The Federal Court recently upheld that vernacular schools are not unconstitutional.

The Federal Court dismissed an application for leave to appeal against the decision of the Court of Appeal (Mohd Zai Mustafa v. Menteri Pendidikan Malaysia & Ors and other appeals [2024] 2 CLJ 753) which had decided that vernacular schools are not unconstitutional.

The question proposed to the Federal Court for determination was whether the medium of instruction in the teaching and learning process in national-type Chinese and Tamil schools, established under Sections 2, 17, and 28 of the Education Act 1996, is an official matter and subject to the obligation under Article 152(1) of the Federal Constitution (“FC”), which mandates the use of the national language for all official matters.

The Federal Court, in a majority 2-1 decision, held that the requirements for leave to appeal under s. 96 Courts of Judicature Act 1964 were not satisfied. With the dismissal of leave to appeal to the Federal Court, the Court of Appeal’s decision stands.

Decision of the Court of Appeal

The first issue raised before the Court of Appeal was whether Sections 2, 17 and 28 of the Education Act 1996 (which relate to the establishment and maintenance of vernacular schools) are inconsistent with Article 152 FC (which, amongst others, establishes Bahasa Malaysia (“BM”) as the national language).

In summary, the Court of Appeal held that those provisions of the Education Act 1996 are not inconsistent with the FC, for the following reasons: -

1. Vernacular schools are not statutory authorities or public authorities. Thus, the use of Tamil or Chinese languages in these schools as a medium of instruction would not be considered to be use for an “official purpose” under Article 152 FC.
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2. The framers of the FC could not have intended for schools employing a language other than BM or English as a medium of instruction to be contrary to the FC. If this were the case, such schools, which existed even before the adoption of the FC, would have been shut down or converted upon the adoption of the FC.
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3. Vernacular schools also did not become unconstitutional when Article 152(6) FC was amended in 1971 (when the definition of “official purpose” was added). Nothing in the record of parliamentary proceedings suggested that Parliament intended for the amendment to Article 152(6) FC to strike at the legality or constitutionality of vernacular schools.

The second issue was whether the establishment and existence of vernacular schools infringes provisions of the FC that provide for fundamental liberties, namely Article 5 (the right to life and liberty), Article 8 (the right to equality before the law), Article 10 (the right of freedom of speech and expression), Article 11 (the right to religion) and Article 12 (the right of equal access to education).

On this issue, the Court of Appeal held that there was no infringement of such fundamental liberties. The Court of Appeal emphasised that enrolment in a vernacular school is entirely voluntary. Thus, even if there was a risk of reduction in opportunities arising from attending a vernacular school due to a poorer command of BM (as contended by the appellants), the decision to attend a vernacular school would not have been one forced upon the parents of the child and would have been made with the benefits of attending a vernacular school in mind.  

Finally, the Court of Appeal affirmed that, except for plainly frivolous cases, where there is said to exist violations of constitutional safeguards, an ordinary citizen ought to always have the necessary legal standing to seek legal redress before the courts. Further, matters pertaining to the construction of written laws and the FC should always be within the remit of the courts.

*Written by Priscilla Faith Lim, Associate

For any related enquiries, please contact our Partner, David Mathew (davidmathew@stsp.my) or Associate, Priscilla Faith Lim (priscillalim@stsp.my).

The content of this article is of a general nature and does not constitute legal or other advice or the provision of legal or other professional services, and shall not be relied upon as such.

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