A three-member Court of Appeal bench chaired by Rohana Yusof said there was no appealable error by the High Court for appellate intervention.
“We are constrained to dismiss the appeal and affirm the findings of the High Court,” Rohana said.
Sitting with her were Justices Harminder Singh Dhaliwal and Rhodzariah Bujang.
During proceedings, Harminder said Asheeq should have challenged the UKM authorities by filing a judicial review instead of an originating summons to seek a declaratory order.
For judicial review, an applicant must file his complaint within 90 days once a public authority has made its decision.
The applicant must also first get leave from the High Court before the merit of the case can be heard.
However, the applicant has three years to file his case by way of originating summons if it involves a government agency.
This mode of filing an action, however, does not require the aggrieved party to obtain leave from the court.
Asheeq’s lawyer A Surenthra Ananth today said according to a Federal Court ruling, his client could also file an originating summons.
He said Asheeq challenged the disciplinary authority as UKM took action after police informed them that the student had participated in an illegal gathering.
“My client was not charged in court and it is not for the police to determine if the rally was illegal,” he said.
Surenthra said the right to assemble peacefully was a right accorded under Article 10 of the Federal Constitution and only Parliament by federal law could impose restrictions.
Lawyer Mohd Adam Abdullah, who appeared for UKM, said the charge against Asheeq would become a nullity if the declaration sought was allowed.
“The declaratory order sought is clothed in a way to challenge the decision of UKM,” he added.
He said the student had participated in the gathering at a location without the permission of the owner, and that there was prima facie evidence he did not obey the law.
Adam said Asheeq should have filed a judicial review if he wanted to quash UKM’s ruling.
On Aug 28, High Court judge S Nantha Balan dismissed the originating summons filed by Asheeq after finding that the application had no merit.
Nantha Balan, in his judgment, said that Section 15(3) of the Universities and University Colleges Act 1971 (UCCA) prohibited a student of a university from doing anything to show sympathy or support, for any society, organisation, body or group which the board determined to be unsuitable to the interest and well-being of the students or the university.
“For my part, I am unable to see how it can be said that Section 15(3) UUCA contravenes the rights granted by Article 10 of the Federal Constitution. It is clear that there is nothing in Section 15(3) UUCA that prohibits the right of the plaintiff to assemble,” he said.
The judge was also of the view that matters of discipline of the students and the regulation of student behaviour and conduct within and outside the university must necessarily form part of public order or morality.
In the originating summons filed on Jan 16 last year, Asheeq said he participated in a peaceful assembly at the federal capital to urge the government to take measures on an individual named “Malaysian Official 1”.
He had sought a declaration against UKM that Section 15 (3) of the Universities and University Colleges Act (UUCA) and Rules 3 & 13 of UKM Disciplinary Rules were unconstitutional for preventing students from expressing their thoughts freely.
Asheeq , who will graduate in April, was fined RM200 and was suspended for one semester.
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