Court: It’s protected by Constitution

PUTRAJAYA: The use of Chinese or Tamil in national-type schools as a medium of instruction is protected by Article 152 of the Federal Constitution, and the government can “preserve and sustain” the use and study of these languages, the Court of Appeal has ruled.

National-type schools or vernacular schools are not public authorities, so the use of Tamil or Chinese in the schools as a medium of instruction is not prohibited or contrary to the Constitution, it said.

Unanimous decision: (From left) Justices Azizul Azmi, Lian and Gunalan formed the three-member panel. — Photo sourced from Portal Rasmi Pejabat Ketua Pendaftar Mahkamah Persekutuan Malaysia

Court of Appeal judge Justice Azizul Azmi Adnan, in delivering a unanimous decision by a three-member panel, said the provision under Article 152(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”.

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A grandfather clause, also known as grandfather policy, grandfathering, or grandfathered in, is a provision in which an old rule continues to apply to some existing situations while a new rule will apply to all future cases.

Article 152 states Malay is the official language of the country but also includes a caveat that other languages may be used (except for official purposes), taught and learnt.

“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,” Justice Azizul Azmi said in dismissing appeals brought by four non-governmental organisations (NGOs).

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The NGOs had challenged the constitutionality of vernacular schools and the use of Chinese and Tamil in these schools.

The three-man bench, which also comprised Justices Supang Lian and M. Gunalan, said it cannot be seriously argued that the framers of the Constitution had intended for schools using a language other than Malay or English as a medium of instruction to be unlawful and contrary to the Constitution.

“If this were the case, such schools would have been shut down, abolished or converted upon the adoption of the Constitution,” Justice Azizul Azmi said. He noted that it would not be appropriate for the courts to interfere in education policy, which is connected to the government’s policies.

“For example, if it is argued that the existence of national-type schools has contributed to the increased polarisation of society, it would be quite beyond the pale for the courts to intervene. It is not the role of the courts to review the policies of government.

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“The policy and intent of Parliament are simply aids to the court in interpreting legislation, and in the context of the present case, to determine whether the legislation in question is inconsistent with the terms of the Constitution, as alleged by the plaintiffs,” he said.

Justice Azizul Azmi made no order as to costs and directed that parties bear their own costs as the matter was of public interest.

The four NGOs that filed the appeals were the Islamic Education Development Council (Mappim), the Confederation of Malaysian Writers Association (Gapena), Ikatan Muslimin Malaysia (Isma) and Ikatan Guru-Guru Muslim Malaysia (I-Guru).

They were appealing against the decision of the Kuala Lumpur and Kota Baru High Courts that dismissed their suits in December 2021 and May 2022, respectively.

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On Dec 29, 2021, Kuala Lumpur High Court judge Justice Mohd Nazlan Mohd Ghazali, now a Court of Appeal judge, dismissed the lawsuits brought by the Federation of Peninsular Malay Students (GPMS), Mappim, Gapena and Isma. GPMS did not file an appeal.

Mohd Nazlan ruled that the existence and establishment of vernacular schools and the use of Chinese and Tamil languages at these schools was constitutional.

On May 29 last year, Kota Baru High Court Judicial Commissioner Abazafree Mohd Abbas, now a High Court judge, also ruled that vernacular schools were constitutional in dismissing a suit filed by I-Guru.

In the December 2019 suit, GPMS, Mappim, Gapena and Isma sued the government and several parties.

They included Chinese educationist groups the United Chinese School Committees’ Association of Malaysia (Dong Zong) and the United Chinese School Teachers’ Association (Jiao Zong), Persatuan Thamizhar Malaysia, and Persatuan Tamilar Thurunal (Perak).

I-Guru, meanwhile, sued the education minister and the government of Malaysia, seeking a declaration that Sections 28 and 17 of the Education Act 1996 are inconsistent with Article 152 of the Federal Constitution and are therefore void and of no effect.

The Malaysia Chinese Language Council, the Malaysia Tamil Neri Kalagam Association, the Confederation of Former Tamil School Pupils, MCA, and Dong Zong were allowed to become interveners in the suit filed by I-Guru.