PUTRAJAYA (July 5): Lawyers representing a group of Malay and Muslim non-governmental organisations (NGOs) told the Court of Appeal (COA) on Wednesday (July 5) that the High Court had erred in its 2021 ruling that the use of Chinese and Tamil as a medium of instruction in vernacular schools is not unconstitutional.
Mohd Haniff Khatri Abdulla, who is representing Islamic Education Development Council (Mappim) and the Coalition of National Writers’ Association (Gapena), said his clients are not questioning the constitutionality of vernacular schools, but is appealing against the High Court's ruling on the medium of instruction in these schools, saying Bahasa Malaysia should be the language used.
He told a three-member COA bench led by Datuk Supang Lian that this is based on Article 152 of the Federal Constitution concerning national language, which stipulates that:
(1) The national language shall be the Malay language and shall be in such script as Parliament may by law provide: Provided that — (a) no person shall be prohibited or prevented from using (otherwise than for official purposes), or from teaching or learning, any other language; and (b) nothing in this clause shall prejudice the right of the federal government or of any state government to preserve and sustain the use and study of the language of any other community in the Federation.
Haniff argued that the High Court judge Datuk Mohd Nazlan Mohd Ghazali, in his written judgement, had been wrong in fact and law in deciding that Chinese and Tamil can be used as the medium of instruction at vernacular schools because it contravenes the stipulation of Article 152(1), which prescribes Malay as the national language and should be used for official purposes, which means for the purpose of a public authority.
The lawyer was submitting in the appeals brought by the group of NGOs over the use of languages other than Malay in Chinese and Tamil vernacular schools against Nazlan's decision made on Dec 29, 2021, on a suit brought by the group to obtain a court declaration that the existence of vernacular schools goes against the provisions of the Federal Constitution. The suit named 13 defendants, including the Education Minister and the Malaysian government.
Nazlan ruled the existence of vernacular schools is not against the constitution, and that vernacular schools are educational institutions under the Education Act 1996 and are not considered public or statutory authorities. As such, 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,” Nazlan, now a COA judge, had said in his ruling.
Aidil Khalid, another lawyer representing the two NGOs, told the bench that Nazlan had also erred in not considering several affidavits filed by his clients, which remained unanswered and not disputed.
“When it is unrebutted, the court should have accepted them or called them to testify, but this was not done when the court decided to strike out the case,” he added.
Khairul Azam Abdul Aziz, who appeared for Ikatan Muslimin Malaysia (Isma), also argued Nazlan was wrong in not considering schools as being public authority and that the government and legislative branches of the government are the ones with the power to change the use of their medium of instruction.
He further alleged that neither the executive nor legislative branches of the government could rectify the issue of the medium of instruction in vernacular schools due to political instability in the last 10 years, as those who support its use are considered "fixed deposits" to some political parties. “This, is an open secret,” he claimed.
Mappim, Gapena and Isma are appealing against Nazlan’s judgement, while another Muslim NGO — Ikatan Guru-Guru Muslim Malaysia — is appealing against a similar decision made by the Kota Bharu High Court, which had also ruled that the existence of vernacular schools is constitutional.
In the Kota Bharu High Court's decision delivered in May last year, judicial commissioner Datuk Mohd Abazafree Mohd Abas — who is now a High Court judge — also ruled that vernacular schools are considered to be a public authority, which requires the medium of instruction to be Malay. Vernacular schools, together with various non-Malay NGOs and political parties like MCA and MIC, are appealing against the decision.
Meanwhile, in Wednesday's proceedings, the three-member bench, which also includes Datuk M Gunalan and Datuk Azizul Azmi Adnan, fixed Thursday for case management and to decide on the next hearing of the three NGOs' appeal.
Senior federal counsel Shamsul Bolhassan and Liew Horng Bin appeared for the Education Minister and the government, while various lawyers appeared for the various NGO's representing the vernacular schools and political parties.