The first whiff of a plan to get students to sign individual contracts of good conduct came after a series of events last year. These included the university students June 8 peaceful gathering to protest the Internal Security Act at the National Mosque, two months after the detention of 10 human rights and social activists under the act.

Then there was the fire that gutted the Dewan Tunku Cancelor of Universiti Malaya. The Fire and Rescue Departments subsequent report revealed old wiring as the probable cause of the DTC fire. This finding came an as anti-climax to government allegations of militant student activities in local campuses. Voicing concerns on the ISA within and without the campuses are considered as acts of militancy. Choo Chon Kai, a student from the Universiti Sains Malaysia in Penang, was also disciplined last year for selling stickers for the abolition of the ISA.

The DTC fire however gave the supposed excuse for the detention of Khairul Anwar Ahmad Zainuddin (Institut Kemahiran Mara) and Mohd Fuad Mohd Ikhwan (UM), two student leaders, under the ISA in early July last year. They were interrogated for the length of their detention, in the case of Khairul Anwar for 23 days.

There was apparent confusion in the Education Ministry over these ISA arrests. It was indicated that Mohd Fuad, who was the first to be released, would be disciplined under the Universities and University Colleges Act (UUCA).

Common sense

It took no less than the Deputy Prime Minister, Abdullah Ahmad Badawi, to alert all concerned that no crime was committed by the student to warrant disciplinary action. That announcement which is plain common sense to civil libertarians underlines the fact that ISA detainees have actually not committed any crime.

It must be remembered that the ISA is a preventive detention law. It predates Merdeka and is a convenient vehicle allowing the state to cold storage any person, short of having to prove in a court of law that a crime had been committed.

Seven of the students who gathered at the June 8 event were subsequently charged with illegal assembly under the Police Act. All seven students were suspended from their studies under the UUCA and a similar law applicable to UiTM in the case of Rafzan Ramli. Their trial at the Kuala Lumpur magistrates courts is still ongoing.

The contract of good conduct subsequently emerged under the name, pledge of allegiance, to be signed by all staff and students of public institutions of higher learning. Otherwise known as the Akujanji , the change in terminology curiously coincided with the government announcement on Sept 29 last year that Malaysia is an Islamic state. The baya or oath of allegiance is an important political instrument in Muslim history.

The Muslim baya , was first introduced after the death of Prophet Muhammad in 632 AD when the Muslim community was first faced with the problem of succession.

Historical baya

Al-Tabari (d.923), a historian of great repute, provided some insight on the baya during the time of the Four Righteous Caliphs of Abu Bakr, Umar, Uthman and Ali (period up to 660 AD).

In Tarikh al-Umam wal-Muluk , Tabari gave an account of the dispute between the Ansars (Helpers/Friends in Medina) and the Quraysh (Meccan tribe) immigrants to Medina (the Prophet belonged to the Quraysh tribe) as to the leader of the ummah upon the demise of the Prophet. The Ansars appointed one of their own, Sad ibn Ibada.

The Ansars however anticipated resistance from the immigrants. Tabari recorded that the Ansars discussed the matter among themselves and did anticipate the Qurayshs claim as the first companions to the Prophet, his tribe and his friends. The Ansars eventually came up with a proposal, that each group would have a leader: from us an Emir, from you an Emir.

Tabari noted that in the meeting that ensued, the Quraysh claimed that they had the power to decide. Abu Bakr argued for the pre- eminence of his group we are the princes and you are the ministers...

The Quraysh referred to a hadith attributed to the Prophet that the Rulers would come from his community. They argued that community means the Quraysh as opposed to the community as a whole. Umar opposed the idea of dual or joint leadership in that two shall not fit in one sheath.

Election and choice

The choice of two leaders or the election of one over the two from each group did not take its course. Abu Bakr was made caliph with the oath of allegiance secured to ensure loyalty to the new chief. There are other accounts by Tabari where Muslims give their baya out of fear to themselves.

Some contemporary opinions affirm that election and democracy were evidenced in the choice of Abu Bakr over Ali (much to the chagrin of the supporters of Ali). This is debatable as both Abu Bakr and Ali were from the Quraysh and the decision was made to the exclusion of the Ansars.

Other commentators find that shura (consultation) and baya as practised by Muslim leaders do not seem to accord with democratic theory. Assuming that there was consultation, it is still open to conclude that the views of the Ansars were not really considered by the princes.

Duress

Ibn Khaldun (d. 1406/8) a much respected scholar explained in his Muqaddimah (Prolegomena), that duress was usual in the practice of the baya . There is no element of consultation in its practice in his day.

Ibn Khaldun explained that the bay'a had become equated or synonymous with the kissing of the ruler's hand, foot, tailcoat or the ground he walks on. His explanation is not to be mistaken as reverence or respect, but rather to denote what in common parlance today, is a kiss-ass attitude towards those in positions of power. Ibn Khaldun lived in the dying days of the golden age of Islam, a time of much arbitrary rule in the late Ottoman empire.

It is deemed an unforgivable anachronism to read into the past, categories of thought and practice which belong to more recent times. But history is also a contemporary exercise.

The Muslim baya in classical literature is largely confined to the specific case of appointment of political leadership of the community. While elements of duress and manipulation are present in its historical practices, scholars continue to search for important meanings and precedents in the principles of consultation and consensus as related in several verses of the Quran to issues of succession or elections to office.

Thus it seems strange that a historical tool of exacting loyalty to the political leadership in a dispute to succession is employed in our universities.

Law and ethics

What is truly troubling is the lack of consultation and consensus in the drafting of the Akujanji and in its implementation as complained by the UM Staff Association (UMSA).

Even if the authorities seek to lay claim of the authenticity of this procedure by historical practices of old, they should be reminded that there is mounting criticism of historical practices which seek to deny democratic participation of those affected.

The Muslim doctrine of muamalat (transactions) and the common law contracts assume a consensus or meeting of the minds ( consensus ad idem ) before a valid contract is concluded.

Indeed if the Akujanji could not fall neatly into any acceptable categories in both systems of law, it would mean that much time, effort and resources have been wasted over a piece of paper that would not stand the scrutiny of law and ethics.

The UMSA had indicated that penalties would be involved in the refusal to sign the Akujanji . Presumably the same or more penalties would be exacted upon breaches of loyalty as perceived by the promoters and drafters of the Akujanji .

The Akujanji extends the power of the executive over university independence and autonomy. This is a double blow after the UUCA, a law which has not seen any kind of reform for greater independence and autonomy.

The challenges on the legitimacy and legality of the Akujanji do not appear to deter the authorities. One hazards a guess that this is probably due to the increased concentration of power in the executive arm of the government. The Akujanji mirrors that fact.

SALBIAH AHMAD is a lawyer. MALAYA! as the name for this column was inspired by the meaning of "Malaya" in Tagalog which means freedom. The events at the end of 1998 in KL offer a new inspiration. MALAYA! takes on the process of reclaiming the many facets of independence.