PUTRAJAYA (Feb 20): The existence of vernacular Chinese and Tamil schools is constitutional, the Federal Court on Tuesday ruled in a majority two-one decision that refused leave to two non-governmental organisations (NGOs), namely the Islamic Education Development Council (Mappim) and the Coalition of National Writers' Association (Gapena), to hear the merits of their appeal.
Federal Court judges Datuk Mary Lim Thiam Suan and Datuk Rhodzhariah Bujang ruled against granting leave, while Datuk Abdul Karim Abdul Jalil was in the minority. As such, the Court of Appeal's decision in November last year — ruling that vernacular schools in the country are within the Federal Constitution — stands.
“The apex court is not satisfied that the sole question posed has passed the threshold under both limbs of Section 96 (a) and (b) of the Courts of Judicature Act (CJA) 1964. Hence, the motion for leave to appeal is dismissed without costs,” Lim, who chaired the bench, said.
In civil cases, leave (permission) has to be obtained before the full merits of an appeal is heard based on the questions of law posed.
The apex court's refusal to grant leave means that the Court of Appeal decision on Nov 23 last year stands — that the use of Chinese and Tamil as the medium of instruction in Sekolah Jenis Kebangsaan (Cina) and Sekolah Jenis Kebangsaan (Tamil) is not against the Constitution.
Gapena and Mappim, represented by lawyer Mohd Haniff Khatri Abdullah, initially posed eight questions, namely six constitutional and two of law, for consideration.
However, this was reduced to one question — whether the medium of instruction in the process of teaching and learning in Chinese and Tamil national type schools, established under Sections 2, 7, and 28 of the Education Act 1996, is for an official purpose and therefore subjected to the obligation under Article 152(1) of the Federal Constitution, which requires the use of the national language (Bahasa Malaysia or Malay) for all official purposes?
Haniff told the bench that this sole question covers or encompasses the other seven questions that were initially filed.
“The question has covered the constitutional aspect of the matter from the High Court and hence, leave should be granted for the matter to be heard on its merits.
“Furthermore, this issue is of public importance, as such a challenge had not been made before since independence, and the apex court should hear the matter to bring a finality of the matter,” he added.
Four respondents — the United Welfare of Retired Tamil Teachers Malaysia (Persatuan Gabungan Kebajikan Guru-guru Bersara Sekolah Tamil Malaysia), along with the Malaysian Chinese Language Council (Majlis Bahasa Cina Malaysia), Malaysian Tamil Neri Association (Persatuan Tamil Neri Malaysia) and United Association of Malaysian Tamil Students — did not oppose the question by Gapena and Mappim.
However, 10 other respondents, including the government and education minister, opposed the sole leave question.
Senior federal counsel Liew Horng Bin, who appeared for the government and the minister, said that although the question appeared to be a constitutional question, the court should be satisfied that it had passed the threshold under Section 96 of the CJA.
Liew also cited Education Minister Fadhlina Sidek's statement last month supporting the existence of vernacular schools.
"The federal government is desirous of maintaining vernacular schools, that is to say preserving and sustaining vernacular schools, a right which is provided to the federal and state governments under Article 152(1)(b) of the Constitution," Liew quoted Fadhlina as saying, adding that this is a clear and unequivocal statement from the minister.
Counsel Datuk Malik Imtiaz Sarwar for Chong Hwa Independent High School of Kuala Lumpur told the bench that he had received instructions to oppose the question, as there is a distinction between a political issue and a legal one.
“Furthermore, like Liew had said, it is not necessary for the apex court to grant permission to hear constitutional issues,” he said.
Dong Zong and Jiao Zong counsel Lim Hoon Shi informed the court that the two appealing NGOs are not likely to succeed, as the High Court and Court of Appeal had affirmed the existence of vernacular schools.
“There was no dissenting judgement even in the Court of Appeal, where the written judgement by Datuk Azizul Azmi Adnan was unanimous,” he said.
Other organisations that opposed the question posed by Mappim and Gapena were Gerakan, MCA, MIC, along with Persatuan Thamizhar Malaysia and Persatuan Tamilar Thirunal Perak, which adopted the submissions of the other opposing parties.
Initially, four Malay NGOs had challenged the validity of vernacular schools, where they filed the challenge in the Kuala Lumpur and Kota Bharu High Courts. However, two NGOs did not join Mappim and Gapena in the final appeal.
Use of Chinese and Tamil in vernacular schools legal, appellate court ruled
On Nov 23 last year, Azizul in the appellate court ruled that the use of Chinese and Tamil in vernacular schools is legal, because the schools are not considered a public authority, which safeguards the use of languages other than Bahasa Malaysia.
Azizul also said the court should not interfere in government policy.
He observed that even if the effects of the government policy lead to undesirable polarisation of society, it is beyond the tail end of the court to intervene.
“It is not for the court to review policies of the government,” Azizul added.
The Court of Appeal also said that the constitutionality of vernacular schools is guaranteed under Article 152(1) (b) of the Federal Constitution, despite Article 152 stipulating that Bahasa Malaysia is the national language.
Article 152(1) (b) says nothing in the 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.
“The use of Tamil and Chinese in such schools is subject to the protection accorded under Article 151 (1) (b). That being the case, we (the Court of Appeal) fail to see how it may reasonably be argued that the constitutionality protected rights militate against the fundamental liberties,” Azizul ruled.
The United Welfare of Retired Tamil Teachers Malaysia was represented by RV Lingam and M Athimulan, while Datuk Bastian Vendargon represented the Malaysian Chinese Language Council, Malaysian Tamil Neri Association, and United Association of Malaysian Tamil Students.