Tuesday, 20 April 2021

Gerak’s Judicial Review Application Rejected. No written reasons for the rejection

 An earlier post on this blog wrote about GERAK’s application to the High Court for a judicial review of the appointment of the VC of Terengganu. Gerak’s application challenged the appointment on the ground that it had not complied with the statutory requirements of the Universities and University Colleges Act 1971.  After hearing the arguments of lawyers appearing for the different parties on 25 March 2021, the High Court rejected Gerak’s application on 9 April 2021. The court’s reasons for rejecting the application were not given. High Court judges are only required to provide written reasons for their decisions if a party to the action decides to appeal the decision. Our information is that the executive committee of Gerak is considering appealing the decision.

The absence of any obligation on a judge to give written reasons for their decision may come as a surprise to many. It is, however, the position that judges owe no duty to write the reasons for their decisions; none is imposed by law nor by the extensive rules of court. The origins of the present position can be traced through how English common law was introduced into this country to the decisions of the courts in England in the 17th century on that point. The justification for not requiring judges to write their opinion is that the imposition will cause delays and ultimately the cost of litigation that will fall on the litigant.

Notwithstanding the absence of any obligation to do so, judges, even those sitting in lower courts do provide written reasons for their decisions and they are generally encouraged to do so by those administering the judicial system. Recently, Chief Justice Tengku Maimun Tuan Mat, speaking at an induction programme for new judges, highlighted the importance of judges writing the grounds of their judgment in court cases. The Chief Justice explained that written judgments would lead to more care in arriving at decisions and enable parties to know why they had won or lost a case and to also enable other lawyers to predict how future cases on a similar point may be decided by other courts.

Written judgments add clarity to laws whether they are found in statutes or the decisions of other judges. Written judgments also contribute to the development of the laws and make them better accord with social realities and needs. The judge deciding the application of the laws to a particular dispute at a given moment in history can mediate the laws to the needs of that moment. By writing reasons for a decision, the judge will provide a record for other courts to apply his reasoning or depart from it or modify it to the dispute before the court. Written judgments are important to define the legal rights and obligations of individuals. In the present case, a written judgment would have given the parties involved a better understanding of how s. 4A of the Universities and University Colleges Act 1971, the law at the centre of the challenge applies, its scope and its limitations.

An application for a judicial review ensures that those vested with legal powers to do something that affects the public interest, such as the appointment of a Vice-Chancellor, exercise those powers in compliance with the empowering law. The decisions of judges who review administrative procedures will also add greater clarity to the laws. Such legal actions do not come cheap to those initiating them and at the end of the day the very least they deserve, even if they fail in their application, is that they have a better understanding of the law.

A public statement of the reasons for a judgment is therefore owed to those involved in the action and to the community at large. If decisions are made without giving written reasons, as in the dismissal of the Gerak application, it will lead to a feeling of injustice among the members of the association and a reduced appreciation or understanding of legal rights and obligations. It also leaves Gerak in a quandary about appealing the decision.

Sunday, 28 March 2021

GERAK applies for Judicial Review of the appointment of the Vice-Chancellor of Universiti Terengganu

Kuala Lumpur 25 March 2021

The High Court in KL heard an application this afternoon from Gerak, a leading academic association, for a Judicial Review of the appointment of the Vice-Chancellor of Universiti Terengganu.

The application was made by Pertubuhan Pergerakan Tenaga Akademik Malaysia (Gerak) (Malaysian Academic Movement), Professor Zaharom Bin Nain as Chair of the Association, and Rosli Bin Mahat as Secretary of the Association. The respondents to the application are the Minister of Higher Education, Malaysia and Ybhg Dato’ Dr. Nor Aieni Binti Haji Mokhtar (Vice-Chancellor, Universiti Malaysia Terengganu)

The application was made on the alleged ground that the appointment of the Vice-chancellor was not in compliance with section 4A of the Universities and University Colleges Act 1971 (Act 30). Section 4A was added in 2008 through an amendment Act. The section reads as follows:

4A.  For the purpose of selecting a qualified and suitable person for the post of Vice-Chancellor or for any other post to which the Minister has the power to appoint under this Act, the Minister shall, from time to time, appoint a committee to advise him on such appointment. 

Gerak’s application states that the object of the new section at the time it was passed was to instill 'greater accountability, transparency, professionalism and academic independence and autonomy in the process of the appointment' of Vice-Chancellors of public universities. The contentions before the court this afternoon centered around two main issues which were,

  1. Whether Gerak had standing as a society of academics to apply for a judicial review (the standing issue), and
  2.  Whether section 4A of the Universities and University Colleges Act 1971 (Act 30) applied to reappointments of vice-chancellors or was only limited to first appointments. (the reappointment question)

On the issue of standing, Gerak’s lawyers argued that Gerak had satisfied the “adversely affected” test as required by law and therefore had standing to apply for the JR. It was argued that Gerak as an interest group representing academics has a real and genuine interest in ensuring the appointment of Vice-Chancellors is carried out openly and transparently with the advice of a committee appointed under section 4A. That section was introduced to strengthen academic freedom and the autonomy of universities, which are also some of Gerak’s objectives. Secondly, compliance with section 4A, it was argued, ensured that members of Gerak who aspired to apply for the position of Vice-Chancellor of a public university would have fair access to such a position whenever the position of Vice-Chancellor in a public university fell vacant.

The view of Gerak’s lawyer on the second point was that section 4A applied not only to the first appointment of an individual as Vice-Chancellor but also subsequent appointments.

Lawyers for the Minister and the incumbent Vice-Chancellor took opposing views on both questions.

The High Court will deliver its decision on the application on 9 April 2021.

Tuesday, 23 March 2021

Owner Beware! (of digital property, cybercrimes, data protection and IT security


The internet and the proliferation of computer technology have sprouted new opportunities for those who would engage in illegal activity. The new technology has also generated new varieties of criminal activity. It is also evident that legal systems that are relied on to combat criminal activities are not adequately equipped to deal with cybercrimes. The law takes a long time to catch up with new strains of criminal abuse. Not only governments, corporations and businesses are targeted by the new brand of criminals but also individuals. Because of these developments, individuals must reassess their understanding of what constitutes property and how even traditional items of property such as money and land are increasingly represented through the new technology. They must then assess the new risks that technology has created that will impact their property and take measures to protect that property.

In the following paragraphs, obtained from Mondaq.com, Stuart Mort, Global Head of Consulting & Chief Security Officer of Law in Order answers the question:

‘How should people increase their knowledge about data protection and IT security?’

This is a great question, and this answer might seem a little left field. Fundamentally it is to understand the risk equation by playing through scenarios. If I have an 'asset' (as an example, an email is an information asset), what is it 'worth', what can happen to it (the threat), how likely is that to happen, what would it mean if it did happen (the impact) and therefore, how can I reduce/remove those factors?

We do this every day. Crossing a road is a great example. You are the asset, you could get injured, it is likely to happen with fast-moving cars, less likely on a quiet road and we reduce the risk by using a proper crossing.

Applying this to your work laptop - it could get stolen/lost, it is likely as it is carried between work and home every day, it would significantly impact Law in Order as it stores data on employees' and customers' information. I can reduce the risk by never leaving it in the car unattended, ensuring that all data is encrypted and always screen-locking.

U K Menon

Monday, 15 February 2021

Private Higher Educational Institutions - Changes to Advertisement Regulations 1997


The Private Higher Educational Institutions (Advertisement) Regulations 1997 [P.U.(A) 543/1997], which came into force in 1997 were recently amended. The amendments to the regulations followed the amendments that were made to the principal Act by the Private Higher Educational Institutions (Amendment) Act 2017.

The amendments to the Advertisement Regulations came into effect on 15 March 2019. The original regulation 2 has been substituted with a new version which reads as follows;

"2. Particulars of advertisement.

(1) Every advertisement issued by a private higher educational institution shall contain the following particulars:

(a) the registered name of the private higher educational institution;

(b) the registered address of the premises of the private higher educational institution;

(c) the telephone number, electronic mail address, website address and social media link of the private higher educational institution, if any; and

(d) any other particulars as may be determined by the Registrar General.

(2) A private higher educational institution which contravenes subregulation (1) commits an offence and shall, on conviction, be liable to a fine not exceeding ten thousand ringgit or to imprisonment for a term not exceeding one month or to both."

The original regulation 3 has been substituted with the following:

"3. Advertisement on course of study or training programme.

(1) Without prejudice to the generality of regulation 2, every advertisement on an approved course of study or training programme issued by a private higher educational institution shall contain the following particulars:

(a) the full name, course code and date of expiry of the course of study or training programme;

(b) the accreditation status of the course of study and the reference code of the accreditation status;

(c) the registered name of the branch at which the course of study or training programme is conducted; and

(d) any other particulars as may be determined by the Registrar General.

(2) A private higher educational institution which contravenes subregulation (1) commits an offence and shall, on conviction, be liable to a fine not exceeding ten thousand ringgit or to imprisonment for a term not exceeding one month or to both."

Friday, 22 January 2021

Two cultures and political divisions in education


It was reported that the National University of Singapore (NUS) had officially launched the College of Humanities and Sciences (CHS). https://news.nus.edu.sg/new-college-of-humanities-and.../

The object of the college is to introduce, what the report described, as enhanced undergraduate experience for students of the faculties of Science and Arts through interdisciplinary teaching and learning.

This report provoked a long discussion in a Whatsapp group that I am part of. Many saw this as a Liberal Arts programme. I thought I should share my responses on this Blog.
That is really the object of the merger.

Fusing together what C P Snow once described as two cultures - Arts and Science. It was a historical accident in education that separated them. 20th-century attempts to offer combined degrees was one attempt to fuse the two. In my university, we had Law and Engineering and other combinations across the two domains but these attempts did not integrate the faculties or disciplines.

Our universities, and it gives me no pleasure in saying this, have lost their direction and purpose. University leadership is made up of well-dressed mannequins that show no understanding of academic leadership, which is a responsibility to serve the needs of generations and the future of the nation.

The fusion occupies a central position in the agenda for the transformation of Higher Education that began at the beginning of this century in many universities, mainly in the US. This movement was significant enough for it to be reported in the headlines of the popular press.

We are left behind, not because we lag in academic talent but because of the divisive policies in this country that have forced the segmentation of many revered principles in education. Worse, we have made higher education in the model of rubber trees. Neatly lined, divided, and capable of producing only SMR - Standard Malaysian Rubber. Soft, pliable, and easily stacked.