Mooting Bundle

WRITTEN SUBMISSION BY CO-COUNSEL FOR APPLICANT A. ISSUES TO BE DISPUTED

1. Whether Section 15A of the UUCA is unconstitutional as it violates the right to freedom of speech, assembly and/or association provided for by Article 10(1) of the Federal Constitution.

B. WRITTEN SUBMISSION First submission

1. Section 15A of the UUCA contravenes Article 10(1) of the Federal Constitution.

According to Section 15A of the Universities and University Colleges Act 1971, it is prohibited for a student, or an organization, body, or group of students to collect or to attempt to collect money. If they do so, they shall be liable to disciplinary action.[1] It is clear that Highland University Political Science Society, a club of which both the applicants, Mr Lee and Ms Wong are members of, was denied of any funding by the Student Affairs Division. The funding requested by the Highland Political Science Society was to finance a trip to attend a conference, Socialism 2014 in Chicago in June. The applicants, Mr Lee and Ms Wong were members of a Political Science Society which according to the Oxford Dictionary, is concerned with the branch of knowledge that deals with the state and systems of government; the scientific analysis of political activity and behaviour. Hence, by attending Socialism 2014, a conference which consists of hundreds of socialists and radical activists from around the country to take part in discussions about Marxism, working-class history, and the debates and strategies for organizing today, they would be able to participate fully and enjoy all the fundamental rights as enshrined pursuant to Article 10(1) of the Federal Constitution which states that every citizen has the right to freedom of speech, expression, assembly and association.[2] It is clear to see that by denying the funds they required for the trip, the Student Affairs Division had also denied the applicant’s fundamental right under Article 10(1). Hence, Section 15A of the UUCA further violates this freedom of expression by not allowing both Mr Lee and Ms Wong to collect money for the trip. With no funds, and no donations to finance the said trip, Mr Lee and Ms Wong are unable to exercise their basic rights under the Federal Constitution. Thus, it is clear that Section 15A of the UUCA has clearly contravenes Article 10(1) which guarantees every citizen of Malaysia to freedom of speech, expression, assembly and association. In the appeal case of Muhammad Hilman Bin Idham & Others v Kerajaan Malaysia & Others[3], the appellants were four students whom had been arrested by police during the Hulu Selangor by-election campaign for participating in political events which was prohibited by the University and University Colleges Act 1971 (UUCA). They had claimed through a declaration that the UUCA is unconstitutional. Their application had initially been dismissed by the Kuala Lumpur High Court’s Appellate and Special Powers Division in September 2010 of which the High Court’s Justice Aziah Ali had ruled that Section 15 of the UUCA does not infringe Article 10 of the Federal Constitution which deals with freedom of expression. However, on 31st Oct 2011, the Appeal Court overturned the High Court's decision in a 2-1 majority decision which also ruled that Section 15(5) (a) of the Act was unreasonable and violated the freedom of speech which was guaranteed by the Federal Constitution. In the judgement of Justice Hishamudin, “A legislative enactment that prohibits such participation in a vital aspect of democracy cannot by any standard be said to be reasonable. In my judgment therefore because of its unreasonableness, section 15(5) (a) of the UUCA does not come within the restrictions permitted under Article 10(2) (a) of the Federal Constitution and is accordingly in violation of Article 10 (1) (1) and therefore void by virtue of Article 4(1) of the federal constitution.” Justice Hishamudin also claimed that Article 4(1) states the constitution is the supreme law of the federation and any law passed after Merdeka Day which is inconsistent with this constitution shall to the extent of the inconsistency be void. He also adds that the right of free speech is given of most priority in the constitutions of many countries. It is a vital factor of democracy and respect of human dignity. This essential right is acknowledged by many human rights documents such as Article 19 of the Universal Declaration of Human Rights and Article 19 of the International Covenant on Civil and Political Rights. Since it is established that Mr Lee and Ms Wong’s freedom of expression has been violated by Section 15A of the UUCA similar to what Section 15(5) (a) has infringed in this appeal case, it is clear that Section 15A of the UUCA clearly contravenes Article 10(1) of the Federal Constitution. Second submission

2. Section 15A of the UUCA does not fall within the restrictions stated in Article 10(2) (a) of the Federal Constitution.

According to Article 10(2) (a) of the Federal Constitution, the rights conferred in Article 10(1) can be restricted if the interest of the internal security or public order of the Federation is affected[4]. However, Section 15A of the UUCA only prohibits students from collecting money. It is clear that this prohibition does not concern the interest of the internal security or public order of the Federation. In the Supreme Court case of Public Prosecutor v Pung Chen Choon[5], the accused was prosecuted in the Magistrate’s Court Kota Kinabalu. He was charged under Section 8A (1) of the Printing Presses and Publications Act 1984 for maliciously publishing false news in “The Borneo Mail” on 16th July 1990. As the prosecution of the case drew near, the defence raised the question whether Section 8A imposes restrictions on the right to freedom of speech and expression in violation of Article 10(1) (a) and Article 10(2) (a) and thereby void. It was later held that this section is sufficiently connected to the ground provided in Article 10(2) (a). It is also concluded that under section 8A (1) of the Printing Presses and Publications Act 1984 is valid within the scope of Article 10(2) (a). It is can be established that in this case, Section 8A (1) fell under the restrictions of Article 10(2) (a) because the malicious publication of false news could, instigate acts which threaten the internal security of the country, impair Malaysia's friendly relations with other countries and that would lead to a disturbance of public order and provoke the commission of offences. Therefore, Section 8A of the Act could be validated to be within the boundaries of permissible restrictions in art 10(2) (a) of the Constitution and was valid. However, the Section 15A of the UUCA did not threaten the internal security of the country and therefore did not fall within the restrictions of Article 10(2) (a). This section is only concerning the prohibition of students from collecting money. It is clear to see that under no circumstances this prohibition can threaten internal security like Section 8(a) of the Printing Presses and Publications Act 1984. In addition, in the Federal Court case of Re Application of Tan Boon Liat @ Allen; Tan Boon Liat v Menteri Hal Ehwal Dalam Negeri, Malaysia & Others[6], the appellants were placed under orders of detention made under Section 4(1) of the Emergency (Public Order and Prevention of Crime) Ordinance, 1969. Representations were filed against the orders to the Advisory Board, but the Board did not make recommendations in the period of three months of the detention orders. However, the Yang di-Pertuan Agong had acted on advice to confirm the detention orders. All the three appellants applied for habeas corpus, and claims that the continuation of the detention after a period of three months from the date they were detained was illegal in regards to Article 151(1) (b) of the Federal Constitution and the provisions of Section 6 of the Emergency (Public Order and Prevention of Crimes) Ordinance, 1969. The High Court dismissed the applications and the appellants appealed to the Federal Court. Their appeal was hence allowed. In his judgement, Abdoolcader J said that, in regards to Article 10(2) (a), "The expression "public order" is not defined anywhere but danger to human life and safety and the disturbance of public tranquillity must necessarily fall within the purview of the expression. It is used in a generic sense and is not necessarily antithetical to disorder, and is wide enough to include considerations of public safety within its signification.” However, as compared to the applicants’ case, Section 15A of the UUCA has indeed imposed restrictions on the rights conferred in Article 10(1). In addition, Section 15A of the UUCA does not fall within the restriction of Article 10(2) (a) as this section does not concern the internal security of the Federation or public order which includes the protection of rights and freedom of other person. It merely prohibits students from collecting money. Hence, it is clear that Section 15A of the UUCA does not fall within the restrictions stated in Article 10(2) (a) of the Federal Constitution. C. PRAYERS FOR RELIEF The Applicant respectfully requests the Honourable Court to:

1. Declare that Section 15A is unconstitutional as it contravenes with Article 10(1) of the Federal Constitution
2. Declare that Section 15A of the UUCA does not fall within the restrictions stated in Article 10(2) (a) of the Federal Constitution.
3. Declare that Highland University Political Science Society receive the funding needed for the trip to attend Socialism 2014.

Dated this on 11th of April 2014 Co-Counsel for Applicants

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[1] S15A of the Universities and University Colleges Act 1971 [2] Article 10(1) of the Federal Constitution [3] Muhammad Hilman Bin Idham & Others v Kerajaan Malaysia & Others [2011] MLJU 768 [4] Article 10(2) (a) of the Federal Constitution [5]Public Prosecutor v Pung Chen Choon [1994] 1 MLJ 566 [6] Re Application of Tan Boon Liat @ Allen; Tan Boon Liat v Menteri Hal Ehwal Dalam Negeri, Malaysia & Others [1977] 2 MLJ 108

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