Assignment 2-LAW531 PDF

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Question: With reference to the UiTM students’ disciplinary rules in Act 174, discuss the conflict between positivism and natural law. Answer: The Educational Institutions (Discipline) Act 1976 (Act 174) is an Act that governs matters related to discipline in educational institutions where the educational institutions are empowered by laws and policies that restrict the rights of students, based on the argument that it is necessary to prevent the breakdown of discipline and order. The power to take legal measures to maintain the discipline of students is aimed at preventing the education of other students from becoming severely prejudiced because it would expose the institutions to risks of litigation, thus affecting the learning environment. For positivism, valid laws are rules derived from people with power such as kings and city councils. Even though a rule may be seen as unjust, it can still be considered as valid. The positivists view the law as simply the conscious creation of supreme political superiority, a manmade set of rules established and enforced by the state. This means law is a matter of what has been posited and there are many interpretations about it. The separation thesis is the most famous interpretation by HLA Hart. He said that it is the essence of legal positivism as the main point of this thesis is that the law must be entirely free of moral notions. 1 However, Hart still acknowledges that development of law has been profoundly influenced by morality and at some point, law and morals are bound to intersect. By referring to primary and secondary rules introduced by Hart, it can be said that it provides a helpful guideline in understanding the sources of law and its validity without entering into subjective moral territory. Primary rules are the duty imposing rules whereby the citizens will be imposed with certain duties which require them to act in a certain manner or else they may be subjected to certain legal sanction. Whereas the secondary rules are concerned with the primary rules themselves as it is the power-conferring rules that prescribe the manner in which the primary rules are to be recognized, changed and adjudicated. The secondary rules of 1 Green, Leslie and Thomas Adams, "Legal Positivism", The Stanford Encyclopedia of Philosophy (Winter 2019 Edition), Edward N. Zalta (ed.), accessed on 7 December 2020

recognition stipulate how legal rules are to be followed and enforced within the community which will allow the citizens to understand what these rules are and what their scope is. While the secondary rules of change specify the mechanism for changing primary rules by empowering certain individuals to introduce new rules in order to eliminate the old ones. Lastly, the secondary rules of recognition confer powers to certain individuals to maintain the primary rules by making authoritative pronouncements on whether the rules or obligations have been breached or not. In order to advance the common good, to secure human rights, or to govern with integrity, positivism opined that the most important feature of law that needs to be maintained is the law's capacity which cannot be found in its source-based character. Hence, the capacity of Act 174 to control physical movements of the society shall be the main focus rather than its source of law that might not provide moral considerations. According to John Austin, the laws in a society are a component of the sovereign’s commands which is backed up by threat of sanction. He recognizes the presence of law with the structure of command and obedience without taking into consideration whether or not the sovereign has a moral right to rule or whether their commands are commendable. 2 The sovereign in question can be defined as a person who the majority of the people obey, but he does not obey any other person or institution. Within Austin’s approach, a law that already exists will continue to become a law even though a group in the society disagrees with it. 3 Based on Act 174, the Executive Head of any Institution can be regarded as the person who receives the said habitual obedience as he or she is vested with the authority to punish, suspend, and expel students who pose a danger to others, disrupt the educational process, or have complete disregard for the rules provided. However, the Minister will review on that matter first before making an absolute decision. This shows that the parties in the educational institutions governed under this Act are bound to the sanctions provided even if they do not agree with it. By observing Act 174 through the positivist approach, the Act can be regarded as a valid legal system despite its content that might seem oppressive and unfair towards a certain group of people. This is because the laws provided in the Act have been posited by the authority and the students must follow any order that has been gazetted. This is in accordance with Austin’s view 2 Hee, T. F. (2008). The Law of Student Discipline in Malaysia. International Journal of Educational Reform, 17(2), 107–119. doi:10.1177/105678790801700203. Accessed on 10 December 2020. 3 Einar Himma, K. Legal Positivism. Internet Encyclopedia of Philosophy. accessed on 11 December 2020.

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towards law and that the Act cannot be considered as null and void simply because it does not conform with the moral and natural law. Act 174 also can be said as the primary rules as introduced by Hart since it imposes duties and obligations on the students such as the prohibition to collect money by an organization from any person and the prohibition to join any organization without approval from the Minister. The remedy for the static quality, uncertainty and efficiency of the regime of Act 174 can be found in certain provisions of the law. This shows that the Act is an adequate system of laws as it has acquired the character of a legal system by way of their union with the secondary rules. Thus, Act 174 must be compelled by all parties concerned as it is systematically valid to be part of the legal system. The most influential criticisms of legal positivism all flow from the suspicion that it fails to give morality its due. The law has important functions in creating harmony and peace in our lives, advancing the common good, in securing human rights, or to govern with integrity and yet it has no relevance with our morals. Positivists do not judge laws by questions of justice or humanity, but merely by the ways in which the laws have been created. Despite the Educational Institutions (Discipline) Act 1976 being viewed as a medium that controls students’ freedom, this law still has to be followed by the people it is targeted to as it aims to create discipline among those who are involved in educational institutions. In contrast, naturalists often prescribe how people ought to behave through orders, directive, or instructions. They do not describe facts but are demands or prescriptions that men shall behave in certain ways. Naturalists believe that natural law already exists, and it is the responsibility of lawmakers to discover it and implement it in the codified form. Lon Fuller, who is a natural law theorist believes that law and morality shall not be separated, and lawmakers should be guided by the inner morality of the law.4 Fuller criticized positivist theory that law is merely a legal system and nothing beyond that. Morality consists of features without which a system cannot be properly called a legal system. There has to be a higher principle such as morality than the legal system, otherwise there will be no way to condemn a bad law. A law can only be considered as a valid law if it is capable

4 Shour, R. (2019) “The Hart-Fuller Debate, emergence and data mining.”

accessed on 11 December 2020. 2

of performing the law’s essential function of guiding behavior based on morality. 5 In other words, a morally bad law cannot be considered as a valid law if it goes against the conscience or morality. According to Fuller, a law can only be a law when it fulfills the 8 desiderata of the ‘inner morality of law’ namely generality, promulgation, prospectivity, clearly stated and comprehensive, non-contradiction, possibility and obedience, constancy through time and congruence between official action and desired rules. 6 In the context of the students’ disciplinary rules in Act 174, it was created for the purpose of controlling the disciplinary actions of the students where they must obey the rules provided by the educational institutions and can be taken action if they disobey. To an extent, the rules embraced the essence of natural law as the rules act as a guidance for students on how to behave but it also has a tendency to deprive the students’ rights as it also restricts their rights. This was illustrated in the case of Muhammad Hilman Idham & Ors v Kerajaan Malaysia & Ors 7 where a university student brought disciplinary proceedings against the appellants under Section 15(5)(a) of the Universities and University Colleges Act 1971 (UUCA). The student claimed that the particular section which restricted the students’ right to freedom of speech and expression was invalid as it violated the constitutional guarantee provided in Article 10(1)(a) of the Federal Constitution. The same restriction was also provided in Section 10 of the Act 174. Applying Fuller's theory in this case, if the law interferes or infringes the rights of the students, the law shall not be implemented as it will violate the principle of inner morality of the law. Section 10 of Act 174 clearly goes against one of the desiderata provided by Fuller which is the non-contradiction. Act 174 shall not contradict the Federal Constitution or it is incapable to be called as a valid law according to Fuller’s theory. Even if Act 174 is legally valid, because it goes against the conscience and morality of a person, students have the right to not obey the law. Positivists purported that a codified law is a legally valid law but Fuller believes that a law doesn’t become valid just because it was codified but it also should have a moral obligation for the students to obey it. If the students only obey the law because of fear of the sanctions, the law will not sustain. This clearly could be seen in the case of PP v Adam Adli Abd Halim &

5 Note 3. 6 Ibid 7 [2011] 9 CLJ 50 3

Ors8 where a student activist who campaigned for the protection of student rights and academic freedom was charged under Section 4(1)(b) of the Sedition Act 1948 because of the seditious remarks he made at a post-election forum. The case of PP v Azmi bin Sharom9 is another case where a Law Professor was also charged under Section 4(1)(b) and alternatively under Section 4(1)(c) of the Sedition Act for the remarks he made on an article regarding a political crisis in Selangor. In these cases, the law was criticized as a law that infringed the freedom of expression of a person. In conclusion, every individual will see the validity of Act 174 differently according to their stance towards the law. The view of jurists as mentioned above shows that they belong to opposite schools of thought and in order to defend their ideologies, different interpretations and perspectives can be observed. Nevertheless, these two different understandings did agree that unethical and unjust legal systems would not be persistent and stable.

(1798 words)

8 [2014] 4 CLJ 881 9 [2015] 8 CLJ 921 4...