LAW STUDENTS' SOCIETY 2011/2012 FULL LINE-UP
14 July 2012
12 July 2012
By: Fuad Syazwan Ramli*
The issue of the suspension of Prof Aziz Bari had brought UIA under the spotlight again. After the mysterious story behind the Ustaz Azhar Idrus’s talk, now UIA’s credibility is being scrutinized again.
Legally speaking, UIA may or may not be right. The suspension of Prof Aziz Bari is made according to the Staff Disciplinary Rules 2005 of the International Islamic University Malaysia (IIUM). Section 21 gives UIA the power to suspend its staff pending an inquiry. The section read:
21. The University may suspend a staff member under this rule pending an inquiry into the alleged breach of discipline by the staff member. The period of suspension will depend on the reasonable time required to carry out an investigation and conclude the inquiry into the alleged breach of discipline.
Even though UIA has the power to suspend, the power is not compulsory. The word "may" indicates a discretionary power. It gives the university two choices to make, whether or not to suspend Prof Aziz. So why should the university straight away jump to the suspension button? Who gives the advice to the Rector? Did the adviser think of the consequences of using this method? Against a man with credibility and huge followers like Prof Aziz? In Jain’s words, “An authority vested with discretion has to apply its mind to the facts and circumstances of the case before taking an action. If it passes an order mechanically without applying its mind, its act will be ultra vires.”
Under the law as well, the authority is expected to decide each case based on its own merits and cannot simply apply the same procedure to every single case. This rule is called the “fettering discretion”. So, did the university consider this case thoroughly? Looking at the circumstances surrounding this issue, Prof Aziz is known to be an outspoken academician, most of the time his comments are against the interest of the ruling party. And that is why the police reports, remarks made against him were made by politicians. This surely creates tension. The university must expect that the oppositions will use this issue to retaliate against their political enemy as well. Suspending Prof Aziz will be seen as unfair and just following orders from the Government. Politic is based on perception, people judge us based on our acts.
Section 20 of the same Rules also states that the alleged lecturer must be given an opportunity to be heard.
20. In all disciplinary proceedings by the University, no staff of being member shall be subject to disciplinary action unless he has heard been informed in writing of the grounds on which it is proposed to take action against him and has been afforded a reasonable opportunity of being heard.
In Prof Aziz Bari's case, he was just been issued with the show cause letter. The university should give him the opportunity to explain his remarks first, then only conduct an inquiry. This can help the university avoid suspicious from the outsiders and the community of UIA. Without the explanation from Prof Aziz, how can the community expect the university to conduct a fair and just inquiry? Analyze the explanation from him first and from that, conduct an internal inquiry. Don’t have to straight jump to the suspension button although the authority has the right to do so.
Prof Aziz Bari is the pearl of UIA. He is a great asset for UIA. When the issue first arise, with remarks and police reports made against him by politicians, the university did nothing to defend him. For two consecutive days, he was made headline by Utusan Malaysia, a newspaper known to be the tool of the ruling party. Allegations were thrown against Prof Aziz Bari. Instead of protecting him, the university decided to show him the show cause letter. By doing this, it shows that the university is also interested to be involved with the game played by the politicians. The statement issued by Prof Aziz was published in Malaysiakini. Is it too hard for the university administrators to read the statement themselves? Why must the authority let the words of the idiots undermine its intellectuality by listening to them?
The university should be wise enough to think about the reaction of the public. Do all the public ever read the Staff Disciplinary Rules? The authority must choose its action wisely. This is not the first time Prof Aziz made such statement. He had even published books about this issue. The university should issue a stern warning against the politicians who politicized this issue. The authority should be protecting the intellectual freedom, and make policies and decisions that can nurture this culture of intellectual freedom, not the other way around.
As informed by Prof Aziz, the university is investigating him for issuing public statement that is not in line with the university’s interest. This is provided in the proviso of Section 15 of the same Rules. The proviso is as follows:
Provided that the making of such statement is not contrary to the interests of the University.
As we can see here, the term “interests of the University” is ambiguous in nature. As an Islamic university, we can assume that “contrary to the interests” means any statement that is not in line with the Shariah (Islamic laws). This is the simplest explanation can be given about this proviso. So, did Prof Aziz ever make a statement that is contrary to Shariah?
This issue explode due to the remarks made by politicians. The story started when Malaysiakini published a statement from Prof Aziz, which they received from his sms. Here we can see that the source of the story read by the politicians is secondary source, already edited by the editor of Malaysiakini. They did not see the actual statement sent by Prof Aziz. So, to judge this issue, we must look at the content of the said article. This article, and this article alone, should be the one to be examined by us in finding whether Prof Aziz had breached the proviso.
These are the statements published by Malaysiakini:
“Seseorang akan berfikir sama ada dengan meletakkan umat Kristian dalam kedudukan itu - sesuatu yang tidak dapat dielakkan berikutan serbuan ke atas DUMC - adalah benar-benar mengikut ajaran Islam.
“Lebih-lebih lagi, campurtangan istana dalam perlembagaan negara amat jarang sekali. Apa yang berlaku di Selangor hari ini bukan sesuatu yang lazim.
"Sebelum ini, pernah terjadi kejadian yang lebih teruk seperti bekas menteri besarnya merobohkan surau tertentu di Selangor. Tetapi pihak istana tidak campurtangan,”
“Di bawah undang-undang atau sistem undang-undang mana-mana sekalipun, jika tiada bukti, kes ditutup. Tohmahan dan dakwaan lanjut dan sebagainya, mesti dielakkan, khususnya di negara seperti Malaysia,”
“Yang pasti, baginda menerima kuasanya diambil (oleh kerajaan persekutuan) dalam pelantikan Setiausaha Kerajaan Negeri tanpa sebarang bantahan atau aduan. Daripada apa yang dilaporkan, baginda menerima perkara itu sebagai fait accompli.
“Bagi saya, istana perlu melihat kuasanya dengan gambaran yang lebih luas; iaitu peranannya sebagai simbol negeri dan faktor penyatuan yang mesti mengatasi parti politik. Ia tidak boleh mengambil kuasa secara isolation (terasing).
“Apa yang berlaku hari ini, adalah contoh yang baik.”
These are the statements. Is it against the Shariah to say that the King had erred in his words? Even the law that governs defamation, the Defamation Act, protect Prof Aziz. If you do not believe me, try and read for yourself, this following Section 3 of Defamation Act:
(2) Notwithstanding anything in subsection (1) an act, speech, words, publication or other thing shall not be deemed to be seditious by reason only that it has a tendency—
(a) to show that any Ruler has been misled or mistaken in any of his measures;
See? Simply saying that the King had erred in his decision and action does not amount to sedition. It was a clear wording of the law. If you want to argue about sedition, you must refer to this act. And the Act clearly protects Prof Aziz.
It is really sad to see that the university administrator had failed to read the real intention of the politicians who politicized this issue. They are not protecting the Sultan. They are protecting themselves! The comment made by Prof Aziz is an honest comment based on his expertise, the monarchy of Malaysia. So why should the university even listen to the frogs making noises? Based on circumstances surrounding this issue alone the authority can make a conclusion that the reports, remarks were made just to gain political mileage.
No one ever expected that this issue will be like this. This is not the first time Prof Aziz issued such statements. However because of the fault of the intellectuals, and the university, who failed to defend their colleague when he was being attacked by politicians had made the matter worse. Everyone should learn something from this issue. When an academician is under attack, it is not only himself, but also the freedom of an intellectual to express his views based on what he knows. Everyone, especially the academicians must defend their right. As according to Martin Luther King, “Injustice anywhere is a threat to justice everywhere.”
*Third year student of Ahmad Ibrahim Kulliyyah of Laws, IIUM.
10 July 2012
Intellectual Forum: Homosexuality, Crime or Right?
13.04.12 | UIAM
In the past years, there had been calls for review of laws relating to Lesbian, Gay, Bisexual & Transexuals (LGBT). One of the proponent, Seksualiti Merdeka stressed that it is the right of the community to practice their way of life according to their own way.
The statement made by opposition leader, Anwar Ibrahim on reviewing provisions in the Penal Code which penalized homosexuality also sparked debates among the community. Bar Council also jump into the bandwagon and call for the government to review such laws.
The question is, should Malaysia legalize homosexuality in the name of private right of an individual? Or should public morality at large prevail? This forum is intended to serve as an intellectual discourse where all relevant quarters can give out their views on this matter properly.
Mr Faridzul Nasarudin
1. Dr Shamrahayu Abd Aziz
Constitutional expert, UIAM
2. Mr Lim Chee Wee
President, Malaysian Bar
3. Dr Farouk Musa
Chairman, Islamic Renaissance Front
Organized by Law Students' Society AIKOL, IIUM