Judgment Parody – Student v UUCA

A parody judgment on what might come to be as a result of the recent Kuala Lumpur High Court ruling in the UKM 4 case.

IN THE HIGH COURT OF CARICATURE AT LOYARBUROK

(SPECIAL POWERS)

ORIGINATING SUMMONS NO.R1-23-45-2010

BETWEEN

1. USOP BIN SONTORIAN … PLAINTIFF

AND

1. THE GOVERNMENT OF BOLEHLAND … DEFENDANTS

2. MINISTER OF TERTIARY EDUCATION

3. NATIONAL UNIVERSITY OF BOLEHLAND

JUDGMENT

Lingswaran Singh LB:

The Plaintiff is a political science undergraduate of the 3^rd Defendant. The Plaintiff filled this originating summons seeking a declaration that S. 15(5)(a) of the University and University College Act 1971 (Act 30) contravenes Articles 119(1)(1) of the Federal Constitution and is therefore invalid, and as a consequential declaration that the pending disciplinary proceedings that have been instituted against the Plaintiff by the 3rd Defendant for alleged breaches connected with S.15(5)(a) are not valid in law. The Plaintiff contend that S. 15(5)(a) violates his constitutional right to vote and participate in an election as outlined by Part VIII of The Federal Constitution.

Background

[2] The Plaintiff returned to his hometown in the constituency of Parit Sonto, New South Takzim which he was a registered electorate, during the campaign period for the parliamentary by-election of 24.4.2010.

[3] On or about 13.5.2010 the Plaintiff received notices from the 3rd Defendant’s Vice Chancellor requiring them to attend before disciplinary tribunal on 3.6.2010. Together with the notices were charge sheets informing them that disciplinary proceedings had been instituted against them for alleged breaches which constituted offenses under S.15(5)(a) of Act 30 and if they were found guilty, they could be sentenced as provided for under Procedures of National University of Bolehland (Students Discipline) 1999 (“the Regulations”). The Plaintiff replied vide written representations dated 26.5.2010 denying the allegation. The 3rd Defendant scheduled hearing for 2.6.2010 and 3.6.2010. On 1.6.2010 the Plaintiff filed this originating summons.

[4] The issue for determination is whether S.15(5)(a) of Act 30 violates Article 119(1)(1) of the Federal Constitution and is thus invalid. Section 15 (5)(a) of Act 30 provides as follow –

(5) No student of the University and no organization, body or group of students of the University which is established by, under or in accordance with the Constitution, shall express or do anything which may reasonably be construed as expressing support for or sympathy with or opposition to –

(a) any political party, whether in or outside Bolehland;

Article 119 of the Federal Constitution provides as follows –

Article 119:

1. (1) Every citizen who-

* (a) has attained the age of twenty- one years on the qualifying date; and

* (b) is resident in a constituency on such qualifying date or, if not so resident, is an absent voter,

is entitled to vote in that constituency in any election to the House of Representatives or the Legislative Assembly unless he is disqualified under Clause (3) or under any law relating to offences committed in connection with elections; but no person shall in the same election vote in more than one constituency.

1. (2) If a person is in a constituency by reason only of being a patient in an establishment maintained wholly or mainly for the reception and treatment of persons suffering from mental illness or mental defectiveness or of being detained in custody he shall for the purpose of Clause (1) be deemed not to be resident in that constituency.

2. (3) A person is disqualified for being a elector in any election to the House of Representatives or the Legislative Assembly if-

* (a) on the qualifying date he is detained as a person of unsound mind or is serving a sentence of imprisonment; or

* (b) having before the qualifying date been convicted in any part of the Commonwealth of an offence and sentenced to death or imprisonment for a term exceeding twelve months, he remains liable on the qualifying date to suffer any punishment for that offence.

3. (4) In this Article “qualifying date” means the date by reference to which the electoral rolls are prepared or revised, and “absent voter” means in relation to any constituency any citizen who is registered as an absent voter in respect of that constituency under the provisions of any law relating to elections.

Plaintiffs Submissions

[5] The learned counsel submitted that S.15(5)(a) contravenes Article 119(1) of the Federal Constitution by prohibiting the Plaintiffs right to return to his hometown as an parliamentary elector to participate in the by-election campaign. Inconsistency of S.15(5)(a) which seeks to prohibit students from doing anything which may reasonably be construed as expressing support for or sympathy with or opposition to any political party, whether in or outside Bolehland contravenes the constitutional right to vote. Counsel argues that suffrage as expounded by Part VIII of the Constitution, must include matters approved in the Election Offences Act 1954 (Act 5) . He referred to S.3, 4, and 6 of Act 5, which reads as follow-

(3) A candidate or his election agent may, during the campaign period –

(a) hold, convene or organize any open public meeting, open public rally, open public display or open public entertainment; or

(b) give any open public address or open public lecture, in the constituency in which the candidate seeks election but only if he holds a permit to do so issued to him by the police officer in charge of the district where the meeting, rally, display or entertainment is to be held or the address or lecture is to be given.

…

(4) A candidate or his election agent may, during the campaign period, display, furnish or distribute election campaign materials to members of the public in the constituency in which the candidate seeks election but only if he-

(a) holds a permit to do so issued to him by the State Elections Officer, subject to such terms and conditions as the State Elections Officer may determine; and

(b) has paid to the State Elections Officer a deposit of five thousand ringgit in the case of an election to the Dewan Rakyat and three thousand ringgit

…

(6) Subject to the by-laws of any local authority, election campaign materials include any advertisement, leaflet, brochure, flag, ensign, banner, standard, poster, placard, handbill, label or any form of temporary billboard.

[6] He further argues that participation in an election campaign is part and parcel of suffrage. It is a constitutional right of every citizen that have achieved the age of majority, and thus S.15(5)(a) that seeks to restrict these rights is inconsistent with the Constitution and by virtue of that invalid.

[7] Counsel submits that the application of the “catch-all” provision of S.15(5)(a) which absolutely prohibits “anything which may reasonably be construed as expressing support for or sympathy with or opposition to any political party” would result in absurdity as the provision does not seek to differentiate between various types of conduct. Therefore the court is urged to strike down S.15(5)(a) as it is submitted that the said provision is not capable of an interpretation that is constitutional.

Defendants Submissions

[8] The counsel argued that suffrage does not fall under the ambit of restriction covered by S.15(5)(a), because what the section intends is to prevent students from being active in Political Parties. The learned counsel quoted several Indian and African authorities as support; he also furnished the court with relevant speeches from the Hansard to draw the original intent of the legislators.

Decision

[9] I accept the argument of the plaintiff, that the right to vote or suffrage encompasses the activities allowed under Election Offences Act 1954 (Act 5) and also the Elections Act 1958 (act 19). There is an inconsistency between S.15(5)(a) and Article 119(1) of the Constitution. I see no sound reason why a person of the age of majority, allowed by the Constitution to vote but stripped of rights necessary in executing it. Indeed the UUCA is an offspring of the notorious Article 149 of the Constitution, however Article 149 gives power to the Parliament only to pass laws to suspend a person’s fundamental rights vested to him in Part II of the Constitution if the Parliament believes that the person is a threat to national security or public order notwithstanding the fact that the laws are conflicting with Article 5, 9, 10 and 13 and 79. It does not however apply the same to Part VIII of the Constitution. There is a reason why Political Parties are allowed to campaign, it is so that may convince the electorates to support them, any law not allowing that process to take effect is indeed invalid as it is inconsistent not only with the spirit of Democracy but also our Constitution. This is a clear sign of inconsistency, thus I find S.15(5)(a) invalid and as a consequence the pending disciplinary proceedings that have been instituted against the Plaintiff by the 3rd Defendant for alleged breaches connected with S.15(5)(a) are not valid in law. Costs to the Plaintiff to be taxed unless otherwise agreed.

Dated 07.10.2010

LINGSWARAN SINGH

LOYAR BUROKKER

HIGH COURT OF CARICATURE

For the Plaintiff : Teo Lee Ken

(Messrs Randall Lim & Singh)

For the 1^st, 2^nd, and 3^rd Defendants: John Ross Ewing

(Attorney General’s Chambers)