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DR 01/2010
A BILL
i n t i t u l e d
An Act to amend the Educational Institutions (Discipline) Bill 1976.
ENACTED by the Parliament of Malaysia as follows:
1. Short title and commencement
(1) This Act may be cited as the Educational Institutions (Discipline) (Amendment) Act 2010.
(2) This Act comes into operation on a date to be appointed by the Minister by notification in the Gazette, and the Minister may appoint different dates for the coming into operation of different provisions of this Act.
2. Amendment of section 2
The Educational Institutions (Discipline) Act 1976 [Act 174], which is referred to as the "principal Act" in this Act, is amended in section 2—
(a) by deleting the definition of "Disciplinary Committee";
(b) by substituting for the definition of "Minister" the following definition:
‘ "Minister" means the Minister responsible for education or the Minister responsible for higher education, as the case may require;’; and
(c) by inserting after the definition of "Minister" the following definition:
‘ "registrable offence" has the meaning assigned to it under the Registration of Criminals and Undesirable Persons Act 1969 [Act 7];’.
3. Deletion of section 4
The principal Act is amended by deleting section 4.
4. Amendment of section 5
Section 5 of the principal Act is amended—
(a) by substituting for subsection (3) the following subsection:
"(3) The Students’ Affairs Officer may delegate his disciplinary functions, powers or duties to any member of the staff or any board of members of the staff, in respect of any particular student or any class or category of the students of the Institution.";
(b) by inserting after subsection (3) the following subsections:
"(3A) The Students’ Affairs Officer, or the member of the staff or the board of members of the staff delegated with the functions, powers or duties under subsection (3), shall inform the student in writing of the grounds on which it is proposed to take action against him and shall afford him a reasonable opportunity of being heard.
(3B) A student of an Institution shall have the right to be represented by a staff or another student of the Institution in any disciplinary proceedings taken against him.
(3C) A student of an Institution shall be allowed to make a written or an oral representation in any disciplinary proceedings taken against him.
(3D) The decision of the Students’ Affairs Officer, the member of the staff or the board of members of the staff, as the case may be, in any disciplinary proceedings taken against a student of an Institution shall be communicated in writing to the student within fourteen days from the date of the decision.";
(c) by substituting for subsection (4) the following subsection:
"(4) Any student who is dissatisfied with the decision of the Students’ Affairs Officer, the member of the staff or the board of members of the staff, as the case may be, under subsection (3D) may, within fourteen days from the date of receipt of the decision, submit an appeal in writing to the Student Disciplinary Appeal Committee established by the Minister under subsection (5).";
(d) by substituting for subsection (5) the following subsection:
"(5) The Minister shall establish a Student Disciplinary Appeal Committee to hear and determine any appeal submitted by a student of an Institution under subsection (4)."; and
(e) by inserting after subsection (5) the following subsections:
"(6) The Student Disciplinary Appeal Committee shall comprise three members to be appointed by the Minister from within or outside the Institution, one of them to be the chairman of the Student Disciplinary Appeal Committee.
(7) No person who had exercised the powers under subsection (2) or (3) shall be a member of the Student Disciplinary Appeal Committee.
(8) A student of an Institution who has submitted an appeal under subsection (4) shall have the right to be represented by a staff or another student of the Institution in any proceedings before the Student Disciplinary Appeal Committee.
(9) A student of an Institution who has submitted an appeal under subsection (4) shall be allowed to make a written representation in any proceedings before the Student Disciplinary Appeal Committee.
(10) The Student Disciplinary Appeal Committee hearing an appeal under subsection (5) shall decide on the appeal within thirty days from the date of receipt of the appeal.
(11) The decision of the Student Disciplinary Appeal Committee on an appeal shall be communicated in writing to the student within fourteen days from the date of its decision.".
5. Substitution of section 9
The principal Act is amended by substituting for section 9 the following section:
"9. Power of Executive Head to suspend or dissolve SRC or any organization, body or group of students
(1) If the SRC or any organization, body or group of students of an Institution established under this Act conducts itself in a manner which the Executive Head considers detrimental or prejudicial to the interests or well-being of the Institution, or to the interests or well-being of any of the students or staff of the Institution, or to public order, safety or security, or if the SRC or organization, body or group of students violates any provision of any written law, the Executive Head may, after giving the SRC or organization, body or group of students of the Institution an opportunity to make a written representation, suspend or dissolve the SRC or organization, body or group of students of the Institution.
(2) The SRC or organization, body or group of students of the Institution aggrieved by the suspension or dissolution made under subsection (1) may, within fourteen days from the date of receipt of the notice of the suspension or dissolution, appeal in writing to the Minister.".
6. Substitution of section 10
The principal Act is amended by substituting for section 10 the following section:
"10. Student or students’ organization, body or group associating with societies, etc.
(1) A student of an Institution may become a member of any society, organization, body or group of persons, whether or not it is established under any written law, whether it is in or outside the Institution, and whether it is in or outside Malaysia, other than—
(a) any political party, whether in or outside Malaysia;
(b) any unlawful organization, body or group of persons,
whether in or outside Malaysia; or
(c) any organization, body or group of persons which
the Minister, after consultation with the Executive Head, has specified in writing to the Executive Head to be unsuitable to the interests and well-being of the students or the Institution.
(2) An organization, body or group of students of an Institution which is established by, under or in accordance with this Act may have any affiliation, association or other dealing with any society, organization, body or group of persons, whether or not it is established under any written law, whether it is in or outside the Institution, and whether it is in or outside Malaysia, other than—
(a) any political party, whether in or outside Malaysia;
(b) any unlawful organization, body or group of persons,
whether in or outside Malaysia; or
(c) any organization, body or group of persons which
the Minister, after consultation with the Executive Head has specified in writing to the Executive Head to be unsuitable to the interests and well-being of the students or the Institution.
(3) It shall be the responsibility of the Executive Head to communicate to the students of the Institution, and the organizations, body or group of students of the Institution, the names of the organization, body or group of persons specified by the Minister under paragraphs (1)(c) and (2)(c)
to be unsuitable to the interests and well-being of the students or the Institution.
(4) The Executive Head may, on the application of a student of the Institution, exempt the student from the provisions of paragraph (1)(a), subject to such terms and conditions as he thinks fit.
(5) No student of an Institution and no organization, body or group of students of an Institution which is established by, under or in accordance with this Act, shall express or do anything which may reasonably be construed as expressing support for or sympathy with or opposition to—
(a) any political party, whether in or outside Malaysia;
(b) any unlawful organization, body or group of persons, whether in or outside Malaysia; or
(c) any organization, body or group of persons specified by the Minister under paragraphs (1)(c) and (2)(c)
to be unsuitable to the interests and well-being of the students or the Institution.
(6) Notwithstanding subsection (5), a student of the Institution shall not be prevented from—
(a) making a statement on an academic matter which relates to a subject on which he is engaged in study or research; or
(b) expressing himself on the matter referred to in paragraph (a) at a seminar, symposium or similar occasion that is not organized or sponsored by any political party, whether in or outside Malaysia, any unlawful organization, body or group of persons whether in or outside Malaysia, or any organization, body or group of persons specified by the Minister under paragraphs (1)(c) and (2)(c) to be unsuitable to the interests and well-being of the students or
the Institution.
(7) Any student of an Institution who breaches subsection (1) or (5) shall be liable to disciplinary action.
(8) Any organization, body or group of students of an Institution which breaches subsection (2) or (5) shall be dealt with in accordance with section 9.".
7. Amendment of section 11
Section 11 of the principal Act is amended—
(a) by substituting for subsection (2) the following subsection:
"(2) Any person who breaches subsection (1) shall be liable to disciplinary action.";
(b) by substituting for subsection (3) the following subsection:
"(3) The Executive Head may, in any particular case, grant exemption to any person from the application of subsection (1), subject to such terms and conditions as he thinks fit."; and
(c) by deleting subsection (4).
8. Substitution of section 12
The principal Act is amended by substituting for section 12, the following section:
"12. Liability of students or students’ organization, body or group
Where a registrable offence has been committed under any written law and such offence has been committed or purports to have been committed in the name or on behalf of any organization, body or group of students of an Institution which is established by, under or in accordance with this Act, every person convicted of such offence shall be liable to disciplinary action and such organization, body or group of students shall be dealt with in accordance with section 9.".
9. Deletion of section 13
The principal Act is amended by deleting section 13.
10. Substitution of section 14
The principal Act is amended by substituting for section 14 the following section:
"14. Suspension of student charged with registrable offence and matters relating to detention, etc.
(1) Where a student of an Institution is charged with a registrable offence—
(a) he may, in the discretion of the Executive Head, be suspended from being a student; and
(b) if so suspended, he shall not during the pendency of the criminal proceedings, remain in or enter the campus of that Institution.
(2) Where a student charged with a registrable offence under subsection (1) is convicted of that offence, the student shall be liable to disciplinary action.
(3) Where a student of an Institution is detained or is subjected to any order imposing restrictions on him under any written law relating to preventive detention or internal security, the student shall be liable to disciplinary action.
(4) A student of an Institution who is detained or is subjected to any order imposing restrictions on him under any written law relating to preventive detention or internal security, or is imprisoned or detained for whatever reason, may, with the consent of the Executive Head, be permitted to sit for the examination of the Institution subject to such order made or approval given by the Minister responsible for internal security or any other competent authority, as the case may require.
(5) A student of an Institution who is suspended from being a student of the Institution under subsection (1) may, while he is so suspended, be admitted as a student of any other Institution or of any University with the written approval of the Minister, and if the Minister grants such approval, the Minister may impose such terms and conditions as he thinks fit.
(6) A student of an Institution who ceases to be a student under this Act may be admitted as a student of that or any other Institution or of any University with the written approval of the Minister, and if the Minister grants such approval, the Minister may impose such terms and conditions as he thinks fit.
(7) If the determination of any application, appeal or other proceedings by the court in respect of any criminal proceedings against a student of an Institution for a registrable offence, results in a discharge or acquittal, the student, if suspended from the Institution or has served his period of imprisonment, as the case may be, shall be allowed to resume his studies at the Institution and the period of suspension or imprisonment, as the case may be, shall not be taken into consideration in calculating the maximum duration permitted to complete the course of study and in the computation of his results.
(8) If the determination of any application, petition, appeal or other proceedings by the court or any competent authority in respect of the detention order against or order imposing restrictions on a student of an Institution under any written law relating to preventive detention or internal security, results in his release or the restrictions imposed on him being revoked, the student shall be allowed to resume his studies at the Institution and the period of detention and restriction he was subjected to shall not be taken into consideration in calculating the maximum duration permitted to complete the course of study and in the computation of his results.".
11. Deletion of section 15
The principal Act is amended by deleting section 15.
12. Deletion of section 16
The principal Act is amended by deleting section 16.
13. Amendment of section 21
Section 21 of the principal Act is amended by substituting for subsection (1) the following subsection: "(1) The Minister may delegate, subject to such terms and restrictions as he may specify, any of his functions, powers or duties under this Act.".
14. Saving and transitional provisions
(1) Where on the coming into operation of this Act a criminal proceeding is pending before any court against a student of an Institution and the student has been suspended in accordance with the provisions of section 14 of the principal Act, the Executive Head shall, in his discretion, consider whether the student should continue to be suspended or otherwise.
(2) Where on the coming into operation of this Act a criminal proceeding pending before any court against a student of an Institution results in his conviction, the student shall be liable to a disciplinary action and shall be dealt with under and in conformity with the provisions of this Act.
(3) Where on the coming into operation of this Act any application, petition, appeal or other proceeding pending before any court or competent authority in respect of any criminal proceeding against a student of an Institution, or detention order against or order imposing restrictions on a student of an Institution under any written law relating to the preventive detention or internal security, results in his acquittal, release or the restrictions being revoked, the student shall be dealt with under and in conformity with the provisions of this Act.
(4) Where on the coming into operation of this Act a disciplinary proceeding is pending against a student of an Institution, the proceeding shall be continued by the Students’ Affairs Officer, the member of the staff or the board of members of the staff, as the case may be, under and in conformity with the provisions of this Act.
(5) Where on the coming into operation of this Act an appeal brought by a student of an Institution is pending before the Minister, the appeal shall be heard by the Student Disciplinary Appeal Committee under and in conformity with the provisions of this Act.
EXPLANATORY STATEMENT
This Bill seeks to amend the Educational Institutions (Discipline) Act 1976 ("Act 174").
2. Clause 1 contains the short title and the power of the Minister to appoint the commencement date of the proposed Act.
3. Clause 2 seeks to amend section 2 of Act 174 to introduce new definitions and to amend existing definitions used in Act 174. The definition of "Disciplinary Committee" is deleted consequential upon the deletion of section 4 in clause 3. The definition of "Minister" is substituted as reference is also made to the Minister responsible for Higher Education for certain Institutions under Act 174. A new definition of "registrable offence" is essentially intended to replace the words "criminal offence" used in Act 174.
4. Clause 3 seeks to delete section 4 of Act 174 on discipline of the staff of an Institution. The provision has outlived its usefulness as matters relating to discipline of the staff of the Universiti Teknologi MARA, which is a body corporate, are presently regulated by the Statutory Bodies (Discipline and Surcharge) Act 2000 [Act 605] whilst the staff of the other Institutions as specified in the First Schedule of Act 174 who are public servants are governed by the Public Officers (Conduct and Discipline) Regulations 1993 [P.U. (A) 395/1993].
5. Clause 4 seeks to amend section 5 of the Act 174 to improve procedural safeguards for students in disciplinary proceedings.
6. Clause 5 seeks to substitute section 9 of Act 174 to give the SRC, organization, body or group of students of an Institution the right to make a written representation before any suspension or dissolution is made against it by the Executive Head. It also creates a right of appeal to the Minister.
7. Clause 6 seeks to substitute section 10 of Act 174 to confer on students and student organizations freedom of association subject to restrictions in relation to political parties, unlawful organizations and organizations, body or group of persons identified by the Minister as unsuitable to the interest and well-being of the students or student bodies. In addition to that, the Executive Head may, on the application of a student, exempt the student from the restrictions mentioned in the proposed paragraph (1)(a). This will enable a serving politician from any political party to enroll as a student of an Institution without giving up his political career. The proposed subsection (6) seeks to expand the scope of freedom of speech and expression on academic matters by a student. The proposed subsection (7) seeks to remove the criminal penalties provided under this section and to substitute them with disciplinary action. Decriminalization proposed in this section is in line with the spirit prevailing in laws which govern higher education.
8. Clause 7 seeks to amend section 11 of Act 174. The criminal penalty in subsection (2) is substituted with disciplinary action and in order to provide autonomy to an Institution, the power to grant exemption under subsection (3) is now given to the Executive Head.
9. Clause 8 seeks to substitute section 12 of Act 174 to provide that if a registrable offence has been committed in the name or on behalf of any organization, body or group of students of an Institution, any student convicted of such offence shall be liable to disciplinary action whilst the organization, body or group of students shall be liable to suspension or dissolution.
10. The substitution of criminal offence with disciplinary offence in the proposed Act renders section 13 of Act 174 no longer of any use and hence is deleted in clause 9.
11. Clause 10 seeks to replace section 14 of Act 174. The new section 14 proposes reliefs to students facing criminal charges, detention, restriction order or imprisonment. Subsection (1) seeks to confer discretion on the Executive Head to decide whether or not to suspend a student who is charged with a registrable offence. Subsections (2) and (3) render a student who is convicted of a registrable offence, or detained or subjected to an order of restriction under any written law relating to preventive detention or internal security, liable to disciplinary action instead of him immediately ceasing to be a student under such circumstances by virtue of the existing provisions. Subsection (4) seeks to allow a student who is placed under detention or subjected to an order imposing restriction on him or who is being imprisoned to sit for his examination if consented to by the Executive Head and subject to an order being made or approval given by the Minister responsible for internal security or any competent authority, as the case may require. Subsections (5) and (6) seek to respectively allow a student who is suspended from an Institution or a student who ceases to be a student of the Institution under Act 174 to pursue his studies at any other Institution or University with the written approval of the Minister. These amendments are in line with the right to education for all. Subsections (7) and (8) seek to provide that the period of suspension, detention or restriction shall not be considered in calculating the maximum duration permitted to complete the course of study and in the computation of his result where a student is discharged or acquitted of a registrable offence or released from detention or restrictions imposed on him revoked.
12. The proposed deletion of sections 15 and 16 in clauses 11 and 12 respectively are consequential amendments occasioned by the move to subject students now to disciplinary action with certain procedural safeguards for any alleged misconduct.
13. Clause 14 deals with saving and transitional provisions.
14. Other amendments not specifically referred to in this Statement are minor or consequential in nature.
FINANCIAL IMPLICATIONS
This Bill will not involve the Government in any extra financial expenditure.