by Tony Pua MP
National Publicity Secretary DAP
5.11.11
The decision by the Cabinet to allow the appeal of the Court of Appeal judgement that Section 15.(5)(a) of the University and University Colleges Act1971 (UUCA) is unconstitutional flies in the face of the Prime Minister’s “politicaltransformation programme”.
After a series of calls for the Government to not appeal the Court of Appeal judgement that Section 15.(5)(a) of the UUCA made by top politicians from both Barisan Nasional and Pakatan Rakyat, hopes were high that the Cabinet will abide by and accept the Court’s decision.
The UMNO Youth Chief, Khairy Jamaluddin, Deputy Higher Education Minister, Dato’ Saifuddin Abdullah and MCA Youth Chief, Datuk Wee Ka Siong have made a show of openly supported the Court’s position that the relevant section of the UUCA is unconstitutional and the UUCA should be amended accordingly.
In the “spirit” of the political transformationprogramme launched by the Prime Minister, Datuk Seri Najib Razak on the eve of Malaysia Day where he announced the proposed repeal and amendment of various draconian Acts such as the Internal Security Act (ISA) and the Printing Pressand Publications Act (PPPA), Malaysians were expecting an enlightened decision by the Cabinet to finally remove the shackles of academic freedom at our institutions of higher learning.
However, the BN government has instead chosen to burst the high hopes of the people and to abdicate its responsibility to the Attorney General, purportedly to make a study of the “points of law”. The excuse could not be more lame as regardless of the Court decision, the Cabinet could have taken opportunity to announce a proposed amendment of the UUCA, particularly thecontroversial Section 15.
In fact, the Cabinet should have taken the bold decision not only to amend Section 15.(5)(a), but the entire Section 15 of the Act which severely restricts the freedom of academics and students in our local universities.
Section 15.(1) states that students of the University, even if they are of voting age or PhD students, cannot be members of any political party, or anyother organisation as determined by the Minister of Higher Education.
Section 15.(2) states that no University students’ body shall have any association with any political party, or any organisation as determined by the Minister of Higher Education.
Section 15.(6)(a) states that students and academics will only have the “freedom” to make statements on their areas of study and research while 15.(6)(b)prohibits their participation in any seminar, symposium or event organised by any political party, even if it is within their area of expertise.
The above sections of the Act are obviously unreasonable and unconstitutional on so many grounds – such as the Article 8 which states that “all persons are equal before the law” forbidding discrimination against students and academics; and Article 10 which guarantees the “freedom of speech and expression” as well as “the right to form associations”.
I have filed the proposed amendments to the above Sections of the Act during the sub-committee debate on the UUCA Amendment Bill in December 2008 arguing on its unconstitutionality. However, the motion was defeated unanimously by the BN members of Parliament.
We call upon the Cabinet not to make the same mistake twice, at the expense of not only the Prime Minister’s “political transformation programme”, but also the reputation and credibility of our institutions of higher learning. Without academic freedom, our universities will never be able to achieve our goals of becoming “world-class” institutions. Regardless of the final decision by the Attorney-General, Datuk Seri Najib Razak must retake the initiative and commence the process of removing all unconstitutional and unreasonable elements from the UUCA.
“More suppression will result in tighter grip on power”, presumably this is the mentality of the government of the day.
Only a fool will believe Najib’s political transformation program.
///The above sections of the Act are obviously unreasonable and unconstitutional/// – Tony Pua. These sections be unreasonable but this alone does not mean that they are therefore “unconstitutional”. This is because of article 10(2)(a)(b) (c) of the Constitution that clearly qualify the civil liberties including freedom of speech/assembly in preceding article 10(1). The qualifying article 10(2) says in clear terms that Parliament may by law (legislation) impose such restrictions (including on Labour & Education) as it deems NECESSARY or EXPEDIENT in the interest of the security of the Federation…public order or morality. When UUCA (curbing of students’ participation in politics) was passed in Parliament in 1974 (when Dr Mahathir was Education Minister & continued after Anwar stepped into his shoes), its avowed intent was purportedly to prevent infiltration of political ideologies and extremities amongst students/academics distracted from their studies and learning. Whether one agrees that this is reasonable or not it was the Legislature’s intent. The word “reasonable” is not in the qualifying article 10(2). Only the words “necessary” an “expedient” as deemed by parliament. If one follows what ex Judge NH Chan said – that one should confine to reading the plain English of what was stated – what is conclusion?
The Umno GOM should know that it has already supressed the freedom of our university students for a very long time.It should respect the decision of the court ruling and not appeal the decision handed out.To appeal will endure the anger of the people and the backlash will be felt sooner than later.The day of reckoning will be this coming GE.
Why are Umno politicians afraid of university students being involved in politics.Well,first of all most of the active and vocal student heads are Malays.They are scared that by letting the Malays getting involved in politics at college age might produced tens if not hundreds of firebrands, or clones of Anwar Abrahim.
Yet “reasonableness” may still be interpreted by Courts to be imported into qualifying article 10(2) (even though that word is not there) if based on pre-1988 Merdeka Constitution by which the then Art 121 still said expressly “The JUDICIAL POWER of the Federation shall be vested in [our courts]. That means Courts then had inherent power to read the legislation, go behind it to review reasonableness of what parliament intended (as part of check and balance) but TDM pushed through constitutional amendment to take out entirely “judicial power”. He then said how could the judge try to second guess what Parliament intended by legislation and try to usurp power of parliament whose majority reflected rakyat’s will? From then on it has become generally accepted that courts interpret what Parliament intended through the strict words of what’s stated rather than go behind to interpret what Parliament must have intended beased on benchmarks of “reasonableness” according to the courts. Until TDM’s constitutional amendment is itself repealed to reinstate pre 1988 wordings of “Judicial Power”, the courts strictly have no power to interpret reasonableness or unreasonableness of legislation. Admittedly this makes mockery of our civil liberties because the govt could pass any law to curtail them justified upon vague words like public interest morality and security etc about which courts hands are tied to strike down as unconstitutional based on unreasonableness !
There is the overriding need to show the judiciary who’s boss…
The majority Court of Appeal’s decision is clearly favouring Najib’s “political transformation programme”. Any transformation means change from that of Mahathir’s legacy (Mahathirism). To challenge or present as an alternative to Najib requires one to embrace Mahathirism and oppose “political transformation programme” including signal sent forth by Court of Appeal in UUCA’s case. Notice that all important decisions – whether to appeal against Court of Appeal’s decision- or to do away with PPSMI are made when the No. 1 is physically out of the country so that when he comes back its already fiat accompli with a blow to his political credibility! What’s new?
The UUCA was enacted by TDM. Knowing his character, I am sure Najib and Co. knows full well what he will do if his legacy is being dismantled. We all know his vengeful nature when he made life miserable for Pak Lah when Pak Lah dropped his crooked bridge venture.
The moment they allow freedom of speeches….then more and more idiots will get smarter and they cannot get support.if Malaysians are getting smarter.
Mahathir said he will guide and rule and U students better study…..leave politics alone.
And that’s how he stayed as POM for 22 years.
You think those goons will change Mamak’s formula to dig their own graves?
Political transformation, economic transformation – these are all typical Barisan BS. We don’t need transformasi, we need reformasi.
Meanwhile Najib is in Mecca praying forgiveness and come back….declaring 13th GE date?
Your guess is as good as mine.
Hopefully he comes back from Hajj with renewed strength to lead. Followers will follow a leader who leads by showing strength, a quality which includes being firm and resolved in doing what one says, meaning what one says, and saying what one means; it also includes stamping one’s authority, and if necessary fighting to put down and out those who sabotage one’s policies, thought important right and good for all. Of course fighting for what one believes always involves risk: one may lose one’s coveted position and job in that process but it is a risk that as to be accepted because of the greater cost both to one’s own credibility as leader as well as to the larger good if one does less and fails. Too often, failure to act because of fear of losing one’s own principled position is the very factor that hastens one’s loss of that coveted position. For the showing of weakness is that which makes followers swing to the other side to look for leadership.