KUALA LUMPUR: The High Court has ruled that the use of Tamil and Mandarin in vernacular schools is constitutional.
Judge Mohd Nazlan Mohd Ghazali also held that the existence of about 1,800 such schools, catering to about 500,000 students, is legal and constitutional.
“These schools are not public authorities as defined in the Federal Constitution to use Malay as the medium of instruction,” he said, in dismissing a suit against the existence of vernacular schools.
Nazlan said one must also look at pre- and post-Merdeka laws and the Constitution which provide safeguards for the use of these languages and for the schools to exist.
The suit was initiated by the Federation of Peninsular Malay Students (GPMS), the Islamic Education Development Council (Mappim) and the Confederation of Malaysian Writers Association (Gapena) in December 2019.
They had sought a declaration that Sections 2, 17 and 28 of the Education Act 1996, and the extent to which they provided for the establishment of vernacular schools using Mandarin and Tamil as the main languages, were inconsistent with Article 152(1) of the Constitution and are considered null and void.
Nazlan said there was no basis to contend that the establishment and existence of vernacular schools infringed Articles 5, 8, 10, 11 and 12 of the Constitution. He said the use of these languages as a medium of instruction was constitutional and protected under the exceptions in Articles 152 (1) (a) and (b) of the Constitution.
“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 these schools would infringe the rights of any person under the Constitution,” he said.
“In light of the finding that a vernacular school is not a public authority, and in view of the historical and legislative background to Article 152 and the intention of the framers of the Constitution, the use of a non-Malay medium of instruction for teaching in Chinese and Tamil vernacular schools is not for an official purpose and is not an infringement of Article 152 (1).”
Such use of the language was, therefore, constitutional and protected under the Constitution by virtue of both provisos (a) and (b) to Article 152 (1).
He said a true and proper interpretation of these provisos in Article 152 (1) did not prevent the establishment and maintenance of vernacular schools as national-type schools which also use the national curriculum as adopted by all schools in the national education system.
Nazlan also said the court would generally lean towards the constitutionality of a statute “on the basis that Parliament understands and correctly appreciates the needs of the people”.
“This has also been described as judicial deference that the court should accord to the judgment of the democratically elected legislature. It is also an important facet to the doctrine of the separation of powers,” he said.
This is why his judgment was focused predominantly on the interpretation of Article 152 (1) and did not delve into the role of the national language in the promotion of national identity and unity.
He said critical questions on the standard of learning and teaching in all schools were matters best dealt with by the executive and the legislature.
Initially, only Putrajaya was named as the defendant in the suit but later, others who claimed to have interest were allowed as parties.
They included MIC, MCA, Gerakan and Parti Bumiputera Perkasa Malaysia, Chinese educationist groups Dong Zong and Jiao Zong, the Malaysian Chinese Language Council, Persatuan Thamizhar Malaysia, Persatuan Tamilar Thirunal (Perak), Persatuan Gabungan Kebajikan Guru-Guru Bersara Sekolah Tamil, Persatuan Malaysia Tamil Neri Kalagam, Gabungan Persatuan Bekas Pelajar Sekolah Tamil Malaysia and SMJK Chong Hwa.
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