auku amendments: towards more freedom for usm students

Emeritus Professor Datuk Dr Shad Saleem Faruqi 27 February 2013

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Winds of change are blowing through our beloved land. Emergency has been lifted. All emergency laws have ceased to operate six months after the emergency ended. The Peaceful Assembly Act has been passed by Parliament. The ISA has been repealed but replaced by The Special (Security Measures Act. AUKU was amended in 2009 and again in 2012.

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Four UKM students won a famous court victory against the former section 15(5)(a) of AUKU which used to ban students and student groups from expressing sympathy and support for any political party.

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AUKU has consequently been amended to allow students to join political parties : s. 15(1). However no party politics is allowed on campus s. 15(2)(c). The University has the power to regulate the activities of students and student organisation within the campus: s. 15(5). The great advance is that activities outside the campus will now be left alone

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 Regulation of student activities on campus will

be done under the Act as well as by contractual measures

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EXISTING LEGISLATION  AMENDMENTS to AUKU in 2009 & 2012 seek to

usher in an era of liberalization of the campuses in a number of areas of interest to students.

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FREEDOM OF ASSOCIATION  Previous to 2009, students needed prior permission from the university to join any organization inside or outside the university. The 2009 amendment to AUKU removes the need for any prior permission to join an organisation. Students are free, individually and in groups, to join any lawful society or organization without any prior clearance

from the university authorities: Section 15(1).

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 Membership of political parties is allowed : s.

15(1).

 The law states that students may, individually

and in groups, “become a member of any society, organisation, body or group of persons” without the need for prior permission from anyone.

 Hundreds of

social, youth, human rights, consumers and women's organisations and NGOs, whether national or international, within or outside the university are now within the reach of students. 8

 Previously all association was prohibited unless

clearly permitted. Now all association is permitted unless clearly prohibited. The law has taken a clear shift.

 Previously student rights were conditional and

residual. The power of university authorities was almost unrestricted.

 Now student rights are inherent and the

university's power to limit student freedom of association is restricted by the law.

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 The law is silent on whether an enrolled student

can hold a post in a political party, contest in the GE or act as agent of a candidate.  Silence is deemed consent.  However such activities should be confined to

areas outside the campus.

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RESTRICTIONS ON FREEDOM OF ASSOCIATION However this right of association is still subject to two exceptions under Sections 15(2)(a) and 15(2)(b).  Students and student groups are prohibited from joining any

organization declared by any existing law as illegal  Students and student groups are prohibited from joining any

organization specified by the Minister as being unsuitable to the interests and well being of the students. [ As yet the Minister has not specified any organisation as unsuitable].

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 Note that this prohibition in s. 15(2) of

AUKU on joining, illegal organisations and “unsuitable” organisations is still valid despite the recent Court of Appeal decision against s. 15(5)(a) in Muhammad Hilman Idham v Kerajaan Malaysia [2011] 6 MLJ 507.  Qualification for SRC membership are

provided in First Schedule, s. 48(7)-(18) 12

FREEDOM TO SET UP BODIES Section 15(1) and (2) deal with the right to join bodies, not the right to establish them. The right to establish an organisation within the campus is regulated by s. 49 of the First Schedule. Ten or more students, with the permission of the VC, may set up a student body (other than a student body prohibited by section 15(2)).

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ENFRANCHISEMENT OF POSTGRADUATE STUDENTS  Post-graduate students are now entitled

to vote in student elections, to contest for seats on student bodies and to provide leadership to their peers. (Refer to definition of ‘student’ in s. 2.  This has significant implications for the

quality of student leadership and for HEP-student relationships. 14

VC’S POWER TO SUSPEND STUDENT ORGANIZATIONS  The previous power of the VC to suspend or dissolve a student organization summarily has been subjected o procedural safeguards for students: Section 16 AUKU.  A prior hearing must be given: S.16(1).  An appeal to the Minister is allowed: S.16(2) AUKU.

 The Board can suspend or dissolve the SRC: First Schedule, s. 51

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FREEDOM OF SPEECH  The previous subsection 15(5)(a) of AUKU was recently invalidated by the Court of Appeal in Muhammad Hilman Idhan case [ 2011] 6 MLJ 507. The implications are as follows:

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 The guarantees of Article 10 of the Federal

Constitution apply within the campus.  AUKU and other campus laws will, henceforth

have to comply with the supreme Constitution.  Student’s rights are enlarged.

Students and student bodies, in their speech, writings and other forms of expression, can now express sympathy or support for political parties. Note that the ban on expression in support of unlawful socities or unsuitable organisations does not make any mention of policital parties : s. 15(3) 17

 Students can make public statements on any

academic matter on which they are engaged in study or research: Section 15(4)(a), AUKU.  There is permission in section 15(4)(b) to

indulge in any academic comment or criticism on academic occasions such as seminars and symposiums provided that these seminars or symposiums are not organized by the two categories of forbidden organizations listed in ss.15(2) of AUKU.

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 Interaction with outsiders is not prohibited anymore.  Students may, with the permission of the University, invite outsiders including

politicians to participate in seminars etc. provided the seminar was permitted by the university and was not organised by the two prohibited organisations in S.15(2).

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What the students are still prohibited from doing: 1. Previously students and student groups were prohibited from collecting money for any cause without prior permission : s. 15A. 2. If students wish to invite politicians to the campus, they must note that university premises are “private premises” for the purpose of the law. As such any invitation to outsiders to enter the campus is subject to the prior permission of the owners of the property i.e. the university authorities. 20

3. Students cannot demonstrate or march outside the university contrary to the Peaceful Assembly Act. 4. As the campus is private property, students cannot demonstrate or march on campus without the permission of the University. 5. If, in the exercise of their free speech, they cause disruption to university life, they can be subjected to disciplinary proceedings.

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DE-CRIMINALISATION OF AUKU 

The 2009 amendment totally de-criminalises AUKU by removing all criminal penalties and substituting them with disciplinary measures by the University. All previous provisions for jail sentences and criminal fines for violation of AUKU have been removed.

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There are no collective or vicarious liabilities on students for the wrongs of their organisation. 22

NO AUTOMATIC SUSPENSION OR DISMISSAL  Previously if a student was charged with a “criminal offence”,

he was automatically suspended.

 If he was convicted, he was automatically dismissed.  Now, the university is given discretion.  Depending on whether the offence is a serious, “registrable”

offence or a minor offence or an offence unrelated to academic pursuits, the university may exercise its discretion to suspend or discipline : s. 15D

 The Act removes all previous provisions for mandatory,

automatic suspension or expulsion of a student who is charged with or convicted of a criminal offence.

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PREVENTIVE DETENTION  If a student is detained or restricted under a preventive

detention or restricted residence law he is not automatically suspended or dismissed as was the case before 2009. (Note that the ISA is repeated).  He is allowed to retain his status as a student : s. 15D(3).  The Senate may even permit him to take his

examination at the detention centre with the permission of the Minister of Home Affairs : s. 15D (4)

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FUNDAMENTAL RIGHT TO EDUCATION  The 2009 amendment recognizes that education

is a student’s fundamental right : s. 15D(4)  Even preventive detainees, or those who are

charged with a criminal offence or those who are so convicted, are not automatically suspended or expelled.

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 Unlike previously, a student who is acquitted or

who has served out his sentence or has been released from detention has a right to return to the university.  His forced absence cannot be taken into account

in calculating the maximum period for completing his studies: S.15D(7) and 15D(8).

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 A student suspended or excluded from a public

university has a right to enroll in a private institution or, with the Minister’s permission, in another public university: S.15D(5) to 15D(8)

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STUDENT DEMOCRACY  The SRC is retained.  At USM it shall be elected within 45 days of the

commencement of each academic year.  At USM in addition to the SRC, a new Students’

Consultative Assembly for all “registered students” except “external students” has been created. The SCA shall operate as the new Student Parliament. USM has pioneered this innovation. 28

REVOCATION OF DEGREE  The university’s power to revoke a degree or diploma

has been greatly narrowed down to instances of dishonest conduct in obtaining a degree or diploma : s. 53 Schedule I  The power is subjected to procedural safeguards.

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FAIRER DISCIPLINARY PROCEDURES The Act provides for fairer student disciplinary procedures.  At USM a student of the University may now be

appointed by the VC to sit as a member of the Disciplinary Board of first instance to try student disciplinary cases. I envisage that in the future, student disciplinary boards of first instance will be manned entirely by students.

 Oral or written representation is allowed to all students

facing a charge.

 There is a right to be represented by others (but not by

lawyers).

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 The Minister’s power to dismiss an appeal

summarily is repealed.

 The

right to hear student appeals is transferred from the Minister to the Board: s. 16B(5) – (12).

 Adjudicators now have strict time limits (14

days) to communicate their decision to the accused: S.16B(3D) & 16B (12).

 Appeal must be heard within 60 days : s.

16B(11).

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PARTICIPATION IN GOVERNANCE  The Board of the University shall have a Student

Welfare Committee on which two student representatives elected by the SRC shall be entitled to sit: First Schedule, Section 21.

 The Senate of the University is empowered to invite a

student to attend its deliberations and to give him access to any minutes of the Senate: First Schedule, s. 17(1A).

 At USM the Academic Council of the Faculty may invite

a student a student to attend its deliberations: Section 30(3)

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OTHER RIGHTS FOR STUDENTS 

At USM Student discipline has been separated from Student Affairs and Student Development.

 At USM students who report abuse

of power by university authorities are protected by a whistleblowers clause.

 A Students’ Complaints Committee has been

established : First Schedule, s. 21A. 33

CONCLUSION  The Universities and University Colleges (Amendment) Acts 2009 & 2012 and the USM APEX Constitution (2009) seek to enhance students’ constitutional and legal rights and

to grant to students better procedural protections. There is a cautious but definite effort to usher in a new and liberal era of student-university relationships and to bring about an era of evolutionary changes towards more democratic, vibrant and open campuses.

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 The challenges are immense. The journey is a

continuing one.  Attitudional changes are required on the part of

every one involved.  Human rights awareness on the part of the

university administration demands that power be exercised with restraint. Equally social responsibility on the part of students requires that rights must be exercised with responsibility lest these rights are withdrawn at the next round of amendments. 35

 Students and parents must appreciate

that all universities grapple with the problem of student indiscipline which manifests itself in innumerable ways cheating in the exams, widespread plagiarism, false medical certificates, sexual harassment, unwanted pregnancies, vandalism, drug use, thefts, illegal parking, unauthorised absence from lectures, and crossgender dressing.

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 University authorities face monumental

challenges in balancing student rights with the necessary need for discipline, order, security and the uninterrupted pursuit of knowledge and professionalism.

 We are experimenting. How well we

succeed remains to be seen. But there is no turning back on a new era of greater tolerance of student rights.

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PD/E/09.12.11

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