which is the supreme law of the land. According to one of the judges who decided in favour the UKM4, Mohd Hishamudin Mohd Yunus J, he said “Freedom of expression is one of the most fundamental rights that individuals enjoy. It is fundamental to the existence of democracy and the respect of human dignity.”
Following the learned judge’s argument, it is absurd to impose such restrictions upon university students who should be given the avenue and encouragement to broaden their mindset and be critical on the various issues affecting not only the country but also their lives. It is even more absurd to come to think that someone who is working in McDonald’s or a student sitting for PMR has more rights to express their views compared to a law student in University of Malaya where such freedom (although not absolute) has been guaranteed and enshrined in our Constitution.
Alternatively, as highlighted by the Court of Appeal, section 15(5)(a) directly contradicts with Article 119 of the Federal Constitution which entitles anyone who has reached the age of twenty-one to register as a voter and exercise his or her rights under the country’s democratic system. Considering the fact that anyone who has attained the age of twenty-one and is pursuing his education in a local university is allowed to vote, this infers his support towards a particular political party which is a form of expression and participation in politics. Thus, it is silly that section 15(5)(a) disallows university students to express their views on their political stand. What doesn’t make sense is that anyone who has attained the age of majority is allowed to get married, start a family, obtain a driving licence or even be a Prime Minister but their political views are bound by the UUCA.
According to the Minister of Higher Education, he said “The main goal of education is to encourage students to think constructively and critically without any restrictions. By just toeing the party line, the student is merely having other people's opinions, not his own.” In my humble opinion, there is no way I can agree with the statement made. Firstly, the statement made by the Minister is in direct contradiction itself. How are university students supposed to think constructively and critically without any restrictions when the provision is restrictive in nature? With regards to his second sentence, it is of grave disrespect to the thousands of local university student out there to say that we are not able to form our own opinion. Judging by the issue of brain-drain which is affecting our country, I believe Malaysian students are far more than capable of having their own opinion. The problem is and has always been due to the prohibition under the Act.
It is time for the legislature to act upon such declaration made by the Court of Appeal and repeal the said provision although the Government may appeal to the Federal Court to overturn the decision. This ruling should be seen as an opportunity for the legislature to do the right thing. Even the dissenting judge in the case said in his judgment that “by way of obiter, Parliament may wish to consider an amendment to section 15(5) in particular and the whole Act in general so as to bring about a repeal or review thereof.” The decision to repeal the provision should not made be due to the pressure of certain parties who might have their own agenda or to protect their students from ‘unwanted’ distractions but should be made solely based on its unconstitutionality.
This landmark decision was a milestone in the sense that it has indicated that our courts are no longer afraid of confronting constitutional issues rather that side-stepping it (which they have done so in many previous occasions) and uphold the notion of constitutionalism in our country. Although it is rather optimistic (and too early) to say that our judiciary had taken a paradigm shift and exercised a certain degree of judicial independence in addressing such issue, nevertheless, there is at least a glimpse of hope for all Malaysians that there still exists brave and insightful judges in our judiciary such as Mohd Hishamudin Mohd Yunus J and Linton Albert J to take over from the likes of NH Chan J.
In spite of what has been said, what is evident from this case is that there are judges (though not many) in our courts who understand and appreciate the idea of constitutionalism and rights to fundamental liberties, there are determined lawyers who are willing to argue for this principle and there are students who are brave enough to stand up and fight for their rights. Although the government might appeal against the decision and who knows, the Federal Court might overrule it but for now, let us rejoice at the historic judgment.
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