auku amendments: towards more freedom for usm students

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Emeritus Professor Datuk Dr Shad Saleem
Faruqi
27 February 2013
1
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 The ISA has been repealed but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.
2
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.
3
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
4
 Regulation of student activities on campus will
be done under the Act as well as by contractual
measures
5
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.
6
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).
7
 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.
9
 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.
10
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].
11
 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)).
.
13
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
15
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:
16
 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.
18
 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).
19
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.
21
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.

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.
23
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)
24
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.
25
 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).
26
 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)
27
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.
29
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).
30
 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).
31
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)
32
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.
34
 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.
36
 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.
37
PD/E/09.12.11
38
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