JUDGMENT

Hishamudin Mohd Yunus JCA:

(1) This is the appellants appeal against the decision of the High Court Judge of Kuala Lumpur (of the Appellate & Special Powers Division) of 28 September 2010 dismissing their originating summons application.

(2) By an originating summons the appellants have sought a declaration that s. 15(5)(a) of the Universities and University Colleges Act 1971 ("UUCA") contravenes art. 10(1)(a) of the Federal Constitution. The appellants have also sought a consequential declaration that the pending disciplinary proceedings, brought against them by the 3rd respondent for alleged disciplinary breaches connected with s. 15(5)(a) UUCA, are not valid in law.

(3) The appellants appeal against the decision of the learned High Court judge is on the following grounds:

(a) that the learned judge had erred in law and/or in fact in holding that the question of reasonableness did not arise when in fact it was an important consideration to be addressed;

(b) that the learned judge had erred in law and/or in fact in concluding that s. 15(5)(a) of the UUCA was reasonably necessary and not disproportionate;

(4) The facts of the case are not in dispute. The appellants are political science undergraduate students of the 3rd respondent, that is, Universiti Kebangsaan Malaysia (the University) (the 3rd defendant in the originating summons). They were present in the parliamentary constituency of Hulu Selangor in the campaign period for the parliamentary by-election of 24 April 2010 to observe a parliamentary by-election.

(5) On or about 13 May 2010, each appellant received a notice from the Vice Chancellor of the University requiring their attendance before a disciplinary tribunal on 3 June 2010. Before the disciplinary tribunal they were charged for purported breaches of disciplinary offences under s. 15(5)(a) of the UUCA. The provision reads:

15. Student or students organization, body or group associating with societies, etc.

(5) No student of the University and no organization, body or group of students of the University which is established by, under or in accordance with the Constitution, 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;

(6) The allegations in the charges include, amongst others, having in their possession paraphernalia supportive of or sympathetic with or opposed to a contesting political party in the said by-election.

The Constitutional Provisions

(7) Clause (1)(a) of art. 10 of the Federal Constitution provide:

Freedom of speech, assembly and association

10 (1) Subject to Clauses (2), (3) and (4):

(a) every citizen has the right to freedom of speech and expression;

(b) ...

(c) ...

(2) Parliament may by law impose:

(a) On the rights conferred by paragraph (a) of Clause (1), such restrictions as it deems necessary or expedient in the interest of the security of the Federation or any part thereof, friendly relations with other countries, public order or morality and restrictions designed to protect the privileges of Parliament or of any Legislative Assembly or to provide against contempt of Court, defamation, or incitement to any offence.

The Issue

(8) It is not disputed that the impugned provision of the UUCA is a restriction on the students right to freedom of speech, and, therefore, prima facie, violates the constitutional guarantee of cl. (1)(a) of art.10. It is also not disputed that unless such a provision can be saved by the permissible restrictions as provided for by cl. (2)(a) of art. 10, the provision is unconstitutional.

(9) However, it is the contention of the counsel for the respondents that the restriction on freedom of speech is permitted by cl. (2)(a) of art. 10 of the Federal Constitution. It is submitted by the respondents that the restriction is necessary or expedient in the interest of public order or morality.

(10) The appellant