"Given that the use of Chinese and Tamil in vernacular schools as a medium of instruction is constitutional as it is protected under the exceptions in Articles 152(1)(a) and (b) of the Constitution, there is no basis to contend that the establishment and existence of vernacular schools are inconsistent with or infringe Articles 5, 8, 10, 11 and 12 of the Federal Constitution.” — Justice Nazlan.
KUALA LUMPUR (Dec 29): A coalition of three associations have failed in their bid to obtain a court declaration that the existence of vernacular schools goes against provisions in the Federal Constitution.
On Wednesday (Dec 29), High Court Judge Justice Datuk Mohd Nazlan Mohd Ghazali dismissed the suit brought forward by the Federation of Peninsular Malay Students (GPMS), the Islamic Education Development Council (Mappim) and the Coalition of National Writers’ Association (Gapena).
Justice Nazlan, in reading out his judgment, noted that there were two main constitutional questions relating to the suit.
“In conclusion, the answer to the main questions in these suits — on whether Sections 2, 17 and 28 of the Education Act 1996 (which allow Mandarin and Tamil schools to teach in these languages) are inconsistent with Article 152, and whether the establishment and existence of vernacular schools infringe Articles 5 (right to a dignified life), 8 (equality), 10 (freedom of speech, assembly and association), 11 (freedom in religion) and 12 (rights in respect of education) of the Federal Constitution — are both in the negative,” he said.
Constitutionality of using Chinese or Tamil as medium of instruction
At the crux of the issue on whether the use of Chinese or Tamil as the medium of instruction in vernacular schools goes against the provisions of the Constitution is due to Article 152(1), which prescribes Malay as the national language, and notes that it should be used for official purposes, which means for the purpose of a public authority.
However, Justice Nazlan said vernacular schools are educational institutions under the Education Act 1996, and are not considered public or statutory authorities. This means they are not subject to using the national language as the medium of instruction.
“A vernacular school or a national-type school under the Education Act 1996 does not sufficiently exhibit the requisite public element to be validly construed as a statutory authority.
“Vernacular schools essentially provide primary-level education, and the powers and functions under the Education Act 1966 are largely exercised by the Ministry of Education,” he added.
He also highlighted that Article 152(1)(a) and (b) of the Federal Constitution expressly protects teaching in languages other than the national language, such as Chinese and Tamil.
“The important point here is that the use of another non-national language is not prohibited, subject to the use being not for official purposes.
“This therefore is the crux of the matter, which is whether adopting Chinese or Tamil as the medium of instruction, such as using these mother tongue languages in the teaching of other subjects, as done in vernacular schools, is a use of a language other than Malay which is protected under Article 152(1)(a),” he said.
Failure to show how vernacular schools infringe on personal liberties
Justice Nazlan also said the plaintiffs had failed to show how vernacular schools infringed upon their personal liberty under the Federal Constitution.
“Given that the use of Chinese and Tamil in vernacular schools as a medium of instruction is constitutional as it is protected under the exceptions in Articles 152(1)(a) and (b) of the Constitution, there is no basis to contend that the establishment and existence of vernacular schools are inconsistent with or infringe Articles 5, 8, 10, 11 and 12 of the Federal Constitution," he said.
He also said it has not been shown in what manner the establishment and existence of the vernacular schools have violated the fundamental liberties of any person guaranteed in the said Articles.
“Enrolment in a vernacular school is after all a matter of choice. It is difficult to see in what fashion the establishment and existence of Chinese and Tamil vernacular schools would infringe the fundamental liberties or rights of any person under the Constitution,” he said.
Justice Nazlan further noted that the burden was upon the plaintiffs — who were challenging the statutory provisions — to show that there had been a clear transgression of constitutional principles.
“This, as has been determined and discussed earlier, the plaintiffs have clearly not succeeded,” he added.
The suit named 13 defendants, including the Education Minister and the Malaysian government.