“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.” — Datuk Azizul Azmi Adnan, COA judge.

PUTRAJAYA (Nov 23): Vernacular Chinese and Indian schools in the country are legal and constitutional as a three-member Court of Appeal (COA) bench, led by judge Datuk Supang Lian, upheld the Kuala Lumpur High Court's decision in affirming the legitimacy of these schools.

Datuk Azizul Azmi Adnan read the unanimous decision where the bench ruled to dismiss all appeals by the Malay-based non-governmental organisations.

Azizul ruled that the use of Mandarin and Tamil in the schools is also 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 led to the undesirable and 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 said.

Besides Supang and Azizul, the other judge on the bench was Datuk M Gunalan.

Existence guaranteed under Federal Constitution

Azizul said in his broad grounds that the constitutionality of the 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 152 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 are subject to the protection accorded under Article 151 (1) (b). That being the case, we fail to see how it may reasonably be argued that the constitutionality protected rights militate against the fundamental liberties.

“This proviso [Article 151 (1) (b)] has the effect of 'grandfathering' the use of other languages at the time of the 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, nothing in Article 152 should be read as limiting the right of the government to preserve the use of the language and to take steps to sustain its continued use,” Azizul said.

He added that there was no material dispute that schools employing Tamil or Chinese as a medium of instruction had existed even before the promulgation and adoption of the Federal Constitution.

The Court of Appeal also ruled that Sections 2, 17 and 28 of the Education Act 1996 are not inconsistent with Article 152.

Azizul said based on the proper construction of the terms of Articles 152 (6) and 160(2), the bench was of the view that the vernacular or national type schools are not public authorities and hence the use of Tamil or Chinese in these schools as a medium of instruction would not be prohibited or considered to be used for an official purpose within the meaning of Article 152(6) of the Federal Constitution.

“The key question is whether the use of a language as a medium of instruction in schools comes within the ambit of ‘official purpose’. Is a school considered to be part of ‘government’, and is it a ‘public authority’ within the meaning of Article 152 (6)?

“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."

Islamic Education Developmental Council (Mappim), the Coalition of National Writers’ Association (Gapena) and Ikatan Muslimin Malaysia (Isma) were appealing against a judgment by Datuk Mohd Nazlan Mohd Ghazali, who has been elevated to the Court of Appeal.

Meanwhile, another Muslim NGO — Ikatan Guru-Guru Muslim Malaysia — appealed against a similar decision made by the Kota Bharu High Court, which had also ruled that the existence of vernacular schools is constitutional.

Allowing Dong Zong’s appeal

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 — ruled that vernacular schools are considered 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, Azizul said the bench is allowing the appeal by Chinese NGO Dong Zong against the Kota Bharu High Court's decision.

The court had decided that vernacular schools are considered public authorities as it is the statutory obligation of the education minister to establish them, and hence ruled they should use Malay as the medium of instruction.

“The bench is unable to agree with the Kota Bharu High Court’s conclusion. 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, for it is the minister who exercises this power, as acknowledged by the High Court judicial commissioner himself.

“For this reason, we allow the appeal by representatives of Dong Zong and Jiao Zong against the determination by the High Court at Kota Bharu that vernacular schools were “public authorities” for the purposes of article 152(6) of the Federal Constitution,” he said.

In dismissing the Malay NGO’s appeal, and allowing Dong Zong and Jiao Zong’s appeal, the bench concluded no order is made as to costs of the appeal.

The minister was represented by senior federal counsel Liew Horng Bin, while Mohd Haniff Khatri was lead counsel for the Malay and Muslim NGOs. Several other lawyers appeared for MCA, MIC and Gerakan and the Chinese and Tamil NGOs.

Haniff, when approached after proceedings, indicated that they have instructions to file a notice for leave to appeal to the Federal Court as this is considered a constitutional matter.

“We will file the notice for leave to appeal within the 30-day period and will inform the media in due course,” he added.

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