Illegal to use Tamil, Mandarin in vernacular schools, says lawyer

 

The Court of Appeal is hearing an appeal from two separate High Court decisions which have refused to declare the use of Mandarin and Tamil in vernacular schools as unconstitutional.

PUTRAJAYA: An article in the Federal Constitution makes it illegal for vernacular schools in the national education system to use either Tamil or Mandarin as a medium of instruction, the Court of Appeal heard today.

Instead, lawyer Haniff Khatri Abdulla said all teaching and learning must be done in Bahasa Melayu.

“Article 152(1) does not (allow) such schools to use Tamil and Mandarin as the medium of instruction in the national education system,” the lawyer submitted before a three-member bench chaired by Justice Supang Lian.

Article 152 states that Bahasa Melayu is the national language of Malaysia.

The provision also says that anyone is free to teach, learn and use any other language, except for official purposes in the federal and state governments, including public authorities.

Haniff said: “We cannot legitimise something that is illegal by taking into consideration extraneous factors.”

The Islamic Education Development Council (Mappim), the Confederation of Malaysian Writers Association (Gapena), Ikatan Muslimin Malaysia (Isma) and Ikatan Guru-Guru Muslim Malaysia are appealing from the decisions of two High Court judges who ruled that the existence of such schools had a constitutional basis and that they could use languages other than Bahasa Melayu as a medium of instruction.

The applicants had sought a declaration that Sections 2, 17 and 28 of the Education Act 1996, which allow for the setting up of vernacular schools which use Mandarin and Tamil as the main languages, were inconsistent with Article 152(1) of the constitution.

Haniff, who is appearing for Mappim and Gapena, said Justice Nazlan Ghazali, who was then a High Court judge, had erred when declaring that vernacular schools were not a public authority, while Justice Abazafree Abbas said otherwise.

“However, both judges held that the existence of vernacular schools must be read in its historical context,” he added.

Haniff said there was no need for the judges to dwell on the historical narrative. Instead, they ought to have limited themselves to what the constitution, the supreme law of the land, states.

“The judges were rewriting the constitution by declaring that such schools could co-exist in the national education system,” he said.

He said the five-member Reid Commission, which drafted the document of destiny in 1957, had intended Bahasa Melayu to be used for official purposes, while English could be used in the courts and the legislature for the first 10 years following Merdeka.

Haniff also claimed the education minister and the government could not support the schools with aid since they used Tamil and Mandarin as the medium of instruction.

In his judgment, delivered on Dec 30, 2021, Nazlan, who is now a Court of Appeal judge, said vernacular schools have long been recognised within the legislative framework of the education system, both before Merdeka and subsequently, in the constitution.

According to Nazlan, the exercise of this constitutional right by the government was not only confined to the study of Tamil and Mandarin but also extended to their use as the medium of instruction.

“Applying a prismatic approach to the construction of constitutional provisions, I would construe the use of such languages referred to in Article 152(1)(b) in so far as it concerns vernacular schools to encompass the use of (Mandarin) or Tamil as a medium of instruction to teach other subjects,” Nazlan said when dismissing the suit brought by Mappim, Gapena and Isma.

On May 30 last year, Abas also dismissed a suit filed by Muslim teachers group, Ikatan Guru-Guru Muslim Malaysia, in Kota Bharu.

Several interest groups, including the Chinese Language Council, the Tamil Language Association, the Confederation of Former Tamil School Pupils, MCA and the United Chinese School Committees Association of Malaysia (Dong Zong), were named interveners in the suits.

The bench, which also comprised Justices M Gunalan and Azizul Azmi Adnan, adjourned the proceeding to a date which will be fixed at a case management tomorrow. - FMT