Instead of using the sledgehammer of the law, universities could use the law of contract and the techniques of private law to keep politics in campus under reasonable control.
THE Prime Minister has instructed that the Universities and University Colleges Act (UUCA) be amended to achieve two aims: First, to permit adult students to join political parties. Second, to ensure that campuses still remain free of partisan politics.
Permitting political affiliation poses no legal problems. However, there is one contentious issue: Are students going to qualify for political affiliation at 18 (the age of majority) or at 21 (the age of the right to vote)?
The second aim – keeping campuses free of politics – is more complicated and the journey will cover many slippery slopes.
The Higher Education Minister has constituted a committee and has directed it to consult all affected parties. Such consultation will lend democratic legitimacy to the process.
However, one must note that consultation does not impose a duty to obey the wishes of those consulted. Many conflicting opinions are bound to surface during the consultation and the committee in framing its recommendations will have to try to reconcile the irreconcilable.
Political affiliation: To permit students to join political parties, the following provisions of UUCA (and their equivalents in the Private Higher Educational Institutions Act 1996 and the Educational Institutions (Discipline) Act 1976 need to be repealed or amended;
– Subsections 15(1)(a) and 15(2)(a) that prohibit students and student groups from associating with political parties,
– Subsection 15(1)(c) and 15(2)(c) that prohibit students and student groups from associating with any organisation declared by the minister to be unsuitable for student affiliation. The minister’s power, though never exercised, is very broad and could conceivably be used to name political parties,
– Subsection 15(3) that deals with the vice-chancellors’ duty to communicate the minister’s list of unsuitable organisations to students, and
– Subsection 15(5)(a) that bans students and student groups from expressing sympathy or support for, or doing anything which may reasonably be construed as expressing sympathy or support for any political party.
In the recent case of Muhammad Hilman Idham, this subsection was declared invalid by the Court of Appeal on constitutional grounds. Students now have a right to attend political ceramahs or to distribute leaflets etc.
Section 15(5)(c) bans students and student groups from expressing sympathy or support for or doing anything which may reasonably be construed as expressing sympathy or support for any organisation deemed unsuitable by the minister.
Section 15(6)(b) permits free speech at seminars, symposiums etc, provided these occasions are not organised by political parties and “unsuitable organisations”. This ban is constitutionally questionable if the seminar is outside the campus.
Keeping campuses politically free: To permit students to immerse in politics outside the university but to insist on political neutrality on campus poses many difficult constitutional challenges.
With legal literacy rising, the Federal Constitution is moving from the peripheries to the centre. Many students are now aware of their constitutional rights.
The Federal Constitution in Article 10(1) grants to all citizens freedom of speech, assembly and association. Article 10(2) permits Parliament to impose restrictions on the above rights on a number of specified grounds.
For example, free speech is subject to eight limits; security of the Federation, friendly relations with other countries, public order, morality, privileges of Parliament, privileges of state assemblies, contempt of court, defamation or incitement to an offence.
As Parliament is not supreme, any legislative restriction must fall squarely within the eight permissible grounds. Many provisions of UUCA appear unconstitutional because of blank-cheque restrictions not confined to the eight permissible limits.
There are likely to be constitutional posers if UUCA permits punishment on a student for wearing a T-shirt, cap or emblem of a political party or possessing or distributing pamphlets or membership forms of a party.
It is likely to be argued by proponents of student freedoms that these activities present no “clear and present danger” to public order, national security etc. The recent Court of Appeal decision in the Hilman case affirmed this view.
The recently passed Peaceful Assembly Bill and the impending repeal of section 27(5) of the Police Act also expand student horizons.
Under the new statute, assemblies at public and private places are permitted without a police permit. Students are likely to make use of this law for assemblies outside their campuses.
The dilemma for the draftsmen is therefore this: Any amendments to UUCA must recognise the new demand for compliance with the hitherto forgotten supreme Constitution. At the same time the view of parents, senior civil servants and many academicians must be considered that the torch of learning should not be allowed to be extinguished by the firestorm and fury of political passions.
Suggestions: It is humbly proposed that we need to reorient our thinking in the following ways:
UUCA must be constitutionalised. Only such restrictions on political activism must be imposed as are consonant with our basic charter.
For example Article 10(3) permits restrictions on the right to form associations by a law relating to education. This means that while permitting students to have political affiliations, section 49 of the First Schedule of UUCA could be amended to provide that students are forbidden from setting up branches of political parties on campus.
Instead of using the sledgehammer of the law (and facing constitutional challenges), universities could use the law of contract and the techniques of private law to keep politics in campus under reasonable control.
The letter of offer to students could impose a dress code forbidding the wearing of any political emblem.
Students could be required to observe a reserve in politics on campus; to refrain from acting as an election agent or polling agent, or standing for Dewan Rakyat or state assembly elections and holding any post in any political party without prior permission from the VC.
This will have the added advantage of bringing staff and student law relating to political involvement on par with each other.
Many sectors of society, including 1.2 million public servants face similar political restrictions.
Politically disruptive activities could be the subject of disciplinary proceedings.
Universities could make adroit use of the law of private property to regulate seminars on campus and to vet the list of invitees. There is some scope for judicial review if this power is abused.
Nevertheless, there is considerable scope for internal regulation as university property is private property.
As a matter of general principle, we should distinguish between what the students do on campus and what they do outside. Their outside activities should not be curbed by UUCA but by the ordinary law of the land.
In addition to above changes, there should be sincere efforts to empower students and to recognise their rights and dignity. A precedent already exists.
The 2009 Constitution of USM protects students under a whistleblowers clause. A Student Parliament has been set up. There is a Board Committee on Student Welfare with two democratically elected representatives of students as members.
A student representative may sit on the Student Disciplinary Board. Student welfare has been separated from student discipline.
A thorough programme of re-education for student affairs officers will do much to reduce student grievances and to end the adversarial atmosphere on many campuses.
Students in turn will, of course, have to remember that rights and responsibilities go hand in hand. Abuse of freedom is as bad as abuse of power.
> Shad Saleem Faruqi is Emeritus Professor of Law at UiTM and Visiting Professor at USM