CONSTITUTIONALITY OF VERNACULAR SCHOOLS IN MALAYSIA
“An investment in knowledge always pays the best interest”
Benjamin Franklin, 1758
The University of Malaya Law Society would like to refer to the recent decision by the Kuala Lumpur High Court in dismissing the lawsuit pertaining to the constitutionality of vernacular schools in Malaysia. Vernacular schools make up the current national education system which is under the purview of the Education Act 1996.[i] This recent lawsuit has reignited the conversation on this matter. The University of Malaya Law Society wishes to provide an insight on that matter.
In December 2019, Peninsular Malay Students (GPMS), Islamic Education Development Council (MAPPIM), and Coalition of National Writers' Associations (GAPENA) initiated a suit against a total of 13 defendants, including the Education Minister and the Government. Political parties such as the Malaysian Indian Congress (MIC), the Malaysian Chinese Association (MCA), and Gerakan were also named as defendants in the trial. In a nutshell, the plaintiffs were seeking a court declaration that the existence of vernacular schools — SJK(C) or SJK(T) — go against the provisions of the Federal Constitution, where Article 152(1) defines Malay as the national language. This is because vernacular schools, unlike common national schools, use their own native language as the medium of instruction. Mohamed Haniff Khatri Abdullah, the counsel who represented GPMS and MAPPIM, in his submission, also stated that vernacular schools were detrimental to non-Bumiputeras as it reduces the students’ chance of employment due to their lack of proficiency in Bahasa Melayu. On the other hand, counsel Datuk Seri Gopal Sri Ram who represented the Malaysian Chinese Language Council (MCLC) stated that the plaintiffs did not have any locus standi to commence the court action.[ii] This case, as expected, has lit yet another controversial debate across Malaysia, questioning whether this lawsuit was driven purely by racism.
Datuk Mohd Nazlan Mohd Ghazali, the High Court judge in Kuala Lumpur, dismissed the lawsuit demanding the government's abolition of Mandarin and Tamil education. In this decision, the court considered whether Sections 2, 17, and 28 of the Education Act 1996, which permitted Mandarin and Tamil schools to teach in these languages, violate Article 152 of the Federal Constitution, and whether the establishment of these vernacular schools violates Articles 5, 8, 10, 11 and 12 of the Federal Constitution.[iii]
In response to the first issue, the use of a non-national language is not prohibited by Article 152(1) of the Federal Constitution, as long as it is not for official purposes. Furthermore, because they are neither a public authority nor a statutory authority, a vernacular school or a national-type school is not subject to the regulation that the national language must be the medium of instruction under the Education Act 1996.[iv] As a consequence, the judge ruled that vernacular schools do not violate Article 152(1) of the Constitution.
Regarding the second issue, the learned judge found that the plaintiffs have not demonstrated how the presence of the vernacular schools infringed on any person's basic rights protected by the Federal Constitution, considering enrolment in a vernacular school is a matter of choice. As a consequence, the judge ruled that since the use of Chinese and Tamil as a teaching medium in vernacular schools is constitutionally protected under the exceptions in Articles 152(1)(a) and (b) of the Constitution, there is no ground to argue that the establishment and existence of vernacular schools are inconsistent with or infringe upon Articles 5, 8, 10, 11 and 12 of the Federal Constitution.[v]
As a result, vernacular schools are not unconstitutional in Malaysia, and the Federal Constitution protects education in mother tongues other than Bahasa Malaysia. Aside from that, the judge claims that his decision was solely concerned with the interpretation of Article 152(1) and did not consider the function of the national language in the development of national identity and unity, or in nation-building. On the other hand, concerns about the quality of learning and instruction in schools, as well as whether the national education system is adequately inclusive, are best addressed by the government and legislators.[vi]
Be that as it may, in 1982, the Federal Court of Malaysia ruled that the Ministry of Education’s (MOE) decision in rejecting the petition to establish Merdeka University (MU), which would use Chinese as the medium of instruction, was not unconstitutional and not unlawful. It was held that, in that instance, a university is considered as a public authority, hence the language used would be for an official purpose, falling under the ambit of Article 152 of the Federal Constitution.[vii]
However, in the current 2021 decision, the subject of dispute was primary schools, and the court held that differing from a university, the language used in a primary school did not amount to a usage for an official purpose, and hence did not fall under Article 152. It may be important to note that in Freedman (2001), it was mentioned that Tunku Abdul Rahman, the founding father of Malaysia, stressed on the rights of different communities in receiving vernacular education, and defended their rights for it.[viii]
According to the MOE, the Pupils’ Own Language (POL) policy is still present, wherein if 15 or more parents in SJK(C)s, SJK(T)s or SMKs request for their native language to be taught, the school shall provide lessons in that specific language.[ix] However, as per Mr Kua Kia Soong Director of Suara Rakyat Malaysia (SUARAM), this policy had not been encouraged or seriously implemented by the government for all minority languages, which led to a demise in the education of pupils’ native languages. Further, since independence, the population of Chinese and Tamil communities in Malaysia has tripled, but the number of vernacular schools is diminishing.[x]
At the international level, the Universal Declaration of Linguistic Rights (UDLR) pronounced that the right to maintain and develop one’s own culture is an inalienable personal right. This includes the rights of a language community to be able to receive education which enables them to acquire a full command of their language.[xi] Although there are certain critics which oppose the idea that educational language rights differ from cultural rights, and that they are not exactly inalienable, it is still clear that the maintenance of one’s language is of much importance.
In short, we may be able to conclude that the decision of the High Court, wherein the establishment of vernacular schools, by no means contravenes Article 152(1) of the Constitution. In fact, it is our right to teach and learn any other language as prescribed in Article 152(1)(a).[xii] It is also imperative to note the wordings of Article 152(1)(b) whereby it provides that ‘nothing in this Clause shall prejudice the right of the Federal Government or of any State Government to preserve and sustain the use and study of the language of any other community in the Federation’.[xiii] In matters as crucial as this, it is of paramount importance to preserve everyone’s culture equally without bias and prejudice in order to protect our unique Malaysian identity. This is consistent with the UDLR, which laid out the importance of protecting one’s language and culture, wherein education is an important aspect in ensuring this. Hence, we must acknowledge the diversity in Malaysia which gave us the privilege to be able to learn other languages and cultures, an advantage that many hoped for but could not attain. While this decision is worth celebrating, let’s not lose sight of what truly matters, unity and respect for others.
UM Law Society 21/22
27th January 2022
[i] Tiah, R. (2021, October 12). The Constitutionality of Vernacular Schools in Malaysia. Durham Asian Law Journal. Retrieved January 15, 2022 from https://www.durhamasianlawjournal.com/post/the-constitutionality-of-vernacular-schools-in-malaysia.
[ii] Khairulrijal, R. (2021, November 24). Decision on Vernacular Schools. New Straits Times. Retrieved January 15, 2022 from https://www.nst.com.my/news/crime-courts/2021/11/748362/dec-29-decision-vernacular-schools-issue
[iii] Buang, S. (2022, January 3). Understanding the High Court's decision on constitutionality of vernacular schools. New Straits Times. https://www.nst.com.my/opinion/columnists/2022/01/759795/understanding-high-courts-decision-constitutionality-vernacular.
[iv] Anbalagan, V. (2021, December 30). Vernacular schools were recognised even before Merdeka, says judge. Free Malaysia Today. https://www.freemalaysiatoday.com/category/nation/2021/12/30/vernacular-schools-were-recognised-even-before-merdeka-says-judge-in-ruling/.
[v] Dzulkifly, D. (2021, December 29). Court rules vernacular schools constitutionally protected, throws out Malay-Muslim group’s suit. The Malay Mail. https://www.malaymail.com/news/malaysia/2021/12/29/court-rules-vernacular-schools-constitutionally-protected-throws-out-malay/2031761.
[vi] Bernama. (2021, December 29). High Court rules vernacular schools are constitutional. MalaysiaNow. https://www.malaysianow.com/news/2021/12/29/high-court-rules-vernacular-schools-are-constitutional/.
[vii] Merdeka University Berhad v Government of Malaysia  2 MLJ 243.
[viii] Freedman, A. L. (2001). The Effect of Government Policy and Institutions on Chinese Overseas Acculturation: The Case of Malaysia. Modern Asian Studies, 35(2), 411-440. http://www.jstor.org.ezproxy.um.edu.my/stable/313123.
[ix] Kementerian Pendidikan Malaysia. (2016). Pelaksanaan Pengajaran dan Pembelajaran Bahasa Ibunda atau Pupils' Own Language (POL) di sekolah. https://www.moe.gov.my/en/pemberitahuan/media-statement/pelaksanaan-pengajaran-dan-pembelajaran-bahasa-ibunda-atau-pupils-own-language-pol-di-sekolah.
[x] Mother-tongue education has regressed. (2021, November 25). Free Malaysia Today. https://www.freemalaysiatoday.com/category/opinion/2021/11/25/mother-tongue-education-has-regressed/.
[xi] Stanton, D. C. (2005). On linguistic human rights and the United States "foreign" language crisis. Profession, 64-79. http://www.jstor.org.ezproxy.um.edu.my/stable/25595800.
[xii] Federal Constitution (Malaysia) Art 152(1).
[xiii] Federal Constitution (Malaysia) Art 152(1)(b).