[UPDATED] Vernacular schools constitutional as Court of Appeal upholds high court decision

PUTRAJAYA – The Court of Appeal has upheld the ruling of both the Kuala Lumpur and Kota Bharu high courts that the use of Chinese and Tamil languages in vernacular schools does not violate the federal constitution.

The three-person bench consisting of Datuk Supang Lian, Datuk Gunalan Muniandy and Datuk Azizul Azmi today unanimously dismissed the appeal brought by the Education Development Council (Mappim), Confederation of Malaysian Writers Association (Gapena), Ikatan Muslimin Malaysia (Isma) and Ikatan Guru-Guru Muslim Malaysia (i-Guru).

Originally, the Federation of Peninsular Malay Students was one of the plaintiffs when the suit was filed at the high court. However, it did not join the plaintiffs in the appeal suit.

Today, Azizul, who represented the bench in delivering the appellate court’s findings, said “vernacular schools” are not defined as “public authorities”, so they are not bound by Article 152 of the federal constitution to use Bahasa Melayu as their main medium of instruction.

Article 152 pertains to the national language, with 152(1) stipulating that the national language shall be the Malay language and in such script as Parliament may provide by law. 

“In our considered judgement, the proviso has the effect of ‘grandfathering’ the use of other language at the time of proclamation of Merdeka, due to the words ‘preserve and sustain’, where it can be established that a language had been used immediately prior to Merdeka, (therefore) nothing in Article 152 should be read as limiting the right of government to preserve the use of the language, and to take steps to sustain its continued use,” he said.

“It cannot seriously be argued that the framers of the constitution had intended for schools employing a language other than Malay or English as a medium of instruction to be unlawful and contrary to the terms of the constitution.

“For if this were the case, such schools would have been shut down, abolished or converted upon the adoption of the federal constitution.

“(Therefore) it was not in material dispute that schools employing Tamil or Chinese as medium of instruction had existed even before the promulgation and adoption of the federal constitution.

“There is nothing in the record of parliamentary proceedings that suggests the parliament had intended for the amendment to Article 152(6) to strike at the legality or constitutionality of vernacular schools.”

He then said the bench agreed with Court of Appeal judge Datuk Mohd Nazlan Mohd Ghazali – who was the Kuala Lumpur High Court judge when he delivered the verdict last year – who found that it is not the court’s role to review government policies.

“The policy and intent of parliament are simply aids to court, in interpreting legislation and in the context of the present case, to determine whether the legislation in question is inconsistent with terms of federal constitution; as contended by the plaintiffs (in this appeal).

“Based on proper construction of the terms of Article 152(6) and 160(2) of the federal constitution, we are of the view that the vernacular or national-type schools are not public authorities.

“Hence, the use of Tamil or Chinese in these schools as a medium of instruction would not be prohibited or contrary to the constitution. This is because such use should not properly be considered to be used for an official purpose within the meaning of Article 152(6) of the federal constitution.

“We are, accordingly, of the view that a school is neither a statutory authority nor a public authority and, accordingly, the use of a language other than Malay in national-type schools as a medium of instruction would not be for an ‘official purpose’, and would therefore be permissible by the proviso in Article 152(1)(a) of the federal constitution.”

Azizul added that the panel disagreed with the Kota Bharu High Court’s decision that determined vernacular schools as public authorities for the purposes of Article 152(6) of the federal constitution, and so it bore responsibility to implement education policies and prescribed curriculum.

“Even if schools were the instruments, by which the national curriculum is implemented, this does not mean schools were exercising powers conferred to them by written law.

“It is for the minister who exercises this power, as acknowledged by the court then.”

However, the appellate court agreed with the Kota Bharu High Court’s ruling that vernacular schools were constitutional.

The bench also concluded that not only are the establishment and maintenance of national-type schools not inconsistent with Article 152(1), but also that the use of Tamil and Chinese in such schools are subject to the protection accorded under Article 152(1)(b).

“That being the case, we fail to see how it may reasonably be argued that these constitutionally protected rights militate against the fundamental liberties in Part II of the federal constitution.

“In light of the fact that the matters raised were in the public interest, we direct that parties bear their own costs,” he said at the end of the verdict.

Lawyers Mohamed Haniff Khatri Abdulla and Aidil Khalid represented Mappim and Gapena in the appeal, Datuk Shaharudin Ali for i-Guru and Khairul Azam Abdul Aziz for Isma.

Meanwhile, lawyer Bastian Vendargon represented the Malaysian Chinese Language Council, the Tamil Neri Kalagam Association, and the Confederation of Former Tamil School Pupils, respectively.  

Senior federal counsel Liew Horng Bin represented the education minister and the government.

All the non-governmental organisations had originally named the education minister and government as defendants in the suit.  

Soon after, Dong Zong and Jiao Zong as well as Persatuan Thamizar Malaysia, Persatuan Tamilar Thirunal (Perak), and seven others applied to intervene and were subsequently made co-defendants. – November 23, 2023