MP SPEAKS Normally conservative opinion pundits were shocked and galvanised on Oct 31 when the Court of Appeal, on a 2-1 majority, ruled that Section 15(5)(a) of the Universities and University Colleges Act (UUCA) was unconstitutional.

It was a landmark decision on the UUCA, which has been amended five times since it was enacted.

However, Section 15(5) (a), which forbids undergraduates in public tertiary educational institutions from supporting, sympathising with or opposing any political party, remained unchanged.

This provision is deemed to contradict Article 10(1) (a) of the federal constitution, which grants each citizen the right to freedom of speech, assembly and the exercise of civil rights.

Public pressure for the repeal of this section has been reverberating across the country for a long time. In 2005, USM graduate Soh Sook Hwa applied to the High Court to rule that the UUCA forbids undergraduates from participating in politics and is therefore unconstitutional.

After five years and numerous changes in the line-up of judges, the High Court in Kuala Lumpur ruled June 4, 2010, that amendments had been made to Section 15 and it would therefore be academic to rule the section null and void. Soh's application was dismissed.

However, this ruling was not enough to hinder the four UKM graduates from continuing their campaign against the UUCA and they finally got the verdict they were hoping for.

I studied the verdicts from the the judges in detail, each comprising 15, 19 and 21 pages. I found that the written decisions were not that extensive and the rationale for the decisions were not exceptional.

The biggest difference lay with the individual interpretation of each judge pertaining to the role of the courts.

The Legislature, Judiciary and the Executive are the three separate bodies under the principle of separation of power. Parliament consists of representatives elected by the people and legislation passed in Parliament becomes the supreme law of the country.

Judges, in contrast, are appointed by specific parties and not elected via the ballot box. Therefore, the thinking among the judiciary is that the courts merely interpret and rule in accordance with the provisions of the law, even though the laws are unreasonable.

Conservative thinking

Therefore the courts cannot rule that the laws are ineffective as such power lies with the legislative function that resides within Parliament.

Such conservative thinking, no doubt, severely constraints the courts. Although it is true that legislation is passed in Parliament, the party whip system has rendered MPs unable to state their stand based on their own personal convictions and they vote according to the party leaders' instruction.

This is the reason why, even though Deputy Education Minister Wee Ka Siong had proposed that the UUCA be amended in his maiden parliamentarian speech in 2004, not a single MCA parliamentarian supported this motion when DAP in 2008 tabled a Private Member's Bill to amend the UUCA.

It is inevitable that the brute force of the majority rules in Parliament, which is why the progressive-thinking court should deem that it is not a rubber stamp but possesses, and will, exercise the right to rule a piece of legislation as legal or otherwise.

In the three verdicts of the judicial review of the UUCA, two Court of Appeal judges leaned towards the more liberal approach while the dissenting judge deem that since the legislation stipulates that undergraduates can't be involved in politics, he has no choice but to rule accordingly.

The two differing views pertaining to the role of the Judiciary seem to suggest what would happen once the BN administration makes an appeal to the Federal Court, whereby the Court of Appeal's verdict can be overruled.

Therefore, the decision to appeal or not is no longer a legal issue but a policy matter. The key is whether the BN administration is prepared to return the freedom of speech/expression to our university students.

If the BN administration is indeed sincere, it should not waste time on an appeal but start the process of reforming the UUCA. However, if an appeal is brought before the Federal Court, we can only pray and hope that the judges are of a progressive mind!

 

TEO NIE CHING is the DAP Member of Parliament for Serdang.