Chief Judge of Malaya Azahar Mohamed, who sat as a single judge, said the apex court cannot exercise exclusive jurisdiction to hear the matter.
“Therefore, the court that is competent to hear the usual constitutional challenges to an Act of Parliament is the High Court,” he said in his judgment.
Lawyer Mohd Khairul Azam Abdul Aziz filed a motion on Oct 23 to seek the declaration under Article 4 (3) of the Federal Constitution.
He needed to obtain leave under Article 4 (4) of the constitution as he wanted to challenge the competency ofthe Dewan Rakyat and Dewan Negara to pass laws.
Under Section 17 of the overhauled Education Act, passed in 1996 to replace the Education Ordinance of 1956 and the Education Act of 1961, the national language is stated as the main medium of instruction except in national-type schools established under Section 28 or other educational institutions exempted by the minister.
The section also states that schools using other than Malay as their medium should teach the language as a compulsory subject.
Section 28 of the Education Act covers the establishment and maintenance of national and national-type schools.
It states that the education minister may establish national schools and national-type schools and shall maintain such schools.
Senior federal counsel Alice Loke Yee Ching, representing the education ministry and the government, said Khairul’s leave application was misconceived.
She said federal legislature (Dewan Rakyat and Dewan Negara) were competent to pass the law as education came under the First List Ninth Schedule in the constitution.
Lawyer Gurdial Singh Nijar appeared for United Chinese School Committees’ Association of Malaysia (Dong Zong) and United Chinese School Teachers’ Association of Malaysia (Jiao Zong), while Bastian Pius Vendargon represented the Malaysian Chinese Language Council and Tamil Language Association as proposed interveners.
Vendargon later told FMT that aggrieved parties could start their action in the High Court if they want to challenge the constitutionality of laws passed by the legislature.
“But parties could go to the Federal Court if they are challenging the competency of Parliament to pass laws,” he said in explaining that Parliament could not legislate laws that touched on Islam as the matter came under the purview of the states.