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LEX AMICUS | FRIENDS OF THE LAW | VOL.3 1

AMICUSLEX Friends of the LAW

November 2016

BULLETIN OF THE OFFICE OF THE LEGAL ADVISORUNIVERSITI TEKNOLOGI MARA

VOL.3

Advisor Emeritus Professor Datuk Dr Shad Saleem FaruqiChief Editor Associate Professor Datin Dr Musrifah SapardiEditor Shahrin Nordin | Administrator Noor Aini Masri

Graphic Designer Muhammad Rais Zainal AbidinPrinted by

IN THIS

ISSUE

EDITORIAL BOARD

LEX AMICUSPowers and Functions of the Principal Officers of UiTM – by Shad Saleem Faruqi

PPUU UiTM dan peranannya sebagai benteng Universiti kini menghampiri dua dekad (1997-2017) – oleh Musrifah Sapardi

Administrative Circular: A Quick Glance on its Legal Authori-tativeness – by Shahrin Nordin

Common Operational Issues in the Implementation of Private Initiative Projects – by Rasanubari Asmaramah Said

Memorandum Perjanjian adalah sesuatu yang mengikat di bawah Undang-Undang Kontrak – oleh Musrifah Sapardi

A Multi-Jurisdictional Comparison of the concept of “Information” and “Public Bodies” in Freedom of Information Statutes – by Muhammad Izwan Ikhsan

Legal and Ethical Issues in Research – by Shad Saleem Faruqi

Pathways to Success and Significance – by Shad Saleem Faruqi

The Laws relating to Staff Discipline at Malaysian Public Universities – by Shad Saleem Faruqi and Shahrin Nordin

Friends of the LAW

Graduate on Time (G.O.T) – by Musrifah Sapardi

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pg17

pg21

pg42

pg47

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pg54

pg61

pg68

pg75

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Dear Readers,

We are excited to present our Lex Amicus (volume 3).

The Office of the Legal Advisor at UiTM (widely known as PPUU, an acronym of Pejabat Penasihat Undang-Undang) has been established since 1997. For two years it was solely managed by an Assistant Vice Chancellor (Special Functions & Laws). From 1999, PPUU operated in its own office at Aras 3, Menara Sultan Salahuddin Abdul Aziz Shah with only one staff. In 2001, the office increased the number of its staff. Since 2005, PPUU has been re-located at Level 6, Chancellery, UiTM.

Next year (2017), PPUU will celebrate its 20th year anniversary. How time flies - nearly two decades, PPUU has grown many folds, not just in terms of manpower but also responsibilities. Today, it has a deputy, five legal officers and five administrative staff to attend to legal matters ranging from the amendments of UiTM Act 1976, development and facilities, breach of scholarship contracts, staff and student disciplinary issues, parliamentary affairs, advisory opinions and many more.

We truly hope that Lex Amicus which means ‘Friends of the Law’ would be our readers’ friend, where they not only could browse through but also learn from.

Happy Reading!

MusrifahSapardiChief Editor

GREETINGSFROM THE OFFICEOF THE LEGAL ADVISORUiTM

LEX AMICUS | FRIENDS OF THE LAW | VOL.32

INTRODUCTION

The purpose of this essay is to summarise the provisions of UiTM laws in relation to the powers, functions, duties, liabilities and immunities of the following authorities and officers of the university:• The Chancellor• The Minister of Higher Education• The Minister of Finance• The Board of Directors• The Chairman of the Board of Directors• The Vice-Chancellor• The Senate• The Deputy Vice-Chancellors• The Registrar• The Bursar, and • The Rectors• Other Principal Officers of the University

APPLICABLE LAWS

The powers, functions, duties, liabilities and immunities of the officers of the university are contained in three primary laws:

• Universiti Teknologi MARA Act 1976 [Act 173]

• Statutory Bodies (Discipline & Surcharge) Act 2000 [Act 605] and

• Educational Institutions (Discipline) Act 1974 [Act 174].

In addition to the above primary laws there is a host of other legislation like the Statutory Bodies (Accounts and Annual Reports) Act 1980 that affects the functioning of the university.

From time to time there are Circulars, Directives, Instructions and Guides issued by the Ministry

of Higher Education, Ministry of Finance and the Public Services Department. A recent example is the Green Book of September 2015 called “Enhancing University Board Governance and Effectiveness”, University Transformation Programme Green Book, 2015.

In legal theory such “administrative quasi legislation” does not qualify as “law” within the definition of “law” under Article 160(2) of the Federal Constitution or the Interpretation Acts. An exception would be if the Circular or Directive is drafted under the authority of a specific provision of a law applicable to UiTM.

As Directives etc. do not qualify as “law”, therefore they do not apply to UiTM unless they are given the kiss of life by a Resolution of the Board of Directors. For example on staff matters the General Orders of the public services are not applicable to employees of UiTM. This is based on the case of Ramalingam v Chong Kim Fong [1978] 1 MLJ 83 which laid down that employees of statutory bodies like FELDA are not “government servants” and are not part of the public services of the federation as defined by Article 132 of the Federal Constitution. However, due to the bureaucratic traditions of the country, the Board tends to adopt most Government Circulars laid before it. This attitude of adopting a large number of Government Circulars needs to be scrutinised in the years ahead.

POWERS OF THE CHANCELLOR OF UiTM

Under section 19A(2), Act 173 the Yang di-Pertuan Agong is the Chancellor of Universiti Teknologi MARA. This means that the Chancellor changes whenever a new King ascends the federal throne.

Under Act 173 His Majesty, the Chancellor, performs the following functions:

Appointment of Pro-ChanceIlors Tuanku ChanceIlor may appoint, on the advice of the Minister of Education, such persons to be Pro-Chancellors as Tuanku may consider proper: section 19B(l). The Pro-Chancellors hold office during the pleasure of Tuanku Chancellor: section 19B(3).

Powers and Duties in relation to Convocations Tuanku Chancellor shall determine the frequency and the dates on which Convocations may be held: section 29B(l). Tuanku Chancellor shall, when present, preside over Convocations: section _______________________________________________________________

* Emeritus Professor Datuk Dr Hj Shad Saleem Faruqi, Legal Advisor, UiTM.

POWERS AND FUNCTIONS OF THE PRINCIPAL AUTHORITIES AND OFFICERS OF UiTM

by : Shad Saleem Faruqi*


19A(l). But in his absence he may authorise a Pro-Chancellor to preside over a Convocation: section 29B(2). Tuanku Chancellor may confer degrees, diplomas, certificates and other academic distinctions on persons who have foIlowed courses of study approved by the University: section 4(1)(b) and 29B(1). Tuanku ChanceIlor may confer such honorary degrees or awards as may be recommended by the Board after consultation with the Senate: section 4(1)(ba).

Delegation of power to Pro-Chancellors If for any reason Tuanku Chancellor is unable to exercise any of his functions, he may authorise any of the Pro-Chancellors to act on his behalf: section 19B(2).

Functions in relation to ArticIe 153 Under section 1A of the Universiti Teknologi MARA Act 1976, UiTM is “established pursuant to and in accordance with the provisions of Article 153 of the Federal Constitution”. Article 153 is about the special position of the Malays and the natives of Sabah and Sarawak and permits the King to set such quotas and reservations as he deems reasonable in four areas of life including higher education.

UiTM’s section 1A gels well with DYMM Yang di-Pertuan Agong’s role under Article 153 to safeguard the special position of the Malays and the natives of Sabah and Sarawak. Section 1A of Act 173 is anchored in Article 153’s affirmative action policy to assist Malays and the natives of Sabah and Sarawak with reservations “of such proportions as (the King) may deem reasonable” in institutions of higher learning . However, neither Article 153 nor section 1A explicitly mention that UiTM is reserved solely for Malays and the natives of Sabah and Sarawak. Section 1A does not explicitly forbid UiTM from admitting foreigners or non-Malays. Section 1A is permissive and enabling, not disabling. The issue of admitting foreigners or local non-Malays to UiTM is mostly one of politics and policy. But given the fact that since its inception, ITM has been reserved solely for Malays and (since 1963) for the natives of Sabah and Sarawak, the opening up of UiTM to non-Malays will involve a significant change of policy. Under the Federal Constitution, any change in affirmative action policies under Article 153 must go through two levels of clearance.

First, the Yang di-Pertuan Agong must decide what new proportion he deems reasonable. In making his decision the Yang di-Pertuan Agong must act

on the advice of the Cabinet. Article 153(2) clarifies that His Majesty’s functions under Article 153 are subject to Article 40 (King’s duty to act on advice). Second, under Article 38(5), “the Conference of Rulers shall be consulted before any change in policy affecting administrative action under Article 153 is made”. The new quotas (if any) should be referred to the Majlis Raja-Raja for “consultation”. Consultation does not require consent but the process of seeking the Majlis’ wisdom must be observed.

POWERS OF THE MINISTER OF HIGHER EDUCATION

The Minister of Higher Education is empowered by Parliament to perform many functions in relation to UiTM. Some powers are to be exercised “after consultation with” named persons or authorities. In relation to other powers the Act does not specify on whose advice the powers must be exercised. This means that the Minister may seek advice from any source. His discretion is very wide.

Functions in relation to the University’s governance

Advice Tuanku Chancellor on the appointment of Pro-Chancellors: section 19B(1), Act 173.

Appoint the Chairman and members of the Board; revoke their appointment; fill vacancies and appoint an Acting Chairman, if need be: section 13, Act 173.

Appoint the Vice-Chancellor, revoke his appointment and determine the terms and conditions of his appointment: section 20, Act 173.

Appoint an Acting Vice Chancellor: section 20(8).

Assign additional functions to the University: section 12, Act 173.

Power to give general directions to the University that are not inconsistent with Act 173: section 29, Act 173.

Power to delegate his functions to the Board: section 29A, Act 173.

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Appoint Deputy Vice-Chancellors after consultation with the Vice-Chancellor: section 20(7) and 20(7A), Act 173. “Consultation” is distinguishable from “consent”. The Minister is free to accept or reject the consultant’s advice.

Change the location of the University after consultation with the Board from Shah Alam to another location: section 6, Act 173.

Establish and maintain, after consultation with the Board, Branches of the University: section 7(1).

Appoint a Provost/ Pengarah/ Rector (by whatever name called) for each Branch who shall be answerable to the VC: section 7(2).

Determine the terms and conditions of the service of the Provosts/ Rector/ Directors: section 7(3).

Make, by order published in the Gazette, such special provisions as he may deem necessary, for the purposes of the administration of the Branch. Such special provisions may even be inconsistent with Act 173: section 7 subsections (4) and (5).

Power to give general directions on matters relating to higher education: section 29, Act 173.

Grant permission for twinning, joint or franchise courses: Section 9, Act 173.

Approve the University’s annual estimates: section 26(5).

Receive a copy of the University’s returns, reports, information and audited accounts and to lay them before the Dewan Rakyat: section 27(4) and section 30, Act 173.

Assign additional money to the University: section 12, Act 173.

Approve after consulting with MOF, the winding up of a University-established corporation: First Schedule Para 4, Act 173.

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Powers in relation to the branches of the University

Powers in relation to education

Financial powers

Determine and approve allowances for members of the Board: Second Schedule, Para 5, Act 173.

Power to give general directions relating to disposal of capital assets: section 29, Act 173.

Application of the proceeds of such disposal: section 29(2)

Powers in relation to student discipline

Power to appoint the Students’ Affairs Officer for Shah Alam and for each of the Branches of UiTM: section 5(1), Act 174, Customarily, the TNC (HEP) is appointed for Shah Alam and each Provost/Pengarah for his/her Branch.

Power to amend the Educational Institutions (Discipline of Students) Rules 1976: section 6, Act 174.

Power to allow a student to enrol in another university if he was charged or convicted of a criminal offence and was as a consequence suspended or ceased to be student of UiTM: section 14(5) & (6), Act 174.

Power to delegate his functions under Act 174 to another person: section 21, Act 174.

Powers in relation to the Student Representative Council

The Minister may amend the Third Schedule of Act 174 dealing with the SRC: section 7, Act 174.

Power to approve establishment of SRC and other student bodies: sections 7- 8(1), Act 174. Power to suspend or dissolve the SRC or other student bodies: section 9(2) , Act 174.

Power to permit or forbid students from associating with any society, political party, trade union or other organization: section 10, Act 174.

Functions in relation to staff discipIine

The Minister is the Chairman of the Disciplinary Appeal Committee relating to proceedings against the Vice-Chancellor and Deputy Vice-Chancellors: Act 605, Appendix, col. 4.


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Legislative functions

The legislative function of bringing Act 173 and its amendments into force: section 1(2), Act 173.

Grant of permission to backdate and re-designate the Diplomas and Advanced Diplomas of the (former) Institut Teknologi MARA: section 4(2), Act 173.

Power to amend the “transitional provisions” of Part VII of Act 173: section 47(1), Act 173.

Power to amend disciplinary rules under Act 174’s First, Second and Third Schedules and to amend the Educational Institutions (Discipline of Students) Rules 1976: sections 6, 23 and 24 of Act 174.

POWERS OF THE MINISTER OF FINANCE

Section 4A grants to UiTM “additional commercial powers” (generally referred to as “corporate powers”) with the permission of the Minister of Finance. These powers include the following:

set up companies and subsidiaries under the Companies Act. (Principles and policies relating to these are not laid down in Act 173 and need to be formulated or revisited).

set up corporations under Act 173

borrow money, secure borrowings

make investments, hold shares, stocks, debentures and other investments

acquire, hold, rent, mortgage, purchase, take on lease, hire or acquire real and personal estate.

Power to grant permission to the University to engage in trade and business, investment and joint ventures: section 4A(l), Act 173. Power to grant perrmission to the University to invest in securities of the Government: section 24(5), Act 173.

Right to be consulted before a corporation owned by the University is wound up: First Schedule, Paragraph 4, Act 173. The First Schedule gives power to the university

to make rules in respect of a corporation set up under section 4A(1)(c). These powers are subject to the prior approval of the Minister of Finance: section 4A(1).

Issues for the future: An issue that comes up now and then is that in some cases there is a clash between sections 3 and 4 (our independent powers) and section 4A (our powers with the permission of MOF). For example the power to take a lease is covered by both section 3(c) and section 4A(1)(i). If the university intensifies its commercial activities there may be a need to seek autonomy and delegation from MOF on our commercial activities under section 4A.

Autonomy must always be accompanied by accountability and there is a continuing challenge of devising adequate control mechanisms.

Another issue for the future is that the university has hitherto not employed its powers under section 4A(1)(c) to establish corporations to carry out projects, schemes, enterprises beneficial to the university.

POWERS & FUNCTIONS OF THE BOARD OF DIRECTORS

Board personifies the university

Under section 3 of the Universiti Teknologi MARA Act 1976 [Act 173] the Board of Directors is the personification of the corporate personality of the university. Whatever powers and functions are vested in the university can generally be regarded as being vested in the Board. Subject to some exceptions, the Board is the recipient, repository and trustee of all the powers of the university. This view is based on section 14(1) of Act 173 that the Board is the “executive body of the Universiti and may exercise all the powers conferred on the universiti, save as otherwise provided by this Act …” The words “save as otherwise provided by this Act” mean that where the law explicitly empowers the Chancellor, the Minister of Higher Education, the Minister of Finance, the Chairman of the Board in person, the Vice-Chancellor in person or the Senate, the Board has to give way to the named authority in that area.

Composition of the Board of Directors

Section 13 provides for the composition of a nine


member Board appointed by the Minister. The Board consists of (i) a Chairman, (ii) the Vice-Chancellor, (iii) two persons to represent the Government, (iv) three persons from the private sector who because of their knowledge and experience would, in the opinion of the Minister, be of assistance to the Board, and (v) two other persons who because of their knowledge and experience would, in the opinion of the Minister, be of assistance to the Board. There is no specific provision to ensure representation of alumni, professional bodies, Sabah and Sarawak on the Board.

Except for the VC, the other eight distinguished members are from outside the university and serve on the Board on a part-time basis.

In 2011, the Prime Minister instructed the Board to increase its membership to 14 members. This cannot be done without parliamentary amendments to section 13 of the Act.

Several categories of powers

Act 173 confers on the university several broad categories of powers:

Independent powers exercisable by the Board without reference to any other authority

Powers exercisable with the permission of His Majesty, the Yang di-Pertuan Agong, our Chancellor

Powers exercisable with the permission of the Minister of Higher Education

Powers exercisable with the permission of the Minister of Finance

Powers exercisable by persons or authorities like the Vice-Chancellor or the Senate of the university.

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Board’s statutory powers

The Board is “the executive body of the University and may exercise all the powers conferred on the university, save as otherwise provided by (the) Act” or rules made thereunder: section 14(1), Act 173.

Innumerable sections of Act 173, especially section 3 and section 4(1), subsections (a) to (l) confer on UiTM specific powers in a whole range of fields including education, training, finance, administration, welfare and discipline. Among the powers are:

Executive and administrative powers of governance

“The functions of the Board shall include the carrying on of all such activities and the doing of all such things as are necessary or advantageous and proper for the government, control and administration of the Universiti”: section 14(2) of Act 173.

The Board is “to have charge of the general management and administration of the statutory body”: Act 605, section 4.

The Board/LPU has the power to decide on the policy and function of the University subject to the control and advice of the Ministry: Pekeliling Perkhidmatan Bilangan 1 Tahun 2002, para 2.

The Board constitutes the University’s corporate personality along with the Chancellor, Pro-Chancellors and the Vice-Chancellor: section 3

It can sue and be sued: section 3(a).

It can have, use, break, change or alter or make a new common seal: section 3(b), 5(1).

It can decide on the policy and function of the University subject to the control and advice of the Ministry: Pekeliling Perkhidmatan Bilangan 1 Tahun 2002, para 2

The Board has the implied power to ask the VC for all information relating to the university.

The Board can authorize an LPU member to use the common seal on all instruments other than degrees, diplomas etc: section 5(1) and section 5(3), Act 173.

Right to be consulted by the Minister on the location of the University: section 6

Right to be consulted by the Minister on the setting up of Branches of the university: section 7, Act 173.

Determine the procedure for the meetings of the Board: section 13(9), Act 173.

Appoint from amongst its members¹ such committees of the Board as it thinks necessary to handle issues within its jurisdiction. It may

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¹ This provision of the law needs to be re-visited.


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determine the composition, functions and powers of the committees: sections 15-16. The Board may nominate the Chairmen of Board Committees: section 16(4), Act 173. It may delegate its functions and powers to any member or any committee of its members subject to the general direction and control of the Board: sections 15-16. Any outsiders from within or outside the university who are present by invitation have no right to vote.

Committees of the Board may, in turn, appoint sub-committees of members or outsiders co-opted to the sub-committee: section 16(3). But co-opted members have no right to vote.

Authorize the signing of MoUs and MoAs.

“Nominate, oversee and support the Vice-Chancellor. Review the Vice-Chancellor’s performance, support (his) work towards institutional goals, and make recommendations to the Ministry regarding extension or termination of (his) tenure”. [Green Book, September 2015, p. 3].

The Board can enter into contracts to acquire property by purchase, exchange, grant, donation, lease² or testamentary disposition: section 3(c).

To convey, assign, surrender, charge, sell, mortgage, lease, exchange, transfer or otherwise dispose of any movable or immovable property: section 3(d)

It can conduct commercial research, innovation, patenting and franchising.

It can market and franchise the research of the University: section 4(1) (jc-jd)

It can hire agents: section 11

Exercise commercial powers with the permission of the Minister of Finance: section 4A(1). This includes equity participation and joint ventures.

With the permission of the Minister of Finance, it can set up of companies and subsidiaries:

Board’s commercial and entrepreneurial powers

section 4A(1)(b)³. How the Board should oversee the functioning of the Companies and their subsidiaries is not provided for in the Act. Presumably, the appointment of the CEO of the Holding Company and the appointment of the Holding Company’s Board of Directors are in the hands of the UiTM Board. Likewise the mushrooming of subsidiaries and the control of subsidiaries needs the attention of the Board.

With the permission of the Minister of Finance it can set up a corporation to conduct, manage any property, project, scheme or enterprise:section 4A(1)(c).

With the permission of the Minister of Education it can wind up a corporation: First Schedule, Para 4.

With the permission of the Minister of Finance it can borrow money, secure borrowings, invest in shares, stocks and bonds: section 4A(1) paragraphs (d) - (h).

It has general powers to transact business: section 10.

It has general power to employ agents, advisers, advocates and solicitors: section 11, Act 173.

It can demand and receive fees: section 4(1)(k)

It can receive gifts: section 28. These must be separately accounted for.

Exercise commercial and entrepreneurial powers mentioned above.

Section 26 requires the VC to lay the annual estimates before the LPU by April. It is the power of the Board to approve the annual estimates or supplementary estimates for submission to the Minister: section 26(5), section 26(7).

The Board can transfer funds from one item to another: section 26(9).

The Board may instruct the VC to prepare Supplementary Estimates for submission to the Minister: Section 26(6).

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² A lease is a tenancy of three or more years. A lease can be taken by UiTM by paying the agreed rent: s. 3(c). Alternatively a lease can be given by UiTM by receiving the agreed rent: s. 3(d). The law on our independent power in s. 3(c) conflicts with the powers of MOF over leases in s. 4A(1)(i). ³ What role the Members of the Board can play on these companies and within what limits has not been spelled out in Act 173. Is there a limit to the number of companies and subsidiaries on which a member of the Board can sit? All that the law requires is transparency on conflict of interest: Act 173, Schedule 2, Rule 9.

Board’s power to raise and spend money


• Institute fellowships, scholarships, bursaries, awards or assistance: section 4(1)(e)

• Establish pension and provident funds: section

4(1)(i) • Provide for staff and student welfare, grant

loans or advances to staff and grant assistance to students: section 4(1)(i-jb), Act 173.

Board’s duty to oversee the university’s finances

• It is the duty of the Board to ensure that all moneys paid to the university shall be applied or expended in accordance with the estimates approved by the Minister: section 24(3).

• Section 24(1) establishes the UiTM Fund to be

controlled by the Board.

• The Board and the VC have a duty to conserve the UiTM Fund: section 24(4).

• Section 25(1) establishes the UiTM Reserve

Fund to be controlled by the Board. • Submit a statement of annual accounts to the

Auditor General: section 27(2) • Submit any observations made by the Auditor

General to the Minister: section 27(3), Act 173.

Board’s academic powers

• It can provide courses, confer degrees, recognise other degrees, diplomas etc, make provision for research, examination, education and training: section 4(1)(a, (b) & (c)

• Set up twinning, joint or franchise courses in

collaboration with any organisation withinin or outside Malaysia with the permission of the Minister of Higher Education: section 9

• Confer honorary degrees or awards after

consultation with the Senate: section 4(1)(ba). • Institute chairs: section 4(1)(ca) and make

appointments thereto: s.4(1)(ca). • Award fellowships, scholarships, business,

medals, prizes and other distinctions: section 4(1)(e).

• With the approval of the Minister of Education,

to re-designate its recognised Diplomas as

Degrees: section 4(2), Act 173. • Set up Schools, Centres, Faculties, Colleges,

Departments and Academies and assign them names: section 8(1), Act 173.

• Deliberate on all recommendations sent to it

by the Senate of the University: section 16A(1) and (6), Act 173.

• Maintain libraries, laboratories etc: section

4(1)(d), Act 173.

Board’s functions in relation to the Senate

• Appoint three senior members of the academic staff to the Senate for a period of two years: section 16A(4), Act 173.

• Deliberate on all recommendations sent to it by the Senate of the University: section 16A(6), Act 173.

• Confer honorary degrees or awards after consultation with the Senate: section 4(1)(ba).

Board’s human resource management powers

• Institute chairs, lecturerships and other posts and offices and make appointments thereto: section 4(1)(ca), section 4(1)(f).

• Appoint the Registrar on such terms and

conditions as may be approved by the Board: section 21(1), Act 173.

• Appoint the Bursar on such terms and

conditions as may be approved by the Board: section 22(1), Act 173.

• Appoint Professors, lecturers and other staff

etc: sections 2, 4(1)(ca); 4(1)(f), 4(1)(g), Act 173.

• Appoint such other Principal Officers and such

other staff as may be necessary on terms and conditions approved by the Board: section 22A(1) and 23(1), Act 173.

• Promote staff: section 4(1)(g), Act 173. • Determine conditions of service for staff

including schemes of service, salary scales and leave: section 4(1)(h), Act 173.

• Promote welfare of staff and students including

power to have pension and welfare schemes,


granting of loans to staff and students, grant of fellowships, scholarships, bursaries, medals, prizes: s. 4(1)(i), (j), (ja)

• Terminate officers on contract • Terminate officers on probation • Terminate the services of an officer in the public

interest: section 9-12, Act 605. • Cause an officer to retire compulsorily in the

public interest: section 13 Act 605 . • Approve applications for voluntary, premature

retirement.

Board’s development powers

Development powers include setting up, equipping and managing libraries, labs, lecture halls, residence of staff and students: s. 4(1)(d), (j)

Board’s powers of staff discipline

• Through its members on disciplinary committees, the Board exercises original and appellate disciplinary powers over staff under Act 605.

• It has the power to issue administrative

directives in relation to the conduct and discipline of officers: section 27 Act 605.

• Under the Third Schedule, Paragraph 5(1), Act

605, the Board has the power to amend the composition of the Disciplinary Committee by appointing substitute members.

Board’s power to impose surcharge

Power to impose an order of surcharge on staff of the University: section 28A of Act 173, and sections 14-22 of Act 605.

Board’s legislative power

• Power to make subsidiary legislation on topics mentioned in section 35(2)

• Power to make rules in respect of a Corporation

established under paragraph 4A(1)(c): Paragraphs 1-2 of the First Schedule of Act 173.

Board’s powers in relation to alumni

• Approve alumni associations4 : section 16B(1). • Approve the Constitution of alumni associations:

section 16B(2).

Board’s general and incidentaI powers

• To exercise all powers, functions and duties of the university: section 3(e).

• Perform such other functions as are assigned

to it by the Minister: section 12, Act 173. • Exercise incidental powers: section 4(1)(1),

section 10 and section 14(2), Act 173. • To transact business: section 10.

In strict law our LPU is allowed to exercise most of the above powers independently. In actual practice most or many of the above powers have been extra-legally locked up by the KPT, JPA, and MOF through extra-legal Government Circulars or practices. For example, student intake is regulated by the Ministry. Also, our right to own land is in practice overridden by the policy that requires us to transfer land to the Federal Land Commissioner if government aid is to be obtained to develop the land!

CHAIRMAN’S INDEPENDENT POWERS

Nature of powers & functions

Pekeliling Perkhidmatan Bilangan 1 Tahun 2002, gives insights into the nature and function of the office of the Chairman.

• The primary duty and responsibility of the Chairman is to focus on policy issues relating to decision-making at the highest levels of the University: paragraph 3(iii).

• Paragraph 3(i) provides that the posts of

Board Chairman and Chief Executive (Vice-ChancelIor) cannot be held by the same person. There is only one exception to the above rule and that is provided in paragraph 5 that in exceptional circumstances the Government may appoint the

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4 Nearly 30 Alumni Associations are in existence. Most have not sought the Board’s prior permission


• Chairman to perform the functions of the Chief Executive (the Vice-Chancellor).

• The Chairman holds his post on a part-time

basis: Paragraph 3(ii). • The Chairman is appointed by the Minister

under section 13(3). • The Minister may appoint any member of the

Board as an Acting Chairman if the Chairman is unable to peform his functions: section 13(5).

Functions in relation to the Board

• He shall preside over all meetings of the Board of Directors: Second Schedule, Para 6(1), Act 173. However there are two exceptions to this rule. First, under section 13(5) the Minister may appoint any member of the Board as an Acting Chairman. Second, under the Second Schedule, Rule 6(1) if the Chairman is unable to be present, the members of the Board shall elect one of their number to preside over the meeting. A Board meeting can proceed in the absence of the Chairman provided an Acting Chairman is elected.

• In his capacity as the Chairman of the Board, the Chairman provides leadership to the Board and participates in the exercise of all powers and functions of the Board of Directors.

• In case of an equality of votes, the Chairman

has a casting vote in addition to his original vote: Second Schedule, Para 6(2), Act 173.

• Members of the Board have a duty to disclose to

the Board any conflict of interest. The Chairman then decides whether the member takes any further part in the Board’s deliberations: Sch II, para 9(2).

• The decision is made by the Chairman

whether a member of the Board has ceased to be a member due to failure to attend three consecutive meetings without leave of the Chairman: Second Schedule, Para 2(a).

Legislative functions

The Chairman signs the University’s subsidiary legislation for publication in the Government Gazette: section 4A(1)(c), section 35(1) and Paragraphs 1-2 of the First Schedule.

Disciplinary functions

• He is Chairman of the Staff Disciplinary Board under the Appendix of Act 605 to try the Vice-Chancellor and Deputy Vice-Chancellors.

• He is empowered to nominate Board members to sit on staff disciplinary committees under the Appendix to Act 605.

Financial functions

The Board Chairman transmits the University’ s statement of accounts to the Minister together with any observations of the Auditor General: section 27(3), Act 173.

LIABILITIES & DISABILITIES OF MEMBERS OF THE BOARD

All general laws of the land apply to UiTM

All members of the Board, all staff and all students are subject to the ordinary civil and criminal laws of the land save to the extent explicitly exempted from liability by a specific provision of a UiTM law. Unless specifically immunised, we are not exempt from the Penal Code, Anti-Corruption Law or the Official Secrets Act.

Penal Code

As a statutory body we are not a department of the federal government and UiTM employees are not government servants. But for purposes of the penal law, all members of the Board, the VC and any member of the staff or agent of the university shall be regarded as “public servants” within the meaning of the Penal Code: section 32. This means that Chapter IX sections 161-171 of the Penal Code dealing with “Offences By Or Relating to Public Servants" apply fully to us.

Secrecy

Besides the OSA, members of the Board, the VC or a member of the staff or agent of the university are duty-bound to not disclose any information in respect of the university which is not published in pursuance of this Act 173, section 33.

Disabilities

A member of the Board is disqualified if -

• He has been convicted of an offence


involving fraud, dishonesty, moral turpitude, corruption, any offence under Act 173 or any offence punishable with two or more years of imprisonment.

• Bankruptcy • Unsoundness of mind: Second Schedule Para 1.

Cessation from being a member

A member of the Board shall cease to be a member if he fails to attend three consecutive meetings of the Board without leave of the Chairman. This is a statutory disqualification. The Chairman’s discretion to grant or refuse leave is determinative. The Board must take note of the Chairman’s discretion: Second Schedule Para 2(a).

POWERS & FUNCTIONS OF THE VICE-CHANCELLOR

Appointment

The Vice-Chancellor, by whatever name called, is appointed by the Minister under section 20(1). As the “Chief Executive”, the Vice-Chancellor may be appointed from within the university, may be on loan from another agency or may be appointed on contract: Para 6, Pekeliling Perkhidmatan Bilangan 1 Tahun 2002.

Role and function

• The Vice-Chancellor is “the chief executive officer of the University”: section 2, Act 173.

• Elsewhere, he is the “chief executive,

administrative and academic officer of the University”: section 20(4).

• The Vice-Chancellor exercises general

supervision over the arrangements for education, instruction, training, finance, administration, welfare and discipline in the University: section 20(6).

• The Vice-Chancellor is charged with the day

to day administration and management of the affairs of the university: section 4, Act 605. This is reiterated by the Pekeliling Perkhidmatan Bilangan 1 Tahun 2002, paragraph 3(iii) that the Vice-Chancellor is responsible for the day-to-day administration of the University and is responsible for the implementation of the policies determined by the Board.

• Under Pekeliling Perkhidmatan Bilangan 1 Tahun 2002, Para 2 “Ketua eksekutif ialah pegawai yang dilantik dan diberi kuasa mengetuai pengurusan dan pentadbiran sesebuah Pihak Berkuasa Berkanun.”

Executive/Administrative functions

• It is the Vice-Chancellor’s duty to ensure observation of the parent Act and all rules thereunder : section 20(5), Act 173. “He shall have all such powers as may be necessary for this purpose”: section 20(5).

• The Vice-Chancellor is a member of the Board of Directors and is its only full-time, permanent member: section 13(2)(b) and para 3(iii) Pekeliling Perkhidmatan Bilangan 1 Tahun 2002.

• The Vice-ChancelIor is the custodian of the

common seal: section 5(2), Act 173. • Along with the Chancellor, the Pro-Chancellors,

and the members of the Board, the Vice-Chancellor constitutes the corporate personality of the University: section 3, Act 173.

• The Vice-Chancellor is the legal authority to

sign all sealed instruments of the University. The common seal of the University shall not be affixed to any instrument (other than a degree, diploma or certificate) except in his presence (or, in his absence, by a principal officer authorized by the Board) and one other member of the Board: section 5(3), Act 173.

• Degrees, Diplomas or certificates must be

signed by the Vice-Chancellor (or, in his absence one other member of the Board authorized by the Board), and the Registrar: section 5(4), Act 173.

• Under Act 605 the VC is “Director General”

to the university. All other university officers - the TNCs, Rectors, the Registrar, the Bursar, Deans and all Heads of Departments including the Legal Advisor and Internal Auditor - are answerable to him.

• The Vice-ChancelIor has the power to direct and control the Directors/Rectors of all Branch campuses. Under section 7(2) of Act 173 a Director (Rector) “shall perform his functions and discharge his duties under the direction and control of the Vice-Chancellor”.


• The Vice-ChancelIor appoints all Deans, Heads of Schools, Centres, Departments, Colleges and Academies and assigns responsibilities to them. They are answerable to the Vice-Chancellor: section 8 Act 173. The Vice-ChancelIor’s discretion to appoint is wide. The Dean or Head need not belong to the Faculty he is appointed to head.

• The power to appoint includes the power to remove, suspend, re-appoint or reinstate: section 47 Interpretation Acts 1948 and 1967 (Act 388).

• He advises the Minister on appointment of

the Deputy Vice-Chancellors: section 20(7), 20(7A), 20(8).

• The Registrar and Bursar perform their

functions under the direction and control of the Vice-Chancellor: section 21(3), section 22(2).

• All PrincipaI Officers and other staff appointed

by the Board perform their functions and discharge their duties under the direction and control of the Vice-Chancellor: section 22A(2) and section 23(2).

• It is the VC’s duty to ensure compliance with all

UiTM laws: s. 20(5). In this capacity he has to be discerning about which Government Circulars are to be laid before the Board for adoption so that no Circular, Directive or Scheme violates the express provisions of Acts 173. 174 or 605.

• TNCs are appointed by the Minister after

consultation with the VC. They may or may not belong to the university: Section 20(7) & (8).

• Every Branch Campus is headed by a Rector

appointed by the Minister. The law is silent about who has the power to advise the Minister on this appointment. However, it is provided that the Rector must act under the direction and control of the Vice-Chancellor: section 7(2). Whether there is need for a Search Committee to short-list the names of Rectors is a policy option. Who should appoint this Search Committee – the Board or the VC – is not clear from the law.

• A School or Centre is headed by a person

appointed by the Vice-Chancellor. The Head is responsible to the Vice-Chancellor. The Head need not be from the Faculty or Centre.

• The VC makes appointments of the Legal

Advisor and Internal Auditor as these officers may be regarded as Heads of Departments.

• The VC may set up any University Management

Committees to advise him. Academic functions • He exercises general supervision over

education: section 20(6). • He is the Chairman of the Senate: section

16A(2)(a), Act 173. • He appoints three representatives of the

Rectors to the Senate (section 16A(2)(d).

• He may coopt other (non-voting) staff of the University into the Senate: section 16A(5), Act 173. Even those Rectors who are not coopted under 16A(5) could be allowed by the VC to attend as non-voting members.

Financial management functions

• The Vice-Chancellor is the Chairman of three Tender Committees – Lembaga Perolehan A (RM 20 million to RM100 million); Lembaga Perolehan B1 (RM500,000 to RM20 million); and Lembaga Perolehan B2 (RM500,000 to RM20 million). These exercises are not specifically provided for in Act 173 but are regulated by Arahan Perbendarahan AP 166, 206, 229, 236, 286 & 300; Pekeliling Perbendaharan and Pekeliling Bendahari.

• It is the VC’s duty, along with the Board, to conserve the UiTM Fund: section 24(4), Act 173.

• He lays by April of each year before the

Board the annual estimates or supplementary estimates of the University: section 26(1) and section 26(6), Act 173.

• The Board may instruct him to lay before the

Board, Supplementary estimates: Section 26(6).

• The VC appoints the Internal Auditor.

Functions in relation to convocations

• He shaIl preside over a Convocation in the absence of the Chancellor or the Pro-Chancellors: section 29B(2).


• He signs the University’s degrees and diplomas section 5(4). The common seal of the University is affixed to degrees, diplomas and certificates in the presence of the Vice-Chancellor and the Registrar.

DiscipIinary functions in relation to staff

• He is the staff discipline officer under Act 605 and Act 173, section 20(6).

• He is the Chairman of the Staff Disciplinary

Board under paragraph 5(1) of the Third Schedule of Act 605.

Functions in relation to students

• The VC is the student discipline officer under section 5 of Act 174.

• On the application of 10 or more students, the

VC has the power to approve, after obtaining the concurrence of the Minister, the setting up of other student bodies besides the Students’ Representative Committee: s. 8(1)

• The Vice-Chancellor has the power to suspend

or dissolve the Students’ Representative Committee (SRC) or other student bodies: section 9(1), Act 174.

• He has the power to determine disputes relating

to any election to the SRC or to a committee of the SRC: Act 174, Third Schedule, Rule 13.

• If a student is detained or imprisoned, the

VC has the power, with the permission of the Home Minister, to permit the student to take his examination: s. 14(4) Act 174.

• Power to permit students to collect donations:

section 11 Act 174.

POWERS OF THE BOARD & THE VC: SOME OBSERVATIONS

Jurisdictional issues about the competing powers of the Ministry, the Board and the VC are to be expected in every vibrant organisation. Most of the issues can be resolved amicably with wisdom and mutual respect.

The legal perspective can be obtained from Act 173. The management or “good governance” perspective can be obtained from the Green Book of September 2015 by the Ministry of Higher

Education. If there is a conflict between Act 173 and the Green Book, Act 173 will prevail.

Legal perspective

Under Akta Universiti Teknologi MARA 1976 (Akta 173) many powers and functions of UiTM are vested in “the university”. The words “the university” are defined in section 3 to refer to the corporate entity of UiTM as represented by “the Chancellor, the Pro-Chancellors, the Vice-Chancellor and the members for the time being of the Board of Directors”.

Under section 14 of Act 173 the Board is “the executive body of the Universiti”. For most purposes, the Board is the personification of the university and is the recipient, repository and trustee of most of the powers of the university. The powers of the University can, generally, be attributed to the Board “save as otherwise provided by this Act or by any rules or any other subsidiary legislation made thereunder”. The words “save as otherwise provided” point to some limits on the powers of the Board.

Legal Limits on Board’s powers

Where the law explicitly empowers the Minister of Higher Education, the Minister of Finance, the Chairman of the Board in person, the Vice-Chancellor in person or the Senate, the Board has no jurisdiction and the power must be exercised by the named authority or person.

In some situations the Board has to act after consultation with named authorities like the Senate.

The powers and functions of the Board reside in the Board as a whole and in its Committees and are to be exercised collectively and not by individual members.

The powers of the Board are be exercised in accordance with the Board’s rules relating to:

• Proper notice • Quorum - five out of nine under section 13(8) • Disqualification due to conviction or bankruptcy

(section 13 of Act 173 and the Second Schedule, Paragraphs 1 and 2).

• Cessation from being a member (failure to

attend three consecutive meetings - Act 173, Second Schedule, Paragraph 2).


If there is delegation by the Board to any member or any committee of its members under sections 15-16 then, unless the delegation is revoked, the power must be exercised by the person or Committee.

•

•

•

•

•

•

•

•

There are well established administrative hierarchies and lines of authority in the university. In general, the Board must issue its instructions to the VC and to its Secretary.

The Board is responsible for a number of (but not all) key appointments in the University.

The Registrar is appointed by the Board (Section 21) but she is under the control and direction of the VC.

The Bursar is appointed by the Board (Section 22) but he is under the control and direction of the VC.

Other “Principal Officers” may be appointed by the Board (Section 22A).

The Board appoints three senior members of the academic staff to the Senate for a period of two years: section 16A(4).

It appoints Professors, lecturers and other staff: sections 2, 4(1)(ca), 4(1)(f).

It promotes staff: section 4(1)(g).

TNCs are appointed by the Minister after consultation with the VC: section 20(7)

Rectors are appointed by the Minister. Who the Minister should consult is not provided for in the law but as the Rector is under the direction and control of the VC, it would appear that the VC should be consulted. The Minister may, of course, also consult with the Board or anyone else.

Deans and Heads of Departments including Legal Adviser and Internal Auditor are appointed by the VC: section 8(2).

Tender Boards are under the control of the VC by virtue of Treasury Circulars.

The Board has no power over some appointments.

Chairperson of the Board and the Vice-Chancellor to work together as a team. It seeks to outline the boundaries between the Board and the University Management Committee and acknowledges that there are shared, overlapping roles where jurisdiction may conflict.

Roles

In general, the Chairperson provides leadership to the Board in execution of the Board’s fiduciary responsibilities. In consultation with the VC he plans Board meetings and agenda; ensures that all members participate. He seeks consensus. He is accountable to the Ministry for the Board’s performance.

The VC is the Chief Executive Officer. He runs the university and is responsible for its day to day management. It is his job to ensure that the university achieves its mission and strategy in a whole range of activities. The VC is not merely an implementor of the wishes of the Board. He develops and implements his own strategies, objectives and priorities, subject, of course to guidance from the Board and the Ministry. He assumes full accountability to the Board for all aspects of academic, finances and operations. He puts control systems in place, monitors results in accordance with plans and budgets and represents the university to donors, faculty, students, parents and other universities.

Strategy development and target setting

The VC’s Majlis Eksekutif Universiti (MEU) develops strategic direction and plan; and coordinates the business plan and budget.

The Board guides strategic direction, challenges assumptions, priorities and options. It reviews the business plan and budget and sets targets for the management.

Performance management

The VC and the MEU establish KPIs and KIPs and cascades them throughout the university, monitors them, investigates variances and develops corrective actions. The Board reviews and provides feedback on KPIs and KIPs, reviews results quarterly and ensures _______________________________________________________________

5 Enhancing University Board Governance and Effectiveness – University Transformation Programme Green Book , Ministry of Higher Education, September 2015, pp. 56-7

Management Perspective

The Green Book5 emphasises the need for the


corrective action.

Talent development

The VC and the MEU develop and implement the university’s performance management system, evaluate leadership performance and identify the top talent pool. The actual appointment, however, depends on the statutory provision.

The Board evaluates the VC and proactively plans VC and key leaders’ succession. Likewise the VC evaluates the Board and reports to the Minister.

Risk management

The VC and the MEU analyse and quantify the university’s risks, manage them and instil a culture of risk management.

The Board sets the risk parameters and ensures appropriate risk mitigation. Stakeholder management

The VC manages all stakeholder interests within boundaries set by the Board. The Board balances stakeholders’ interests and supports the management in managing key stakeholders.

In sum, the Board is the executive body of the university. The VC is the Chief Executive Officer. He runs the university and is responsible for its day to day management, operation and administration.

The Board draws up the university’s lofty vision and mission and its strategy and policy. The VC contributes to this vision, mission strategy and policy and also implements them. The Board and the VC share in the task of strategy development, target setting and performance management. But, it is the VC who has to put plans into action.

The Board is accountable to the Ministry. The VC is accountable upwards to the Board and to the Minister and downwards to his staff and students whose welfare is one of the university’s primary concerns.

POWERS AND FUNCTIONS OF THE SENATE

The Senate is the academic body of the University, constituted uder section 16A of Act 173. Its composition consists of the University’s top academicians, viz:

the Vice-Chancellor; all Deputy Vice-Chancellors; all Deans and Heads of Schools/Centres; three representatives of the campus Rectors appointed by the VC (for a term not specified in the Act); three senior members of the academic staff appointed by the Board for a period of two years; and any other persons co-opted to be members of the Senate by the Vice-Chancellor: section 16A(2)-(5) Act 173. Co-opted members have no right to vote: section 16A(5).

••••

•

•

Unlike in other universities, the UiTM Senate is not the final authority on academic matters: section 16A (7). The Board is. The Senate has the right to be consulted and to advise the Board on all academic matters especially the following specified in section 16A(6):

• content and organisation of courses • method of education, instruction and training • educational standards• the curricula • feasibility of any course or curriculum proposals • entry qualification • establishment of new courses or discontinuance of existing ones, and • awards of honours fellowships, degrees etc.

The Board shall not pass any resolution relating to matters in section 16A(6), Act 173 unless the Senate has been given an opportunity to express its opinion.

The Senate has the power to advise the Board on the conferment of honorary degrees or awards: section 4(1)(ba).

The Senate may appoint Committees and Sub-Committees of its members and persons coopted into the Senate by the VC. It may delegate its functions. It determine its own procedure: section 16A(7)-(8). section 4(1)(ba).

Members of the Senate enjoy immunity for acts or omissions done in good faith: section 34A.

DEPUTY VICE-CHANCELLORS

There shall be one or more Deputy Vice-Chancellors of the University who shall be appointed by the Minister, after consultation with the Vice-Chancellor: section 20(7), Act 173. Their


terms of office and conditions of service shall be determined by the Minister after consultation with the Vice-Chancellor: section 20(7 A). The Deputy Vice-Chancellors may be from within or outside the University: section 20(7 A).

All Deputy Vice-Chancellors are members of the Senate: section 16A(2) (b). In the absence of the Vice-Chancellor, a Deputy Vice Chancellor shall preside at any meeting of the Senate: section 16A(5A). If the Vice-Chancellor is unable to perform his functions by reason of illness, leave of absence or any other cause, the Minister may nominate a Deputy Vice-Chancellor to exercise such functions: section 20(8). By convention, the Deputy Vice-Chancellor (Student Affairs) is appointed by the Minister as the Students’ Affairs Officer for Shah Alam: section 5(1), Act 174.

REGISTRAR

He/she, by whatever name called, is the Principal Officer of the Registry: section 2, Act 173. She is appointed by the Board on such terms and conditions of service as may be approved by the Board: section 21(1). Her functions and duties are as determined by the Board: section 21(2), Act 173. Her functions are to be exercised under the direction and control of the Vice-Chancellor: section 21 (3), Act I 73.

She must sign on degrees, diplomas and certificates that carry the UiTM seal: section 5(4).

She is the Secretary of the Board of Directors: section 13 (7), Act 173.

She is the Secretary of the Senate: section 16A(3), Act 173.

She is the Secretary to the Staff Disciplinary Committee (Kumpulan Pengurusan dan Profesional). Her appointment was made under Paragraph 5(1) of the Third Schedule to Act 605 by the Board.

She is the Chairman of the Staff Disciplinary Committe (Kumpulan Sokongan dan Kumpulan B, C dan D).

BURSAR

He/she, by whatever name called, is the Principal Financial Officer of the University section 2, section 22(2), Act 173.He is appointed by the Board on

such terms and conditions of service as may be approved by the Board: section 22(1).

He performs his functions and discharges his duties under the direction and control of the Vice-Chancellor: section 22(3).

He is a member of the Staff Disciplinary Committee (Kumpulan Sokongan dan Kumpulan B, dan D).

He enforces all Acts of Parliament on matters of finance including the Financial Procedure Act 1957 (Act 61), Statutory Bodies (Accounts and Annual Reports) Act 1980 (Act 240) as well as periodic instructions from the Treasury, JPA and the Ministry.

RECTORS OF BRANCH CAMPUSES

The Rectors (Directors, Provosts or by whatever name called) are the principal executive, administrative and academic officers of the branches of the University: section 2 and section 7(2), Act 173.

The Rectors are to act under the direction and control of the Vice-Chancellor: section 7(2), Act 173.

A Rector is the Students’ Affairs Officer and Disciplinary Authority in respect of all students of his Branch campus: section 5(1) and 5(2) Act 174. In this capacity he has the power to delegate his disciplinary function to a Board or Committee appointed by him: section 5(3), Act 174.

OTHER PRINCIPAL OFFICERS OF THE UNIVERSITY

The university shall have such other principal officers appointed by the Board on such terms and conditions of service as may be approved by the Board: section 22A.

The principal officers shall perform such functions and discharge such duties under the direction and control of the Vice-Chancellor.


PEJABAT PENASIHAT UNDANG-UNDANG UiTM DAN PERANANNYA SEBAGAI BENTENG UNIVERSITI

MENGHAMPIRI DUA DEKAD (1997-2017)

Oleh: Musrifah Sapardi*

PengenalanPejabat Penasihat Undang-Undang (PPUU) telah ditubuhkan sejak tahun 1997. Beribu pejabat di Bangunan Canseleri UiTM, PPUU kini menghampiri 20 tahun penubuhannya (1997-2017) yang diketuai oleh seorang Penasihat Undang-Undang (PUU) yang ulung dan berkarisma untuk membuat, mengatur, menyelia dan memantau semua aspek perundangan yang melibatkan universiti.1

Pada masa ini, PUU Universiti menjalankan tugasannya bersama enam orang pegawai undang-undang yang berkaliber dalam pelbagai bidang perundangan bagi seluruh sistem universiti iaitu UiTM induk di Shah Alam dan 36 buah kampus cawangannya di setiap negeri di Malaysia. PUU juga dibantu oleh 6 orang staf sokongan yang sentiasa membantu urusan pejabat tanpa mengira penat dan lelah dalam pelbagai bidang pekerjaan bagi memastikan perjalanan pejabat adalah teratur dan sempurna.

Bagi memastikan nama dan kedudukan UiTM sentiasa terpelihara, PPUU mengamalkan sikap berunding dengan pelbagai pihak samada di dalam dan luar negara. Seringkali PPUU mempertahankan hak UiTM apabila berdepan dengan pihak awam atau swasta demi menjaga kepentingan universiti dalam perkara-perkara yang berkaitan dengan terma-terma kontrak dan hak-hak Bumiptera. Oleh yang demikian secara tidak langsung PPUU merupakan benteng kepada UiTM dalam segala hal yang berkaitan dengan isu-isu perundangan.

Fungsi PPUU & Peranannya sebagai benteng UiTMAspek perundangan yang memerlukan pemerhatian daripada PPUU termasuk menderaf dan menyemak dokumen seperti Memorandum Perjanjian serta mentafsir Akta-Akta yang terpakai kepada UiTM seperti Akta 173, Akta 174 dan Akta 605. PPUU juga bertanggungjawab dalam hal-hal perundangan yang berkaitan dengan fasiliti dan pembangunan, sucaj, kontrak biasiswa, serta disipin staf dan disiplin pelajar di kampus utama dan kampus-kampus cawangan. PPUU menawarkan perkhidmatan perundangan termasuk memberi nasihat dan melaksana tugasan perundangan, di samping isu tatatertib kakitangan dan pelajar juga ditekankan bagi melahirkan kakitangan dan pelajar yang patuh kepada perundangan universiti.

Secara terperinci, tugas-tugas PPUU dalam aspek perundangan adalah seperti berikut:

(i) Melaksanakan tugas-tugas khas kepada UiTMPPUU menjalankan tugas-tugas khas seperti memberi nasihat apabila diperlukan kepada Naib Canselor, Timbalan Naib Canselor, Pendaftar dan Bendahari mengenai isu undang-undang (legal matters) yang melibatkan universiti, canseleri, pegawainya, kampus utama dan kampus cawangan.

PPUU juga berperanan menasihati Lembaga Pengarah Universiti (LPU) apabila diperlukan mengenai kuasa LPU _______________________________________________________________________

*Profesor Madya Datin Dr Musrifah Sapardi, Timbalan Penasihat Undang-Undang, UiTM.

1 Lihat http://legaladvisor.uitm.edu.my/about-us.html. Selama dua tahun PPUU diselenggarakan oleh Penolong Naib Canselor (Tugas-Tugas Khas & Undang-Undang). Daripada tahun 1999 sehingga 2005, PPUU beroperasi di Bangunan Aras 3, Menara Sultan Salahuddin Abdul Aziz Shah, UiTM Shah Alam. di mana PUU menjalankan tugasnya dengan hanya di bantu oleh seorang staf sokongan sebelum berpindah ke pejabat baru di Aras 6, Bangunan Canseleri UiTM.


serta fungsinya sebagai sebuah badan eksekutif universiti yang terdiri daripada anggota yang dipilih atau dilantik oleh Menteri Pengajian Tinggi untuk mengelola, mengawal dan mentadbir UiTM.2 PPUU juga memberikan nasihat atau pandangan perundangan kepada LPU apabila dikehendakki dalam perkara-perkara yang berkaitan dengan tatatertib, surcaj, dsb.

(ii) Penderafan dan penyemakan Akta Universiti Teknologi MARA 1976 (Akta 173) serta peraturan atau dasar-dasar yang berkaitan dengan perundangan di UiTM.Antara tugas PPUU ialah mengusul, mengubal dan membuat cadangan pindaan kepada Akta 173 secara selari dengan kehendak semasa. Akta 173 ini adalah undang-undang khusus kepada UiTM sahaja. Undang-undang yang terpakai kepada semua Universiti Awam di Malaysia ialah Akta Universiti dan Kolej Universiti 1976 (Akta 30) yang lebih dikenali sebagai AUKU. Universiti Islam Antarabangsa Malaysia (UIAM) di tubuhkan di bawah Akta Syarikat 1965. Bagi Universiti Swasta pula, undang-undang yang terpakai termaktub di dalam Akta Institusi Pendidikan Tinggi Swasta 1996 (Akta 555).

Khusus untuk Akta 173, PPUU akan memberi penerangan dan mempertahankan hak-hak universiti apabila membuat pembentangan kepada Menteri Pengajian Tinggi dan Jabatan Peguam Negara dalam hal-hal yang berkaitan dengan undang-undang.

(iii) Menderaf dan menyemak Memoramdum Persefahaman dan Memorandum PerjanjianPPUU dipertanggungjawabkan untuk menderaf dan menyemak dokumen-dokumen perjanjian yang berkaitan dengan isu-isu akademik, koporat dan pengkomersialan. Dokumen tersebut meliputi pelbagai nama tetapi mempunyai tujuan yang sama iaitu untuk berkolaborasi dengan sesebuah institusi dan organisasi samada di dalam atau luar negara seperti Letter of Intent (LOI), Memorandum Persefahaman (MOU) dan Memorandum of Co-operation (MOC). Selalunya, dokumen tersebut tidak mengikat pihak-pihak yang menandatanganinya melainkan dokumen itu mempunyai implikasi perundangan atau implikasi kewangan ke atas pihak-pihak yang terlibat.

Bagi memastikan proses permohonan dan penyemakan LOI, MOC and MOU yang lebih teratur dan berkesan, satu Jawatankuasa Memorandum Persefahaman UiTM telah ditubuhkan pada awal 2016 yang dipengerusikan secara bersama oleh Timbalan Naib Canselor (Akademik & Antarabangsa) dan Penasihat Undang-Undang Universiti.3

Setelah peyemakan yang teliti di buat oleh PPUU, kesemua Memorandum Persefahaman yang tidak mempunyai implikasi perundangan atau implikasi kewangan akan disokong oleh PPUU untuk dibawa kepada Jawatankuasa Memorandum Persefahaman UiTM untuk pertimbangan dan kelulusan.

Bagi dokumen yang mengikat atau mempunyai implikasi perundangan (legal implication) dan / atau implikasi kewangan (financial implication) oleh pihak-pihak yang berjanji di antara satu sama lain ia dipanggil sebagai Memorandum Perjanjian (MOA) dan Non-Disclosure Agreement (NDA). Kedua-dua dokumen ini mempunyai elemen kontrak serta pembentukan satu perjanjian yang sah dari sisi undang-undang di Malaysia.

Kesemua Memorandum Perjanjian yang telah disemak dan didapati membawa faedah dan kebaikan kepada universiti, surat sokongan akan di keluarkan oleh PPPU untuk dibawa Memorandum Perjanjian tersebut kepada Majlis Eksekutif Universiti (MEU) bagi mendapatkan pertimbangan dan kelulusannya. Dokumen-dokumen ini akan diperakukan oleh LPU.

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2 Lihat Seksyen 14 Universiti Teknologi MARA 1976 (Akta 173). Pada masa ini, keanggotaan ahli LPU di UiTM ialah 9 orang yang dipengerusikan oleh YBhg Tan Sri Dato’ Academician Ir Dr Ahmad Zaidee bin Laidin. Daripada UiTM ialah YBhg Profesor Emeritus Dato’ Dr Hassan Said selaku Naib Canselor. Ahli-ahli yang lain ialah YBhg Dato’ Maznah Abdul Halil, YBhg Dato’ Ibrahim Ali, YB Datuk Dr Shahruddin Md Salleh, YBhg. Datuk Profesor Dr. Asma Ismail, YBhg Dato’ Aminuddin Md Desa, YBhg Datuk Mohd Azahari Kamil dan Encik Mohd Sakeri Abdul Kadir. YBrs Pn Azida Azmi selaku Setiausaha LPU tetapi bukan ahli.3 Lihat Garis Panduan Jawantankuasa Memorandum Persefahaman UiTM, Bilangan 04 Tahun 2016.


(iv) Tindakan undang-undang dan litigasi guaman yang melibatkan UiTM. Sebagai sebuah pertubuhan perbadanan yang kekal turun temurun (perpetual succession), UiTM mempunyai kuasa penuh untuk mendakwa dan di dakwa seperti yang dinyatakan di dalam Seksyen 3(a) Akta 173. Peruntukannya adalah seperti berikut:

“Universiti Teknologi MARA … adalah dengan ini menjadi suatu pertubuhan perbadanan yang kekal turun temurun, dan mempunyai kuasa penuh di bawah nama itu – (a) untuk mendakwa dan didakwa”

Dalam hal ini, tidak hairanlah jika UiTM yang telah ditubuhkan sejak 60 tahun yang lalu telah mengalami pengalaman mendakwa dan didakwa oleh organisasi ataupun orang perseorangan. Sebagai contoh, UiTM pernah didakwa melanggar satu Perjanjian atau Pecah Kontrak dan perkara tersebut dibawa ke mahkamah apabila jalan penyelesaian secara baik (amicable solution) tidak dipersetujui oleh semua pihak yang terlibat.

Apabila perkara di atas berlaku, tugas utama PPUU yang melibatkan litigatsi ialah membuat penyelidikan dan pengumpulan data-data yang di perlukan bagi membantu panel peguam UiTM mengendalikan penyediaan penyataan pembelaan (statement of defence) untuk kes tersebut yang melibatkan prosiding di mahkamah. Salah seorang pegawai undang-undang di PPUU akan diberikan tanggungjawab untuk membuat laporan dan memantau sesuatu kes tindakan undang-undang di mahkamah daripada mula perbicaraan hingga selesai.

PPUU juga bertanggungjawab untuk mengendalikan kes-kes litigasi sivil secara dalaman bagi pihak UiTM untuk tuntutan hutang bagi pihak UiTM samada yang melibatkan kes pecah kontrak biasiswa, hutang-hutang tertunggak, dan hutang-hutang komersil yang lain. Di samping pengendalian kes-kes saman dari pihak ketiga yang melibatkan isu-isu yang kurang rumit dan tidak kompleks, PPUU turut bertanggungjawab membantu UiTM dalam aspek memberi nasihat perundangan, menyelia sebarang pertikaian atau kes-kes di Mahkamah yang melibatkan UiTM.

(v) Sebagai Penasihat kepada LPUPPUU bertanggungjawab untuk menasihati Lembaga Pengarah Universiti (LPU) tentang kuasa dan fungsinya serta perkara-perkara yang berkaitan dengan disiplin, surcaj dan lain-lain hal yang ada implikasi perundangan apabila di minta.

(vi) Wakil UiTM dalam aspek perundangan di KPTPPUU mewakili UiTM di peringkat Kementerian Pengajian Tinggi (KPT) dalam perbincangan yang melibatkan aspek perundangan, termasuk Perlembagaan, Statut-Statut, Kaedah-Kaedah dan Peraturan-Peraturan Universiti yang akan digunapakai oleh semua kakitangan UiTM, dengan kerjasama dari Jabatan Pengajian Tinggi/Kementerian Pengajian Tinggi, Bahagian Governan IPTA dan semua IPTA.

(vii) Penasihat UiTM dalam isu tatatertib stafPPUU bertanggungjawab menasihati UiTM dalam hal berkaitan disiplin staf atau kakitangannya. Ini termasuklah perlantikan di dalam Jawatankuasa Tatatertib, Jawatankuasa Siasatan, menderaf caj dan isu ynag berkaitan dengan rayuan. PPUU juga membantu Bahagian Pembangunan Sumber Manusia, UiTM berkenaan hal-hal yang berkaitan dengan disiplin dan tatatertib kakitangan UiTM selaras dengan kehendak Akta Badan-Badan Berkanun (Tatatertib dan Surcaj) 2000 (Akta 605).

PPUU juga menjalankan tugas sebagai ahli turut hadir untuk setiap mesyuarat Jawatankuasa Tatatertib kakitangan UiTM yang kertas kerjanya disediakan oleh Unit Integriti. Kebiasaannya, pandangan perundangan diperlukan untuk penentuan samada wujud satu kes prima facie bagi kesalahan tatatetib, dan sentiasa memastikan deraf surat pertuduhan adalah teratur dan mengikut tatacara yang ditetapkan di dalam Akta 605.


(viii) Penasihat UiTM dalam isu disiplin pelajar Dalam hal ehwal displin pelajar, PPUU merupakan Ahli Jawatankuasa Tatatertib Pelajar. Salah seorang pegawainya bekerjasama dengan Bahagian HEP UiTM untuk menguruskan segala aspek kes-kes disiplin pelajar termasuk menghadiri perbicaraan serta menguruskan rayuan tatatertib pelajar untuk seluruh UiTM. Disamping itu, beliau bertanggungjawab untuk membantu menderaf pindaan undang-undang Akta 174. Bahagian ini juga bertanggungjawab dalam penggubalan Kaedah-Kaedah Tatatertib Pelajar, manakala pelaksanaannya pula dibuat oleh Bahagian HEP.

(ix) Penasihat untuk Pembangunan dan Fasiliti UiTMPPUU mengendalikan hal-hal perundangan yang melibatkan tanah UiTM. Antaranya dalam perkara perolehan tanah, penyewaan tanah, pajakan tanah, serta pembelian tanah. Dalam hal-hal di atas, PPUU menggubal dan meyemak dokumen perundangan seperti menderaf kontrak perjanjian dan dokumen perundangan bagi projek yang dilaksanakan di UiTM di mana UiTM merupakan salah satu pihak. Tujuannya ialah untuk melindungi kepentingan UiTM.

PPUU juga sentiasa memberikan pandangan serta nasihat dalam proses penyediaan dokumen-dokumen tender dan sebutharga yang melibatkan hal ehwal pembangunan, fasiliti dan penyewaan asset dan / atau tanah UiTM. Dalam hal ini, selalunya salah seorang pegawai undang-undang di PPUU akan menghadiri sesi mesyuarat atau rundingan berkenaan dengan projek Private Finance Initiatives (PFI) yang melibatkan kerajaan, UiTM serta pihak konsesi. PPUU juga sering di minta untuk menghadiri sesi mesyuarat dan rundingan dengan pihak syarikat yang berkaitan dengan tuntutan bagi kes-kes pecah atau langgar kontrak perjanjian di antara UiTM dengan pihak syarikat.

(x) Membantu mempertahankan hak UiTM di Parlimen PPUU dipertanggungjawabkan untuk membantu Menteri atau Timbalan Menteri Pengajian Tinggi untuk mempertahankan hak-hak UiTM di Parlimen apabila KPT di soal dalam hal-hal yang berkaitan dengan UiTM. Dalam hal ini PPUU setiasa peka untuk menyelia dan menguruskan jawapan kepada soalan parlimen, pertanyaan tentang isu-isu dasar dan strategik dari KPT, Jabatan Peguam Negara dan / atau mana-mana Kementerian/ Jabatan/ Jawantankuasa persekutuan yang lain.

Kesimpulan Secara keseluruhannya, selama hampir dua dekad PPUU telah berperanan sebagai ‘benteng’ UiTM dalam perkara-perkara berikut:• MembantuMenteriatauTimbalanMenterimempertahankanhak-hakUiTMdiParlimenapabilaKPTdisoal dalam hal-hal yang berkaitan dengan UiTM.

• PPUUsentiasaberundingdanmempertahankanhak-hakUiTMdenganpelbagaipihaksamadatempatanatau luar negara mahupun awam dan swasta bagi menjaga kepentingan universiti dalam hal-hal yang berkaitan dengan terma-terma dan syarat-syarat yang terkandung di dalam MOU dan MOA.

• PPUUakanmenjalankanpenyelidikandanpenyediaan‘defenceofsubmission’kepadamahkamahdisamping membantu panel peguam UiTM dalam kes-kes yang melibatkan mahkamah.

• PerananPPUUadalahuntukmemastikan semua tadbirurusuniversiti dilaksanakanmengikut lunas-lunas perundangan demi menjayakan kepentingan dan kelangsungan pentadbiran yang berkualiti.


I : OVERVIEW OF REGULATORY & DISCIPLINARY POWERS

The powers of the University to regulate and discipline its “employees” are derived from many laws and regulations, among them -

Akta Badan-Badan Berkanun (Tatatertib dan Surcaj) 2000 (Akta 605). This is the primary law.

Other general laws of Malaysia like the Universities and University Colleges Act 1971, Universiti Teknologi MARA Act 1976, Contracts Act 1950, Government Contracts Act 1949, Statutory and Local Authorities Pensions Act 1980, Pensions Adjustment Act 1980, Employees Provident Fund Act 1991, Employees Social Security Act 1969, Employment Act 1955, Trade Unions Act 1959, Industrial Relations Act 1967, Public Authorities Protection Act 1948, Malaysia Anti-Corruption Commission Act 2009, Penal Code and the Official Secrets Act 1972 all have an indirect bearing on the university’s powers, procedures, duties and immunities. One must also bear in mind that the supreme Constitution’s safeguards must be deemed to be written into every piece of legislation. Any subsidiary legislation enacted under a parliamentary law applicable to the university is also binding on the University.

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other federal body are not automatically binding on the University because we are a separate statutory body and are not part of the "public services of the Federation" as defined by Article 132(1) of the Federal Constitution1. Only such directives from the JPA and any other federal body are applicable as are adopted by the University’s Board of Directors/Governors.

General Orders not applicable: University employees are not "government servants" and are not part of the public services of the Federation as defined by Article 132 of the Federal Constitution. The General Orders of the federal government do not apply to a public university unless adopted by the Board of Directors/Governors.

Definition of “employee”: Act 605 in s. 4 mistakenly uses the term “officers” for “employees” of the University. The term “officers” is actually narrower than employee. Not all officers are employees and not all employees are officers. Laws like AUKU and the UiTM Act specify who is an “officer” of the University.

Under the Constitution of the Universiti Sains Malaysia 2009, for example, the term “employee” is defined in section 2 to mean “any person employed by the University under this Constitution or any Rules”. The term would cover the Vice-Chancellor, Deputy Vice-Chancellors, the head of a Branch Campus, the Registrar, the Bursar, the Internal Auditor, the Chief Librarian, the Legal Adviser, the Complaints Officer, the Dean of a Faculty or School, the Head of an Institute, Academic Centre, Research Centre or Academy, all academicians, post-doctoral fellows, trainee lecturers and other employees.

The definition of “employee” obviously excludes the Patron, Chancellor, Pro- Chancellors, the Chairman of the Board, other members of the Board except the Vice Chancellor and all alumni. Students are obviously not employees but are subject to discipline under Act 30 and subsidiary laws.

Regulation of employees other than through disciplinary proceedings: Besides the power to commence disciplinary proceedings under Act 605, the University has many other options to deal with an errant employee. These are discussed in sections II, III and IV below.

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* Emeritus Professor Datuk Dr Hj Shad Saleem Faruqi, Legal Advisor, UiTM.** Shahrin Nordin, Legal Officer, Office of the Legal Advisor, UiTM

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1 Ramalingam v Chong Kim Fong [1978] 1 MLJ 83 – involving FELDA officers, Sulaiman Mat Tekor & Ors. v. National Population and Family Development Board [2009] 7 MLJ 325, and Dr. Che Wan Fadhil bin Che Wan Putra & Ors. v. Universiti Teknologi Malaysia [2010] 9 MLJ 736..

THE LAWS RELATING TO STAFF DISCIPLINEAT MALAYSIAN PUBLIC UNIVERSITIES

by : Shad Saleem Faruqi* and Shahrin Nordin**

Directives of the Ministry: The formal provisions of the law are supplemented by periodic directives from the Government and by informal understandings, usages and traditions that "supply the flesh to clothe the dry bones of the law". Some of these traditions may be common to all universities in the country.

It is noteworthy, however, that directives, circulars, instructions and schemes framed by the JPA and any


II : UNIVERSITY’S POWER TO DEAL WITH ERRANT EMPLOYEES OTHER THAN THROUGH DISCIPLINARY PROCEEDINGS2

Disciplinary action is only one of several options available to the University to deal with errant staff. Under the law of contract and under the common law several other options are available to the employer. More often than not, disciplinary action is a matter of last resort.

1. LETTER OF REMINDER OR CAUTION (SURAT PERINGATAN / TEGURAN)

As an alternative to commencing disciplinary proceedings, the Head of the Department concerned or the Vice-Chancellor (if he has been informed) may send to an employee of the University a written "reminder" or a "letter of caution" to rectify some unsatisfactory aspect of his character or performance.

There is some difference of opinion amongst lawyers about whether the letter should be titled "Reminder (Peringatan / Teguran)" or "Administrative Caution (Amaran Pentadbiran)". It is submitted that as “Caution (amaran)” is a disciplinary punishment (and must be accompanied by prior hearing under Act 605 and must be issued by the appropriate disciplinary authority), it is safer to use the terminology of “Reminder (Peringatan) or (Teguran)”. Issuing “cautions” is in line with human relations theories that in the workplace, it is better, prior to a show cause notice or a disciplinary measure, to send a reminder to ask a worker to improve his conduct. However it must be emphasized that in serious cases there is no need to resort to “cautions” and disciplinary proceedings will be perfectly legal. There is no law that “reminder (peringatan) or (teguran)” or “administrative caution (amaran pentadbiran)” must precede a show cause letter.

Who should send this letter - the Head of the Department, the Vice-Chancellor or the Chairman of the Disciplinary Committee? It is recommended that the Chairman of the Disciplinary Committee should not get involved at this stage.

2. LATERAL TRANSFER

The university is empowered to transfer an employee laterally within the same scheme of service. This power is derived from the _______________________________________________________________

2 In this essay “disciplinary proceedings” refer to proceedings under Act 605, Second Schedule, sections 32-39 that may lead to punishments in sections 40-44.

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3 Service Circular No. 12 Year 2008 applies, provided that the same is duly adopted by respective university.

employment contract signed by all employees. The power can also be said to be part of the "employer's prerogative".

In the law relating to public authorities, a lateral transfer does not amount to a punishment or to a reduction in rank. For this reason the procedural rights available to those facing a disciplinary charge under Regulations 32-34 of Schedule II are not available to transferees. Thus, a lecturer may be transferred from one campus to another or from one faculty to another. As long as his salary and terms of service are not affected adversely, he need not be given a prior hearing. His consent to the transfer order is not required. He can be transferred against his wil1. Failure to comply will amount to "insubordination". In the public sector, challenges to transfer orders have very little chance of success: Pengarah Pelajaran, Wilayah Persekutuan & Ors v Loot Ting Yee [1982] 1 MLJ 68 and Aria Kumar @ Omar bin Abdullah & Anor v Ketua Pengarah Jabatan Hasil Dalam Negeri, Malaysia & Anor [1994] 3 AMR 49:2572. However, an order transferring an employee to subsidiary or sister company within the group is not exercisable unless prior consent of the employee is sought3. In the private sector, however, questions of mala fide behind arbitrary transfers are raised often. Complaints of constructive dismissal are often upheld. Will Malaysian public law one day learn from private employment law?

3. REVERSION TO FORMER POST

What if an Associate Professor who was appointed as the Dean of his Faculty is summarily (without a prior hearing) and with a humiliatingly short notice reverted to his former post? He loses prestige, power and perks. Is he entitled to a prior hearing before his reversion takes effect? On the state of existing law, there is a distinction between “reversion” and “reduction”. Reversion to a former post from a higher but temporary post does not amount to a reduction in rank and there is no right to a prior hearing: Munusamy v Public Services Commission [1967] 1 MLJ 199; Badrul bin Ahmad & Ors v Government of Malaysia [1987] 2 MLJ 178; Pengarah Pelajaran, Wilayah Persekutuan & Ors v Loot Ting Yee [1982] 1 MLJ 68.

There is no guarantee of continuation in or renewal of a senior but temporary post if an employee is appointed to a temporary post which is different from the employee’s contract of service. In a


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4 Dr. Amir Hussein Baharuddin v. USM [1989] 3 MLJ 298. (HC)5 UTeM v. Prof. Madya Md Noah Jamal [2014] 4 MLJ 451 (CoA)6 [2002] 5 MLJ 369. See however, Haji Ariffin v Pahang [1969] 1 MLJ 6; Abd Rauf Alif [203] 1 MLJ 18

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7 Rajasingam a/l v. Rasiah v Government of Malaysia [2002] 1 MLJ 7

Penang High Court Case4, non-renewal of appointment of a Dean was held to be valid since eligibility to reappointment in no way rendered any entitlement to the same, Appointment as dean also is in no way related to the contract of service with the university.

In another interesting case that went up till the Court of Appeal5, it was held that the termination from deanship was lawful since it is the prerogative of the Vice Chancellor as per the letter of appointment as dean. Deanship appointment is different from appointment as university employee. Hence mere compliance with the termination clause in the letter of appointment of dean is itself sufficient.

4. CONTRACTUAL TERMINATION OF EMPLOYMENT

Employees who are not on permanent establishment but are hired for a contract period may be terminated by giving them the required contractual notice as laid down in the contract of employment or a month's salary in lieu of notice. Termination may be for any reasons whatsoever (which reasons need not be stated). On the present state of the law, no disciplinary proceedings or opportunity to explain one’s conduct are necessary.

However, looking to the horizon, one takes note that the principle of “legitimate expectation” and the “duty to act fairly” are taking roots. If allegations of unsatisfactory performance or misconduct are made as or found out to be the basis of termination, then such termination is considered a dismissal, in which case principles of natural justice will apply. A hearing, an opportunity to exculpate himself must be given. Although the case will not proceed as one of disciplinary proceedings, there will be some openness, fairness and impartiality to guard against abuse of power. We must remember that the terms of a “private contract” cannot displace the public law principles of natural justice. Further, a litigant may argue that “livelihood” is part of the constitutional right to “life” and cannot be deprived “save in accordance with law”. “Law” includes “natural justice”. The case of Dr Chandra Muzaffar v University of Malaya6 indicates that any abuse of power in this area may result in an award of damages.

5. NON-CONFIRMATION OF PROBATIONARY OFFICER

In relation to employees who are not yet confirmed, the University has a number of choices. First, confirm the employee.

Second, extend the employee's probationary period.

Third, give to a probationary employee prior notice that at the end of the probationary period the University does not wish to continue with his/her services. The employee must be given adequate time to respond to the University’s notice. After considering the officer's reply, the University may terminate the employee’s service. No reasons need to be assigned. Such a termination does not amount to dismissal. However, if the refusal to confirm and the subsequent termination are based on unsatisfactory conduct of the employee or on any charges of misconduct against him, then natural justice demands that a disciplinary trial must be conducted. A word of caution about an existing practice: some universities slavishly adopt the Public Officers Conduct & Discipline Regulations and proudly quote civil service regulations in giving notice and calling for a response. This gives rise to the false belief that all civil service regulations are applicable. It is recommended that the University should avoid mentioning civil service regulations and rely instead on our desire to act with openness, fairness and impartiality and the principles of natural justice.

A fourth alternative is to neither confirm nor terminate at the end of the probation period. Will silence be deemed as confirmation? The courts are divided. Our opinion is that silence does not amount to automatic or tacit confirmation if all pre-announced pre-requisites for confirmation, as laid down by the University, have not been satisfied.

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6. TERMINATION IN THE PUBLIC INTEREST

This power, previously known only to the public services7 under the General Orders, has now been made available to the University since 1 November 2000 by section 9 or 10 of Act 605. It can only be exercised "in the public interest". What these words mean has nowhere been defined and is a matter of


interpretation.

The initial decision to terminate is made by the Board of Governors (and not by the Disciplinary Committee). It is also interesting to note that termination under section 9 or 10 requires no prior consent or consultation from the pension authority.

Under section 9, termination process is moved when the Board decides so, whether on its own motion or on representation by anybody. While under section 10, termination process starts on receipt of recommendation from Disciplinary Committee.

Before an officer is terminated in the public interest, he has a right to be heard: section 11 of Act 605.

Termination in the public interest does not amount to dismissal: section 12 of Act 605.

It must also be noted that statutory termination in the public interest under sections 9 to 12 of Act 605 is distinguishable from (a) termination under contract of a contractual officer, (b) termination of a probationary officer during or after the probationary period, and (c) retirement in the public interest under section 13.

It looks like that section 13 is independent of section 9 and 10 of Act 605. Nevertheless, section 10(5)(d) of Act 2398 makes a mention that power to compel retirement is excercisable on staff terminated in the public interest. It remains unclear whether compulsory retirement process under section 10(5)(d) Act 239 must follow suit once termination in the public interest has been decided.

A look at the case of Jalaluddin Ismail v. Ketua Pengarah Perkhidmatan Awam, Malaysia & Anor9

may lend some assistance. It was decided that entitlement to pension is not absolute right of the terminated staff. He/she is only eligible if only Yang di-Pertuan Agong exercise his discretion and thinks it is fit to compel retirement. By analogy from that case, a staff being terminated

under section 9 or 10 of Act 605 shall also not be eligible to his pension benefit unless compulsory retirement process has taken place, which can only happen if the Board thinks it is fit to exercise such power under section 10(5)(d) of Act 239. It can be said here that terminating power under section 9 or 10 is exercisable with or without compulsory retirement process taking place.

7. COMPULSORY PREMATURE RETIREMENT

In lieu of disciplinary proceedings, it may be desirable for the Disciplinary Committee to recommend to the Board of Directors/Governors that the latter should, with the consent of the pensions authority, require the employee to retire compulsorily under section 13 Act 605 and section 10(5)(d) of the Statutory and Local Authorities Pensions Act 1980 (Act 239).

This power, which was always available to the government under the General Orders against members of the "public services", has now been made available to the University by section 13 of Act 605.

The power to retire an employee compulsorily does not belong to the disciplinary authority but to the Board of Governors/Directors.

The Board of Governors/Directors can apply to the pensions authority to compulsorily retire an employee prematurely. The retirement will be regulated by the provisions of section 10(5)(d) of the Statutory and Local Authorities Pensions Act 1980 (Act 239).

Unlike section 11 (on termination in the public interest) which mandates a prior hearing, section 13 says nothing about the procedure to be followed. It is submitted that equality before the law under Article 8 of the Federal Constitution and principles of natural justice will still apply and a prior notice with a right to make representation must be given.10

8. INVITATION TO OFFICER TO APPLY FOR OPTIONAL RETIREMENT

Sometimes the University, when faced with the delinquency of a senior officer or employee, is reluctant to act against him and, out of compassion, invites him to submit his papers

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8 Section 10(5)(d) of the Statutory and Local Authorities Pensions Act 1980 (Act 239) reads :- “An appropriate authority may, with the consent of the pensions authority, require any employee to retire from service in a statutory or local authority - … (d) on the ground that the employee’s employment has been terminated in the public interest;”

9 [2012] 6 MLJ 774 (CoA)

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10 Syed Mahadzir bin Syed Abdullah v Ketua Polis Negara & Anor [1994] 3 MLJ 391 – in compulsory retirement on medical grounds, though the law is silent on the giving of hearing, natural justice applies.


for optional retirement. This is a risky move and can land the University in potentially embarrassing situations.

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9. IMPOSITION OF AN ORDER OF SURCHARGE

The purpose of the law on surcharge is to enforce financial responsibility, honesty and efficiency. Another aim is to compensate the university for losses suffered as a result of an officer's negligence, dereliction of duty, dishonesty, carelessness or inefficiency. The law’s purpose is to empower the university, in lieu of, or in addition to disciplinary proceedings, to request the Board of Governors/Directors for proceedings for surcharge to be commenced under sections 14 to 22 of Act 605.

Who is liable to an order of surcharge? Any employee or ex-employee of a statutory body may be subjected to an order of surcharge. A person who has retired, resigned or been terminated or dismissed may be liable in the same manner as a serving officer: s. 14 of Act 605.

Who has authority to issue order of surcharge? The Board of Governors/Directors (and not the Disciplinary Committee) is the authority to order imposition of the surcharge: s. 15 of Act 605.

Grounds for surcharge: Under section 14 of Act 605 the following acts of commission or omission can trigger the law on surcharge:

Failure to collect any monies owing to the university when it was the officer's responsibility to do so. Possible examples here are: failure

to collect fees from students while permitting them to pursue the academic programme; failure to initiate procedures against violators of scholarship agreements; failure to collect fines: section 14(a) of Act 605.

Improper payment of monies: section 14(b) of Act 605.

If claims are approved or project-payments are authorized without proper scrutiny or supervision or without determining whether contractual obligations have been complied with, or for corrupt motives, these may well be grounds for surcharge.

Payment of monies not duly approved: section 14(b) of Act 605.

Causing, whether directly or indirectly, any deficiency in or destruction of any money.

Accounting officer failing to keep proper accounts: section 14(d) of Act 605.

Accounting officer failing to monitor accounts and records: section 14(d) of Act 605.

Failing to make any payments due from the university: section 14(e) of Act 605.

De1ay in the payment of monies due from the university: section 14(e) of Act 605.

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Procedure for surcharge: The Board of Governers/Directors shall serve a written notice on the officer concerned: section 15 of Act 605. The Officer concerned has 14 days to show cause in writing: section 16 of Act 605. No oral hearing is required (but there is no legal bar if the Board of Governers/Directors wishes to permit an oral hearing).

The Board shall deliberate on the written reply of the officer and make a decision: section 16 of Act 605.

The decision on the surcharge must be communicated in writing to the officer: section 17 of Act 605.

No appeal to the Minister or to the courts is allowed. However, the subject of the order can always apply to the Board for reconsideration and the Board has the power to (i) withdraw any order (section 18 of Act 605) or (ii) to reduce the amount of surcharge.

For example, the employee may apply for optional retirement first but later as an afterthought withdraw his application. Is he allowed to withdraw? He may claim threat, duress and undue influence! If the disciplinary proceedings are revived the employee may claim double jeopardy or condonation or estoppel.

Sometimes adverse facts emerge after the staff was invited to apply for early retirement.

In some cases JPA puts it foot down and the staff is not allowed to leave prematurely. In such a circumstance, the university falls into the dilemma that if it revives disciplinary proceedings, its letter of recommendation to JPA will work against the University.


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Act or Omission Amount that can be surcharged 1. Under section 14(a) Amount not collected. 2. Under section 14(b) Amount of improper payment. 3. Under section 14(c) Value of the deficiency or value of property

destroyed 4. Under section 14(d) Such sum as Board deems fit. 5. Under section 14(e) Such sum as Board deems fit.

Interdiction for purpose of investigation

Interdiction in case of criminal proceedings or in case of disciplinary proceeding with a view to dismissal or

reduction in rank

Duration: Interdiction shall not exceed two months (Regulation 45(1).

Emoluments: Full emoluments during period of interdiction (Regulation 45(4). However, if interdiction is under Reg. 46(1)(b) – disciplinary proceeding with a view to dismissal or reduction – then the officer must receive not less than half his emoluments.

Commencement: Interdiction under Regulation 45 can commence on a date to be determined by the Disciplinary Committee.

1. Duration: Interdiction is not confined to any definite period.

1.

Emoluments: The University may withhold no more than half of the emoluments unless the officer is suspended: Regulation 46(6).

2.

Commencement: Interdiction in case of criminal proceedings under Reg. 46(1) may be effective from the date an officer is arrested or a summons is served on him: Reg. 46(2).

3.

Interdiction in case of disciplinary proceedings may be made effective from such date as determined by the Disciplinary Committee: Regulation 46(3).

4.

2.

3.

Amount of surcharge: The amount of surcharge that can be imposed depends on the nature of the act or omission.

Recovery of surcharge: A surcharge is a civil debt owed by the officer to the university: s. 20 of Act 605. It can be recovered in the following ways:

Deduction from salary by equal monthly installments not exceeding one fourth of the total monthly salary.

Deduction from pension by equal monthly installments not exceeding one fourth of the total monthly pension.

Civil suit in a court of law.

Surcharge does not bar disciplinary action: An order of surcharge does not bar concurrent or subsequent disciplinary proceedings: section 22 of Act 605.

10. REPORTING OF OFFENCE TO POLICE OR MACC OR THE SYARIAH AUTHORITIES

In lieu of, or in addition to disciplinary proceedings, an officer's case can be brought to the attention of the police, MACC, the Syariah authorities or any other enforcement agency. This is because the powers of the university are inadequate to deal with the investigation of a criminal charge. For instance in cases of attempted rape, arson, theft, embezzlement, assault, corruption or drug peddling, the university is better advised to file a criminal report against its errant employees with the relevant authorities.

One disadvantage of filing a criminal report is that once criminal "proceedings are instituted", Regulation 29(1) of the Statutory Bodies Discipline and Surcharge Act (Act 605) mandates that no disciplinary action can be taken till the criminal case is completed. Further, whether our report will result in prosecution or not is outside our control. Mere suspicion is not enough. If an investigation produces no evidence or insufficient evidence, the public prosecutor will not launch a prosecution. This means that till the police close the file, or

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till the case results in acquittal, discharge or conviction (a process that may take months or years), the university cannot launch its disciplinary proceedings. However, when it does, the rule against double jeopardy will not apply: Wong Kim Sang & Anor v Attorney General [1982] 1 MLJ 176.

11. COMPULSORY RETIREMENT ON MEDICAL GROUNDS

This is not provided for explicitly in Act 605 but could be implied in sections 9 – 12 of Act 605 (Termination in public interest). The power to force early retirement of a staff is premised upon s.10(5)(a) of the Statutory and Local Authorities Pensions Act 1980 (Act 239), which takes effect when the University orders as such, with the consent of the pension authority (Public Service Department).

In the public services, General Orders 18-20 of the Medical (Chapter F) Genreal Orders 1980, cover this type of termination. If a staff has been continuously absent on medical leave for 45 days in a year for 3 consecutive years, he can be boarded out after a notice and a hearing during which the opinion of a Medical Board will be considered.

The provision in Act 239 merely outlines a very general stipulation on this matter. The procedure for the process is laid down in the Federal Government’s circular as issued under Pekeliling Perkhidmatan Bilangan 10 Tahun 1995.

A staff can only be referred to a Medical Board if only any of the followings have arisen11, namely :-

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11 General Order 19 (Chapter F).

the staff is still not recovering from his illness after exhausting all of his available sick leave;

if a medical officer opines that the staff has no possible likelihood to recover and fit for his duty;

the staff has taken 45 days of sick leave in a

(a)

(b)

(c)


year for 3 consecutive years;

the staff’s health is found to be unstable in his mental or physical;

a medical officer has confirmed the staff’s illness as tuberculosis, leprosy or cancer; or

the staff suffers from injury while on his official duties.

(d)

(e)

(f)

The staff has the right to present his own expert’s opinion : Syed Mahadzir Syed Abdullah v. Ketua Polis Negara [1994] 3 MLJ 391. This type of termination does not deprive one of pension.

III : ADMINISTRATIVE ACTION AGAINST OFFICERS WHO ARE THE SUBJECT OF CRIMINAL PROCEEDINGS

1. INTRODUCTORY

In relation to employees facing criminal proceedings, the University has powers, duties as well as disabilities. The powers and duties vary depending on the stage at which the criminal proceedings are. The main disability is that once a criminal proceeding is instituted (i.e. a person is brought to court) a disciplinary charge on the same ground as the criminal charge cannot be instituted till the employee is either acquitted, discharged or convicted: Reg. 29(1).

"Crimes" are wrongs against the state for which the prosecution is commenced by public authorities. In strict theory, the words "criminal law" refer not only to the Penal Code, the law relating to drugs, corruption and arms control but also to the law relating to Syariah offences, traffic offences, littering and violations of health and environmental regulations.

2. ACTION DURING THE CRIMINAL INVESTIGATION

There is a difference between "being arrested" and "being charged". The arrestee may subsequently be released without any charges being laid against him. In cases in which an employee is arrested but not yet charged in a court of law, the university is not required to take any disciplinary action under Reg. 27(4) of the Statutory Bodies Discipline and Surcharge Act (Act 605)

However, if the facts and circumstances

surrounding the arrest are serious, it is legally possible, in extreme circumstances, to charge the employee under Regulation 3(2)(d) of the Statutory Bodies Discipline and Surcharge Act (Act 605) (Act 605) with "conducting in such manner as to bring into disrepute or discredit” to the university. Such a course of action should be resorted to only in exceptional cases because the employee may object that he is being subjected to "double jeopardy". We can resist such an allegation on the ground that the disciplinary charge under Regulation 3(2)(d) and the criminal charge are not one and the same and, therefore, no double jeopardy under the Federal Constitution’s Article 7(2) results.

It is also notable that Regulation 29(1) of the Statutory Bodies (Discipline and Surcharge) Act 2000 (Act 605) implies that disciplinary proceedings need not wait till after completion of criminal proceedings. While the criminal case is being investigated by the police, the university has a number of options available to it.

After making the police report or receiving information that a police report has been made against an employee, the university may leave the matter entirely to the police and take no further action

The university may commence disciplinary action. If the police take no further action, the disciplinary proceeding can continue. But if criminal proceedings are instituted, the university will have to suspend the disciplinary trial. This is because of Regulation 29(1) of the Statutory Bodies (Discipline and Surcharge) Act 2000 (Act 605) which states that where criminal proceedings have been instituted and are still pending, no disciplinary action can be taken against the officer based on the same grounds as the criminal charge. Disciplinary action on other grounds is not forbidden e.g. bringing the statutory body into disrepute (Reg. 3(2)(d) of the Statutory Bodies (Discipline and Surcharge) Act 2000 (Act 605)

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3. ACTION IF THE OFFICER IS CHARGED WITH A CRIMINAL OFFENCE

If an employee is charged with a criminal offence, i.e. the officer is brought to court and a formal charge is read out to him, the following procedures apply:

The Head of Department concerned shall obtain


from the relevant Court all necessary information and forward it to the appropriate Disciplinary Committee together with a recommendation as to whether the employee should be interdicted from duty: Regulation 27(2) and 27(3) of the Statutory Bodies (Discipline and Surcharge) Act 2000 (Act 605)

The university may wait for the criminal proceeding to be concluded and act only after the verdict of guilt or innocence is delivered.

Alternatively the university may interdict the employee from his duties without disciplinary proceedings. This means that though he is still on the pay roll, in the university’s discretion, he may not be allowed to report for duty: Regulations 27(2), 27(3), 27(4) and 46(6) of the Statutory Bodies (Discipline and Surcharge) Act 2000 (Act 605). Interdiction on this ground has no time limit. Such interdiction can, in the university’s discretion, be on “not less than half of his emoluments”: Reg. 46(6) of the Statutory Bodies (Discipline and Surcharge) Act 2000 (Act 605). That means no more than half the salary and allowances can be withheld. Full salary is permissible. No prior hearing or trial is needed.

It is noteworthy that interdiction is of two types.

It is noteworthy that despite an interdiction during the pendency of the criminal proceedings, the University is not barred from instituting disciplinary action: Regulation 29(2). However, no disciplinary action shall be taken for the same charge as in the criminal proceeding.

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Act or Omission Amount that can be surcharged 1. Under section 14(a) Amount not collected. 2. Under section 14(b) Amount of improper payment. 3. Under section 14(c) Value of the deficiency or value of property

destroyed 4. Under section 14(d) Such sum as Board deems fit. 5. Under section 14(e) Such sum as Board deems fit.

Interdiction for purpose of investigation

Interdiction in case of criminal proceedings or in case of disciplinary proceeding with a view to dismissal or

reduction in rank

Duration: Interdiction shall not exceed two months (Regulation 45(1).

Emoluments: Full emoluments during period of interdiction (Regulation 45(4). However, if interdiction is under Reg. 46(1)(b) – disciplinary proceeding with a view to dismissal or reduction – then the officer must receive not less than half his emoluments.

Commencement: Interdiction under Regulation 45 can commence on a date to be determined by the Disciplinary Committee.

1. Duration: Interdiction is not confined to any definite period.

1.

Emoluments: The University may withhold no more than half of the emoluments unless the officer is suspended: Regulation 46(6).

2.

Commencement: Interdiction in case of criminal proceedings under Reg. 46(1) may be effective from the date an officer is arrested or a summons is served on him: Reg. 46(2).

3.

Interdiction in case of disciplinary proceedings may be made effective from such date as determined by the Disciplinary Committee: Regulation 46(3).

4.

2.

3.


4. ACTION IF THE OFFICER IS ACQUITTED OR DISCHARGED

If an employee who is charged with a criminal offence is acquitted or discharged and there is no appeal by the Prosecutor, all rights of the employee are restored: Regulation 27(7). He may resume his duty. Emoluments withheld must be returned to him. However, the officer who is acquitted in the criminal court, may still be tried for indiscipline. This will not amount to double jeopardy provided that the disciplinary charge is not the same as in the criminal court: Mohamed Yusoff Samadi v AG Singapore .

Same would be the situation if the employee wins his appeal in the courts. All his rights are restored. However, there is no bar to a subsequent disciplinary trial on a charge different from the criminal charge: Mohamed Yusoff Samadi v A G Singapore.

5. ACTION IF THE PUBLIC PROSECUTOR APPEALS AGAINST ACQUITTAL

If there is an appeal against the acquittal, the Disciplinary Committee may, in its discretion, interdict or (if there already was an interdiction) continue the interdiction of the employee: Regulation 27(8).

If on appeal, the employee is convicted, he shall be suspended on no salary: Reg. 27(6) and 27(10).

6. ACTION IF THE OFFICER IS CONVICTED

If the officer is convicted (found guilty), the university has to follow the following procedures. First, subsequent to the conviction, the Head of the Department must make recommendations to the Disciplinary Committee whether the employee should be- • dismissed • reduced in rank • subjected to some other punishment, or • no punishment should be imposed.

The Disciplinary Committee may make any one of the above decisions.

Second, disciplinary proceedings for dismissal or reduction in rank may also be commenced: Regulations 27-28. The disciplinary proceeding subsequent to a criminal trial does not amount to double jeopardy provided that the charge is not the same as in the criminal case. It must be a disciplinary

charge under the Second Schedule - for instance a charge of acting irresponsibly or dishonestly or using one’s official position for personal advantage or bringing disrepute to the University: Mohamed Yusoff Samadi v AG Singapore [1975] 1 MLJ l. Also Article 7(2) of the Federal Constitution.

Third, no disciplinary trial or fair hearing is required as the court conviction is sufficient evidence of wrong-doing: Reg. 32(2)(a) & 28(3).

Fourth, it must suspend the officer from the date of conviction: Regulation 27(6) and 27(10). Such suspension will be on no emoluments. Suspension, as opposed to interdiction, is on no salary: Regulation 47(3)(b). In relation to suspension, it is noteworthy that Regulation 47(1)(a) contradicts Regulation 27(6) and 27(10). In 47(1)(a) there is discretion to suspend. In Regulations 27(6) and 27(10), there is a DUTY to suspend an officer who is convicted.

Nevertheless, it is arguable that provisions which are placed under Part VII (inclusive of Regulation 47(1)) are stipulated in general terms about suspension and interdiction. Meanwhile, provisions under Regulations 27(6) and 27(10) are specific in that they relate to specific procedure in dealing with officers faced with criminal charge. Hence, the principle of generalia specialibus non derogant applies – special overrides general. Regulations 27(6) and 27(10) are special and mandatory. Therefore, due to Regulations 27(6) and 27(10) suspension shall be mandatory for convicted officers

7. ACTION IF THE OFFICER APPEALS AGAINST CONVICTION

If an employee appeals, and wins his case, all his rights are restored. However, even if on appeal there is an acquittal, there is no bar to subsequent disciplinary proceedings on other grounds: Yusoff Samadi v A.G. and Article 7(2) of the Federal Constitution.

IV: ACTION AGAINST OFFICER SUBJECT TO DETENTION OR RESTRICTION ORDER

If an officer is subjected to an order of preventive detention, supervision, restricted residence, banishment or deportation, the University is permitted, without a hearing or trial, to take the following actions against the officer:


• dismissal • reduction in rank • imposition of a lesser punishment, or • imposition of no punishment : Peraturan 31(2) & 47(1)(b).

The exclusion of a right to a hearing is provided by Peraturan 32(2) (a).

V: DISCIPLINARY PROCEEDINGS UNDER STATUTORY BODIES (DISCIPLINE AND SURCHARGE) ACT 2000 - ACT 605

This is the main law relating to staff discipline at universities. It is quite comprehensive. However, life is always larger than the law. The Act does not cover every aspect of a university’s relationship with its staff.

1. PENDING PROCEEDINGS

Despite the repeal of the previous laws on discipline of university employees, proceedings pending on November 1, 2000 are required to continue under the old law: section 29(1), Act 605.

If proceedings begin after November 1, 2000, but the charge relates to events before November 1, 2000, then the accused must be given the option to choose whether he wishes to be tried under the previous law or the new 2000 statute: s. 29(3), Act 605.

2. PRELIMINARY DECISIONS FOR THE DISCIPLINARY COMMITTEE

Prima facie case: Does the complaint against the accused indicate a prima facie case to answer?

• If there is no prima facie case, the file may be closed. • If there is a prima facie case, other preliminary decisions below need to be made.

Non-Disciplinary Measures Against Errant Employees: These were discussed in Sections II, III and IV. The Committee has to decide whether to proceed with disciplinary proceedings or rely on the various non-disciplinary measures.

Nature/Gravity of the offence: The Chairman of the Disciplinary Committee should make a preliminary decision under Regulation 33, Second Schedule whether the offence complained of is of nature that warrants -

(i) a punishment of dismissal or reduction in rank, or (ii) a punishment lesser than dismissal or reduction in rank.

Appointment of Investigation Committee: In cases meriting dismissal or reduction in rank, the Disciplinary Committee may decide to establish an Investigation Committee under Regulation 35(5), 36, 37, 38 and 39.

Interdiction under Reg. 45(1) & 45(4): Pending the investigation, an officer may be interdicted for a period not exceeding two months on full salary.

Interdiction under Reg. 45(3) & 46(6): If criminal proceedings have been instituted against the officer or disciplinary proceedings have been instituted with a view to dismissal or reduction in rank the officer can be subjected to interdiction on half salary till proceedings are completed.

Framing of Charges: The Disciplinary Committee must decide on the charges to be framed and communicated to the accused. The charge shall contain the facts and in cases with a view to dismissal or reduction in rank, the grounds also must be included. Nevertheless, absence of grounds in the charges (but with sufficient facts) is not fatal since they are matters of form and not substance12.

Giving of Notice: Subject to exceptions provided in Regulation 32(2), the accused should be given written notice of the charge: Regulation 32(1); 34(1). The notice must permit him at least 21 days to make his written reply: Regulation 34(1), 35(2)(b).

Punishment contemplated: The show cause notice must indicate whether the punishment of dismissal or reduction in rank, or a lesser punishment is being contemplated. With all due respect this provision of the law appears to pre-judge the matter.

3. THE INVESTIGATION COMMITTEE

Appointment: Previous to Act 605, investigation committees were appointed administratively and informally to assist the Disciplinary Committee to determine the facts and sort out the evidence. Previous investigations were, often, confidential, behind the back of the accused and informal. Now the law and procedure have become quite formal. _______________________________________________________________

12 Shamsiah Ahmad Sham v. Public Services Commission, Malaysia & Anor [1990] 3 MLJ 364 (SC) and Fauziah Salleh v. Universiti Malaysia Terengganu [2012] 4 CLJ 601.


In cases meriting dismissal or reduction in rank, the Staff Disciplinary Committee may establish an Investigation Committee under Regulations 35(5), 36, 37 and 38 of the Second Schedule of Act 605. While the discretion is clearly conferred by the law, failure to use this power reasonably may incur judicial review: Kerajaan Malaysia v Tay Chai Huat [2011] MLJ 161.

It is open to questioning whether even today, informal, internal and secret investigations outside of Act 605 can be conducted on the orders of the University or the Disciplinary Committee.

Under Act 605, it can be deduced that establishment of Investigation Committee applies only to cases with a view to dismissal or reduction in rank: Regulation 35(5). Instruction for such establishment shall come from the Disciplinary Committee whenever the committee meeting is convened. Hence, the earliest possible moment for such establishment is when prima facie is being determined: Regulation 35(2).

Role: The Investigation Committee's job is not to prosecute or defend the suspect or to determine his guilt or innocence. The Investigation Committee's task is to determine, in an impartial manner, the facts of the case, clarify issues and report to the Disciplinary Committee.

Terms of Reference: The Investigation Committee's terms of reference will normally be contained in its letter of appointment. As a general guideline, the Committee's function is not to frame the charges or recommend punishment. Nor is it its role to prosecute or defend the suspect or to determine his guilt or innocence. The Committee's task is to -

Determine the background circumstances in which the alleged act(s) took place.

Determine the facts as alleged or as denied. Sometimes, the facts clash. In such a case the Committee can, in an impartial way, sum up the facts on both sides.

Clarify any issues referred to it by the Disciplinary Committee.

Report any additional facts brought to light.

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•Composition: Under Regulation 36, Schedule II, the Investigation Committee shall be comprised of not less than two employees of the University. The

employees shall be higher in rank than the employee under investigation. The Head of Department of the (accused) employee shall not be a member of the Committee.

Contestable issue: If the Disciplinary Committee is dissatisfied with the findings of the Investigation Committee (IC), it can instruct the IC to re-visit the issues. What is not so clear is whether the university can reject the findings of the Investigation Committee and appoint another Investigation Committee to examine the issue de novo?

4. STATUTORY & COMMON LAW PROCEDURES

Multiplicity of procedures: There are several different procedures:

Proceedings with a view to dismissal or reduction in rank are regulated by Regulations 32 and 35 of the Second Schedule.

Proceedings in cases not with a view to dismissal or reduction in rank are regulated by Regulation 34 of the Second Schedule.

The Investigation Committee is generally required to give an oral hearing: Reg. 37. However, the Disciplinary Committees and the Disciplinary Appeal Committees merely permit written representation.

The Investigation Committee as well as the Disciplinary Committee must be guided by the ideals of “openness, fairness and impartiality”. They are bound by the twin principles of natural justice - nemo judex in causa sua and audi alteram partem.

Procedures & Guidelines for the Investigation Committee: The Second Schedule to the Act provides formal law and procedures for the appointment and procedures of an Investigation Committee. The Investigation Committee’s procedure is quasi-judicial and principles of natural justice will apply.

The officer under investigation has a right to a prior notice of the date when the question of his dismissal or reduction in rank is being discussed. Notice must be adequate in time though no specific time frame is supplied: Despite the lack of an absolute duty in Reg. 37(2) on the part of the Committee to allow the officer to exculpate himself, it must be accepted


that the officer concerned will have a reasonable right to make written and oral representations in his defence

He has a right to obtain all incriminating evidence: 37(4)

He has a right to be represented by an officer of the university or in exceptional cases by a lawyer. The Committee will have to act equally towards both parties: 37(6).

The officer has a right to bring witnesses, and

He has a right to cross-examine prosecution witnesses: Regulation 37(3).

As the Committee is a quasi-judicial and not a full-fledged judicial body, it is not bound by the strict rules of evidence or civil or criminal procedure.

Its proceedings need not be adversarial (where two adversaries argue out their cases before a detached and impartial judge). As its job is to discover facts or clarify issues, the committee should be inquisitorial in its approach. It can probe, invite, question and cross-examine - but always in such a way that the substance and appearance of impartiality are not compromised.

If the officer fails to show up, the Committee can (i) proceed with the case or (ii) adjourn the case.

The Committee's findings shall be submitted in a Report to the Disciplinary Committee: Regulation 37(8). The Committee's Report will enjoy "qualified privilege" in the law of defamation. This means that the members of the Committee will be immune from civil suit as long as they acted without malice and in a duty-interest relationship with the Disciplinary Committee. The members of the Committee are advised not to discuss the proceedings with anyone else other than the Committee.

Our law is silent on whether the accused and the witnesses must be paid travel and other allowances. This is a matter requiring further discussion with the Bursary.

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Committee, the accused has no right to be present in person before the Disciplinary Committee. It is not improper, however, if the Disciplinary Committee allowed all accused an opportunity to be present and to make oral representations.

The accused must be given a proper notice of the charge and must be informed of the facts of the disciplinary offence and of the grounds on which action against him is proposed: Peraturan 32(1), 34(1), 35(2)(a).

It must be made clear whether dismissal or reduction in rank is in contemplation.

The accused has a right to all the incriminating evidence including the report of the Investigation Committee.

He must be given 21 days from the date he receives the charge to make written representations: Peraturan 34(1), 35(2)(b). Note, however, that 32(1) is broad enough to permit an oral hearing.

Natural Justice - Nemo judex in causa sua - the rule against bias: Members of the Committee must not be suffering from bias. Bias can be of two types. (1) Pecuniary or Financial Bias and (2) Personal Bias.

The rule against financial bias is very strict. The adjudicator should not have any direct financial interest in the outcome of the proceedings. It does not matter how small the interest is; it does not matter how unlikely it is to affect his judgment: Dimes v Grand Junction (1852).

As to personal bias, the test is that the adjudicator must not be 'reasonably suspected' or show a 'real likelihood' of bias: Govinda Raj v President MIC (1984).

For both pecuniary and personal bias, there is no need to prove that the bias was actually present. All that needs to be proved is that the bias-situation was present. It is also noteworthy that the bias of a single member may invalidate the decision of the entire Committee.

Natural Justice - Audi Alteram Partem - the rule of hearing13: This rule has two aspects. (1) The requirement of prior notice. (2) A fair opportunity to make representations in one's defence.

Procedures for the Disciplinary Committee: As with the Investigation Committee, the Disciplinary Committee is bound by statutory procedures and natural justice requirements. The main difference in procedure is that unlike the Investigation _______________________________________________________________

13 There are literally hundreds of cases on this point. For a selection see Shad Faruqi, Document of Destiny, 2008, pp. 493-507


(1)

(2)

(3)

Prior Notice: Notice must be adequate in time: Phang Moh Shin v Commissioner (1967).

What is 'adequate' depends on the facts of each case. But if a statute has laid down a time limit then the statutory time limit applies. Our law relating to the Investigation Committee in Regulation 37(1) does not lay down a time limit. It merely states that the Committee shall inform the officer of the date (and place) when the charge or charges that could lead to the officer's dismissal or reduction in rank will be brought before the Committee. Depending on the complexity of the case, one or two weeks’ notice will be sufficient.

Notice must also be adequate in terms. The case which the accused has to meet must be notified to him in sufficient detail so that he can answer it adequately. The notice should describe the alleged offence briefly. The grounds for the proceedings must be communicated in writing. It is not enough for the notice to state the charge. The facts of the breach of discipline must be supplied. In Abdul Rahman lsa v PSC [1991] the appellant's alleged involvement in a conspiracy was not made known to him though the involvement weighed heavily with the Committee of inquiry in its recommendation to dismiss.

There are several exceptions to the requirement of prior notice:

Need for secrecy in certain situations that may affect security, public order and national economy.

If the number of persons affected is so large that giving of notice would be impractical.

If delay would make it impossible to take remedial action.

Fair opportunity to make representation: This refers to a varying combination of the following rules:

Right to a prior hearing: Whether hearing should be oral or written depends on the statute in question. Under Regulation 37(2) the Investigation Committee has been given a discretion to allow the employee to be present in person or to require him to make written submissions. However under Regulation 37(1)(b), 37(3) and 37(5), there appears to be a right to an oral hearing. It is recommended that in all cases the Committee should allow the employee to be heard orally. This would be in

keeping with the emerging trend in administrative law. Also even if the statute is silent on the need to give a hearing, the right must be presumed to exist: Kumar a/l Gurusamy v Kooperasi [2011] 2 MLJ 147

Hearing to be real must be prior to the Committee's Report and not subsequent to it.

The accused must make use of the opportunity afforded to him. If he refuses to be present or to make representations, he cannot complain later that natural justice was breached: AG v Lee Keng Kee. Under Regulation 37(7), if the employee fails to appear on the appointed date and no ground or insufficient ground is shown for adjournment, the Committee may, in its discretion (a) adjourn to another date, or (b) proceed to consider the case.

Right to obtain incriminating evidence: All incriminating evidence available to the Committee must be made available to the accused. The accused must know what evidence has been given and what statements have been made affecting him. However if evidence was withheld from the Committee, then the accused has no right to it. The general rule is that the court or tribunal or Committee must not take into consideration evidence not raised at the hearing or evidence which the accused was not allowed to rebut: Surinder Singh Kanda v Govt. (1962).

'Evidence' is not restricted to evidence admissible in a court of law. Any material from any source made available to the committee or the adjudicator must be communicated to the accused: Shamsiah bte Ahmed Sham [1990] and Abdul Rahman lsa v PSC [1991].

Under Regulation 37(4) no documentary evidence shall be used against an employee unless the officer has been (a) previously supplied with the evidence or (b) given access to it.

Under Regulation 37(1)(b) and 37(3), if any witnesses are summoned, the officer has a right to cross-examine them.

Must incriminating evidence be supplied automatically or must the accused make a specific request for it? On this issue our statute is silent. But case law indicates that the accused must make a request.

An important exception to the rule requiring disclosure is the doctrine of 'public interest privilege'. Materials, the disclosure of which would


be detrimental to the public interest, may be withheld from the accused: Mak Sik Kwong v Minister (No. 2) (1975). For example, in some circumstances like drug trafficking or other serious wrongs, the names of informers should not be disclosed. If a document is protected by the Official Secrets Act or has been validly declared by the University to be Sulit or Terhad, the document should not be supplied. To enable the accused to make his defence, a summary or gist of the "privileged information" may be supplied to the extent that it relates to the charge.

In recent cases14, it was held that an accused staff must be allowed access to any incriminating document, when requested. This is important so as to accord to the accused staff every opportunity to defend himself. Any limitations due to statutory secrecy or contractual confidentiality, must be removed so as to allow access to the accused staff to get copy of it. Proper declassification process must be undertaken before such access is being given. Failure to do so may amount to breach of natural justice on the part of the employer against the accused staff.

Such a right does not auto-exist, in the sense that the accused staff must in the first place communicate his/her request in writing to get a copy of any such documents. Without any written request, there is no duty to supply such documents15.

Under Act 605 the requirements of natural justice relating to prior hearing can be bypassed in several circumstances:

Prior to interdiction if criminal proceedings have commenced: Peraturan 46(1)(a).

Suspension if the officer has been found guilty: Peraturan 27(6), 27(10), 47(3)(b), 33(2)(a).

Dismissal or reduction in rank without a hearing if the officer has already been convicted of a criminal offence: Peraturan 28(3), 32(2)(a)

Dismissal or reduction in rank without a hearing if the officer has been preventively detained or restricted: Peraturan 31(3) dan 32(2)(a). Notice how this law puts staff in lesser position than students under AUKU.

Interdiction for purposes of investigation: Peraturan 45(1).

For the very wide grounds permitted in Peraturan 32(2)(b).

On ground of national security: Peraturan 32(2)( c)

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14 Mohd Zulhazi Mohd Zulkafli v. Suruhanjaya Polis Diraja Malaysia & Anor [2015] 2 MLJ 88 (CoA), Lembaga Tatatertib Kumpulan Sokongan 1 & Ors v. Suhaidar Abu Bakar @ Bakar [2014] 1 LNS 1186 (HC).15 Per Alauddin Mohd Sheriff, FCJ in the case of T.Ganeswaran v. Suruhanjaya Polis Diraja Malaysia & Anor [2005] 3 CLJ 302 (CoA) at page 314 :-“Pertama, setelah disemak Rekod Rayuan kami dapati bahawa perayu tidak pernah pada bila-bila masa pun memohon bagi mendapatkan dokumen-dokumen tersebut.Adalah menjadi tanggungjawab responden pertama membekalkan perayu dengan dokumen-dokumen berkenaan sekiranya terdapat permohonan dari pihak perayu tetapi tidak sebaliknya.”16 Rasidi Ahmad lwn Ketua Polis Daerah [2011] 8 MLJ 271

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Witnesses: At the oral hearing, the accused and the accusers have a right to call witnesses or to submit testimony of witnesses in writing. The Investigation Committee, on its own, may call and examine any witnesses: Regulation 37(1)(b). The number of witnesses is not fixed by the law. A reasonable number must be allowed. The Chairperson can refuse to admit witnesses if their aim is to repeat or reconfirm testimony already received.

Cross-examination of witnesses: This is allowed by Regulation 37(3).

Representation: The Investigation Committee has discretion to permit the accused officer to (a) present his case in person or (b) be represented by an officer of the statutory body, or (c) in exceptional cases, by an advocate and solicitor. It is humbly submitted that in domestic enquiries of this sort, lawyers must not be allowed. If representation is allowed under (b) and (c), then it must be granted equally to all parties: Regulation 37(5) and 37(6).

Permission granted may be withdrawn but subject to a reasonable adjournment to enable the accused to present his case in person.

5. THE DOCTRINE OF ULTRA VIRES

The Investigation Board as well as the Disciplinary Committees have a duty to (i) act legally i.e. to stay within the legal limits of their powers (ii) act rationally i.e. to use their power but not to abuse it, avoid mala fide, irrationality and unreasonableness, (iii) to observe all statutory and procedural rules of fair procedure, and (iv) act with a sense of proportionality16.

6. ADMINISTRATIVE INVESTIGATION

There are situations where investigation is being held either after charges have been proffered


(a)

(b)

(c)

(d)

(e)

(f)

or even after written representation has been submitted. For as long as investigation is held after disciplinary proceeding has begun, then strict compliance with Act 605 is necessary. Otherwise, the whole disciplinary proceeding may be held to be invalid and the dismissed employee could be reinstated17.

The following are some of the mandatory requirements to be observed by investigation committee under Act 605, namely :-

Its establishment is by decision of Disciplinary Committee: Regulations 35(5) of Second Schedule and 10(1) of Third Schedule;

Its membership must be at least two persons from statutory body or Ministry who are not lower in rank than the investigated officer: Regulations 36 of Second Schedule and 10(2) of Third Schedule;

Investigated officer shall be notified of the date when Investigation Committee meets: Regulation 37(1)(a) of Second Schedule;

Investigated officer shall be allowed to cross-examine any witnesses interviewed: Regulation 37(3) of Second Schedule;

Investigated officer shall have every right to get copy or access to any documents used against him: Regulation 37(4) of Second Schedule;

Investigated officer shall be allowed representation by statutory body’s officer or lawyer if similar representation is allowed on behalf of statutory body: Regulations 37(6) of Second Schedule

Questions arise as to whether a confidential, administrative investigation against any wrongdoing of an officer shall also observe the same mandatory requirements as stated above for statutory investigations. It is submitted that to qualify for the status of administrative investigation, it should be held before any disciplinary charge is being proferred.

The relevant legal provision is section 20(6) of UiTM Act 197618 which relates to the power of the _______________________________________________________________

17 Some of cases wherein investigation committee was at fault are Ng Chuan Hock v Tan Sri Musa bin Dato' Hj Hassan (Inspector-General of Police and Chairman of the Disciplinary Authority, Royal Malaysian Police) & Ors [2013] 3 MLJ 805 (CoA) and Arbain bin Basri v Ketua Polis Negara & Anor [2008] 8 MLJ 277 (HC).18 The section states that :-“The Vice-Chancellor shall, subject to the provisions of this Act and of the rules and other subsidiary legislation made under this Act, exercise general supervision over the arrangements for education, instruction, training, finance, administration, welfare and discipline in the Universiti, and may exercise such other powers as may be conferred upon him by this Act and any rules and other subsidiary legislation made thereunder.”

Vice Chancellor. The duty of a Vice Chancellor here includes “general supervision over the arrangements for discipline in the Universiti”. In interpreting this provision of the UiTM law, section 40(1) of the Interpretation Acts 1948 and 1967 might lend some assistance. Section 40(1) states that :-

“Where a written law confers a power on any person to do or enforce the doing of any act or thing, all such powers shall be understood to be also given as are reasonably necessary to enable the person to do or enforce the doing of the act or thing.”

Hence, the Vice Chancellor’s duty to supervise disciplinary matters includes “all such powers … as are reasonably necessary” to enable the Vice Chancellor to exercise such duty.

Therefore, what can be deduced here is that in disciplinary affairs, Vice Chancellor has the power to direct holding of any internal inquiry/investigation if the latter is “reasonably necessary” for the Vice Chancellor in exercising his disciplinary duty.

Therefore, holding of internal inquiry/investigation before any disciplinary charge is proffered is within the power of the Vice Chancellor. Such inquiry/investigation is of an administrative in nature, and not caught by the provisions of Act 605. Whatever procedures to be adopted during this stage of investigation is purely within the administrative discretion of the Vice Chancellor.

An administrative investigation need not necessarily be done in a formal manner. The investigation may be made via inquiry session, meetings, discussion, and consultation. The term “investigation” itself also must be taken in its general context, hence allowing some flexibility in holding one. But those investigations that are ordered under the legal provisions of Act 605, must strictly adhere to .the provisions of Act 605.

Once a charge has already been proffered, an investigation must strictly be in pursuance of Reg. 35(5) or Reg. 10(1), as discussed above. Such inquiry/investigation is of a statutory nature, and must observe all the five mandatory requirements as stated above.


VI: DISCIPLINARY OFFENCES

Under the Second Schedule of Act 605 a Code of Conduct is prescribed and a large number of misconducts are described. They may be c1assified into the following separate categories.

Breaching the duty of loyalty: Peraturan 3(1), Jadual 2

Under Regulation 3(1) it is provided that "An officer shall at all times give his undivided loyalty to the Yang di-Pertuan Agong, the country, the Government and the statutory body".

The words "undivided loyalty to ... the Government" were inserted into our law only in the year 2000. It would now be a disciplinary offence to be a public critic of the government or of the university. Though the word "government" is distinct from the words "ruling party", all staff are now under a general duty not to appear in public as critics of the government or of the university while on its pay roll. This duty is further reinforced by Regulations 18 and 20.

Prohibition on making public statements that embarrass the University or the Government: Regulation 18

Under the previous law, university lecturers had a much wider right to take part in public debates and discussions. But the new Regulation 18 of 2000 lumps together university academicians with employees of all other statutory bodies and imposes severe restrictions on public expression of views. Regulation 18 provides:

(1) An officer shall not either orally or in writing or in any other manner -

make any public statement that is detrimental to any policy, programme or decision of the statutory body or the Government on any issue;

make any public statement which may embarrass or bring disrepute to the statutory body or the Government;

make any comments on any weaknesses of any policy, programme or decision of the statutory body or the Government;

circulate such statement or comments whether made by him or any other person.

(a)

(b)

(c)

(d)

Clause (2) bans any comment on any policy, programme or decision of the Government or of the university and forbids the giving of any information about the exercise of the functions of the university or of any incident or report relating to the university except with the permission of the Minister.

The gist of the law is that no public questioning or criticism is allowed when we speak to the press or the public or at public lectures or express opinions in broadcasts or in publications. Any critical comments about the Government or the university must be made internally or with permission of the Minister.

Prohibition on taking active part in politics: Regulation 20

Officers in the Managerial and Professional group are not forbidden from joining any political party as ordinary members: Regulation 20(5). However they must not-

• take "active part" in political activities • wear a political party emblem • make partisan political statements in public • publish or circulate politically partisan materials • canvass support for national, state or party elections • act as election or polling agent • contest for or hold any post in a political party

Officers in Managerial and Professional Group who are on leave prior to retirement may, with leave of the Board, take part in politics, provided the Official Secrets Act is not breached.

Officers in Support Group may, with permission of the Board, contest elections and hold political office.

General misdemeanours: Peraturan 3(2)

This Regulation describes a large number of acts that may form the basis of a disciplinary charge. It requires that an officer shall not -

subordinate his duty to the statutory body to his private interest;

conduct himself in such a manner as is likely to bring his private interests into conflict with his duty to the statutory body;

conduct himself in any manner likely to cause a reasonable suspicion that he has allowed his

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private interests to come into conflict with his duty to the statutory body so as to impair his usefulness as an officer of the statutory body; or he has used his position as an officer of the statutory body for his personal advantage;

conduct himself in such a manner as to bring the statutory body into disrepute or to bring discredit to the statutory body;

lack efficiency or industry;

be dishonest or untrustworthy;

be irresponsible;

bring or attempt to bring any form of outside influence or pressure to support or advance any claim relating to or against the statutory body, whether the claim is his own claim or that of any other officer of the statutory body;

be insubordinate or conduct himself in any manner which can be reasonably construed as being insubordinate; and

be negligent in performing his duties.

Sexual misconduct or sexual harassment are not specifically mentioned but can easily fall under one of the sub-categories of Regulations 3(2).

Outside employment without permission: Regulation 4

Receiving gifts for the performance of his official duties: Regulation 7

Giving or receiving entertainment for performance of official duties: Regulation 8

Failure to declare property and assets: Regulation 9

Maintaining a standard of living beyond emoluments and legitimate private means: Regulation 10

Borrowing money from persons with whom one has official dealings : Regulation 11

Serious pecuniary indebtedness: Regulations 12-13

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Lending money on interest: Regulation 14

Invo1vement in the futures market: Regulation 15

Holding or organizing or participating in raffles or lottery except for charity: Regulation 16.

Violating dress etiquette: Regulation 5

Involvement in prohibited drugs: Regulation 6

Financial improprieties

Personal improprieties/ Kesalahan-kesalan peribadi

Misuse of classified official information: Regulation 17

An officer shall not publish any book etc. based on official, classified information.

Prohibition on acting as editor of any publication: Regulation 19

An officer shall not edit, manage or finance any publication other than official or professional publications, non-political voluntary publications or publications in relation to which he has obtained prior permission from the Vice Chancellor.

Absence without leave (AWOL)

"Absence" means failure to be present for any length of time at a time and place required: Reg. 22.

For A WOL, disciplinary action can be commenced: Reg. 23-24.

If found guilty, all emoluments for the period of absence must be forfeited: Reg. 26. The Disciplinary Committee has no discretion in the matter. In addition, the officer may face any of the disciplinary punishments under Regulation 40.

The order of forfeiture must be in writing. Forfeiture is not regarded as a punishment: Regulation 26.

Must the order of forfeiture wait till after the disciplinary proceeding or can it be immediate? It is submitted that in view of Regulation 26, the forfeiture order must be made immediately as soon as AWOL is reported.

If the officer cannot be traced then special procedures apply to dismiss him without trial


under Regulation 25. An Officer who is AWOL for 7 consecutive working days and cannot be traced can be dismissed without a trial but subject to the following procedures.

Letter must be sent by personal delivery or A.R. by Head of Department to officer's last known address.

The Disciplinary Committee shall publish a notice in one daily newspaper in B.M. asking officer to report for duty within 7 days.

Failure to report shall result in dismissal from date of absence.

Dismissal must be gazetted: Regulation 25(7).

These procedural requirements look manifestly oppressive.

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4.

5.

(i)

(ii)

(iii)

(i)

(ii)

VII: DISCIPLINARY COMMITTEES & APPEAL COMMITTEES

Disciplinary Committees: Act 605 has created five separate disciplinary committees.

Committee to try the Vice-Chancellor, his Deputies, Top Management Group, Management and Professional Group and Group A under the Cabinet Committee Report 1976 with a view to dismissal or reduction in rank.

Committee to try the Vice-Chancellor, his Deputies and Top Management Group, not with a view to dismissal or reduction in rank.

Committee to try the Management and Professional Group and Group A under the Cabinet Committee Report 1976 not with a view to dismissal or reduction in rank.

Committee to try the Support Group and Groups B, C and D under the Cabinet Committee Report 1976 with a view to dismissal or reduction in rank.

Committee to try the Support Group and Groups B, C and D under the Cabinet Committee Report 1976 not with a view to dismissal or reduction in rank

Appeal Committees: Under Act 605, five appeal committees exist. Two are headed by the Menteri. Two are headed by the KSU and one by the V.C.

The time limit for filing an appeal is 14 days from the date of the communication of the result to the accused: Regulation 20(1) Jadual Ketiga. The appeal must be filed through the Head of Department. The filing of an appeal does not suspend the sentence or the punishment.

Once the appeal is determined by the Appeal Committee, there is no further recourse to any one - the Minister or the courts. However, we all know that the absence of appeal does not bar the supervisory power of the High Court to issue certiorari etc. If there is breach of natural justice (bias or lack of hearing) or ultra vires (illegality, irrationality, procedural impropriety or proportionality) the possibility of judicial intervention cannot be discounted.

Disciplinary Committee for Special Case : Nevertheless, there is another special category of committee established pursuant to section 8 of Act 605, This committee is established to try the Director General and his deputies (in the context of UiTM these refer to Vice Chancellors and Deputy Vice Chancellors), whose appointments are made by Yang di-Pertuan Agong or the Minister.

(a) If the VC and DVC are appointed by Yang di-Pertuan Agong :

The committee will be headed by the Minister sitting with two other Board members as appointed by the Minister.

The committee cannot make decision, but rather making recommendation only to the Yang di-Pertuan Agong.

The decision shall be made by the Yang di-Pertuan Agong and it shall be final.

(b) If the VC and DVC are appointed by the Minister :

The committee will be headed by the KSU sitting with two other Board members as appointed by the KSU.

The committee cannot make decision, but rather making recommendation only to the


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Minister.

The decision shall be made by the Minister and it shall be final.

Warning: Regulation 40(a).

Fine - maximum 7 days' emolument; for subsequent fines in any calendar month, the aggregate should not exceed 45% of salary: Regulation 40(b), 41(2) and 41(3)

Forfeiture of emoluments - in cases of AWOL, for the actual period of absence: Regulation 40(c), 41(4) and (5) and 26.

Deferment of salary movement for a period of 3 to 12 months: Regulation 42, 40(d).

Reduction of salary horizontally in the same salary level, not exceeding three movements and lasting between 12 and 36 months: Regulation 43, 40(e).

Reduction in rank to a lower grade m the same scheme of service: Regulation 40(f).

Dismissal: Regulation 40(g).

Note that the university has no power to compel staff members to go for psychological counseling.

Fine: If this punishment were imposed, then the following matters need to be observed to, namely :-

(a) The amount of fine must not exceed the staff’s gross salary for seven (7) days: Regulation 41(2).

(b) If the staff is being fined for more than once in a month, the aggregate amount of all fine must not exceed 45% from the staff’s monthly salary of the current month : Regulation 41(3).

(c) In case of absence without leave, no fine can be imposed if the staff has been penalized with forfeiture of his emolument : Regulation 41(5).

(d) Payment of fine must be made by cutting the staff’s salary and thereafter is channeled into the proceeds or fund of the statutory body : Regulation 41(6).

Forfeiture of Emoluments: If this punishment were imposed, then the following matters need to be observed to, namely:-

(a) In case of absence without leave, forfeiture of emoluments must be calculated on actual days of absence: Regulation 41(4).

(b) In case of absence without leave, no forfeiture

of emoluments can be imposed if the staff has been penalized with another forfeiture of his emolument: Regulation 41(5).

(c) Forfeiture of emoluments must be made

by cutting the staff’s salary and thereafter is channeled into the proceeds fund of the statutory body: Regulation 41(6).

(d) In case of absence without leave, should there

be no imposition of forfeiture of emoluments, the staff is still not entitled to his emolument for the days he absent himself. Forfeiture can still be done with written notification being issued to the staff. Forfeiture in this respect shall not be regarded as disciplinary punishment: Regulation 26.

Deferment of salary movement: If this punishment were imposed, then the following matters need to be observed to, namely :-

(a) Salary movement can be deferred for 3 months, 6 months, 9 months or 12 months only: Regulation 42(1).

(b) Once imposed, the deferment shall be done on the next anniversary date of the staff’s salary movement after the decision date of the disciplinary committee: Regulation 42(2).

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19 Paragraph 9(1) and (8) of the 1st Schedule of Universities and University Colleges Act 1971 is relevant for public universities established under the Act. For UiTM, section 20(1) and (7) of UiTM Act 1976 is relevant.

As far as present situation is concerned, all VC and DVC of all public universities (inclusive of UiTM) are being appointed by the Minister19.

VIII: DISCIPLINARY PUNISHMENTSOne or more of the following punishments may be imposed on officers who are found guilty of a disciplinary offence: Reg. 40. There is no limit to the number of penalties that may be combined.


(c) While the punishment of deferment is still in force, the staff shall not be entitled to receive any salary movement: Regulation 42(3).

(d) When the staff’s salary movement has been deferred, subsequent salary movement shall take effect on the nearest date of salary movement and it shall remain so until maximum step in his salary schedule is reached: Regulation 42(4),

Reduction of salary: If this punishment were imposed, then the following matters need to be observed to, namely :-

(a) No salary reduction unless it is reduced within the same salary level: Regulation 43(1)(a).

(b) No reduction of salary beyond three salary movements : Regulation 43(1)(b).

(c) Reduced salary shall remain within the period of 12 – 36 months only on any one occassion: Regulation 43(1)(c).

(d) Reduction of salary may begin on any date as determined by the disciplinary committee: Regulation 43(2).

(e) Subsequent salary movement shall take effect on the nearest date of salary movement after the period of salary reduction has lapse: Regulation 43(3),

(f) While the punishment of salary reduction is still in force, the staff shall not be entitled to receive any salary movement: Regulation 43(4).

(g) Reduction of salary shall not applicable for staff whose salary stand at minimum scale: Regulation 43(6).

(h) No salary can be reduced beyond the minimum salary point. The minimum salary point shall be the final limit of reduction for any penalty of salary reduction: Regulation 43(7).

Reduction in rank: If this punishment were imposed, then the following matters need to be observed to, namely :-

(a) The officer will be reduced to a grade lower than the grade presently held within the same

service scheme : Regulation 44(1)(a).

(b) Before the grade is being reduced, the salary shall be reduced first by one annual increment, and the new reduced salary shall be the officer’s salary at the reduced grade : Regulation 44(2)(a).

(c) If the new reduced salary is higher than the maximum salary at the reduced grade, then maximum salary at the reduced grade shall be the officer’s new salary : Regulation 44(2)(b).

(d) If the new reduced salary is lower than the minimum salary at the reduced grade, then minimum salary at the reduced grade shall be the officer’s new salary : Regulation 44(2)(c).

(e) If the officer’s salary before reduction was not accorded with salary point, then the salary has to be reduced first by 15%. On the reduced grade, the new salary shall be taken to begin on the nearest salary point but lower than the 15% reduction. If after the 15% reduction the salary was lower than the minimum salary of the reduced grade, than the officer’s salary shall be the minimum salary : Regulation 44(2)(d).

(f) If reduction in rank is being imposed together with reduction of salary, then both punishments maybe implemented simultaneously : Regulation 44(3).

(g) No reduction in rank may be imposed upon contract officer : Regulation 44(4).

IX: COMMENTS AND CAUTIONS

Inadequate right to be heard: Act 605 is seriously deficient on the right to be heard. First, there is only a qualified right to be heard orally at the investigation stage. We must interpret this law in such a way as to expand the right to adequate representation. Second, at the real trial, there is no right to face to face representation but only a right to written representation. This situation will not go unchallenged. It runs counter to recent judicial trends that in some circumstances hearing to be real must be oral. Third, Act 605 puts university staff in a worse position than university students in the matter of procedural rights in disciplinary proceedings! Act 605 lags behind procedural safeguards for private sector employees.


Need to read laws in the context of the Federal Constitution: Act 605 needs to be constitutionalized. Though the Federal Constitution has not yet become the chart and compass and sail and anchor of our endeavours, the trend in litigation is to challenge more and more laws as falling short of the standards of our nation’s grundnorm. It is likely that some provisions of Act 605 and some administrative practices may soon be challenged as violative of the supreme Constitution.

Among the contentious clauses are those that exclude full and fair hearing. They may one day be challenged as inconsistent with Article 5’s promise of “liberty” and Article 8’s guarantee of equality. The trend in public law is that “natural justice” is being linked with the Constitution’s Articles 5 and 8 so that any exclusion of audi alteram partem is potentially unconstitutional.

Some provisions of Act 605 restricting freedom of speech and expression and freedom of association may well be questionable under Article 10.

Inconsistencies in the matter of granting a hearing: There is no rational basis for distinguishing situations when the right to a fair hearing is granted and when it is denied; when oral hearing is allowed and when only written representation is permitted.

It is noteworthy that for serious “punishments” such as suspension, interdiction, termination under contract, reversion to former post, transfer (lateral or horizontal) and compulsory retirement, there is no right to any hearing at all even though these actions may touch on our constitutional right to life (and as a corollary to livelihood)! For relatively lesser punishments like reprimands, fines, deferment of salary movement there is a right to a trial.

Where does centre of gravity lie? Creation of high powered disciplinary boards and appeal boards but at the same time depriving employees of a right to oral hearing at the trial stage, has come to mean that the centre of gravity of the disciplinary process has shifted to investigation committees.

Given these drawbacks, all legal advisers have the challenge and responsibility of interpreting Act 605 in such a way as to bring it closer to our ideals of procedural justice.

REFERENCES

Dr Gan Ching Chuan, Disciplinary Proceedings Against Public Officers in Malaysia, Lexis Nexis, 2007.

Shad Saleem Faruqi, “Public Servants” being Chapter 34 of Document of Destiny - The Constitution of the Federation of Malaysia, Star Publications, 2008, pp. 485-510.

Survey of Malaysian Law 2000, University of Malaya Press, 2000, pp. 51- 67.

Balakrishnan Muniapan & Balakrishnan Parasuraman, “Misconduct, Domestic Inquiry and the Rules of Natural Justice in the Context of Malaysian Employment Relations”, [2007] 6 MLJA 149.

Vanitha Sundra Karean, “The Constitutional Right to Livelihood as a Developing Field in Malaysian Labour Jurisprudence, [2007] 5 MLJA 284


INTRODUCTION

It is a common sighting in government sector as well as government statutory body on the issuance and application of administrative circular. Circulars normally are issued by federal department such as the Public Service Department (JPA), Ministry of Finance (MoF), Prime Minister’s Department (JPM), Malaysian Administrative Modernisation and Management Planning Unit (MAMPU), and even by the Chief Secretary to the Government (KSN) himself. There are also circulars issued from within the agency/statutory body itself.

In this write-up, discussions will cater not only administrative circulars, but also any guidelines, directives, notification or any circulation made in writing (which will be collectively referred to as “circulars” in this article). Focus will be given to the statutory body context, in particular UiTM.

METHODS OF ISSUANCE

The author wishes to categorize circulars into few types, and based on the current practices in the public sector, circulars can be categorized into three, namely :-

(a) The first is when such circulars are issued pursuant to any statutory provisions as contained in any written law (hereinafter will be referred to as “statutory circulars”).

(b) Second is when such circulars are issued as instructions or orders from head of department (hereinafter will be referred to as “circulars by employer’s order”). This would normally relate on disciplinary matters or

ADMINISTRATIVE CIRCULAR: A QUICK GLANCE ON ITS LEGAL AUTHORITATIVENESS

By: Shahrin Nordin*

office rules.

(c) The third is when such circulars are issued for the purpose of providing uniform and standard process and procedure for all administration and/or human resource matters (hereinafter will be referred to as “administrative circulars”).

QUASI LEGISLATION

The definition of law under Article 160(2) of the Federal Constitution clearly spells out that “law” includes “written law, the common law in so far as it is in operation in the Federation or any part thereof, and any custom or usage having the force of law in the Federation or any part thereof.”

Circulars, according to MP Jain, have been regarded as quasi-legislation, namely a special type of law which is of “dubious character and its legal character is wrapped in too much confusion”1.

Nevertheless, it is humbly submitted here that circulars falling within the category of statutory circulars can be regarded as law and not quasi-legislation, since it falls within the definition of ‘subsidiary legislation’ under s.3 of the Interpretation Acts 1948 and 1967. Other types of circulars such as circulars by employer’s order and administrative circulars can be regarded as quasi-legislation.

Each type of circulars has different kind of authoritativeness, depending very much on the method of issuance of each circular as stated hereinabove.

STATUTORY CIRCULARS

In the context of this write-up, statutory circulars refer to those circulars issued pursuant to any statutory provisions. Statutory circulars are no doubt carrying legal force and hence demand full obedience from its subject. This is also in parallel with the definition of ‘subsidiary legislation’ under s.3 of the Interpretation Acts 1948 and 1967 which states:-_______________________________________________________________

* Legal Officer, Office of the Legal Advisor, UiTM.1 MP Jain, Administrative Law of Malaysia and Singapore, Third Edition, Malayan Law Journal, 1997.


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2 [2009] 5 MLJ 671 (HC) 3 [2005] 3 MLJ 361 (HC)4 Per Mohtar Sidin JCA in Ketua Pengarah Jabatan Alam Sekitar & Anor v. Kajing Tubek & Ors. [1997] 3 MLJ 23 (CoA) at page 56 – 57.5 Zakaria Abdullah & Ors. v. Lembaga Pelesenan Tenaga Atom & Ors. [2013] 5 MLJ 206 (CoA)

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6 [2015] 2 MLJ 509 (CoA) 7 The section empowered the State to issue general direction to local authority within the State. It states that :-

“Any proclamation by law, rule, regulation, order, notification, by law or other instrument made under any Act, Enactment, Ordinance or other lawful authority and having legislative effect.”

In the case of Diana Chee Voon Hsai v. Citibank Bhd2, Credit Card Guidelines as issued by the Bank Negara Malaysia pursuant to the enabling s.70 of the Payment Systems Act 2003 was held to be a subsidiary legislation and does carry legal force. Apart from that, the existence of penal provisions for those breaching the guideline has also strengthened its legislative status. The penal provisions come in two forms, namely the ‘General Penalty’ provision under s.57 of the Payment Systems Act 2003, and the revocation of approval to respective credit card issuing bank as stipulated under s.26(1) of the Payment Systems Act 2003.

Similar tone was later echoed by Abdul Malik Ishak J, in Affin Bank Bhd v. Datuk Ahmad Zahid Hamidi3, which found that Bank Negara Malaysia Guidelines which are issued pursuant to s.126 of the Banking and Financial Institutions Act 1989 do indeed have legal force.

Nevertheless, in some situations, the court might have the tendency to hold some statutory circulars as having no legal force. A closer scrutiny on this was made by Mohtar Sidin JCA4, which found out that despite having enabling provision under s.34A(2) of the Environmental Quality Act 1974, which empowered the Director General to issue guideline on environmental impact assessment (EIA), there is lacking penal provision which could prescribe consequences for non-compliance to the guideline. On that note, the guideline was doubted for having any legal force and non-compliance to it was held to be not fatal.

This finding was later approved in another Court of Appeal case5 which held that non-compliance with the guideline will not nullify the EIA report as the guideline itself has no legal force.

It is fair also if we visit the case of Majlis

Perbandaran Subang Jaya v. Laguna Debay Sdn Bhd6, wherein the Court of Appeal recognized the legislative effect of circular on construction of billboard issued by the Selangor State Authority to the local authority within the state as it was made pursuant to s.9(1) of the Local Government Act 19767.

The Laguna Debay’s case was later on approved by another Court of Appeal case in Teh Guat Hong v. Perbadanan Tabung Pendidikan Tinggi Nasional8. In that case, Prasad Sandosham Abraham, JCA has also recognized that the Pekeliling PTPTN Bilangan 2 Tahun 2003 do have legal force as it was purportedly issued by PTPTN pursuant to s.19 of the Perbadanan Tabung Pendidikan Tinggi Nasional Act 19979.

Upon scrutinying the provisions in the Local Government Act 1976 and Perbadanan Tabung Pendidikan Tinggi Nasional Act 1997, no penal provisions exist therein to cater events of non-compliance to the circulars issued by the State Authority or PTPTN respectively. Despite that, the Court of Appeal in both cases went on to uphold their legislative status.

On the strength of the authority in Laguna Debay and Teh Guat Hong’s case which were decided much recent, it can safely be viewed here that no matter how loose the empowering statutory provisions are, the circulars issued would still attain its legal force.

CIRCULARS BY EMPLOYER’S ORDER

A superior is entitled to issue any directive, instruction and order to its subject on any matter within the employment scope. This has been trite principle whereby “duty of obedience

“The State Authority may from time to time give the local authority directions of a general character, and not inconsistent with the provisions of this Act, on the policy to be followed in the exercise of the powers conferred and the duties imposed on the local authority by or under this Act in relation to matters which appear to the State Authority to affect the interests of the local authority area, and the local authority shall as soon as possible give effect to all such directions.”

8 [2015] 3 AMR 35 (CoA)9 The section empowered PTPTN to issue general direction to local authority within the State. It states that :-

“The State Authority may from time to time give the local authority directions of a general character, and not inconsistent with the provisions of this Act, on the policy to be followed in the exercise of the powers conferred and the duties imposed on the local authority by or under this Act in relation to matters which appear to the State Authority to affect the interests of the local authority area, and the local authority shall as soon as possible give effect to all such directions.”


is expected from every employee”10. The established principle is that11:-

“The employee's duty to comply is confined to all the lawful and reasonable orders of his employer in respect of the performance of such functions that falls within the scope of his contract of employment. Whether the employer's orders are lawful and reasonable would depend very much on the terms and conditions of the contract and the character of employment. The employer cannot give an order outside the proper scope of the employment.”

Superior’s orders, if not complied with, may be followed up with disciplinary proceeding. Regulation 3(2)(i) of Second Schedule of the Statutory Bodies (Discipline and Surcharge) Act 2000 has stipulated act of insubordination is a disciplinary offence, which if found guilty may be penalized with any of the punishments provided under regulation 40 of Second Schedule Statutory Bodies (Discipline and Surcharge) Act 2000. Such penal provision is authoritative enough to demand legal obedience from each and every employee.

Questions may arise as to the obedience to unlawful or unreasonable orders or circulars. In dealing with this situation, not much choice does an employee has except to comply first, and notify any disagreement to the employee at later stage. The law insists on obedience first and protest later, otherwise it would be impossible for an employer “to maintain discipline and industrial peace” within the workplace12. If any disagreement by employee is not sufficiently entertained, then the proper course would be to take the matter further in a proceeding against the employer or bring up the matter to the union13.

To sum up, any circular from superior which is instructive or directive in nature, has the legal force and full obedience to it is mandatory upon every employee. Non-compliance to it may be entailed with disciplinary proceeding, regardless how unlawful or unreasonable such circular is. Proper recourse has to be adopted to should any lawfulness or unreasonableness wish to be rectified._______________________________________________________________

10 Per Siti Norma Yakob FCJ, in Ngeow Voon Yean v Sungei Wang Plaza Sdn Bhd/Landmarks Holding Bhd [2006] 5 MLJ 113 (FC).11 Ibid. 12 Ibid.13 Ibid.

15 That was the held made by Haidar Mohd Noor JCA in the case of Raja Guppal Ramasamy v. Sagaran Pakiam [1999] 2 CLJ 972 (CoA), where :-

_______________________________________________________________

14 [1995] 4 CLJ 484 (CoA).

ADMINISTRATIVE CIRCULARS

Administrative circulars are normally issued without having the nature of statutory circulars, nor does it bear any superior instruction or direction. It is purely issued as administrative power of the officer having administrative authority within a department or organization. Examples are circulars on service matters, pension matters, salary issues and what not. It normally revolves around human resource and personnel aspect of an organization.

Some years ago, there are few court cases that touch on authoritativeness of administrative circulars. A look at these cases may lend some understanding especially in determining whether or not administrative circulars carry legal weight.

In 1995, an interesting finding was made in a case made whereby an administrative circular is to be treated not having legal force. In that case of Ooi Bee Tat v. Tan Ah Chim & Sons Sdn. Bhd. & Anor & Another Appeal14, Practice Direction (which is a form of circular issued by Chief Registrar of the Malaysian Court) were being subjected to the deliberation in the case. In that case, Zakaria Yatim, JCA sitting in the Court of Appeal held that :-

“Practice Notes or Practice Directions do not have statutory force and cannot be equated with the Standing Orders relating to the judicial proceedings in the House of Lords. Practice Directions are intended to be no more than a direction for administrative purpose. In the event, when the Deputy Registrar refused the extension of time, she was merely carrying out an administrative duty pursuant to the relevant Practice Direction.”

Despite the administrative status of administrative circulars, it was held in a later case that when the purpose of circular is to impose uniformity in procedure, then strict compliance is a must15.

This finding was also supported in another case

“Practice Direction No. 1 of 1996 has been framed to regulate the procedure governing the filing of appeal records. It must be strictly adhered to so that there is a systematic and consistent procedure governing the filing of appeal records …. The conduct of the appellant’s solicitor in not complying with the Practice Direction No. 1 of 1996 can hardly be described as an acceptable explanation for the delay.”


______________________________________________________________________________________________________________

16 [1996] 2 MLJ 54 (CoA)17 [2002] 4 MLJ 145 (CoA)18 [1998] 4 MLJ 65 (CoA)19 Megat Najmuddin Dato’ Seri (Dr) Megat Khas v. Bank Bumiputra Malaysia Bhd [2002] 1 CLJ 645 (FC)

of Yeo Yoo Teik v. Jemaah Pengadilan Sewa, Pulau Pinang & Anor16, wherein Siti Norma Yaakob JCA observed that :-

“Practice Direction 2/91 has been especially framed to regulate the procedure governing the filing of appeal records. Although it does not have the force of law, it must be strictly adhered to so that there is a systematic and consistent procedure governing the filing of appeal records in this court.”

Similar finding was also made in few other cases such as Chua Choong Yin v. Tan Boon Bak Trading Sdn Bhd & Anor17 and Ling Siok Seng v. Ting Sieh Chung18.

Despite such judicial stance, a circular in its administrative status must not violate or deviate from any other statutory provisions. In the absence of any such violation or deviation, an administrative circular remain to be adhered to.

That is what has been observed by the Federal Court19, wherein Supreme Court Practice Direction No 1 of 1992 has been found to have conflicted with rules 18(4) of the Rules of Court of Appeal 1994. The said Practice Direction has allowed filing of supplementary appeal record containing sealed judgment, when in fact the provision in rules 18(4) has statutorily prescribed on the requirement to file appeal record inclusive of the sealed judgment, without the need to file supplementary appeal record. In this regard, the Federal Court is of the opinion that :-

“Practice directions were effected for administrative purposes. Parliament could not have contemplated that practice directions can be issued in direct conflict with procedural rules of court which have been statutorily laid down. To that extent that such practice directions are in conflict, in the sense of superseding or deviating substantially from statutory rules of court, they are of no legal effect whatsoever. It is trite, however, that once practice directions have been properly and legally issued, they must be complied with.”

Further, it was observed that administrative circulars act as terms and conditions of employee’s appointment. This is in view of the special status of statutory body’s employee whereby rights and obligations are governed by statute or administrative circulars. The basis of this notion is found in the case of Kanawagi Seperumaniam v Penang Port Commission [2002] 8 CLJ 503 at pages 508 wherein Faiza Tamby Chik J , (as he then was) said :

“Since PPC [Penang Part Commission] is a statutory body and employs its employees under statutory power the contract of employment entered between PPC and its employees was of a special kind and which acquired a special status. Thereafter the employee's rights and obligations are no longer determined by consent of both parties but by the statute or administrative rules made by the statutory body. This law is the same for government employees, see Government of Malaysia v. Rosalind Oh Lee Pek Inn [1973] 1 MLJ 222. Further this statutorily created posts are permanent and pensionable after the probationary period of three years. The Employees' Provident Fund Act 1951 revised 1982, does not apply to such employees.”

Hence, it can be said that as far as administrative circular is concerned, it is still binding despite having no legal force, especially when such circulars revolve around human resource aspect.

FEDERAL GOVERNMENT CIRCULARS

Federal government circulars shall automatically bind public servants. As far as regulations issued pursuant to Article 132(2) of the Federal Constitution, they bind only those seven categories of public servant as stipulated under Article 132(1) of the Federal Constitution20. Those regulations are famously known as General Order, but legally speaking they ought to be known by their own regulations name21. In their status as subsidiary legislation, those regulations undeniably enjoyed legal force over ______________________________________________________________________________________________________________

20 The seven categories of public servants are :- (a) the armed forces; (b) the judicial and legal service; (c) the general public service of the Federation; (d) the police force; (e) the joint public services mentioned in Article 133; (f) the public service of each State; and (g) the education service.21 Those regulations for example are Public Officers (Appointment, Promotion and Termination of Service) Regulations 2012; and Public Officers (Conduct and Discipline) Regulations 1993.


______________________________________________________________________________________________________________

22 [2010] 9 MLJ 736 (HC) 23 [2015] 3 AMR 35 (CoA).24 Ibid.25 Ibid.

public servants.

There are also other types of federal circulars which are normally issued by administrative authority of the KSN, JPA, MAMPU, MoF and other federal departments.

As far as servants of statutory body and local authority, those regulations or administrative federal circulars have to be adopted forthwith with necessary modification, otherwise they would have no binding effect upon the employees of statutory body and local authority. Similar observation was made by the court in Dr Che Wan Fadhil bin Che Wan Putra & Ors. v. UTM22, whereby Zawawi Salleh J, stated that :-

“The circulars with regards to the service presented by JPA were not automatically applicable to a statutory body such as the defendant. It was only applicable if had been applied by the defendant’s Board. The Service Circular No 9 of 1991 had been applied by the defendant via the 78th council’s meeting dated 25 January 1992. Any advice, legislation and other directions by the JPA was not binding on the defendant unless it had been accepted and approved by the Board of the defendant appropriately. Also there was no obstruction for the Board to alter a circular which had been applied any time according to the authorities given to it.”

If the federal circulars in their original form are regulations, would the said circulars still stand as regulations with their legislative status over the employee of statutory body? It is opined here that, once adopted by respective board of directors of each statutory body, such federal circulars shall thereafter become decision of the board or in other words it has become the superior decision or order but not with legislative status. The manner of compliance shall then have to follow as per discussions on ‘Circulars by Employer’s Order’ as deliberated hereinabove.

CIRCULAR AND CONTRACT

Another interesting issue that worth to be discussed here is whether circulars issued by statutory body will have bearing over the contract it has entered into with the third party. Prasad Sandosham Abraham, JCA in the Court

of Appeal while sitting for the case of Teh Guat Hong v. Perbadanan Tabung Pendidikan Tinggi Nasional23, made a finding that circulars which provides waiver or imposition of obligations on the educational loan contract are considered decision of PTPTN exercised pursuant to the its statutory power under the PTPTN Act. Because of that, departure from the 2003 Circular was held to be challengeable in judicial review proceeding24.

On another note, such circular is categorized as statutory circular made pursuant the PTPTN Act, and hence acquired the subsidiary legislation status and ought to bind parties, even in contract25.

CONCLUSION

Deliberation on authoritativeness of circulars is interesting and could attract lots of issues with quite lengthy enlightenment. Statutory circular is in fact a law, by virtue of its qualification as subsidiary legislation. Circulars by employer’s order and administrative circular are not considered a law but they are for internal and domestic purpose. Administrative circulars issued by the Federal Governemt shall not automatically bind statutory bodies and local authorities, unless and until they are duly adopted. Despite having no legal force, it is quite interesting to note that case laws tend to suggest that compliance to these administrative circulars is a must, hence leaving no room for non-compliance especially in matters that require uniformity in processes, procudres and approaches. All in all, a circular whether in legislative or administrative form, can now no longer be disobeyed as it has now become clear that adherence and compliance is required once properly issued.


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1 Legal Officer, Office of Legal Advisor, UiTM, Shah Alam.2 Nurshuhada Zainon, Eric Lou, Mohd Suhaimi Mohd Danuri, Faizul A. Rahim (2013), Analysis of Practices for Private Finance Initiative (PFI) Procurement Process , Malaysia vs. United Kingdom, The Malaysian Surveyor, Vol. 48. No.1, as retrieved from http://repository.um.edu.my/31341/1/PFI-Surveyor-Jun%202013.pdf on 22 August 2016.3 UKAS, Procedures of PPP Procurement, Workshop on PPP, 10 June 2015, Institut Latihan Kehakiman Dan Perundangan, Bangi, Selangor.4 Private Finance Initiatives (December 2007), CIPS Knowledge Works, Knowledge Summary, as retrieved from www.cips.org on 22 August 2016.

INTRODUCTION

Private Finance Initiatives (“PFI”) is a procurement method for procuring services and infrastructure using private funding. PFI offers an alternative to the conventional procurement of public service infrastructure. The Malaysian Government in the past years has officially announced the adoption of PFI for its construction and infrastructure projects in order to promote greater involvement of the private sector in delivering public services2. PFI usually involves large-scale projects and for capital intensive projects such as construction of facilities and infrastructure for the public universities and government’s hospitals.

LEGISLATION

In Malaysia, there is no specific legislation to govern PFI. PFI in Malaysia is implemented based on the Public Private Partnership Guidelines 2009 which are published by the Unit Kerjasama Awam Swasta of the Prime Minister’s Department (“UKAS”) and all decisions regarding PFI are decided by the Cabinet.

THE AGREEMENT

PFI project is a long-term project. It is very important for the parties to a PFI project to define their duties and obligations in a written document. This is done through the preparation of an Agreement i.e. Privatisation Agreement, Concession Agreement, Joint Venture Agreement and etc. UKAS, through its legal team, together with the Implementing Agency will lead the negotiation process in the preparation of an Agreement with the selected private company. The involvement of all parties during the negotiation on the Agreement is very crucial to ensure that all key parameters of the project are being captured3.A recurring theme in PFI contracts is the difficulty that contract managers and others involved in the operational phase have in understanding and interpreting the contracts4. PFI agreements are by their nature complex, complicated and have to cover many areas such as the wide range of requirements, payments methods and eventualities. Because of the complexity of the PFI agreements, it is encouraged to have a special team for the supply, purchasing, operational and the contract management to work together to ensure the smooth running of the implementation of the project. PFI agreement is a long-term agreement and usually it will last for 20 to 30 years and because of this, it requires full commitment from all parties who involve in the project to achieve the PFI objectives and to ensure the success of the project.

COMMON PFI OPERATIONAL ISSUES

The PFI Agreement is the primary reference source during the operational implementation phase. The parties will refer to the Agreement whenever there is any dispute between the parties.

COMMON OPERATIONAL ISSUES IN THE IMPLEMENTATION OF PRIVATE FINANCE

INITIATIVES PROJECTS

by: Rasanubari Asmaramah Binti Said1


Delay In Completion Of The Construction Works

The construction works commence when the Company has fulfilled all requirements made by the Government. The Government will determine a date known as the “Effective Date” for the Company to start works. The company has to complete the construction works with due diligence within the specified period as determined by the Government. In the event of delay by the Company to complete the construction works, the Implementing Agency has the right to issue a written notice to the Company to complete the construction works within specified time as stated in the Agreement, failing which the Implementing Agency has the right to terminate the project with a written notice. However, if the delay is caused by the public authority in issuing approval, installation and commissioning of the utility services or as a result of discovery of antiquities, then the Company may request for an extension of time of the concession period from the Implementing Agency. The Company is required to prove that it has used its best endeavor to prevent delay and has used its best effort to make sure that the project can be completed and delivered to the Implementing Agency in time. The Implementing Agency has the discretion to consider the Company’s application for the extension of time depending on the reasons given by the Company.

Completion of the project

The completion of the project shall only be regarded as practically complete if all requirements in the Agreement have been fulfilled by the Company. Among those requirements are the facilities and infrastructure have been completed in accordance with the specifications, the facilities and infrastructure are fit and safe for occupation, all essential services have been completed and etc. But what happen if the Company has completed the construction works but fail to obtain the Certificate of Completion and Compliance for occupation from the relevant Authority? Can the project be delivered to the Implementing Agency without the Certificate of Completion and Compliance for occupation?

The Certificate of Completion and Compliance (“CCC”) replaces the Certificate of Fitness for Occupation (“CFO”) previously issued by the Local Authorities under the Uniform By-Laws of the Street, Drainage and Building Act 1974 [Act 133](“SDBA”). With the new system under the amended SDBA5, the CCC is issued by the project’s Principal Submitting Person (“PSP”) who is defined under the amended SDBA as a Professional Architect, Professional Engineer or Building Draughtsman registered under the relevant written law.

Under the PFI projects, the CCC shall be issued by the PSP when all technical conditions imposed by the Local Authority have been complied with and all the essential services, including access roads, landscape, car parks, drains, sanitary, water and electricity installations, fire hydrants, sewerage and refuse disposal requirements and fire lifts, where required, have been provided and approved by the Local Authority. The Company has to make sure that they have obtained the CCC from the Local Authority before the project can be delivered to the Implementing Agency. Partial delivery is not allowed in PFI project. Under the new system of the Amended SDBA, it is an offence for an occupation without the CCC and such offence, if convected, is liable to a fine not more than RM250,000 or imprisonment of not more than 10 years or both6.

Additional Works

Sometimes during the operational phase or maintenance period, the Implementing Agencies needs some additional works to be made to the completed project. The cost on the additional

2.

3.

________________________________________________________________5 Street, Drainage and Building (Amendment) Act 2007, which came into force on April 12, 2007.6 Section 70(27)(f) of the Street, Drainage and Building (Amendment) Act 2007.

1.


works will be borne by the Implementing Agencies. The question is, who is going to carry out the additional works? Is the Implementing Agencies has the right to appoint third party to carry out the additional works?

Under PFI, the Company has to be given the first right of refusal to carry out the additional works. The Implementing Agency has to give a written notice to the Company requiring them to carry out the Additional Works. The Company will be given a specified time to submit their proposal and both parties will enter into a negotiation to discuss further on the additional works.

If the parties fail to agree on the scope of works, or the design or the costs, then the Implementing Agency has the right to select third party to carry out the Additional Works. But if this happens, the issue that will arise is who is going to carry out the maintenance of the additional works? The Company may refuse to do the maintenance works on the additional works by giving reasons that the additional works are separated from the existing project and the maintenance charges for the completed project does not cover the maintenance costs for the additional works. Under the PFI Agreement, upon completion of the additional works, the Company has to carry out the maintenance services of the completed additional works. The parties shall mutually agree on the rate.

Maintenance Services

In PFI project, the Company finances, designs, builds and maintains the assets. In return, the Company will be paid based on its maintenance service performance. The Implementing Agency has the right to deduct the maintenance payment if the maintenance service performance does not achieve the standard and expectation of the Implementing Agency. It is the responsibility of the Company to perform the maintenance services to optimize the functionality, availability, capacity and efficiency of the project.

The Company shall make good all defects throughout the maintenance period. It is different from the conventional project whereby in a conventional project, the Company is only responsible to rectify the defects during the Defect Liability Period. The maintenance performance in a PFI project is measured by the Key Performance Index and Demerit System as provided under the Agreement. The Company is required to carry out the maintenance services according to the service description, frequency, parameter value and within the relevant period as set out in the Agreement.

CONCLUSION

The effectiveness of PFI cannot be judged over the full life of an Agreement. The fact that PFI is a long-term project with a long-term Agreement requires full commitment from all parties involved in the project. One of the challenges faced by the parties during the PFI operational phase is lack of understanding of the PFI concept. This is due to the complexities in interpreting and understanding the PFI Agreement. Though there are guidelines or provisions in the Agreement on how the PFI project should be implemented, in practice, it sometimes works differently.

In implementing PFI, those who have involvement in the administration or management of PFI contracts and those with responsibility for PFI operational projects should have an understanding of the mechanism, key contractual requirements of the project agreement, requirements for effective contract management and awareness of the issues arising throughout the operational phase.

4.


PENGENALAN

Apabila perkataan “undang-undang” atau istilah bahasa Inggerisnya “law” disebut oleh seseorang, perkara yang pertama terpancar di minda pendengar antaranya ialah ‘kesalahan’,‘hukuman’, ‘jenayah’, ‘mahkamah’, ‘peguam’, dan ‘hakim’. Selalunya, tiada yang positif pada awalnya melainkan setelah diberi penerangan apakah yang dimaksudkan dengan undang-undang seperti yang di terangkan oleh pakar sejarah atau sejarawan Prof. Emeritus Tan Sri Dato’ Dr. Khoo Kay Kim iatu:

“Undang-undang diadakan untuk faedah masyarakat. Dengan perkataan lain, adanya undang-undang dapat menjamin ketertiban masyarakat; ia bererti orang dapat hidup dengan lebih bahagia. Tujuan utama undang-undang bukan untuk menghukum walaupun biasanya bila orang melanggar undang-undang, mereka harus dihukum”.1

Daripada kenyataan di atas, dapat disimpulkan bahawa maksud undang-undang dengan bahasa yang mudah di fahami ialah satu sistem peraturan yang diterima dan diikuti oleh masyarakat. Peraturan ini selalunya dibuat oleh kerajaan sesebuah negara supaya rakyatnya boleh hidup secara teratur dan berkerjasama di antara satu sama lain. Tetapi apabila sesuatu peraturan itu dilanggar, orang yang melanggar peraturan tersebut akan di bawa ke pengadilan dan apabila di dapati bersalah,

MEMORANDUM PERJANJIAN ADALAH SESUATU DOKUMEN YANG MENGIKAT DI BAWAH UNDANG-UNDANG KONTRAK

Oleh: Musrifah Sapardi*

maka ia boleh dikenakan hukuman atau didenda oleh mahkamah.

Setelah penjelasan seperti di atas diberi kepada pendengar, barulah mereka mengangguk-anggukkan kepala tanda mereka bersetuju atau memahaminya. Lantaran, tidak hairanlah selepas itu kebanyakan daripada mereka akan berpusu-pusu untuk mendapatkan pandangan perundangan daripada pengamal undang-undang (legal fraternity) dalam pelbagai aspek perundangan yang mereka ingin ketahui - samada tentang kekeluargaan, antarabangsa, komersial, harta intelek, jenayah, pentadbiran, hak cipta dan sebagainya.

Perlu dijelaskan juga, sebelum seseorang pengamal undang-undang seperti yang dinyatakan di atas boleh melaksanakan tugas-tugasnya, mereka terlebih dahulu mestilah memperolehi ijazah kepujian undang-undang (LL.B Hons.) daripada universiti tempatan atau luar negara yang diiktiraf oleh Kerajaan Malaysia. Mereka juga disaran mendapatkan latihan secara profesional dalam undang-undang ataupun mempunyai pengalaman luas sebelum mereka dibenarkan memberi pendapat dalam bidang pengkhususan masing-masing.

Selalunya pengamal undang-undang akan dipertanggungiawabkan untuk merangka dokumen undang-undang atau memberi khidmat nasihat tentang isu-isu perundangan kepada orang yang meminta nasihat atau khidmat guaman. Sekiranya pengamal undang-undang itu juga adalah ‘practicing lawyer’ maka mereka juga dibenarkan untuk mewakili satu pihak melawan pihak yang lain di dalam prosiding di mahkamah undang-undang.

Keadaan di Universiti Teknologi MARA (UiTM) juga tidak terkecuali tentang perlunya pengamal undang-undang bagi melaksanakan tugas-tugas untuk menjaga kepentingan universiti. Maka salah satu tugas utama pengamal undang-undang di Pejabat Penasihat Undang-Undang di sini termasuklah menjalankan tugas di dalam aspek menderaf serta menyemak dokumen-dokumen berikut yang berkaitan dengan isu-isu akademik, koporat dan pengkomersialan:

• SuratHasratiaituLetterofIntent(LOI)

• Memorandum Persefahaman iaituMemorandum of Understanding (MOU)

________________________________________________________________* Professor Madya Datin Dr Musrifah Sapardi, Timbalan Penasihat Undang-Undang di PPUU UiTM.

1 Beliau merupakan seorang Profesor Emeritus di.Jabatan Sejarah Universiti Malaya dan sumber Rencana ‘Pengertian Undang-Undang,di perolehi daripada Utusan Online di: http://ww1.utusan.com.my/utusan/info.asp?y=2010&dt=0413&sec=Rencana&pg=re_02.htm#ixzz43H3Gt3ST © Utusan Melayu (M) Bhd (13/04/2010).


________________________________________________________________2 Lihat : http://www.businessdictionary.com/definition/memorandum-memo.html#ixzz43HvzbPX73 Lihat arahan Jawatankuasa Eksekutif (JKE) UiTM – Mesyuarat Bil. 06/2015 bertaikh 10 Jun 2015.

• MemorandumKerjasama iaituMemorandumof Cooperation (MOC)

• Memorandum Perjanjian atau Memorandumof Agreement (MOA)

• Perjanjian untuk Tidak Mendedahkan atauNon-Disclosure Agreement (NDA)

Bagi memastikan nama dan kedudukan sentiasa UiTM sentiasa terpelihara, PPUU mengamalkan sikap berunding dan seringkali mempertahankan hak-hak UiTM dengan pelbagai pihak samada tempatan atau luar negara serta juga pihak awam dan swasta bagi menjaga kepentingan universiti dalam hal-hal yang berkaitan dengan terma-terma dan syarat-syarat yang terkandung di dalam Memorandum sebelum UiTM bersetuju untuk memasukkinya (tandatangan).

Ini adalah selari dengan tujuan utama UiTM mewujudkan MOU dan MOA bersama organisasi atau institusi samada dari dalam dan luar negara adalah bagi membangunkan UiTM melalui usahasama bersama pelbagai pihak. Usahasama tersebut akan menyumbang kepada pembangunan UiTM melalui pertukaran staf dan pelajar, perkongsian ide, perkongsian teknologi, pertukaran perkhidmatan, penganjuran program dan konferensi serta penyelidikan dan sebagainya.

LOI, MOC dan MOU merupakan perjanjian yang tidak mengikat (not legally binding) pihak-pihak yang memasuki perjanjian tersebut melainkan ia mempunyai implikasi undang-undang. Ianya merupakan suatu bentuk perjanjian bertulis antara pihak-pihak yang terlibat (organisasi, institusi, negara dan sebagainya) untuk melaksanakan sesuatu kolaborasi atau projek usahasama yang tidak melibatkan implikasi undang-undang. Maka perjanjian seperti ini tidak mengikat di bawah undang-undang kontrak. Walaubagaimanapun MOA dan NDA adalah sesuatu perjanjian yang mengikat kerana terma-terma di dalamnya mempunyai implikasi undang-undang.dan selalunya turut mempunyai implikasi kewangan kepada phak-pihak yang terlibat.

MAKSUD PERKATAAN “MEMORANDUM”

Perkataan ‘memorandum’ berasal daripada

perkataan ‘memo’ yang membawa maksud “an informal written brief, note, record, reminder, or summary used as a means of communication, or to outline the terms of an agreement in its draft-stage”. ‘Memo’ ini selalunya di hantar sebagai nota daripada pihak pentadbir di dalam sesbuah organisasi kepada orang bawahannya. Di dalam aspek perundangan pula ‘memo’ bererti rekod bertulis yang tidak formal atau lebih tepat dalam bahasa Inggeris di sebut sebagai “an informal written record of an agreement that has not yet become official”.2

Tugas PPUU di UiTM antaranya ialah bertanggungjawab untuk menderaf dan menyemak Memorandum Persefahaman dan Memorandum Perjanjian. Dokumen-dokumen ini adalah berkaitan dengan isu-isu akademik, koporat dan pengkomersialan.

MEMORANDUM PERSEFAHAMAN

Dokumen tersebut meliputi pelbagai nama tetapi mempunyai tujuan yang sama iaitu untuk berkolaborasi dengan sesebuah institusi dan organisasi samada di dalam atau luar negara seperti LOI, MOU dan MOC. Selalunya dokumen tersebut menyatakan keinginan seseorang atau sesuatu pihak untuk melaksanakan kontrak, projek dan sebagainya tanpa mengikat pihak-pihak yang menandatanganinya melainkan dokumen itu mempunyai implikasi perundangan atau implikasi kewangan ke atas pihak pihak yang terlibat.

Bagi memastikan proses permohonan dan peryemakan LOI, MOC and MOU yang lebih teratur dan berkesan, satu Jawatankuasa Memorandum Persefahaman UiTM3 yang dianggotai oleh enam orang ahli telah di tubuhkan pada bulan Julai 2015 dan dipengerusikan secara bersama oleh Timbalan Naib Canselor (Akademik & Antarabangsa) dan Penasihat Undang-Undang Universiti. Setelah peyemakan yang teliti dibuat oleh PPUU, kesemua Memorandum Persefahaman yang tidak mempunyai implikasi perundangan atau implikasi kewangan akan disokong oleh PPUU untuk dibawa kepada Jawatankuasa Memorandum Persefahaman UiTM untuk pertimbangan dan kelulusan.

Bahkan Garis Panduan Jawatankuasa Memorandum Persefahaman UiTM juga telah


di keluarkan (Bilangan 2 Tahun 2016) melalui Pekeliling Timbalan Naib Canselor (Akademik dan Antarabangsa) atau TNCA bertarikh 23 Februari 2016 kepada semua Fakulti / UiTM Cawangan Negeri / Akedemi / Institut / Pusat dan Bahagian di seluruh UiTM yang mempunyai niat untuk mengadakan Memprandum Persefahaman bersama institusi dalam dan luar negara dapat melaksanakan proses permohonan dengan teratur dan berkesan.

Di antara perkara dan prosedur yang dijelaskan di dalam Garis Panduan Jawatankuasa Memorandum Persefahaman UiTM adalah seperti berikut:

• Iamenjelaskantentangkepentingandokumenterutamanya MOU yang merupakan satu perjanjian bertulis yang rasmi antara dua atau lebih pihak yang mendefinisikan peranan dan tanggung jawab bersama pihak yang terlibat dan membentuk persahabatan yang erat di mana semua pihak yang terlibat dapat meraih faedah.

• Setiap deraf dokumen (sebaik-baiknya

menggunakan templat UiTM) oleh Pegawai Tanggung Jawab (PTJ) hendaklah di hantar ke PPUU untuk disemak. Semua PTJ yang bertanggungjawab untuk mendraf MOU hendaklah memastikan dokumen dan maklumat yang diperlukan dapat diberikan dengan sempurna dan tepat. Setiap bahagian atau klausa di dalam MOU hendaklah mendapat kelulusan yang perlu daripada pihak-pihak yang terlibat sebelum deraf MOU tersebut dihantar ke PPUU untuk disemak.

• Berkenaan MOU dengan pihak luar negara,

sekiranya perlu hendaklah dihantar deraf tersebut ke Pejabat OIA atau Office of International Affairs terlebih dahulu sebelum di hantar ke PPUU untuk disemak.

• Setelah prosedur di atas dipenuhi dan

deraf MOU telah disemak oleh PPUU dan mendapat surat sokongan daripada Penasihat Undang-Undang UiTM, maka deraf MOU tersebut berserta profil pihak-pihak yang terlibat hendaklah dikemukakan oleh semua PTJ kepada Jawatankuasa MOU untuk pertimbangan dan kelulusan. Kemudian surat kelulusan oleh Jawatankuasa MOU akan dimajukan kepada mesyuarat Majlis Eksekutif Universiti (MEU) untuk diperakukan.

MEMORANDUM PERJANJIAN

Bagi dokumen yang mengikat atau mempunyai implikasi perundangan (legal implication) dan / atau implikasi kewangan (financial implication) oleh pihak-pihak yang berjanji di antara satu sama lain ia dipanggil sebagai Memorandum Perjanjian (MOA) dan Perjanjian untuk Tidak Mendedahkan atau Non-Disclosure Agreement (NDA). Kedua-dua dokumen ini mempunyai elemen kontrak serta pembentukan satu perjanjian yang sah dari sisi undang-undang di Malaysia.4

Di antara terma-terma khusus di masukkan di dalam MOA dan NDA adalah:

• Bidangkerjasama• Tanggungjawabpihak-pihakyangterlibat• Faedahyangdiperolehiolehkedua-duapihak• UrusanKewangan• TempohPerjanjian• Undang-Undangyangterpakai• Timbang-tara

Dengan terma-terma khusus seperti di atas, jelas menunjukkan bahawa MOA adalah suatu persetujuan di antara dua pihak atau lebih berkenaan sesuatu perkara. Perlulah difahami juga bahawa istilah kontrak adalah lebih khusus manakala istilah perjanjian adalah lebih umum. Hanya perjanjian yang mempunyai ciri-ciri kontrak sahaja yang mempunyai implikasi undang-undang. Di antara ciri-ciri asas (elements) sesuatu kontrak yang boleh dikuatkuasakan di mahkamah ialah:

• Tawaran(offer)• Penerimaan(acceptance)• Balasan(consideration)• Niat yangmengikat (intention to create legal relations)• Keupayaan(capacity)• Ketentuan(certainty)• Kerelaan(freeconsent)

Perlu difahami oleh semua PTJ di UiTM yang menderaf sesuatu kontrak bagi pihak UiTM bahawa jika sesuatu perjanjian itu tidak memenuhi ciri-ciri Kontrak, maka ia tidak boleh dikuatkuasakan melalui undang-undang.

________________________________________________________________4 Lihat Seksyen 2(h) Akta Kontrak 1950 (Akta 136) yang mentakrifkan satu kontrak sebagai "satu persetujuan yang boleh dikuatkuasakan undang-undang"


________________________________________________________________5 Seksyen 2(d) Akta Kontrak 1950 menyatakan "Apabila, di atas kehendak pembuat janji, penerima janji atau orang lain telah membuat atau menjauhi daripada membuatnya suatu perbuatan atau larangan atau janji dipanggil balasan kepada janji tersebut. Sebagai contoh, satu pihak mendapat sebuah rumah, dan satu pihak yang lain mendapat sejumlah wang sebagai bayaran pada harga yang telah dipersetujui oleh kedua-duanya. Lihat juga Mastura binti Mohd Zain, “ Elemen Balasan Dalam Pembentukan Kontrak: Perbandingan Antara Undang-Undang Malaysia dan Inggeris, Institut Kefahaman Islam Malaysia, http://ukmsyariah.org/wp-content/uploads/2015/12/42-Mastura.pdf (15 Julai 2016). 6 JKE kini telah ditukar nama kepada Majlis Eksekutif Universiti (MEU).

Sebagai contohnya - jika suatu perjanjian itu tidak mempunyai elemen "balasan",5 maka perjanjian itu bukanlah suatu kontrak yang sah dan oleh itu tidak boleh dikuatkuasakan melalui undang-undang. Balasan adalah sesuatu yang mempunyai nilai di sisi undang-undang dan ia menjadi asas kepada persetujuan yang hendak di capai. Dengan bahasa yang mudah difahami, tanpa balasan, perjanjian yang dibuat oleh pihak-pihak adalah terbatal. Oleh yang demikian, pihak yang membuat kontrak mestilah mempunyai balasan masing-masing. Balasan yang dimaksudkan di sini adalah nilai yang diberi oleh pihak yang menerima janji kepada pihak pembuat janji dan kontrak ini adalah mengikat kedua-dua pihak.

Berkenaan dengan prosedur di UiTM pula, kesemua MOA dan NDA yang telah disemak dan di dapati memberi faedah dan kebaikan kepada universiti, surat sokongan akan dikeluarkan oleh PPPU kepada semua PTJ untuk membawa Memorandum Perjanjian tersebut berserta Ringkasan Eksekutif dan profil pihak-pihak yang terlibat kapada Majlis Eksekutif Universiti (MEU) bagi mendapatkan pertimbangan dan kelulusan. Prosedur ini adalah berkaitan dengan keputusan Mesyuarat Jawatankuasa Eksekutif (JKE)6 UiTM bil. 06/2015 bertarikh 10 Jun 2015 yang menyatakan untuk setiap MOA yang telah di semak oleh PPUU dan mendapat surat sokongan daripada Penasihat Undang-Undang UiTM, ianya “masih dikehendaki untuk dikemukakan ke Mesyuarat Jawatankuasa Eksekutif (JKE) untuk diperakukan sebelum diangkat ke Mesyuarat Lembaga Pengarah Universiti (LPU)”.

KESIMPULAN

Memorandum Perjanjian samaada LOI, MOU atau MOA atau NDA secara amnya merupakan satu alat untuk memperjelaskan hasrat pihak-pihak yang terlibat di samping mewujudkan proses dan saluran bagi semua pihak yang terlibat untuk berkomunikasi. Walaubagaimanapun ada perbezaan ketara di antara kumpulan LOI, MOU, MOC dan MOA, NDA.

Bagi kumpulan pertama (LOI, MOU dan MOC),

pada amnya dokumen-dokumen ini tidak mengikat pihak-pihak yang terlibat, melainkan apabila dibaca secara keseluruhan dokumen itu, didapati ia mempunyai implikasi kewangan atau implikasi undang-undang yang boleh mengikat pihak-pihak yang menandatangani perjanjian tersebut.

Bagi kumpulan kedua (MOA dan NDA) pula, sememangnya dokumen ini mengikat kedua-dua pihak yang memasuki perjanjian tersebut. Sebagai contoh, antara kandungan terma-terma di dalam MOA atau NDA mempunyai klausa berikut:

This agreement shall be construed as creating a legal relationship between the signatory institutions in fostering genuine and beneficial academic collaboration and exchange.

Contoh kedua bagi sesebuah MOA yang mengikat ialah ia mempunyai klausa seperti berikut:

Bagi tujuan pelaksanaan kerjasama di antara UiTM dan XXX (Organisasi / Institusi / Syarikat dsb), pihak-pihak bersetuju memasuki perjanjian yang sah dan tertakluk kepada terma-terma dan syarat-syarat yang telah dipersetujui bersama oleh Pihak-Pihak iaitu Kos untuk penganjuran (Seminar / Simposia dsb) akan ditanggung bersama.

Sebagai kesimpulan, kedua-dua komponen kumpulan dokumen adalah sama penting kepada UiTM samada ia mengikat atau tidak. Walaubagaimanapun, apabila sesuatu dokumen itu mengikat - ini bermakna dokumen tersebut mempunyai implikasi perundangan kepada pihak-pihak yang menandatangani dokumen tersebut dan apabila berlaku pecah kontrak, tindakan undang-undang boleh diambil ke atas pihak yang memecahkan kontrak itu.

Namun begitu, objektif utama UiTM mengadakan MOU dan MOA bersama organisasi atau institusi samada dari dalam dan / atau luar negara ialah untuk membangunkan UiTM melalui usahasama bersama pelbagai pihak. Usahasama tersebut akan menyumbang kepada pembangunan UiTM melalui pertukaran staf dan pelajar, perkongsian ide, perkongsian teknologi, pertukaran perkhidmatan, penganjuran program dan konferensi serta penyelidikan dan sebagainya.


ABSTRACT

Freedom of information (FOI) is recognised in various international and regional human rights covenants as well as national laws in numerous countries. In the context of Malaysia, to date there is no FOI legislation at the federal level but the State Legislative Assemblies of Selangor and Penang have enacted their respective FOI enactments. This article aims to compare the scope of application of FOI laws in Selangor and Penang with legislation in other jurisdictions such as the United Kingdom, India and South Africa.

1. INTRODUCTION

Freedom of information (FOI) is described as the “oxygen of democracy”; an essential underpinning of good governance, openness, participatory democracy, informed citizenry and accountability.1 Justice Mathew in the Indian case of State of Uttar Pradesh v. Raj Narain and Others declares the importance of FOI in the following excerpt:

A MULTI-JURISIDCTIONAL COMPARISON OF THE CONCEPT OF “INFORMATION” AND “PUBLIC BODIES”

IN FREEDOM OF INFORMATION STATUTES

By: Muhammad Izwan bin Ikhsan*

________________________________________________________________*Faculty of Law, UiTM. Shah Alam.1 Nishtar, S. (2009). Freedom of information- Oxygen of democracy. The News International, retrieved from http://www.thenews.com.pk/TodaysPrintDetail.aspx?ID=202740&Cat=9&dt=10/5/20092 AIR 1975 865.3 AIR 1982 SC 149.

“..The people… have a right to know every public act, everything, that is done in a public way, by their public functionaries. They are entitled to know the particulars of every public transaction in all its bearing. The right to know, which is derived from the concept of freedom of speech, though not absolute, is a factor which should make one wary, when secrecy is claimed for transactions which can, at any rate, have no repercussion on public security. ... To cover with veil of secrecy, the common routine business, is not in the interest of the public. Such secrecy can seldom be legitimately desired.” 2

In S. Gupta v. and Others v. President of India and Others, the Supreme Court of India declares:

“...The concept of an open government is the direct emanation from the right to know which seems to be implicit in the right of free speech and expression guaranteed under Article 19(1)(a). Therefore, disclosure of information in regard to the functioning of Government must be the rule and secrecy an exception justified only where the strictest requirement of public interest so demands. The approach of the Court must be to attenuate the area of secrecy as much as possible consistently with the requirement of public interest, bearing in mind all the time that disclosure also serves an important aspect of public interest...”3

Justice Sabyasachi Mukharhji in Reliance Petrochemicals Ltd. v. Proprietors of Indian Express Newspapers Bombay Pvt. Ltd. and Others also ruled in favour of the right to know and affirmed that the people at large have a right to know in order to be able to take part in a participatory development in the industrial life and democracy. Right to know is a basic right which citizens of a free country aspire in the broader horizon of the right to live in this age in our land under Article 21 of the Indian Constitution.


That right has reached new dimensions and urgency. That right puts greater responsibility upon those who take upon themselves the responsibility to inform.4

International and regional covenants recognising FOI further demonstrate the importance of the right to know in a democratic society. For instance Article 19 of the Universal Declaration of Human Rights (UDHR)5 and the International Covenant on Civil and Political Rights (ICCPR)6 contain provisions regarding the right to know. In addition to that, the European Convention on Human Rights (ECHR)7 and the ASEAN Human Rights Declaration (AHRD)8 also recognise FOI. The Cairo Declaration of Human Rights in Islam (Cairo Declaration) also guarantees the right to know in Islam. Article 22 provides that9:

“ARTICLE 22:

(a) Everyone shall have the right to express his opinion freely in such manner as would not be contrary to the principles of the Shari'ah.

1. Everyone shall have the right to advocate what is right, and propagate what is good, and warn against what is wrong and evil according to the norms of Islamic Shari'ah.

(c) Information is a vital necessity to society. It may not be exploited or misused in such a way as may violate sanctities and the dignity of Prophets, undermine moral and ethical Values or disintegrate, corrupt or harm society or weaken its faith.

(d) It is not permitted to excite nationalistic or doctrinal hatred or to do anything that may be an incitement to any form or racial discrimination.”

The recognition of FOI in international and regional human rights instruments supports the notion of the universality of FOI as an essential principle of democratic governance that cuts across different legal systems.

Central to the discussion of implementation of FOI at national level are these two primary questions:

(a) What types of information are covered by the FOI law?(b) Which bodies/agencies are covered by the FOI law?

Mendel submits that the principle of maximum disclosure should apply in interpreting FOI legislation.10

Raboy et al recommend that the reading of the notion of maximum disclosure requires a general presumption that all information (defined broadly) held by public body (also defined broadly) is subject to disclosure unless there are legally valid justifications (defined narrowly) to deny access to the

________________________________________________________________4 AIR 1989 SC 190.5 Article 19 of the UDHR reads “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers”, available at http://www.un.org/en/documents/udhr /index.shtml#a196 Article 19 of the ICCPR reads:“1. Everyone shall have the right to hold opinions without interference. 2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. 3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:(a) For respect of the rights or reputations of others;(b) For the protection of national security or of public order (ordre public), or of public health or morals” available at http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx7 Article 10 of the ECHR provides “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”8 Article 23 of the AHRD declares “Every person has the right to freedom of opinion and expression, including freedom to hold opinions without interference and to seek, receive and impart information, whether orally, in writing or through any other medium of that person’s choice.”9 Article 22 of the Cairo Declaration of Human Rights in Islam.10 Mendel, T. (2008). Freedom of information: A comparative legal survey (2nd ed.) Paris: United Nations Educational, Scientific and Cultural Organisation


information.11 Therefore, it is the aim of this article to scrutinise how FOI Acts in the United Kingdom, India, South Africa and Malaysia approach the issue of the coverage of their laws in terms of the definition of information and agencies bound by the laws.

2. DEFINING “INFORMATION” AND “PUBLIC BODIES”: ENGLISH PERSPECTIVES

The English FOI Act 2000 does not contain any provision which defines “information”. This article surmises that the reason for not defining “information” in the Act can be traced back to the White Paper 1997. According to the White Paper, “records” must cover all forms of recorded information regardless of the medium.12 This article postulates that the drafters of the English FOI Act intended the ordinary meaning of information to be used. Information could refer to facts provided, conveyed or represented by a particular arrangement and sequence. It could include written documents, data stored in tapes, cassettes, videos, electronic devices or any other forms by which information is retrievable. The absence of the definition of “information” in the Act suggests that liberal interpretation should apply. All information, unless it is exempted by the FOI Act is subject to disclosure.

On the contrary, the English FOI Act demarcates the agencies to which the Act applies. Section 3(1) of the Act stipulates that subject to Section 4(4), any body which, any other person who, or the holder of any office which is listed in Schedule 1, or is designated by order under section 5, or a publicly-owned company as defined by section 6 are considered as public authorities. Schedule I enumerates a long list of bodies labelled as “public authorities” by the Act and it encompasses agencies at federal level as well as in England, Wales, Scotland, Northern Ireland. These include all governmental departments, local governments, House of Lords, the House of Commons and the Police Service etc.

With regard to public companies, section 6 further states that a company is a publicly-owned company if it is wholly owned by the Crown, or it is wholly owned by any public authority listed in Schedule 1 other than a government department, or any authority which is listed only in relation to particular information. The broad definition of “public authorities” is complemented by section 4 which empowers the Secretary of State to amend Schedule 1 and section 5 which confers him the power to designate an entity as a public authority for the purposes of this Act any person who is neither listed in Schedule 1 nor capable of being added to that Schedule by an order under section 4(1), but who appears to him to exercise functions of a public nature, or is providing under a contract made with a public authority any service whose provision is a function of that authority.

3. DEFINING “INFORMATION” AND “PUBLIC BODIES”: INDIAN STANDPOINTS

In India, the relevant FOI statute at the federal level is the Right to Information Act 2005 (RTIA). The Preamble of the Act explains that the objective of the statute is to provide for setting for a practical regime of right to information for citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability.

In contrast with the English FOI Act, the Indian Right to Information Act 2005 (RTIA) via section 2(f) describes “information” as “any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information in relating to any private body which can be accessed by any public authority under any law for the time being in force.”

On the other hand, Section 2(h) of the Act defines “public authority” as “any body, authority or institution ________________________________________________________________11 Raboy, M., Price, E.M., Siochru, S.O., Duer, K. & Buckley, S. (2008). Broadcasting, voice and accountability: A public interest approach to policy, law and regulation. Michigan: University of Michigan Press.12 Freedom of Information Unit, Cabinet Office, UK. (1998). White Paper: Your Right to Know – The Government’s Proposal for a Freedom of Information Act. London: Freedom of Information Unit, Cabinet Office.


of self-government established or constituted by the Constitution, by the law of Parliament or State Legislature, by notification or order made by the Government.” It also includes anybody owned, controlled or substantially financed or non-government organisation substantially financed, directly or indirectly by funds provided by the government. In comparing the definition of “public body” by the Indian and English Act, it is lucid that the interpretation of the Indian Act is more comprehensive than the English law. Under the English Act, a company needs to be wholly owned by a public authority in order to subject it to disclosure under the FOI framework. Besides, the power of the State Secretary to designate an entity as a public body is qualified by these conditions:

(a) The entity to exercise functions of a public nature, or (b) The entity is providing under a contract made with a public authority any service whose provision is a function of that authority.

By contrast, the Indian Act makes any entity (including companies and NGOs) which receives substantial funding from the government subject to the RTIA. This article understands that the purpose of this is to ensure that public moneys are accounted for and will be expended prudently by the entity receiving substantial financial support from the government.

4. DEFINING “INFORMATION” AND “PUBLIC BODIES”: SOUTH AFRICAN VIEWPOINTS

In South Africa, its FOI framework is laid down in the Promotion of Access to Information Act 2000 (PATIA). The Preamble of the Act highlights the purpose of the Act to give effect to the constitutional right of access to information and acknowledges that the system of government in South Africa before 27 April 1994, amongst others, resulted in a secretive and unresponsive culture in public and private bodies which often led to an abuse of power and human rights violations.

Section 1 of the Act refers to “record” as any recorded information regardless of form or medium; in the possession or under the control of that public or private body, respectively; and whether or not it was created by that public or private body, respectively. Section 9 paragraph (a) of the Act reiterates the object of the Act is to give effect to the constitutional right of access to information to any information held by State or by other person that is required for the protection of any rights. The use of “any information” by the South African Act signifies that the phrase is capable of being interpreted flexibly. Section 1 of the PATIA also attempts to define “public body”. The phrase means “any department of state or administration in the national or provincial sphere of government or any municipality in the local sphere of government; or any other functionary or institution when exercising a power or performing a duty in terms of the Constitution or a provincial constitution; or exercising a public power or performing a public function in terms of any legislation. As compared to the English FOI Act, PATIA does not include “publicly owned companies” in its definition of public body. Nonetheless, the framework of PATIA is not limited to access to information held by public entities. Part 3 of the Act is designed to enable access to information held by private bodies. Section 1 defines “private body” to include:

(a) a natural person who carries or has carried on any trade, business or profession, but only in such capacity;

(b) a partnership which carries or has carried on any trade, business or profession; or

(c) any former or existing juristic person,

but excludes a public body. Hence, non-governmental organisations, private companies and private persons may as well be subjected to the application of the PATIA provided that the information is necessary for the protection of any rights but subject to the exclusions of privacy, commercial information, safety and confidential information. In comparison to the English and Indian FOI Acts, the


South African FOI framework is cogently broader than the two. While the English and Indian FOI laws emphasise access to information by public bodies or other entities which perform public functions, the South African PATIA operates in a framework whereby access to information can be invoked against both public bodies and private entities.

5. DEFINING “INFORMATION” AND “PUBLIC BODIES”: MALAYSIAN DIMENSION

To date, Malaysia has no specific statute on FOI at the federal level. However, at state level, the governments of Selangor and Penang have enacted their FOI enactments in the recent years. This section seeks to analyse the coverage of “information and “public bodies” in Selangor’s and Penang’s Enactments and evaluate them within the domain of the Federal Constitution and laws enacted by the Parliament affecting right to access information.

The full title of the Selangor’s FOI enactment is the Freedom of Information (State of Selangor) Enactment 2011 whereas the State Legislative Assembly of Penang names its FOI law as the Penang Freedom of Information Enactment 2011. The Preamble of the Selangor’s Enactment provides that the purpose of the Enactment is to enhance disclosure of information for the public interest, to provide to every individual a reasonable right of access to information made by every department of the State Government and to promote transparency and accountability for each department in the State Government. On the other hand, the Penang Enactment succinctly describes the objective of the FOI law is to provide for disclosure of information for public interest and right to access information held by every department of the State Government.

On the issue of the coverage of the Enactments, section 2 of the Selangor Enactment provides for the definitions of “information” and “document”. “Information” means any information in whatever form including any documents made, amended, modified, transformed, obtained, received, held or kept in the custody or control of any department or to which any department has reasonable access. Meanwhile, the section defines “document” as any matter expressed, described, or howsoever represented by any means whatsoever, upon any substance, material, thing or article and any matter embodied, produced, reproduced or transmitted in, through or to a disc, tape, film, sound track, recording (whether audio, visual or any other type of recording) or any other form or medium whatsoever).”As for the Penang Enactment, section 2 imports the definition of “document” employed by the Evidence Act 1950 which includes any files, facts, memoranda, figures, diagrams, statistics, maps, photographs, drawings, computer print-outs, correspondence, file notings, electronic and computer data, data on the collection and inspection of samples or any other recorded information, regardless of its form (whether in writing, oral, digital, magnetic, photographic, machine readable or other forms), source, date of creation, or official status, whether or not it has been collated, whether or not it was created by the body that holds it and whether or not it is classified. Furthermore, “information” is briefly defined as “any document made by any State Government Department but does not include information in documents that are exempted.”

In commenting on the definitions provided by both Enactments, it is evident that “information” is defined very broadly by the Selangor statute. Right of access includes any information in whatever form including any documents made, amended, modified, transformed, obtained, received, held or kept in the custody or control of any department or to which any department has reasonable access. As regards to the Penang Enactment, while document is expansively defined to include any information in any form, right of access is restricted to the information made by the government. The Selangor Enactment, on the contrary, enables access to documents made, amended, modified, transformed, obtained, received, held or kept in the custody or control of any department or to which any department has reasonable access.

At the federal level, no attempt has been made to introduce a FOI’s Bill before the Parliament. Access


to information is widely restrained by the Official Secrets Act 1972 (OSA). Section 2(1) of the Act defines “document” to include a document in writing; any map, plan, model, graph or drawing; any photograph; any disc, tape, sound track or other device in which sound or other data (not being visual images) are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced therefrom; and any film, negative, tape or other device in which one more visual images are embodied so as to be capable (as aforesaid) of being reproduced therefrom. Apart from that, section 3 of the Evidence Act 1950 also defines “document” in broad manner. It defines the term as any matter expressed, described, or howsoever represented, upon any substance, material, thing or article, including any matter embodied in a disc, tape, film, sound-track or other device whatsoever, by means of -

(a) letters, figures, marks, symbols, signals, signs, or other forms of expression, description, or representation whatsoever;

(b) any visual recording (whether of still or moving images);

(c) any sound recording, or any electronic, magnetic,

(d) mechanical or other recording whatsoever and howsoever made, or any sounds, electronic impulses, or other data whatsoever; or

(e) a recording, or transmission, over a distance of any matter by any, or any combination, of the means above mentioned.

Besides, section 3 of the Interpretations Act 1948 and 1967 defines “document” as any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used or which may be used for the purpose of recording that matter.

On the interpretation of “public authorities”, the Selangor Enactment chose the term “department” instead. Section 2 defines “department” as “any department of the State Government, local government and any entity which is owned or wholly controlled by the State Government.” On the other hand, the Penang Enactment describes “department” as “any State Government Departments, State Statutory Bodies and Local Authorities”. This article notes that the definition stipulated by the Selangor’s Enactment corresponds to the definition of public authority prescribed by the English FOI Act. Nonetheless, the Selangor Enactment does not list down the public authorities to which the law applies to, unlike the English Act. Meanwhile, the definition of “department” given by the Penang Enactment is more restrictive. Its FOI Enactment only applies to state government departments, statutory bodies and local authorities. Companies owned by the state government appear to be excluded from the application of the Enactment.

Apart from the States’ FOI Enactments, the definition of “public authority” can be found under Article 160 of the Federal Constitution, the supreme law of the land. Article 160(2) of the Constitution defines “public authority” to mean the Yang di-Pertuan Agong, the Ruler or Yang di-Pertua Negeri of a State, the Federal Government, the Government of a State, a local authority, a statutory authority exercising powers vested in it by the federal or state law, any court or tribunal other than the Federal Court, the Court of Appeal and High Courts, or any officer or authority appointed by or acting on behalf or any of those persons, courts, tribunals or authorities. Interestingly, superior courts are excluded from the definition of public authority as well as publicly owned companies. This article believes that if Malaysia were to draft its FOI law, the scope of the law should not be limited to the definition of public authority provided under Article 160. The rapid growth of the government linked companies (GLCs) and the government’s involvement in trade through public companies can be used as a basis to expand the scope of the FOI law to these types of entities. This article also suggests that with the increase of public-private business initiatives, information which is of “public interest” in nature should be made


subject to disclosure, despite being held by private entity. For instance, information pertaining to toll and water concessions are examples whereby public authority contracted private companies for the provision of public goods, hence it can be argued that there is public interest warranting disclosure of the documents retained by the private bodies.

6. CONCLUSION

This study highlights that FOI is universal in nature but its practical implementation differs from one jurisdiction to another. While the English FOI Act does not define “information”, statutes from other countries offer different versions of definitions. Similarly, the interpretations of the types of agencies to which the laws apply also vary from one legal system to another. It is submitted that the principle of maximum disclosure should be the governing yardstick in defining the scope of “information” and “public authority”. This study reiterates that “information” and “public authority” should be broadly defined with narrowly defined exemptions. Information and public body should only be allowed to deny access to information when the public interest to protect the information trounces the public interest in revealing the information.

REFERENCES

Article 10 of the European Convention of Human RightsArticle 19 of the Universal Declaration of Human RightsArticle 19 of the International Covenant on Civil and Political RightsArticle 22 of the Cairo Declaration of Human Rights in IslamArticle 23 of the ASEAN Human Rights DeclarationEvidence Act 1950 (Malaysia)Federal Constitution (Malaysia)Freedom of Information Act 2000 (United Kingdom)Freedom of Information (State of Selangor) Enactment 2011Freedom of Information Unit, Cabinet Office, UK. (1998). White Paper: Your Right to Know – The Government’s Proposal for a Freedom of Information Act. London: Freedom of Information Unit, Cabinet Office.Mendel, T. (2008). Freedom of information: A comparative legal survey (2nd ed.) Paris: United Nations Educational, Scientific and Cultural OrganisationNishtar, S. (2009). Freedom of information- Oxygen of democracy. The News International, retrieved from http://www.thenews.com.pk/TodaysPrintDetail.aspx?ID=202740&Cat=9&dt =10/5/2009Official Secrets Act 1972 (Malaysia)Penang Freedom of Information Enactment 2011Promotion of Access to Information Act 2000 (South Africa)Raboy, M., Price, E.M., Siochru, S.O., Duer, K. & Buckley, S. (2008). Broadcasting, voice and accountability: A public interest approach to policy, law and regulation. Michigan: University of Michigan PressReliance Petrochemicals Ltd. v. Proprietors of Indian Express Newspapers Bombay Pvt. Ltd. and Others AIR 1989 SC 190Right to Information Act 2005 (India)S. Gupta v. and Others v. President of India and Others AIR 1982 SC 149State of Uttar Pradesh v. Raj Narain and Others AIR 1975 865


MEMBERSHIP of the academia carries with it special responsibilities towards the university, the community, the profession to which the scholar belongs and his/her students and colleagues. One such responsibility is to observe academic integrity i.e. the enacted moral code or the unwritten ethical practices and policies of the profession and the university in relation to writing and research.

Academic research is a vast and evolving area. It straddles many shores within which the waters of ethics, economics, law and technology intermingle. Every so often new issues come to the fore. This essay will provide an overview of some legal and ethical conundrums.

THE LEGAL REGIME

Constitutional right: Pursuit of knowledge and its dissemination are part of the constitutional right to freedom of speech and expression guaranteed by Article 10(1) of the Federal Constitution. However, no right can ever be absolute and therefore many provisions of the Constitution including Article 10(2) and 10(4) permit parliament to impose restrictions on free speech and expression on 14 permissible grounds like public order, national security, morality and contempt of court. The 14 grounds are broad but are not limitless. Parliament is not supreme. Every restriction imposed by a parliamentary law must fit into one of the 14 permissible restraints. Otherwise judicial review is a distinct possibility. Legal limits: Academicians, researchers, printers, publishers, owners and users of mainstream and electronic media are subject to many legal restraints, both civil and criminal, under the following main laws: • Copyright Act 1987 • Defamation Act 1957 • Official Secrets Act 1972 • Statutory Bodies (Discipline & Surcharge)

LEGAL & ETHICAL ISSUES IN RESEARCH

by: Shad Saleem Faruqi*

________________________________________________________________* Emeritus Professor Datuk Dr Hj Shad Saleem Faruqi, Legal Advisor, UiTM.

Act 2000. • Patents Act 1983 • Trademarks Act 1976 • Sedition Act 1948 • Computer Crimes Act 1997 • Security Offences (Special Measures) Act

2012 (which replaces the Internal Security Act)

• Penal Code • Trade Description Act 1972 • Printing Presses and Publications Act 1984 • Films (Censorship) Act 1952 • Indecent Advertisements Act 1953 • Medicines (Advertisement & Sales) Act

1956.

Only a few of the above laws will be summarized.

Copyright Act 1987: This Act protects any original work produced with sufficient skill and effort and expressed in material form. It embraces intellectual property in many forms - books, manuals, songs, drawings, sculptures, films, sounds, recording and computer software. Ownership includes the right to authorize a translation. However, if no such translation has been published by the owner within a year after first publication, the Copyright Tribunal may grant a non-exclusive licence to translate and publish the work in BM. Copyright arises as soon as the original work is expressed in material form. There is no need for registration though a notification under the Copyright (Voluntary Notification) Regulations 2012 can be made. For literary, musical or artistic works the protection period is life of the author plus 50 years.

Patents Act 1983 and Trademarks Act 1976: A patent is a right over an invention like a machine, device, electronic product, chemical substance, biological product or an industrial process. However, some things, though new, cannot be patented because they are not technical or they do not have a use in industry e.g. an oil painting, a method of fortune telling or a method of selling insurance. Patents require registration with MyIPO. Once granted, a patent lasts 20 years. Procedures exist under the Patent Cooperation Treaty (PCT) for international applications. Trademarks are identity marks to distinguish goods or services from those of other traders. Trademarks need to be registered. But if not registered, are still protected under the tort of “passing off”. Once registered the protection lasts for 10 years.


Defamation Act 1957: The Act makes it a civil wrong to publish (in any form) any false information that affects the reputation or dignity of another or causes him to lose respect in the eyes of reasonable people. Defamation can be in two forms: (a) Libel which is in a permanent form, or (b) Slander, which is non-permanent and is addressed to the ears only. However, radio broadcasts are regarded as publications in a “permanent form”. In the case of libel the Act deems it unnecessary to allege or prove special damage when a libel is said to have been committed. This creates room for the defamation law to be used expediently by the government and corporate interest groups to counter any voices of criticism.

Note that besides being a civil wrong a libel can also become a criminal offence under the Penal Code if its commission impacts on public order.

Official Secrets Act 1972: This Act is related to the unauthorized communication of classified official information to non-authorized persons or foreign agents. It is not a defence that the accused person had noble motives or that the information was already well known and had entered the public domain. Section 8(1) of the Official Secrets Act prohibits use of information from government officials. Sections 11, 12 and 13 make it an offence to withhold information about unauthorised communications or to harbor suspects. In these cases, reporters’ sources will be difficult to protect without breaking the law. It is noteworthy that whistleblowers are not immune from prosecution under the OSA.

In general, legislation such as the OSA and the Sedition Act are serious obstacles to research and freedom of expression. While they may be effective mechanisms of social control, their adverse effects are considerable. Most likely they hamper the economy. Businesses require free flow of information and a guarantee of privacy in communications. Journalists need to protect sources. Whistleblowers of conscience need immunity.

Statutory Bodies (Discipline & Surcharge) Act 2000. This is the law relating to the discipline and ethical conduct of UiTM staff. It has several provisions that can be invoked to punish plagiarism and any unethical conduct in research and publication: section 3(2)(d), (f), (g).

Sedition Act 1948: This Act is a British piece of legislation which grants authorities the ability to

prosecute actions that have a “seditious tendency”. In Section 3(1), “seditious tendency is defined to mean: (a) to bring into hatred or contempt or to excite disaffection against any Ruler or against any Government, (b) to excite the subjects of any Ruler or the inhabitants of any territory to attempt to procure the alteration, otherwise than by lawful means, of any matter as by law established (c) to bring into hatred or contempt or to excite disaffection against the administration of justice in Malaysia or in any State (d) to raise discontent or disaffection amongst the subjects of the Yang di-Pertuan Agong or the Ruler of any State or amongst the inhabitants of Malaysia or of any State; (e) to promote feelings of ill will and hostility between different races or classes, and (f) to question any matter, right, status, position, privilege, sovereignty or prerogative established or protected by the provisions of Part III of the Federal Constitution (citizenship) or Article 152 (BM), 153 (special position of Malays and natives of Sabah and Sarawak) or 181 (sovereignty of the Rulers).

Section 9 of the Act deals with suspension of newspapers and other publications that contain seditious materials and entitles the court to make decisions: (a) prohibiting for any period not exceeding one year the future publication of that newspaper (b) prohibiting the publisher, proprietor, or editor of that newspaper from publishing, editing or writing for any newspaper, or from assisting in the publication, editing, or production of any newspaper. Printing presses may be seized and offenders liable to fines and imprisonment up to three years.

Security Offences (Special Measures) Act 2012: This Act replaced the previous Internal Security Act. While not aimed at media specifically, it allows police to hold suspects incommunicado for 48 hours and permits preventive detention without charge for 28 days. This clearly poses a risk to researchers and reporters. Section 6 of the Act authorizes surveillance, interception of communications; listening in to conversations over phone or through bugging devices, and compels relevant communications companies to retain messages transmitted through their service.

Computer Crimes Act 1997: It provides that any unauthorized access to a computer is a crime. It is illegal to use computers to commit or facilitate an offence. Identity theft and information theft and unauthorized modifications are also outlawed under this Act.


Communications and Multimedia Act 1998: This is a key piece of legislation that deals with online communications. While it aims to regulate the industry, it also states that, “nothing in this Act shall be construed as permitting the censorship of the Internet.”Anyone may therefore set up an online news portal with little difficulty. This is balanced however by a section in the Computer Crimes Act that empowers police above the rank of Inspector to conduct a warrantless search and arrest any person reasonably believed to have committed or to be committing an offence in violation of the Act. The Malaysian Communications and Multimedia Commission (MCMC) is known occasionally to block websites as for example 2008, it confirmed that it had ordered all ISPs to block the online news blog Malaysia Today (Malaysia-today.net) for several days.

Evidence Act 1950: An amendment to Section 114A of the Evidence Act in 2012 makes individuals and administrators who operate or provide spaces for online community forums, blogging, and hosting services, liable for content published through their services even though they were not the authors of the libelous or criminal postings. Cybercrimes and the cyber economy: The development of the internet economy has spawned several pieces of legislation that both promote and restrict the use of information and communications technology (ICT). There is no comprehensive cyber law in Malaysia but we have the Digital Signatures Act of 1997, the Computer Crimes Act of 1997, the Telemedicine Act of 1997, and the Communications and Multimedia Act 1998.

Gaps in the law: Despite the wealth of legislation, our legal system is still deficient in a number of areas.

There is e.g. no “right to information” – something that often cripples critical, analytical thought, investigative journalism and groundbreaking research. Instead we have an all-embracing Official Secrets Act.

There is no specific law on safeguarding privacy. However “information given in confidence” to doctors and lawyers must be protected. Under the law of employment and of contract an employee or research assistant or practical trainee has a general contractual duty to not disclose anything entrusted to him in confidence. The law relating to patents keeps inventions and processes confidential.

Journalists and researchers have no special protection to hold back the “source of their information” if there is a civil action in defamation or a prosecution under any criminal law.

(i)

(ii)

(iii)

SOCIAL MEDIA

By social media is meant websites and other online means of communication that are used by large groups of people to share information and to develop social and professional contacts. Social media refers primarily to internet or cellular phone based applications and tools to share information among people. Social media includes popular networking websites, like Facebook and Twitter; as well as bookmarking sites like Digg or Reddit. It involves blogging and forums and any aspect of an interactive presence which allows individuals ability to engage in conversations with one another, often as a discussion over a particular blog post, news article, or event. Many businesses are utilizing social media to generate sales.

It is estimated that 17 million Malaysians are online, a 61% penetration rate, and social media is growing rapidly. Nearly two-thirds of internet users are aged 21 to 40.

Many users of the social media seem to think that what they say or ask or do on the social media is immune from the law. The truth is just the opposite. • All the laws stated above apply fully to the

social media.

• Unguarded, off the cuff remarks are in no way safe from the law of defamation, sedition, or breach of official secrets.

• A seditious or defamatory questionnaire that is mailed out online is fully subject to the civil and criminal law. No immunities apply.

• What is even more important to note is that forwarding or disseminating unsolicited mail or messages is tantamount to “publishing” that information with full liabilities under the law.

• A lot of information found on social media is of dubious quality. Relying on it or disseminating it may land us in deep trouble under the law of defamation, sedition or official secrets. In such a situation, it is no excuse to say that “I merely forwarded what I had innocently received”.


• There have been recent incidents of doctors taking “selfies” with patients and posting them online. There are nurses resorting to the net to discuss their day in hospital with stories of difficult or unusual patients. Clearly these are breaches of the rules of confidentiality, of ethics and of discipline.

ETHICAL ISSUES IN RESEARCH

The world’s pressing problems require knowledge and research. In the growing atmosphere of “publish or perish” all academicians are required to produce original research. With this new demand, many questions of research integrity have come to the fore.

Human testing: The “ethics of human experimentation”1 is a soul-searching issue. Human subject research is a systematic, scientific investigation that can be either interventional or observational.2

On the one hand there is the benefit to society of increased knowledge made possible by the experiment. On the other we have to ask: subjects should be subjected to what? Should they know? How can they be protected? What should they be protected from? Should physical stimuli in abnormal amounts, ingestion of toxic materials be allowed? What amounts to “informed consent”. Are children, patients and other vulnerable people “competent” to decide on whether to participate? Is deception permitted if there is serious important information to be obtained?

If subjects are videotaped and tested in psychology experiments, confidentiality, privacy and legality are issues. If subjects are interviewed about drugs, illicit sex or other such illegalities, they must be protected against self-incrimination. The experimenters must be protected against becoming accomplices.

History informs us of horror experiments on human subjects in Nazi Germany, Japan, Russia and the USA. Clearly there is need for statutory regulation of the use of human subjects in Malaysia. Existing Boards and Advisory Committees may not be enough.

“Morality is becoming bureaucratized, and ethics institutionalized. Research is King”.3 Research Committees need to hold open hearings and draw up transparent and clear guidelines. Many templates are available. In 2010 the National Institute of Justice in the USA published a list of the rights of human subjects.4 There is the Nuremberg Code, the Declaration of Helsinki (1964) and the Belmont Report.

Plagiarism: The unacknowledged borrowing or paraphrasing of materials from another work is a disciplinary offence. It must be noted that though plagiarism and copyright violation are intersecting circles, the two are different phenomenon. A person may be guilty of plagiarism even though there may be no violation of copyright (as when the work is not eligible for copyright or when there is unacknowledged plagiarism from one’s own previous work!). Conversely, there may be full acknowledgement yet a violation of copyright law as when there is wholesale and unfair reproduction of or copying from someone else’s work but with adequate acknowledgement.

Plagiarism, collective intelligence and cyber information: An important issue is the challenge and opportunity of cyber sources of information. Technology has taken the search out of research. Previously we relied on direct sources to obtain material; now a large amount of information is available at our finger tips. This poses a number of ethical and legal problems because some information is with no stated authorship or ownership. Its use poses problems. Previously information was created by individuals. Now information is more of a communal property, indicating the rise of a sort of “collective intelligence”. We need to put our heads together to see how to confront the challenge posed by cyber information to the traditional notions of plagiarism and copyright.

Deadlines: It is often the case that to meet budget deadlines or sponsors’ demands, unsafe hypotheses are framed, preliminary findings are made and inadequate samplings or surveys are done – all at a rush.

Opinion polls: Opinion polls have their own dynamics. Questions can be framed in such a way as to ensure particular responses.

________________________________________________________________1 Richard Summers, “The Ethics of Human Experimentation”, The Harvard Crimson, April 21, 1968 accessed at http://www.the crimson.com/article/1968/4/21/the-ethics-of-human-experimentation2 https://en.wikipedia.org/wiki/Human_subject_research3 Richard Summers, supra 34 Wikipedia, supra


Faulty categorization of the subjects of research: It is often the case that empirical, “scientific” studies are conducted on categories that are most unscientifically formulated. For example I have sat in Medical Research Committees where there are proposals to study the effect of medicines or cures or medical procedures on Malays, Chinese and Indians. Such studies are most unreliable. Ethnic categories in this (and perhaps all countries) are politically defined and have no scientific, biological or genetic basis. A scientific, medical study must be based on more solid ground.

Doctored findings: A large part of research financing inevitably comes from external organizations (i.e. the government and industry). This creates the temptation to sacrifice impartial truth in order to please the paying client. One way to mitigate the problem is to have elaborate rules for declaring sources of revenue and disclosing of clients’ interests. How far such disclosures work is open to question because interested sponsors can hide behind a web of corporate relationships.

I recently received this information about diabetes on whatsapp (for whatever that is worth). “Prior to 1997 the fasting sugar limit for diabetes was 140. Subsequently a WHO panel decreased the limit to 126 resulting in 14% of the world population becoming diabetic overnight. Late in 2003 the American Diabetic Association decreased the limit to 100. As a result 90% of the Indian population suddenly became diabetic. Not surprisingly the panelists were consultants of the seven largest pharmaceutical companies in the USA.!” The sender of the information referred to this as “medical terrorism”!

Withheld results: Another insidious problem is when the outcome of one study is withheld so that the sponsors of other lucrative studies are not uncomfortable.

Supervisor-supervisee relationship: Around the world, research supervisors feel that being a supervisor entitles them to put their name as a lead author or co-author of their students’ articles and seminar papers. There are clear problems of academic integrity here. Mere supervision, direction, correction, or guidance with sources and materials does not entitle a supervisor to claim authorship of his student’s work despite the undoubted time, talent and effort expended to discuss, guide and

correct the student’s output.

Intellectual ownership is a function of creative contribution, not of formal relationship or status. Only those who made substantial creative contribution to a product are entitled to be listed as its authors or inventors for the following reasons: • The guidance a supervisor gives is part

and parcel of his selfless, professional and ethical duty.

• If a supervisor partly appropriates his

student’s work, then the student cannot use that work in any substantial manner in his thesis as he is not the sole creator of that work.

• The supervisor descends to a conflict of

interest situation. He cannot evaluate the work that is already published as partly his own!

• The university cannot award a degree to a

candidate whose work was partly produced by the university’s employee!

• If a Masters or PhD student, after graduating,

files a formal complaint against his supervisor for misappropriating the student’s work (and it is a matter of time before this happens) the university may have no choice but to open investigation under Act 605 to determine who did the actual researching and composing of the work. Computer records will undoubtedly assist and all supervisors must take note that in these matters there are no time bars and the chickens may come home to roost one day.

It must be noted, however, that authorship and ownership involve different legal considerations. A sponsored research may be written by someone but owned by the sponsor.

Also different rules may apply if a lecturer brings in the grants and enters into a contractual relationship with students or research assistants to work under his supervision for his project. Even in such a case, however, ethics demands acknowledgment of the research team.

Pay to publish: Increasingly many academicians are paying to have their articles published in foreign journals that prey on our vulnerabilities.


Some entrepreneuring journals appoint “overseas editors” who entice aspiring people to submit articles, some of dubious quality, for a fee. The fee is then shared between the editor and the journal.

University Boards must look carefully at these journals that are converting academic publishing into a lucrative business with no regard for quality or ethics.

Multiple authors from a variety of fields: Another questionable practice is that academicians often team up to produce joint articles in fields quite outside their competence. If the article was multidisciplinary, that would be commendable. Regrettably the situation is often this: one lecturer contributes the research model; another does the actual research. A statistician does the analysis of data. A language lecturer does the actual editing or rewriting. Another team member does the footnotes. All five then share the cost of submitting the article to a fee-demanding journal.

The end result is that academicians are publishing in areas quite outside their competence. University Promotion Boards need to examine this cunning practice and set guidelines on who can claim authorship of a research article.

Auditing: Research financing raises important issues of auditing and control.

Health & safety: There are environmental, health and safety considerations in most scientific research. The plan and costing of research should include provision for the remedying of harm to the researcher,as well as to the subjects of the study. The Research Ethics Committee at UiTM is looking into this.

Object of research: What constitutes legitimate and morally acceptable research is open to debate. One test is consequentialist. Are the consequences to society desirable? The other test is deontological. Are the actions right or wrong on some higher criterion of morality, justice and human flourishing. For example should a social science scholar who is researching the sex industry and who wishes to ply the streets to study the reality first hand be allowed to do so? Copyright: There are significant issues about the authorship versus ownership of research processes and results. There are many conflicting

claims. For example if a PhD candidate writes his thesis at a University, the copyright to the work could belong to one or more of the following:

• the scholar, • the supervisor/co-supervisor,• the university or universities (if it was a Joint

Award) • he scholarship-giving authority.

To me the authorship of the scholar is indisputable and must be acknowledged. However, ownership and the right to exploit the findings are different issues which require detailed legal examination and a discussion before decision.

Failing to disclose multiple sponsorships: There is no dearth of cases when an author receives financial support from one source but “sells” his work to another source after altering the title a little bit.

Many social problems are non-empirical: All researchers must remain aware that some facts are not discernible. With all its strengths, science is incapable of comprehending the abstract, the invisible and the immeasurable. Only a part of the truth is scientifically measurable. “There is no Key Performance Index (KPI) for “intangibles”.5 Performance of intangibles “does not anchor in numbers and percentages, but rather values, ethics and quality of being”.6

In addition to the difficulty of measuring “intangibles”, there is the problem that some facts and consequences are long-term, not yet in existence and therefore immeasurable and unpredictable. Any empirical enquiry relating to them is bound to be speculative and unreliable. Scientific generalizations are “probabilistic” and cannot generate “absolutes”.

If a study is based on projections, there is the ever present danger of inaccuracy due to intervention of unpredictable, external factors.

Casual connection does not indicate causal connection: In social science it is quite common to look out for and measure any possible links between two or more social phenomenon. The aim is to use knowledge gained thereby to solve societal problems. In criminology e.g. it has been found that well-lit streets reduce the incidence

________________________________________________________________5 Dzulkifli Abdul Razak, “Use Mexico as a Model” in the column Learning Curve: Perspective, New Sunday Times, Dec. 5, 2010, H246 Ibid


of crime in the locality. There is a measurable connection between broken homes and juvenile delinquency. If prisoners are allowed conjugal visits from spouses, that reduces sex offences in prison. Such empirically proved social links between phenomena is very useful. However, one must remain cautious that many socially measurable connections do not indicate a cause and effect or a necessary, causal relationship. Some links are purely casual and not causal. For instance, SPM/STPM results may indicate that females out-perform males. Does this indicate that girls are smarter than boys? Could it be that the syallabi, the system of education and the method of testing favours particular types of students and life styles? In a different milieu, no significant variation in gender performance may be exhibited.

Social studies in some countries have found discernible links between race and IQ and race and academic performance. Despite the seeming connection, racial stereotyping or profiling is not justified because such findings are almost always corrupted by external, subterranean factors. The IQ test may have been culturally biased. The test samples may be too small or not fairly chosen. Some of the subjects of the survey may have suffered initial environmental handicaps like poverty or inadequate educational opportunities. Such environmental handicaps can be overcome if affirmative action opportunities are made available. Even if some facts show a significant social relationship, that does not mean that the two are connected in a causal, ‘if one, then the other’ relationship.

In Malaysia statistics indicate that rape reports are on the rise. Does this mean that sex offences are increasing or could this simply mean that cultural inhibitions to reporting rapes have declined and the process of recording reports has improved?

The number of Asian, African and Latin-Americans who have received Nobel prizes is negligible. Is it because of our intellectual inferiority or because the criteria for nomination are rigged in favour of some civilizations. Let us take note that 20th century’s greatest peace prophet, Mahatma Gandhi, was never nominated for a Nobel peace prize. But President Obama, who is busy waging a war in Afghanistan, Iraq, Syria, Yemen and Libya and is unable to stop

America’s complicity in genocide in Palestine is a Nobel laureate.

Muslim girls rarely win beauty contests. Is it because they are lacking in beauty or because of cultural inhibitions to parading in public in swimsuits?

In the obituary pages of Malaysian newspapers, one rarely reads about the passing away of Muslims or Malays. Is it because Muslim and Malays never die? Obviously facts do not always tell the whole story.

Averages usually misrepresent the truth: Statistics tell only a part of the truth. As Disraeli said “There are three kinds of lies: lies, dammed lies and statistics”. For example if a person has his head in the oven and his feet in the freezer, on the average he could be deemed to be quite comfortable! If the rich are filthy rich and the poor are struggling to make ends meet, on the average the per capita income could still be quite respectable even though closer scrutiny may tell the story of deprivation and desperation at the lower levels of the social structure.

CONCLUSION

In sum it needs to be stated that there is a “publish or perish” atmosphere in most citadels of higher education. At the same time the legal hurdles to an open enquiry are considerable. Despite these legal hurdles a culture of academic research is growing. This culture must be accompanied by high standards of academic integrity. Academic integrity straddles many shores within which the waters of ethics, economics, law and technology intermingle. Regrettably, a number of research and publication practices have taken hold which raise contentious issues of ethics and integrity in research.


Thank you for your gracious invitation to me. I wish to congratulate you all on surviving your journey up to now in our Faculty of Law. I have been invited to offer a few words of advice on how to traverse the horizons beyond.

NO MAGIC WAND FOR SUCCESS

Let it be said at the very outset that there is no simple formula to achieve our goals or to flourish in any endeavour. There is no high speed lift or elevator to success. We have to walk up the stairs one step at a time.

A large number of factors need to come together to turn dares into doors and adversities into opportunities. If I have to sum up these factors in five points I would say:

• Develop positive attitudes• Plan• Perform • Persevere• Share

1.DEVELOP POSITIVE ATTITUDES

Dream dreams

You must dream dreams, envision, constructively imagine and role-play whatever you wish to be. Dreams are the foundation of reality. If you can dream it, you can achieve it. Your success and significance depends on your courage and determination to unleash the greatness that lies hidden in the recesses of your soul.

PATHWAYS TO SUCCESS AND SIGNIFICANCE1

by: Shad Saleem Faruqi

________________________________________________________________1 Emeritus Professor Datuk Dr Shad Saleem Faruqi, Legal Advisor, UiTM. This was an address to the students of the Faculty of Law in October 2015.

Materialize dreams into concrete actions

Any fulfillment of your dreams is subject to your courage and discipline to act on your dreams and materialize them into concrete, sustained actions. Don’t be a Mat Jenin. Pay heed to Rudyard Kipling: “If you can dream but not make dreams your Master; if you can think but not make thoughts your aim”.

Attitude determines altitude

The attainment of success is rooted, not so much in ability or social reality, but in positive mental attitudes and planned and disciplined, hard work.

“First we make our attitudes. Then our attitudes make us” (Dennis Waitley).

“It is attitude, not aptitude, that determines your altitude” (Harry F Banks).

“For success, attitude is equally as important as ability”. “Success means having the courage, the determination, and the will to become the person you believe you were meant to be” (George Sheehan).

“The only things that stand between a person and what he wants in life are the will to try it and the faith to believe it’s possible” (Rich Devos).

“It is amazing how a sustained expectation of the best, sets the forces in motion which cause the best to materialize” (Dr Norman Vincent Peale).

William James said that “the greatest revolution of our generation is the discovery that human beings, by changing the inner attitudes of their minds, can change the outer aspects of their lives”.

Karen Raven puts it beautifully:

“Only as high as I reach can I growOnly as far as I seek can I go

Only as deep as I look can I seeOnly as much as I dream can I be”.

So, let me say to all of you here: Let there be inside your soul, a light, a fire, a burning desire to attain your goals. If you think you can, you indeed can. The will to win, the desire to succeed, the urge to reach your full potential… these are the keys that


unlock the door to personal excellence (Confucius).

“The difference between a successful person and others is not a lack of strength, not a lack of knowledge, but rather a lack of will” (Vince Lombardi).

Think big

Create an inspiring vision of your life. Dare to fail. Live with a sense of adventure and enthusiasm. Think big. Nudge yourselves to take risks. Unless you try to do something beyond what you have already mastered, you will never grow. (Emerson). Go where no one has gone before and leave a trail. Leave the city of your comfort and go into the wilderness of your intuition.

Key to success is doing what others not willing to do

At the workplace, most people seek the easy, routine jobs. To build up your reputation and to achieve enduring success, do the hard things. Go where even the angels fear to tread. Attempt the impossible. Give it a try by carefully calculating how to do it.

Aim for the stars but don’t cry if you land on the clouds

The advice to you to dream dreams, soar like a bird, attempt the impossible, and remain dynamic and in creative ferment, is not meant to push you into a state of discontentment with your life.

Aim for the stars but don’t feel crushed if you land only on the clouds. Try again next time. You should remember that success is not a destination. It is a journey.

Be happy

Happiness is an attitude of satisfaction with what we have. It is a personal feeling. It is a choice. Our happiness depends on us.

To seek inner peace, live simply. Richness is not in the accumulation of wealth but in the smallness of needs.

“When we choose not to focus on what is missing from our lives but are grateful for the abundance that’s present … we experience heaven on earth”

(Sarah Breathnack).

2. PLAN

Map the road ahead

“Before anything else, preparation is the key to success” (Alexander Graham Bell).

“A journey of a thousand miles begins with a single step” (Chinese proverb).

“Destiny is not a matter of chance, it is a matter of choice. It is not a thing to wait for, it is a thing to be achieved” (William Jennings Bryan).

For the long term, map the road ahead. Fix time frames for realization of your dreams.

Act, not just react, to things as they come

Plan your daily schedule. Fill every minute with sixty seconds of distance run. Sail a chartered course. Do not drift in the wind and the waves.

Do not wait. Take that first step

Do not wait for ideal conditions to embark on your challenge.

“Start where you are. Use what you have. Do what you can” (Arthur Ashe).

“Success means doing the best we can with what we have” (Zig Ziglar).

The wind often changes for the better once we set sail.

Many people do not move forward because they are not willing to take that first step of (what they think) is an impossible journey. In fact, we should leap at every opportunity, no matter how small. Once you get started, once you get past the starting point, momentum builds up. Little goals add up rapidly.

“Action is the foundational key to all success” (Pablo Picasso).

Passion doesn’t lie in wait “outside there” to accompany or pursue us. It has to be found within us. It has to be cultivated. You will be surprised how the universe conspires to make things happen once


you make your decision to act. “Stephen King says that “amateurs sit and wait for inspiration, the rest of us just get up and go to work”. Thomas Huxley once said that “perhaps the most valuable result of all education is the ability to make yourself do the things you have to do, when it ought to be done, whether you like it or not”.

So, take that first step. Get started. Do something and soon you will get to a point of no-return. Many times the impossible is simply the untried. If you have the courage to begin, you have the courage to succeed.

Do not count on luck

Luck is what happens when preparation meets opportunity.

“Preparation is the key to success” (Alexander Graham Bell).

Periodically review your progress of long term goals Life always throws up new and unexpected possibilities and adversities. It is, therefore, never possible to comply fully with the daily schedule or the weekly plan. Every night before going to sleep, review your short-term and long term goals.

3. PERFORM

The key to success is hard work

“Striving for success without hard work is like trying to harvest where you haven’t planted” (David Bly). There are many reasons why you must work hard and in a planned, disciplined manner.

Hard work compensates for lack of genius. Genius is 10% inspiration; 90% perspiration. Many ordinary people achieve extraordinary things because they toil through the night while the world sleeps.

Work is part of worship and must be given the same type of devotion.

Hard work never goes to waste. You should not despair if recognition and rewards do not come when they are due. Bear in mind that God always watches. His justice will one day prevail. A competent person is like the moon. Clouds can

hide the lunar marvel for a while but soon enough its luminescence fills the world.

Remember also that rewards may come in many intangible forms. Hard work with sincerity is nourishing for the soul and good for health. Hard work’s rewards are long term, internal and intangible. As someone said: Not all things that matter in life are things.

Whatever you do, do well

Your aim in life should be to leave the world a better place than you found it.

“Wherever you choose to go, go there with all your heart” (Mac Anderson).

“Whatever you are, be a good one” (Abraham Lincoln).

“If you love what you are doing, you will be successful” (Herman Cain).

“What is done in love is done well” (Vincent Van Gogh).

There are no small jobs; only small people. There is honour in every profession provided you put your heart and soul into it and do ordinary things extraordinarily well. Do not despise the mundane or the insignificant. It is often the case that those who do small jobs meticulously are likely to confront major challenges majestically.

Learn from people you admire. “Lives of great men all remind us; we can make our lives sublime and departing leave behind us, footprints on the sands of time”.

Produce results

We judge ourselves by our plans. Others judge us by the results.

Life is substance as well as show

Sincere hard work is necessary for success. But one must also remember that in life as well as in your profession, substance and show, reality and appearance, isi and gaya, competence and hype are both important. There is an Indian saying that “the peacock dances in the jungle and nobody


sees”. Don’t be like that peacock. Polish up your social, communication and PR skills so that your hard work and competence get to be known.

4. PERSEVERE

Never give up

In most challenges in life, natural talents do not take us very far. Discipline and perseverance do. Gautama Buddha once said that “in the confrontation between the stream and the rock, the stream always wins – not through strength, but through persistence”.

“Patience, persistence and perspiration make an unbeatable combination for success”. (Napolean Hill).

Calvin Coolidge says that “nothing in the world can take the place of perseverance. Talent will not; nothing is more common than unsuccessful people with talent. Genius will not; unrewarded genius is almost legendary. Education will not; the world is full of educated derelicts. Perseverance and determination alone are omnipotent”. “Success is largely a matter of holding on after others have let go”. “Success seems to be connected with action. Successful people keep moving. They make mistakes, but they don’t quit” (Conrad Hilton)

If you have never failed, you have never tried anything new. The list of famous people who, sometime or the other, failed in their enterprise, is very long. Walt Disney was dismissed from a newspaper for “lacking imagination” and having “no original ideas”. Steve Jobs, at age 30, was unceremoniously removed from the company he had started. Oprah Winfrey was demoted from her job as a news anchor because she “wasn’t fit for television”. The Beatles were rejected by Decca Recording Studios who said “We don’t like their sound – they have no future”. Michael Jordan was axed from his High School basketball team.

Doubt your doubts but not your beliefs

We are all specks of dust in the universe. Nevertheless we have what it takes to confront hurdles and to overcome them. We have to be bigger than the things that cause us to suffer.

Despite your limitations, have confidence in yourself. Do not let your limitations limit you. Attack your fears. “The only thing to fear is fear itself” (Roosevelt).

Never give up. This one thing you should do when confronted by adversity: press onward towards the mark. That next step may bring the summit in sight. Sometimes the difference between winning and losing is that small intangible thing called ‘will’ - the will to make things happen. The possibility of success is never over till we stop trying. The most certain way to succeed is to always try just one more time (Thomas Edison).

A good attitude to adopt when you are confronted by a task that appears far outside your comfort zone is to tell yourself that success may be difficult but failure is unthinkable. Then put your shoulder to the wheel. Giving up is not an option. You will be surprised where your daring can take you. Every day things are being done that skeptics said cannot be done. The secret is in the attempt.

Faith in god

When you are faced by inevitable storms, turn to God and trust Him. It is said in the Holy Qur’an in Surah Ghafir (40): Ayat 60:

“Call on me; I will answer your prayer”. In Surah Al-Baqarah (2): Ayat 286 we are reminded that God does not impose on any soul a burden that it cannot bear.

Success is a journey, not a destination

Success is the sum of small efforts repeated day in and day out (Robert Collier). Success is a sustained effort over time and persistence in the face of hurdles. It is an attitude of “I think I can”. It is the courage to treat adversity as opportunity and dares as doors. Success is a continuing process of repeating, reinforcing past accomplishments and conquering new challenges by adapting to a changed world.

Success requires constant movement and change. It is like riding a bicycle. To keep your balance you must keep moving.

“Success is the sum of small efforts, repeated day-in and day-out” (Robert Collier).


Failure is never fatal

Just as success is never final, failure is never fatal. We all fall down now and then. But falling is not the same thing as failing if we get up and get going again. Life frustrates and often breaks all of us. What we must endeavour is to emerge stronger at the broken places.

As Oprah Winfrey said to Harvard graduates of 2013: “Stumbles are inevitable but are not permanent”. “I want you to remember this” she said: “There is no such thing as failure. Failure is just life trying to move us in another direction”. Winston Churchill put it beautifully: “Success is not final, failure is not fatal: it is the courage to continue that counts”.

Let me say this to you: the struggle you are in today is developing the strength you need for tomorrow. Michael Jordan had this to say in an interview: “I have failed over and over again in my life and that is why I succeed”. Malcolm Forbes in turn says: Failure is success if we learn from it”:

SHARE & CARE

Live for others

Give your life to something bigger than yourself.

What you learn, impart to others. What you get, share with the world. That, my friends, gives life its purpose and meaning. In the end it is not what you gather, it is what you scatter that matters.

“It is one of the most beautiful compensations in life (that) we can never help another without helping ourselves” (Ralph Waldo Emerson).

Think deeply. Act nobly. Leave the world better than you found it.

Ralph Waldo Emerson summed up the attributes of success: “To laugh often and much; to win the respect of intelligent people and the affection of children … to leave the world a better place than you found it… to know that even one life has breathed easier because you have lived. This is to have succeeded”.

HOW TO STUDY EFFECTIVELY?

Law is "reasoned argument". To perform satisfactorily in a law course, some special skills and techniques need to be cultivated.

Command of language

A law student should understand that oral and written communication skills are absolutely indispensable for the effective practice of the law. Law students should seek constantly to improve their command of the languages by reading newspapers, law books and law journals. Buy a good law dictionary plus a basic English dictionary or use your i-phone whenever necessary to look up words you do not know.

Original sources

Reading books is going out of fashion! But remember that the first revelation to Prophet Muhammad SAW began with the words

“Iqra bismi rabbikal-lazi khalaq. Khalaqal insana min alaq”. “Read! In the name of your Lord who has created all that exists... Read! And your Lord is the most generous. Who has taught writing by the pen. He has taught man that which he knew not” (al-‘Alaq 96:1-5).

A good law student buys her own textbooks and statutes and does not rely entirely on class hand-outs. These hand-outs are, by necessity, summaries and overviews and cannot shed light on the nooks and crannies of the law and the novelty of real-life situations depicted in problem-type questions. There is no substitute to self-study from textbooks and decided cases in order to add to the modest "bank account" of knowledge opened for the students by the lecturer.

Art of reading

Reading is an art. Unless we have a smart strategy, it is entirely possible to get lost in the undergrowth. In reading a book or article, the student must avoid beginning at the beginning and plodding to the end. She must first look at the headings and sub-headings to get a broad feel or outline of what the chapter contains. She must proceed from the


general to the particular; from the woods to the trees. If an easy book, nutshell or hand-out is available, there is no shame in reading that first in order to get a background or overview. But one must be warned that nutshells provide only a superficial overview and must never be relied on totally.

Self-study

Study techniques must have four aims.

First, to understand the basic principles of the law.

Second, to organize and systematize knowledge as part of a consistent whole rather than as separate and unconnected scraps of dead (inert) ideas. Third, to devise ways of recalling basic ideas. To achieve this aim, the student must summarize the main principles or ideas in simple diagrams, charts, "magic words" or acronyms. These “scaffoldings” or outlines must be committed to memory. A fourth aim, if you wish to excel, is to evaluate existing materials and to highlight the flaws in the laws.

Attending classes & tutorials

Successful students go prepared to class bubbling with queries. During the class or tutorial, they don't just hear, they listen. They jot down prolific notes. They ask questions orally or by e-mail or in other written forms. They participate.

Study groups

Good law students form informal groups for study and revision. They try to be in a group of hard workers and independent thinkers. They encourage differences rather than conformity. They expose their understanding to scrutiny by others.

Summarising notes

Summarizing, organizing and systematizing knowledge is the best way of mastering it. In preparation for the examination, a good student summarizes each topic on one A4 page or index cards or uses flow charts or diagrams to organize the vast amount of material collected.

HOW TO IMPRESS EXAMINERS

Analyse past years' examination papers

Familiarity with existing patterns of evaluation helps greatly in preparation. A successful student obtains and analyses past years' examination questions. She prepares tables to discover the examiners' preferences or patterns. She is, however, aware that examiners change from year to year and are not bound by patterns or precedents.

Simulate examination situation

A good student solves some past years' questions and submits them to her lecturer for evaluation. This way she seeks to learn by simulation. She submits her knowledge as well as her methodology to sympathetic scrutiny.

Learn to organise your presentation

Examinations are like life. Substance (isi) is important but so is show (gaya)! An organized, easy-to-read presentation always secures higher marks than one that is all jumbled up, disconnected and disorganized.

In writing her answers in the examination hall, a wise student does not start writing the moment she is allowed to do so. She spends five minutes organizing her answer; drawing up the scaffolding or the outline on the left page of the answer book (and never on the question paper itself).

A good law answer is like a multi-course Chinese meal and not the delicious but jumbled up rojak. In writing an answer, the student should not crowd and clutter up different ideas in the same line and in the same paragraph. She must use sub-headings, bullets or new paragraphs to separate issues and ideas. This is similar to what lawyers do in court. They open their case by telling the judge how many submissions they have to make. Then they take up each submission one by one and go into each in depth. An examination answer should be similarly planned and organized.


ATACR formulaFor each essay or problem question, a wise student follows the ATACR formula.

‘A’ stands for analysis or breakdown of the question or problem into its constituent

parts. The more issues the student spots, the higher her marks are likely to be. The student commences her answer with a carefully crafted, beautifully worded opening statement or overview of all the issues she has spotted. She remembers that first impressions do count. A good overview indicates that the student is well organized and has a good grasp of the nuances of the situation encapsulated in the exam question.

‘T’ refers to theory or the law relating to each issue. To most examiners the theoretical

input is the core part of the answer because it lays the foundation on which the submissions rest. Theory (or the law on the point) is found in statutes, decided cases and juristic works. A good student injects a critical perspective of the flaws in the law. Regrettably, most students ignore theory and go straight to the verdict. This amounts to putting the cart before the horse.

‘A’ stands for application of theory or law to the facts or question at hand. After laying

down the theoretical basis, the student must apply the theory or law to the issue or facts at hand in a logical, rational way. To the examiner, the state of knowing is not enough. You must know how and where to apply your nuggets of information.

‘C’ refers to conclusion on the point being discussed. The student must draw her

conclusion on the issue in a legal, logical and rational way. Is the right or duty or liability established? Is there a case of unconstitutionality or illegality?

As an observation it can be mentioned that many students do a fair job outlining the theory but fail miserably to apply the theory to the issue at hand. Many students argue logically but when it comes to the conclusion, they decide emotionally and allow latent prejudices, gut instincts and pre-conceptions to direct their final verdict. It appears to be a case of “saya rasa” and not “saya fikir”! Law is reasoned argument, and not instinctive, cultural or religious prejudices. For a good grade, there must be

consistency between the principles enumerated and the conclusions drawn logically. After handling one issue, the student must then proceed to the next issue in her basket of ideas and traverse the same careful path of outlining the issue, laying down the theory, applying the theory to the problem at hand and making a logical and not an emotional conclusion.

‘R’ signifies the remedy or course of action to be recommended in a problem type

question. Thus the student may feel that judicial review should be applied for, or habeas corpus may issue or there should be an action for damages. An answer organized along these lines is most likely to collect a higher grade than a piece of writing that has some substance but which is disorganized, disconnected and not well presented in a simple and succinct manner.

In closing, I will resist the temptation to wish you all “smooth sailing”. Smooth sailing doesn’t produce great mariners. So I wish you many challenges to surmount, paths to blaze and choppy seas to navigate. But I pray that God will give you the wisdom, the strength and the courage to overcome all challenges.

I pray that as you stand on the threshold of a new life, you will have the audacity of hope and the courage of perseverance.

I wish you a life of courage, commitment and contribution.

May God be with you all.

Please join me in a prayer from Surah Taha 20:114: “O Allah! Please help us to grow in knowledge”


1. Postgraduate

Postgraduate (PG) education which is sometimes called as graduate education involves “learning and studying for academic or professional degrees, academic or professional certificates, academic or professional diplomas, or other qualifications for which a first or bachelor's degree generally is required, and it is normally considered to be part of higher education”.2

In short, postgraduate courses are studied full-time / part-time by students who are:

• continuing with study following a first degree

• decided to make a specific investment by giving up work or taking a career break

• studying full time in order to complete the course as quickly as possible via a concentrated period of study.

At UiTM, it takes pride in its establishment as one of the premier institutions of higher education in the country.3 As far as the Law Faculty is concerned, there is a specific code known as LW991 for PhD (Law) programme where it intends to train candidates to develop some conceptual and analytical capabilities in the field of law through a rigorous examination of an original study to be conducted under the supervision of a supervisor from the faculty. At the end of the programme, candidates are required to submit a thesis not exceeding 100,000 words and go through a viva voce successfully.4

UiTM POSTGRADUATE CANDIDATES TO GRADUATE ON TIME (G.O.T)1

by: Musrifah Sapardi*

2. What is G.O.T?

It literally means “Graduate on Time”. Indeed, G.O.T is a huge deal. It really is. It is an accomplishment. It makes you feel self-proud. Mission accomplished!

What happen if you did not G.O.T?

• It makes you feel ashamed of yourself.

• what are you going to tell your family

• feeling less confidence of yourself (you'll feel like a failure).

• not able to pay your scholarships / loans etc.

• wasting your time and money

However, it is not the end of your world, if you believe that you are still dedicated and committed to continue your studies. You also must have faith that things bound to happen and there are reasons to them such as

• Change of major / topic

• Issues of supervisors

• Financial troubles (It is to be noted that if one of the above

happens, you may take a year off to figure out exactly what you want to do).

In other words, do not feel disheartened. Do not add pressure to yourself by setting a timer. It is completely okay to graduate when you graduate, and it is still something to be proud off. You may do and adjust to the followings:

• Take all the ‘reasonable’ time you need

• The real world and your career will still be there whenever you graduate

• Your family will still love you

• Your friends will still support you

• Your loved ones want you to be happy and successful

• They surely do not want you to commit suicide

________________________________________________________________*Associate Professor Datin Dr Musrifah is a law lecturer at Faculty of Law, UiTM. 1 This paper is presented at a talk on “Graduate on Time or G.O.T - Sharing Session with Postgraduate Candidates” who are pursuing their Master of Laws and PhDs in Law, at Postgraduate Room, Faculty of Law, UiTM on 31.03.2016.2 See https://en.wikipedia.org/wiki/Postgraduate_education3 See http://www.uitm.edu.my/index.php/en/students/current-students/postgraduate4 See http://law.uitm.edu.my/v4/index.php/programmes/postgraduate/phd


or hara kiri

3. It may a bit late, but graduation will still happen to you:

• If you did not give up easily

• attend your class and study hard

• meet your supervisors regularly

• do the tasks religiously

• do your best and try your hardest

• Just by doing the above – “you're doing more than so many others are able to do!”

• Enjoy your classes

• Find new interests

• Study what you love (passionate in your work)

• Embrace opportunities (Study abroad or Sabbatical)

• Join ‘weird elective classes’ (see what others do!)

• Enjoy and take advantage of studying new things

4. Finally, you are graduating!5

• You'll graduate when you graduate

• You’ll be filled with pride and wisdom

• When they call your name and shake your hands (proud moments)

• You walk across that stage, hold your head up high, because you've earned every bit of your degree

• All the countless hours you spent finally pays: - of studying with sweat and tears - long hours in the library - tremendous amount of hard

5. Always have a motto and all the very best to you!

My motto is “4S – Strong Substance with Superb Style”. This could also mean First Impression count that

leads to Lasting Expression.

______________________________________________________________________________________________________________

5 See Donald Asher, “6 Reasons College Students Don’t Graduate in 4 Years”, at http://www.donaldasher.com/articles/Article%20Why%20College%20Stu-dents%20Don't%20Graduate%20in%204%20Years.pdf. See also “Four Tips for Helping Students Graduate on Time”, at https://www.academicimpressions.com/news/four-tips-helping-students-graduate-time, Date Published: May 25, 2012

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