Act 605 May Not Withstand a Constitutional Challenge

 Act 605’s restrictions on criticism have had a chilling effect on academic discourse for more than a decade. This article contends that these provisions may be unconstitutional and calls for a principled re‑examination of the Act within higher‑education reform.

 The Statutory Bodies (Discipline and Surcharge) Act 2000 (better known as Act 605) represents the high‑water mark of the bureaucratisation of public universities. When Parliament enacted Act 605, its purpose was straightforward: to close a legal gap that had exempted employees of statutory bodies from the Public Service Department’s disciplinary code. In effect, Act 605 was designed to extend civil‑service‑style disciplinary control to officers of statutory bodies incorporated by federal law.

Act 605 came into force on 1 November 2000. Section 2(1) provides that the Act applies to all statutory bodies except those listed in the First Schedule. Universities established under the Universities and University Colleges Act 1971 (UUCA) are not listed as exceptions. The Act defines a statutory body broadly as any entity incorporated by federal law for the purposes of the Federal Government, excluding only local authorities. On its face, this definition appears wide enough to include public universities.

The first judicial consideration of Act 605’s application to universities arose in Universiti Utara Malaysia (UUM) v. Mutiara Mohamad & Others & Another [2011 8 MLRH 650. The case concerned the dismissal of a lecturer who had refused to sign the Aku Janji undertaking and failed to report for duty. A preliminary issue before the court was whether the disciplinary proceedings should have been governed by Act 605 or by the UUCA. At the time the case was initiated in 2007, the UUCA still contained its own disciplinary provisions under section 16A, which vested disciplinary authority in the university’s Board of Directors. These provisions were only deleted in 2009 through the University Colleges (Amendment) Act.

It was undisputed that UUM had conducted the disciplinary proceedings under Act 605. The university argued that it was a statutory body within the meaning of the Act and therefore subject to its disciplinary regime. The lecturer contended that UUM was merely a body corporate governed by the UUCA, and that Act 605 did not apply. The court held that a body corporate could also be a statutory body, and that Act 605 applied to UUM from the moment it came into force. Section 28 of Act 605, the court noted, expressly provides that disciplinary provisions in an incorporating statute cease to apply once Act 605 is in force.

Act 605 and the Nature of the University

While the court’s reasoning resolved the statutory interpretation question, it did not address a deeper issue: whether applying Act 605 to universities is compatible with the nature, purpose, and constitutional position of higher‑education institutions. The court did not consider whether the Code of Conduct imposed by Act 605, designed for general statutory bodies, was appropriate for universities, whose functions and freedoms differ fundamentally from those of ordinary government‑linked entities.

This omission is significant. The Code of Conduct under Act 605 prohibits officers from criticising the statutory body or the government, and penalises statements deemed “detrimental,” “embarrassing,” or “prejudicial” to the institution. These prohibitions strike at the heart of academic freedom. Universities depend on open discourse, debate, and the ability of scholars to question institutional and governmental decisions. A disciplinary code that prohibits criticism is antithetical to the intellectual mission of a university.

Act 605 and University Autonomy

Moreover, the application of Act 605 undermines the autonomy of universities, which Malaysian courts have recognised for decades. University autonomy necessarily includes the ability to determine disciplinary norms appropriate to academic work. While other statutory bodies may also have had internal disciplinary rules, university disciplinary frameworks serve a unique function: they define and protect academic freedoms, collegial governance, and the rights of scholars to engage in inquiry without fear of administrative retaliation. These features are not present in other statutory bodies, which do not share the governance architecture established under the UUCA in the schedule constitution.

Freedom of Speech and Act 605

Beyond governance concerns, Act 605 raises a serious constitutional issue that was not argued in Mutiara Mohamad. Article 10(1)(a) of the Federal Constitution guarantees that “every citizen has the right to freedom of speech and expression.” This right applies fully within universities. It protects academics, researchers, administrators, and students. It is foundational to academic freedom, institutional integrity, and evidence‑based policy development.

Parliament may restrict speech only for the specific purposes listed in Article 10(2): national security, friendly relations with other countries, public order, morality, parliamentary privileges, court proceedings, contempt of court, defamation, and incitement to an offence. These exceptions are narrow and intended to safeguard public interests—not institutional reputation or administrative convenience.

The constitutional argument is strengthened by the recent Federal Court decision in Amir Hariri Abd Hadi v PP (2025). The Federal Court reaffirmed that any statutory restriction on rights under Article 10 must satisfy the doctrine of proportionality, which is constitutionally grounded in Article 8(1). The Court emphasised that restrictions under Article 10(2) “are not without limit” and must be proportionate to legitimate aims such as security or public order. The Court’s analysis makes clear that disproportionate restrictions on constitutional freedoms are void under Article 4(1). Act 605’s broad prohibitions on criticism, aimed at protecting institutional reputation rather than any constitutionally recognised ground, cannot meet this proportionality threshold.

In light of Article 10 and the Federal Court’s reaffirmation of proportionality, the speech‑restricting provisions of Act 605 are unlikely to withstand a serious constitutional challenge. They do not serve any of the permitted constitutional purposes and are therefore void to the extent of their inconsistency with the Federal Constitution. As Malaysia undertakes a review of higher‑education legislation, it is essential to confront the implications of Act 605. Restoring university autonomy, protecting academic freedom, and ensuring that disciplinary frameworks align with constitutional rights are critical steps toward strengthening Malaysia’s higher‑education system and enhancing its global competitiveness.

2026 FIFA World Cup - the Violation of the Playing Field

 

The violation of the playing field is not just a sporting scandal. It is a warning about the fragility of justice itself. When leaders impose their kingly whims, both sport and law begin to regress.

The sports arena, whether for tennis, sepak takraw, or football, is humanity’s most refined vision for resolving conflict without bloodshed.

In early medieval England, from where we draw our common law, disputes were settled through trial by combat. Victory in the combat fought with swords and lances was believed to reveal divine decision.

And long before that, in the Roman amphitheatre, the emperor’s thumb determined life or death. A single gesture could spare a gladiator or condemn him. The law was whatever the emperor felt in that moment. And emperors, then as now, could be mad.

The irony is that modern common law evolved precisely by rejecting this world of sovereign whim. As societies evolved, kings themselves began surrendering their personal fiat as arbiters of disputes. They allowed rules, evidence, juries, and procedure to take their place. When monarchs stepped back, law stepped forward.

The courtroom became the civilised successor to the arena, a space where justice was no longer determined by strength, luck, or the temper of a mad emperor, but by principles and rules that applied equally to all.

Sport mirrors this same civilizational evolution. Rather than killing or maiming opponents, societies developed mutually agreed-upon rules built on fairness. This transformation created a level playing field where conflict could remain fierce yet civil, forcing rivals to accept equality under the law and submit to the judgment of an impartial arbiter, the referee or umpire.

The playing field became a space where victory is dictated not by sovereign caprice, but by rules that bind everyone equally.

This is why the 2026 FIFA World Cup, hosted largely in the United States, has become such a troubling spectacle. The tournament has been overshadowed by imperial interference and discriminatory enforcement. These are not minor regulatory issues. They strike at the heart of what makes sport meaningful: the promise that within the painted lines, fairness will prevail.

One of the most widely reported controversies involved American striker Folarin Balogun, who received a straight red card in the Round of 32. Under FIFA’s rules, this carries an automatic one‑match ban. Yet after the incident, U.S. President Donald Trump personally phoned FIFA President Gianni Infantino to complain. FIFA then suspended the ban under Article 27, a move so unusual that European football bodies warned it set a dangerous precedent.

Regardless of one’s view of the incident, the principle is clear: the head of state, even if he imagines himself emperor, should not be allowed to influence the rules of play on the field. When political power intrudes into the referee’s domain, the playing field ceases to be a sanctuary and becomes an extension of imperial authority, as in the Roman amphitheatre. This is precisely what sport had transcended.

The erosion of fairness has not been confined to the pitch. Immigration enforcement has repeatedly disrupted the basic premise of a neutral ground for a global tournament. Accredited individuals have been detained, denied entry, or deported despite FIFA approval. Somali referee Omar Abdulkadir Artan was detained and deported. Iraqi striker Aymen Hussein was held for hours at O’Hare Airport. The Palestinian Football Association’s president, Jibril Rajoub, was refused a visa altogether. These incidents reveal how easily the neutrality of sport can be compromised when discriminatory politics intrude. When immigration officers, rather than referees, determine who participates, the playing field is no longer governed by the rules of the sport but by the prejudices of the host nation.

Actions surrounding the tournament have also affected fans and communities. Human Rights Watch and other observers have documented heightened risks for immigrant groups in cities hosting the tournament, including visa restrictions and targeted policing. The World Cup is meant to be a celebration of humanity’s diversity. Instead, many communities feel surveilled or excluded. Fairness is not only about the players; it is about the people who fill the stadiums and add that vital spirit to the game that only spectators can provide.

Press freedom, another pillar of fairness, has also come under strain in the host country. Journalists have faced arrests and deportations while covering events around the tournament. When press freedom is restricted, transparency suffers, and the moral authority of the playing field weakens.

Sport is more than entertainment. It is humanity’s most successful experiment in dealing with conflict. And here lies the deeper warning: if fairness can be violated in the rule-bound football field, then fairness can be violated in the courtroom, the far more complex arena upon which our entire justice system rests.

Kings once surrendered their personal power so that rules could govern disputes. We should worry when demented leaders begin to impose their kingly whims in settling disputes.

The playing field is sacred only for as long as we defend it.

 

Petaling Jaya

10 July 2026

Lecturer Challenges University’s KPI-Policies: The Judgment in Azlianor v Universiti Teknikal Melaka

 A Lecturer Challenges Unilateral KPI-Driven Policies

Azlianor v UTeM[1] is a rare instance of a university lecturer resorting to legal action to challenge a university’s exercise of its power over its academic staff.

The High Court, however, dismissed her application after the university amended and reissued the circulars, rendering the dispute “academic”[2]. Because of this, the judgment may not bind future cases in any strong way.

However, despite its limited precedential weight, the judgment reveals how Malaysian courts currently understand university autonomy, academic regulation, and the governance structures created by the Universities and University Colleges Act 1971 (UUCA). By treating the matter as an administrative dispute, the Court missed an opportunity to examine the special character of the UUCA university as a self‑governing academic community where decisions are made through collegial processes, unlike government departments or other statutory bodies.

The applicant, a senior lecturer at UTeM, applied for judicial review of the university’s decision to impose new KPI requirements, including mandatory publication in indexed journals such as Scopus and Web of Science.

She applied to the High Court for judicial review of the university’s decision on the long‑established grounds of irrationality, unreasonableness, and procedural impropriety, with the further allegation that the changes were introduced mid‑year for immediate implementation in that same year. As stated earlier, the High Court dismissed her application.

Historically, judicial review was only concerned with the decision‑making process where the impugned decision is flawed on the ground of procedural impropriety, i.e., the decision did not follow prescribed procedures. However, over the years, our courts have made inroads into this field of administrative law. The Federal Court in a landmark case[3], held that the decision of inferior tribunals, such as the authorities of a university may be reviewed on the grounds of “illegality”, “irrationality” and “proportionality”, not only on the decision-making process but also on the merits, thus allowing the courts to scrutinise a decision not only for process but also for substance. The upshot of this approach is that an application for judicial review can now examine both procedure and substance of an official decision‑making body or person.

Any person, such as the senior lecturer in this case, who is adversely affected by the decision, action, or omission in relation to the exercise of the public duty or function is entitled to apply for a judicial review.

Summary of the Applicant’s Case

The applicant argued that the two KPI circulars were procedurally improper because they bypassed the Majlis Bersama Jabatan (MBJ), the staff–management forum established under JPA’s 2020 service circular. She contended that the lack of engagement and consultation rendered the circulars invalid and further, that they contravened sections 8 and 26 of the UUCA and section 4(r) of the university’s Constitution.

Substantively, she argued that the mandatory Scopus publication requirement was unreasonable, ignored lecturers’ many other duties, and imposed a punitive score cap of 79.99%. She also highlighted procedural defects: the minutes approving PP 11/2024 were issued after the circular took effect, and PP 23/2024 was not approved by the University’s Board as required. Finally, she asserted that the circulars violated her constitutional rights and imposed an excessive workload, with an unrealistic nine‑month deadline to produce an indexed article.

Autonomy Is Not the Whole Story

The Court emphasised the autonomy of the university and the Vice‑Chancellor. Autonomy is indeed a core principle: it protects universities from political interference. But autonomy is not the only principle embedded in the UUCA. The Act’s Schedule Constitution distributes authority across a wide range of bodies, such as the Board, the Senate, faculties, centres, committees, reflecting a model of governance built on shared deliberation.

This is not accidental. A university is a community of scholars. Its academic policies are meant to emerge from discussion, critique, and collective judgment. Collegial decision-making is therefore not an abstract ideal; it underlies the manner in which Malaysian public universities are governed.

While the Court emphasized the autonomy of the university and the Vice-Chancellor, this external independence is only one facet of the UUCA framework. Autonomy is a foundational principle that shields universities from political interference, yet it does not grant unchecked administrative power, even to the Vice-Chancellor. The UUCA’s Scheduled Constitution explicitly distributes authority across a diverse matrix of statutory bodies—including the Board, the Senate, faculties, centres, and committees. This deliberate statutory design establishes a system of checks and balances, codifying a model of governance rooted in shared deliberation rather than top-down executive command.

This distribution of power is a clear recognition that a university is fundamentally a community of scholars. Academic and institutional policies are legally and structurally designed to emerge from rigorous peer discussion, critique, and collective judgment. Collegial decision-making underlies the lawful governance of Malaysian public universities, ensuring that institutional autonomy from external actors is matched by internal democracy and shared academic responsibility. The UUCA Schedule Constitution even provides for the resolution of disputes between the Authorities of the University (or between an officer and an Authority) regarding the scope of their powers, functions, or jurisdiction may be referred to the Minister, who may determine the matter or appoint an independent Dispute Resolution Panel.[4]

Azlianor’s complaint that the KPI circulars were issued without discussion goes to the heart of the collegial principle. Even if the Majlis Bersama Jabatan (MBJ) was not the correct forum, her grievance was fundamentally about the absence of collegial processes. KPI circulars that directly affect academic work — teaching, research, publication — should logically be deliberated by the Senate. The Court did not consider this. By treating the university as a hierarchical bureaucracy, the judgment ignored the collegial foundations of academic governance.

The Scopus Requirement: A Missed Opportunity for Substantive Review

The Court accepted UTeM’s justification that requiring publication in Scopus‑indexed journals would improve institutional performance. But it did so without asking a basic question: Does publication in Scopus truly measure academic quality or excellence?

Research from the National Higher Education Research Institute (IPPTN)[5] suggests otherwise. As its Issues Paper notes, citation‑based metrics are “simply a measure of visibility (not necessarily positive) and misleadingly used as a proxy for impact.” A paper may be widely cited because it is controversial or flawed; high‑quality work in niche fields may receive few citations. Scopus measures attention, not quality.

The IPPTN paper also warns that once a metric becomes a performance indicator, “it ceases to be a good measure.” Academics naturally shift their behaviour to maximise the metric rather than the underlying academic purpose. A mandatory Scopus requirement risks encouraging quantity over substance, salami‑slicing of publications, and choosing topics that are “publishable” rather than meaningful.

More troublingly, global indexing systems are owned by commercial entities such as Elsevier and Clarivate, which have “replaced the peer/expert colleagues in deciding what excellence is.” In other words, the KPI outsources the definition of academic excellence to private corporations, a move that sits uneasily with the university’s mission to advance knowledge for society.

Under the expanded scope of judicial review recognised by Malaysian courts, the High Court could have examined not only the procedure but also the substance of the KPI. It could have asked whether a one‑size‑fits‑all publication requirement is realistic across disciplines, or whether it distorts academic priorities. These questions were not explored.

What Makes a University a University

These omissions matter because they touch on the very nature of the university. A university is not merely a place that grants degrees or produces research outputs. It is a distinctive kind of institution built on shared inquiry, intellectual independence, and collective responsibility for the advancement of knowledge.

Its governance structures such as the Senate, academic boards, committees, exist to ensure that academic decisions are made through deliberation among scholars. When these structures are bypassed, the university begins to resemble a government department: efficient perhaps but stripped of the intellectual culture that defines its purpose.

A Narrow View of the University

In the end, the Court’s decision affirms autonomy but overlooks collegiality. It upholds managerial authority but ignores the academic community. It treats the university as a public agency rather than a self‑governing institution dedicated to knowledge.

If this trend continues, Malaysian universities risk losing the very qualities that make them universities.

The Azlianor case was an opportunity to reaffirm the principles of collegial governance. It was not taken. The responsibility now falls to academics, policymakers, and civil society to insist that our universities remain what they were meant to be: autonomous, yes, but autonomous in the service of a collegial, self‑governing pursuit of knowledge.

 

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[1] [2025] MLRHU 1902

[2] A court decides a case is academic when the underlying controversy has disappeared, the remedy sought is no longer meaningful, or the court’s intervention would be purely theoretical rather than resolving a live dispute.

[3] R Rama Chandran v. Industrial Court of Malaysia & Anor 1996] 1 MELR 71; 1996] 1 MLRA 725; 1997] 1 MLJ 145.

[4] See Universities and University Colleges Act 1971 (Act 30), First Schedule, section 33.

[5] https://ipptn.usm.my/images/issues_paper/05_IPPTN_Issues_Paper-Quality_Excellence_and_Impact.pdf