LETTER | Law students call for protection of academic freedom

LETTER | We are a group of concerned law students in light of the controversies arising out of the recent statement issued by University of Malaya Association of New Youth (Umany). 

Notably, on Nov 1, University Malaya (UM) issued a statement in reaction stating that they will be investigating Umany's statement concerning the Yang di-Pertuan Agong's role in national administration.  

We are deeply concerned and disturbed by the current development of this issue. We firmly believe that such academic discourse should not be labelled as seditious. It erodes academic freedom, the core value embedded in UM since its establishment 115 years ago.   

As such, by penning this statement, we call for UM to stop the investigation immediately and return to its course to uphold academic freedom which has long been broken. 

We take this opportunity to invite all other Malaysian law students who share the same sentiment to join us in this fight by endorsing our full statement. 

Together, we can create a better future for this country we love dearly, Malaysia, and #siswabantusiswa.

The endorsement form will close at 12pm on Nov 4.

Below is our statement:

 Law students of Malaysia call for protection of academic freedom

We are a group of concerned law students in light of the University of Malaya’s (‘UM’) recent statement to investigate the University of Malaya New Youth (‘Umany’) following Umany’s statement concerning the Yang di-Pertuan Agong’s role in national administration. In said statement, Umany cautioned against the involvement of the Agong in refusing to declare a state of emergency and his call for supporting the 2021 Budget in Parliament.

One prevalent criticism against said statement was that the Agong has unquestionable power to be involved in national administration in light of the Rukun Negara. This led many to criticise said statement as insulting and challenging the power of the Agong.

This view is devoid of legal basis. The Rukun Negara is founded on the principle of constitutional monarchy. With respect, the Agong plays a symbolic, not substantive role under the Federal Constitution save for certain matters expressly provided by the Federal Constitution.

We note with caution that such misreading of our constitutional system cuts deeply into the bedrock of a constitutional monarchy like Malaysia. The constitution forms the root of our country. It is also the foundation for the privileges, position, honours and dignities of rulers. As such, it must be read with the highest clarity for the good of society. We take this opportunity to call for the implementation of constitutional education in our national education system to improve the overall constitutional literacy amongst all Malaysians.

On a constitutional basis, we are of the view that Umany’s statement on both the Agong’s role in refusing to declare an emergency and lobbying parliamentarians’ support for budget 2021 is reasonable and with merits.

On the Agongs’s prerogative to reject cabinet advice of declaring emergency under Article 150(1), there are two diverging views among constitutional scholars and lawyers.

The first view that the Agong has no power to reject advice is anchored on Article 40(1) and Article 40(1A) of the Federal Constitution. Under these provisions, the Agong is bound to act on the advice of the cabinet. This view finds credence in authorities like Teh Cheng Poh v PP 1979.

The second view emphasises on the suggestive terms of ‘satisfied’ and ‘may’ in Article 150(1), which seems to suggest discretion on the same. This view is supported by several prominent lawyers such as Tommy Thomas and Mohamad Ariff.

By propounding the first view, Umany merely took a stance on an important debate for the nation, echoing the opinions of revered constitutional scholars.

On the Agong’s call for parliamentarians’ support on the 2021 Budget, we similarly note the divergence of views on the nature of such advice.

Preliminarily, the constitutional monarchy is above politics, both by law and by convention. Legally, the constitution prescribes no role for the Agong to be involved in party politics. As per convention, it’s evident in the Proclamation of Constitutional Principles signed between the majority of rulers and the government in 1992 that the rulers are not to be involved in party politics and administration of the state which is likely to give rise to controversy.

That the monarchy should be apolitical gained support from recent royal pronouncement. On Aug 6, 2017, the Sultan of Perak Sultan Nazrin Muizzuddin Shah pronounced at the ‘Merperkukuh Pasak Negara’ Convention that the monarchy should distance itself from politics. To quote, "the king should remain apolitical, segregating himself from the political cauldron and staying away from becoming an instrument for the benefit of any party".

On the flip side, the rulers are rightfully involved in national affairs on certain matters. Article 40(2) entitles the Agong to be involved in the appointment of a prime minister, the withholding of consent to a request for the dissolution of parliament, and the requisition of a meeting of the Conference of Rulers.

As a matter of political convention, constitutional monarchs are also to be the uniting force of the country amidst political polarisation.

It is certainly debatable whether advice from the palace calling for parliamentarians’ support on the 2021 Budget constitutes a political lobby on parliamentary affairs or an apolitical reminder coming from the uniting thrust of the country.

By far and large, both issues are reasonably debatable. We are of the view that these are important debates for the country, for the society’s reaction to such events dynamically shapes the constitutional convention of Malaysia.

For this reason, students should enjoy protracted liberty to discuss and reflect on the nature of such royal advice as well as the Agong’s prerogative, and how they shape the constitutional outlook of the country. Universities should be important national chambers for the pursuit of truth, not a machinery that suppresses unpopular views.

In the Court of Appeal, judge Mohd Hisamuddin’s celebrated judgement in Muhammad Hilman bin Idham & Ors v Kerajaan Malaysia & Ors, His Lordship remarked the role of universities as "the breeding ground of reformers and thinkers, and not institutions to produce students trained as robots". His Lordship further referred to the Chief Justice Warren Burger of the United States Supreme Court’s elucidation that "teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilisation will stagnate and die".

As explained by the English philosopher John Stuart Mill in his treatise On Liberty, the peculiar evil of silencing the expression of an opinion is that it robs posterity and the existing generation of a chance to exchange error for truth or have a clearer perception of truth produced by its collision with error.

As a public institution funded by taxpayers, UM owes it to the society to uphold and facilitate the society’s pursuit of the truth. This necessarily involves allowing and protecting freedom for students to express their critical thoughts on important issues with the greatest margin possible.

UM should be the fortress of academic freedom against the assault of political pressure. If UM is stultified by mounting pressure, it has failed its role as the intellectual hub of the country.

Further, UM is home to an abundance of revered constitutional scholars who are in the best position to clarify the debate to the public. They are UM’s human resources as much as society’s repository of constitutional knowledge. As such, UM bears the natural obligation to educate the public on the significance and merits of such debates.

It is therefore disappointing that UM has defied expectations and sought to silence, rather than encourage such debates of constitutional importance.

It should be reminded that academic freedom is one of the core values of UM on its official website. UM has vouched to be an institution which:

• Recognises the primary role of our university as an institution that advances and disseminates knowledge for the betterment of humanity.
  
  
• Encourages activities that generate and disseminate knowledge beneficial to the nation and humanity.
  
  
• Tolerates viewpoints or activities that differ from own perspectives.
  
  
• Appreciates and promotes the expression and exchange of diverse ideas and viewpoints.
  
  
• Does not engage in illegal or immoral activities under the guise of academic pursuit.
  
  
• Exercises academic freedom in a responsible and ethical manner.
  
  
• Values the spirit of free enquiry; its promotion will lead to intellectual growth and enlightenment; its erosion will lead to misguidance and intellectual decline.

Standing in solidarity with Umany, we urge UM to stop its investigation onto Umany for this event, as well as to declare support for Umany’s right to academic discourse. Else, the values of academic freedom are but meaningless verbiage.  

The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.