Is Education Act 1996 unconstitutional?

Can justice Mohd Noor Abdullah tell us if the Education Act 1996 was enacted by Parliament for the purpose of dividing the people?

COMMENT

By Jiwi Kathaiah

The former Appeal Court judge Mohd Noor Abdullah had on May 12, declared at a forum that the vernacular schools (SJKs) have no place in the national education system of this country as the Federal Constitution does not recognize them and should, therefore, be abolished.

He is reported to have raised the following points in support of his call to abolish the SKJs (Chinese and Tamil schools):

1. According to the constitution there should only be one stream of schools in this country.

2. The national-type schools (SJKs) should be abolished because the constitution does not recognize them.

3. The existence of Chinese, Tamil and private schools divides the people.

4. What is a single school? During the British era, there were government English schools, so now there should only be primary government schools and secondary government schools.

5. So the SJKs that exist today, the SJK (C) and (T), we change them to government schools. There will be no “type” schools, only primary and secondary schools.

6. If there are schools that oppose, then the way is to obtain a court order to declare that the existence of Chinese and Tamil schools is not legal and against the constitution.

7. The state funds used for Chinese and Tamil schools are not provided for under the constitution.

8. Article 12 of the constitution states that it shall not prejudice the right of the federal government or the state government to establish or help in establishing Islamic schools and incurs such expenditure as may be necessary.

For religious schools, the constitution says state funds can be used to set up such schools or to assist those who set up religious schools and to use state funds as much as needed. Where does it mention Chinese and Tamil schools?

The counter argument

A simple rebuttal to the points stated above is in order.

Point 1: If the former Appeal Court judge Mohd Noor Abdullah was referring to the Malaysian constitution, then it must be pointed out that nowhere in the constitution it is provided that “there should only be one stream of schools in this country.”

Point 2: Nowhere in the constitution it is stated that SKJs are not recognized.

Point 3: Where is the evidence to establish the claim that the existence of Chinese and Tamil schools had divided the people. It is a claim to hoodwink the Malays into supporting Umno’s “ultimate objective” of wiping out the Chinese and Tamil schools, which has its origins in the Barnes Committee Report of the 1950s. This committee of five Englishmen and nine Malays decided that the vernacular schools should be abolished and replaced with the “single National-type school system.” Any resistance to it would tantamount to disloyalty to Malaya. Now, to Mohd Noor Abdullah and UiTM pro chancellor Abdul Rahman Arsahad, it would mean “anti-unity”.

Point 4: By this if it is meant that during the British era there were no other streams of schools, then, it, to say the least, is an outright misrepresentation. There were Malay, Chinese and Tamil schools besides the English schools and they were given subsidies by the British colonial government on the basis of per student per month as given below, for example, for the year 1949:

English schools: $188.88

Malay schools : $66.84

Tamil schools: $55.84

Chinese schools: $8.72

A similar pattern of subsidies is provided by the Malaysian government. Under the 9th Malaysia Plan the development allocation provided to schools on the basis of per student per month is as follows:

National schools: RM33.30

Tamil schools: RM10.95

Chinese schools: RM4.50

Point 5: This is exactly what the Barnes Committee recommended and the Umno’s ultimate objective seeks to achieve through men like Mohd Noor Abdullah. It is now a strategy that is dexterously woven into the Malaysia Education Blueprint 2013-2025.

Points 6: How can Chinese and Tamil schools be not legal when the Education Act 1996 provides for them? How can they be against the constitution when Article 12 (1) (a) and (b) of the constitution stipulates that “there shall be no discrimination…in the administration of any educational institution maintained by a public authority…or in providing out of the funds of a public authority financial aid for the maintenance or education of pupils or students in any educational institution …” Is the Appeal Court judge Mohd Noor not aware of this Article in the constitution?

Point 7: Funding for “any educational institution maintained by a public authority” without any discrimination, is provided for in Article 12 of the constitution.

Point 8: JusticeMohd Noor sees in Article 12 only Islamic schools. So, they qualify for fund. He sees no Chinese or Tamil schools. So they do not qualify for state fund! Did he see national schools mentioned there for state funds? It is not mentioned there. Yet they qualify for state funds as they come within “any educational institution”. So do the Chinese and Tamil schools!

It appears from what the former Appeal Court judge Mohd Noor had said that whatever is not stated or spelled out in the constitution is not legal and that it is unconstitutional.

Look at the Education Act

The Malaysian constitution provided for a government consisting of three branches – legislative, executive and judicial, and set out their principal functions and the principles by which these organs of government must operate.

No constitution anywhere in the world provides for detailed rules by which the government acts. The same is true of the Malaysian constitution.

Our constitution does not provide in detail how and when an appeal court judge is appointed, nor that it lays down as a rule that a person called Mohd Noor Abdullah be appointed to that position.

It is a matter for ordinary statute enacted by the legislature within the limits set by the Malaysian constitution.

The same framework applies for matters concerning education. The Malaysian constitution under Article 74 has vested Parliament with power to make laws “with respect to any of the matters enumerated in the Federal List”, that is, section 13 of List I of the Ninth Schedule which states “Education” to include “Elementary, secondary, and university education; vocational and technical education; training of teachers; registration and control of teachers; managers and schools; promotion of special studies and research; scientific and literary societies”.

Under Article 74 of our constitution, Malaysian Parliament has enacted a number of laws in respect of education, one of which is the current Education Act 1996.

This Education Act 1996 provides for all those rights to education which the former Appeal Court judge Mohd Noor Abdullah had declared as “not legal” and “not constitutional”.

This Education Act grants in its preamble recognition “to the general principle that pupils are to be educated in accordance with the wishes of their parents”.

The Act empowers the Minister of Education to establish and maintain “national schools” and “national-type schools” (Section 28).

The Act defines national schools, both primary and secondary, as government or government-aided schools “using the national language as the main medium of instruction and “in which facilities for the teaching of – (i) the Chinese or Tamil language shall be made available if the parents of at least fifteen pupils in the school so requests”. (Section 2)

Further, the Act defines national-type school as “a government or government-aided primary school using the Chinese or Tamil as the main medium of instruction”. (Section 2)

So, the Education Act 1996 enacted by Parliament under Article 74 of the Malaysian constitution empowers the Minister of Education to establish and maintain not only national schools but also national-type schools in which the main medium of instruction is Chinese and Tamil.

Will the former Appeal Court judge Mohd Noor Abdullah tell us:

(a) Whether this Education Act 1996, which provides for the use of Chinese and Tamil languages as main medium of instruction in national-type schools, is enacted by Parliament for the purpose of dividing the people as he had claimed.

(b) Whether this Education Act 1996, which provides for matters such as national-type schools and funding for their maintenance that are said to be not provided in or contrary to the constitution, is unconstitutional and therefore it is null and void and of no effect.

Jiwi Kathaiah is the research director of Tamil Foundation Malaysia