Two groups now want Federal Court to decide on vernacular schools’ constitutionality

KUALA LUMPUR, Dec 21 — Two non-government organisations (NGOs) have today announced they will continue to pursue their constitutional challenge against vernacular schools in Malaysia, where Tamil and Chinese are used as the main medium of instruction to teach students.

In a statement today, law firm Amelda Fuad Abi & Aidil, which is representing the Islamic Education Development Council (Mappim) and Confederation of Malaysian Writers Association (Gapena), said their clients filed an application for leave to appeal at the Federal Court on December 19.

The two groups previously lost their court bid at both the High Court and the Court of Appeal.

The firm explained that its clients are required under the Courts of Judicature Act 1964 to first obtain the Federal Court’s leave or permission in order for it to hear the two NGOs’ appeal.

In the notice for application for leave to appeal at the Federal Court, both Mappim and Gapena listed eight main constitutional and legal questions — regarding vernacular schools in Malaysia — which they want the Federal Court to hear and decide on.

In the firm’s statement today, it sought to pre-empt the two NGOs’ continued pursuit of the court challenge against vernacular schools’ constitutionality from being viewed from a racial lens.

“We have also been instructed to stress that both Mappim and Gapena support all efforts to enhance the mastery of a third language, whether it is the Mandarin, Tamil, Arab, Kadazan language or any other language in the world including Japanese, Korean and others through the teaching and learning of those languages as a subject, but dispute any of those foreign language from being used as a main medium of instruction at any public institution of education which receives public funds, as that will contradict the position of the Malay language as the national language that must be used for all official purposes.

“Therefore, the filing of this notice of motion should be seen from the aspect of constitutional and legal issues, and not sensationalised as a racial issue” the law firm’s statement written in Malay concluded.

The statement also said lawyer Mohamed Haniff Khatri Abdulla will be the lead counsel for both Mappim and Gapena at the Federal Court’s proceedings.

Based on the notice for leave to appeal at the Federal Court, Mappim and Gapena have named 12 respondents, including the education minister and the Malaysian government which view vernacular schools to be constitutional.

The 10 remaining respondents which also view vernacular schools to be constitutional are Parti Gerakan Rakyat Malaysia; MIC; MCA; United Chinese School Teachers’ Association of Malaysia (Jiao Zong); United Chinese School Committees’ Association of Malaysia (Dong Zong); Chong Hwa Independent High School of Kuala Lumpur; Persatuan Thamizhar Malaysia; Persatuan Tamilar Thirunal Perak; Persatuan Gabungan Kebajikan Guru-guru Bersara Sekolah Tamil Malaysia; and three entities collectively listed as the 12th respondent: Majlis Bahasa Cina Malaysia (Malaysian Chinese Language Council), Persatuan Tamil Neri Malaysia, and Gabungan Persatuan Bekas Pelajar Sekolah Tamil Malaysia (Pertama).

Previously on December 29, 2021, the High Court in Kuala Lumpur had dismissed Mappim’s, Gapena’s and Ikatan Muslimin Malaysia's (Isma) constitutional challenge against vernacular schools.

On May 29, 2022, the High Court in Kota Baru had dismissed a similar constitutional challenge by Ikatan Guru-Guru Muslim Malaysia (i-Guru) against vernacular schools.

On November 23 this year, a three-judge panel at the Court of Appeal unanimously dismissed appeals by all four NGOs, ruling that vernacular schools in Malaysia are constitutional.

The Court of Appeal decided that the establishment, existence, and maintenance of national type schools — otherwise known as vernacular schools — are consistent with the Federal Constitution’s Article 152, and that the same Article 152 protects the use of Tamil and Chinese in vernacular schools.

While Article 152 states the Malay language to be the national language, it also states that no one shall be prohibited or prevented from using (except for official purposes) or from teaching or learning any other language, and that the government would still have the right to preserve and sustain the use and study of any other community’s language.

Among other things, the Court of Appeal found that vernacular schools are not public authorities and this meant the use of Tamil and Chinese as a medium of instruction in these schools would not be regarded as being for official purposes and would be allowed under Article 152.

Both Mappim and Gapena are now seeking to appeal that decision by the Court of Appeal.

In the list of their eight constitutional questions and questions of law posed to the Federal Court, Mappim and Gapena had asked questions such as whether the teaching and learning process in vernacular schools are considered official purposes and would therefore require the mandatory use of the Malay language, and whether Article 152 exempts vernacular schools from the mandatory use of the Malay language.

Mappim and Gapena also questioned whether vernacular schools are part of the government or are public authorities, and if the public service could be used to fill up positions in such schools and whether government funding can be provided to such schools if the answer was negative.

The two NGOs also asked whether the right under the Federal Constitution’s Article 12 to not be discriminated includes the right on the use of “foreign languages” as the main medium of instruction in schools.

The two NGOs also want the Federal Court to consider whether the right to a fair hearing and due process was affected when the Court of Appeal interpreted Article 152 as protecting Chinese and Tamil national-type schools, with the two groups claiming that certain provisions of Article 152 do not provide specific protection for the use of Chinese and Tamil in the education system and learning in schools.

Meanwhile, two other NGOs have decided not to file for leave to appeal at the Federal Court.

When contacted, i-Guru's lawyer Datuk Shaharudin Ali confirmed to Malay Mail that his client would not be filing for leave to appeal.

"We will instead give technical and research support to the other team who is taking up the matter on appeal to the Federal Court," he told Malay Mail.

Separately, Isma's lawyer Muhammad Hariz Md Yusoff confirmed to Malay Mail when contacted that his client would not be filing for leave to appeal, and that only Mappim and Gapena would be pursuing the appeal at the Federal Court.