Brave New World (The Star)
3 November 2011
Higher education is not merely about going to the lecture theatre and mugging for your exams. It is about expanding your horizons, taking responsibility for your actions and acting on your convictions.
THE Court of Appeal’s decision on the Universiti Kebangsaan Malaysia (UKM) Four case, which declared in a majority 2-1 decision that Section 15 of the University and University Colleges Act (UUCA) is unconstitutional, was a very pleasant surprise indeed.
The four students from UKM were initially charged by their university for “expressing support for a political party”. This is an offence under Section 15 of the UUCA.
They were accused of this primarily for being present during a by-election campaign in Selangor.
The question before the court was whether Section 15 impinged on the students’ constitutional right of expression.
One of the reasons that the dissenting judge used in his decision to not question the validity of the UUCA was that his lordship was of the opinion that it was not up to the court to question the harshness of the UUCA.
I respectfully disagree, for what is being questioned is not the harshness of the law, but the constitutionality of the law.
The thing about our Constitution is that all the protections they give us usually have a proviso.
The proviso generally being that Parliament can make laws which limit our rights if it is in the interest of public morality, order and national security.
For years and years, our courts have often times simply accepted repressive laws made by Parliament without actually questioning whether these laws are constitutional or not because the Government said that it was necessary for national security or public order or morality.
In effect, there was a tendency to allow the party with a majority in Parliament to do what it wanted.
This is derogating responsibility. It is not enough to simply accept the word of the Government when it says “this law is for national security”.
There should be an examination of it to see whether it really is for national security.
Without that examination, any old law can be made.
There will be no limitation on the lawmakers and what we will end up with is a system of governance where there is no real protection of our rights.
That is why it was so exciting to see the two judges in the UKM Four case clearly stating that any law made has to be scrutinised to ensure that its constitutionality is based not merely on the form of the law but also its substance.
In this particular case, they held that preventing students from expressing support for a political party is in no way a threat to national security, public order or morality.
The decision is made not only by taking a legalistic approach but is also one based on common sen-se.
After all, a person above the age of majority is free to enter into contracts, get married, be the head of a corporation, vote, be Prime Minister, etc, and yet by virtue of being a student they can’t express support for a political party. This does not make any sense.
Furthermore, how can supporting a perfectly legal organisation be considered dangerous?
The stand of the Government as well as the dissenting judge is that the UUCA is there to prevent students from getting involved in politics and thus being distracted from their studies.
This too does not make sense. Having been a student myself and having taught them for 21 years, let me assure you that young people can get distracted from their studies by a million and one things and chances are unless you are some serious political nerd, politics is not going to be on that list.
We might as well ban students from playing online games if we are so concerned about their focus on studying.
Higher Education Minister Datuk Seri Mohamed Khaled Nordin was also reported as saying that if it is considered that a student’s constitutional right of association is more important than his studies, then we can do away with UUCA.
Again, I have to disagree. This argument is far too simplistic.
When we restrict a person’s fundamental freedom, whatever that freedom might be, we are stifling their ability to develop.
Higher education is not merely about going to the lecture theatre and mugging for your exams.
It is about expanding your horizons, taking responsibility for your actions and acting on your convictions.
You can’t do this if you are kept chained by repressive laws.
But it is still too early to rejoice this victory for fundamental liberties in general and academic freedom in particular.
The case might still go to the Federal Court and who knows what their decision will be.
Neither is this case reason to say our judiciary is independent.
What this case does show is that there are individual judges in our courts who understand and appreciate constitutionalism, there are lawyers willing to argue for this principle and there are young men and women in our student body brave enough to stand up for their rights.
There’s still much to be done, but for the moment this is reason enough to cheer.