Written by: Rei Tiah
Ethnicity and language are often discussed in tandem when considering the education policy in Malaysia. This ‘contested domain of multiple aspirations’ is due to Malaysia’s demographic profile of approximately 70% Malays, 23% Chinese and 7% Indians. The existence of vernacular schools has garnered attention across the decades and in recent years as an obstacle to racial unity for operating on a different medium of instruction as opposed to the national Malay language. Be it for legitimate constitutional concerns or for political ploys to introduce cultural dominance, it is purported that the medium of instruction used in vernacular schools contravenes Article 152 of the Federal Constitution which provides that the national language of the country is the Malay language. The article posits that this is a misconstrued belief. By delving into the historical background and cultural significance of vernacular schools, followed by a thorough analysis of the Merdeka University v Government of Malaysia case, it is contended that the non-Malay medium of instruction used in vernacular schools is not a violation of Article 152.
Current National Education System
The public primary school system in Malaysia is divided into two categories based on the medium of instruction used: (1) Malay-medium National Schools, and (2) Non-Malay-medium National-type Schools, more popularly known as vernacular schools, which comprise of Chinese/Mandarin-medium and Tamil-medium National-type Schools. At the secondary level, all public secondary schools operate with Malay as the medium of instruction, though a small number of Chinese Independent Schools exist as an alternate option outside of the national curriculum. Unfortunately, no Tamil National-type Secondary School exists. The current national education system is governed by the Education Act 1996.
Historical Background and Cultural Significance of Vernacular Schools
The medium of instruction in schools has been considered the ‘most consistent and unvarying issue’ in Malaysian education as successive governments attempt to balance inter-ethnic contestation. In the 18th century, Chinese immigrants and Indian immigrants established their own schools and education systems separate to the local Malay community in Malaya (now Malaysia), which was an operable arrangement at the time since ethnic communities regarded themselves as ‘separate and distinct’. This separation was continued under British colonial rule in the 19th century alongside the British introduction of English-medium missionary schools as vernacular schools (whether Malay, Chinese or Tamil at the time) were considered important ‘for cultural identity and continuity’. Hence, when the Barnes Report 1951 recommended creating a singular national public school system with a bilingual education (Malay and English language) in preparation of the exit of British colonists, the Malays saw this as an opportunity to assert the Malay language as a common medium of instruction and elevate the Malay community to a position of prominence upon independence. Naturally, this was frowned upon by the non-Malays. Instead, the Chinese favoured the Fenn-Wu Report 1951 recommendation of trilingualism (Malay, English, and Chinese/Tamil) in Chinese and Tamil-medium schools. Then, the Razak Report 1956 was introduced as a compromise where primary vernacular schools were allowed to retain the use of minority languages while Malay would be the main medium of instruction in national schools. This was reflected in Section 3 of the Education Ordinance 1957. Therefore, prior to and upon Malaysia’s independence in 1957, schools operated in four different mediums, with Malay-medium schools considered National Schools and the rest as National-type Schools.
Education was considered a panacea to the socio-economic backwardness of the Malays in the post-independence period. The State deepened special rights of Malays in education under Article 153 of the Federal Constitution where opportunities and positions are reserved for Malay students. To further the use of the Malay language in schools, the aggressive assimilation approach under the Education Act 1961 resulted in 76% of Chinese secondary schools converting into English secondary schools, and by 1985, all English-medium schools became Malay-medium schools. Declining enrolment at Tamil schools due to poor infrastructure and insufficient funding forced many to close down while the remaining Chinese schools are represented and managed by the joint associations ‘Dong Jiao Zong’ on top of government management. The Education Act 1996 replaced its 1961 predecessor and government control over non-Malay medium of instruction in schools was softened, leading to the current public school arrangement. Yet, the battle of the medium of instruction never ceased. In 2002, the ‘Teaching and Learning of Science and Mathematics in English’ policy was implemented to address the falling standard of English. Protests to the policy from the Chinese schools led to a compromise where Science and Mathematics would be taught in both English and Chinese. However, this policy was phased out in 2012. It is evident from this back-and-forth tussle regarding the medium of instruction of schools that the co-existence of vernacular schools with the agenda of national integration via the Malay language is not a simple affair; it is ethnically divisive.
Recent Revival of the Constitutional Debate
In October 2019, Mohd Khairul Azam, lawyer and Vice-President of the Parti Bumiputera Perkasa Malaysia (a nationalist political party), sought a declaration at the Federal Court that s.28 and s.17 of the Education Act 1996 contravened Article 152. However, the leave application was dismissed in his case, Mohd Khairul Azam bin Abdul Aziz v Menteri PendidikanMalaysia & Anor, on the grounds that they had no jurisdiction over the matter. Thus, the case was re-filed in the Kuala Lumpur High Court. In June 2020, Mohd Khairul sought to withdraw his suit on the grounds that three other Malay groups had filed similar suits, but that action was opposed by a number of minority groups. In February 2021, the Kota Bharu High Court reinstated a similar suit filed by a Muslim teacher’s group and all cases challenging the existence of vernacular schools will be consolidated and transferred to the Kuala Lumpur High Court. While the development of these cases remains to be seen, this article explores the potential constitutional debate and posits a legal pathway for the valid constitutionality of vernacular schools.
The Constitutional Debate
Article 152(1) of the Federal Constitution provides that ‘the national language shall be the Malay language’, provided that:
a) ‘no person shall be prohibited or prevented from using (otherwise than for official purposes), or from teaching or learning, any other language’; and
b) ‘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.’
Supporters of the stand that vernacular schools are unconstitutional often cite Merdeka University v Government of Malaysia as precedent. In that case, the Federal Court held that Merdeka University was ‘a public authority’ and accordingly, their use of the Chinese language for teaching was considered ‘for an official purpose’ in contravention of Article 152. One thing to note beforehand is why the Federal Court had no jurisdiction over Mohd Khairul Azam but could adjudicate on Merdeka University. On the surface, the former involved a complaint that the impugned provisions of the Education Act 1996 were invalid on the ground that Parliament had legislated on a matter it had no power to. Article 4(3) allows for the challenge of the validity of a law which Parliament has no power to legislate, and the Federal Court has jurisdiction over such challenges per Article 128(1)(a). However, the real crux of the application was that the impugned provisions are inconsistent with Article 152. As such, Chief Justice Azahar found the application to be wholly misconceived and the declaratory reliefs sought after to be beyond the ambit of Article 4(3) and consequently, the jurisdiction of the Federal Court. Thus, the applicant was referred to the High Court to start his application. Contrastingly, in the latter, the case reached the Federal Court via the appeal process and the clear issue was whether there was a contravention of Article 152. Upon this clarification, the article can now turn to distinguishing Merdeka University from being applied in cases regarding the constitutionality of vernacular schools on two bases: ‘public authority’ and ‘official purposes’.
Public authority is defined under Article 160(2) of the Federal Constitution as ‘a statutory authority exercising powers vested in it by federal or State law’. In Merdeka University, the word ‘authority’ was emphasised as the operative word which should constitute ‘some public element and utility’. Lord President Suffian reasoned that a university established under the University and University Colleges Act 1971, even if private, was clearly a public authority as ‘it is subject to some degree of public control’. Some examples noted were the number of public appointments to office, the University acting in the public interest, eligibility for grants-in-aid from public funds, and the Minister of Education’s involvement and responsibility over universities under the 1971 Act. Judge Seah dissented and contended that the operative word was ‘power’. While the majority believed that it is the source of power which is important, Judge Seah preferred to only recognise statutory authorities exercising governmental or quasi-governmental powers as ‘public authority’. He found universities to only have ‘general administrative’ powers under Reg.4(1) of the 1971 Act, and thus should not be a ‘public authority’. In the case of vernacular schools, it can be argued that they do not have the same public elements as that of universities and are governed differently. It is prohibited to establish a university except in accordance with the 1971 Act, whereas vernacular schools need only be registered with the Ministry of Education under s.79 of the Education Act 1996. Moreover, there is no provision under s.84 of the 1996 Act where the registration would be refused on the grounds of the school being a vernacular school. The Minister is also not required to assist vernacular schools in their establishment, whereas it is explicit in s.3, s.12 and s.13 of the 1971 Act that the Minister is responsible for the establishment and location specification of universities. Furthermore, a university’s Constitution must contain provisions of the First Schedule of the 1971 Act and its Chancellor, Vice-Chancellor and Board of Directors are appointed by the Minister. In comparison, a vernacular school is free to draft its instrument of government according to the 1996 Actand its Chairman and Board of Governors are internally elected before registration. For these reasons, a vernacular school is not considered a ‘public authority’ and consequently, should be protected by the exception under Article 152(1)(a) to use a non-Malay medium of instruction for teaching.
Article 152(6) defines ‘official purpose’ as ‘any purpose of a public authority’. It would seem that this criterion is dependent on whether an educational institution is a ‘public authority’, but the court in Merdeka University examined the history of language provisions to determine what constitutes an ‘official purpose’. The original 1948 Constitution did not have a language provision of general application like Article 152. Closer to independence in 1957, the British Government recommended officiating Malay as the national and official language into the present Constitution. The Malayan Government at the time balanced this recommendation with protecting the use of other languages for unofficial purposes by drafting Article 152 to give effect to that decision. These decisions were affirmed in the National Language Act 1963/67. Hence, when reading Article 152 together with the National Language Act, the court was clear that the Government cannot legally prohibit or prevent Merdeka University from teaching and offering courses for students to learn Chinese. However, as the University is a public authority, it would be prohibited from teaching in Chinese as the sole or major medium of instruction as that would be considered ‘for official purposes’ in the context of the Constitution and National Language Act. Judge Seah felt that the word ‘using’ in Article 152(1) should not be construed narrowly to mean ‘speaking’ as no other restrictions were imposed by the Article other than ‘for official purposes’. He opined that nothing in the Constitution prohibited or prevented using Chinese language for non-official purposes and that the ‘constitutional privilege guaranteed’ by Article 152(1)(a) should be ‘given a liberal interpretation’. It is noted that despite the consideration of the historical background, meeting the ‘official purpose’ criterion still largely hinges on whether the institution is a ‘public authority’ or not. It is also apparent that Article 152(1)(b) was never discussed in Merdeka University likely because it would be a bastion for the use of non-Malay medium of instruction. Therefore, in light of the historical background of Article 152, the intention of the framers of the Constitution at the time, and the crucial factor of vernacular schools unlikely to be a ‘public authority’, using a non-Malay medium of instruction for teaching in vernacular schools would not be considered ‘for official purposes’ and is not a violation of Article 152.
It pays to understand the history of the Malaysian education system and the decades of inter-ethnic struggles before considering the constitutionality of vernacular schools. The present Constitution and relevant Acts recognised the need for preservation of ethnic cultural identity and explicitly protected the use of minority languages so long as they are not used for official, public, or governmental purposes. This was ‘the middle ground’ necessary to ensure minority languages and cultures could flourish while maintaining the significance of the Malay language as the national language for all. Since vernacular schools are neither a ‘public authority’ nor do they act ‘for official purposes’ as analysed, they are not in violation of Article 152 and thus, not unconstitutional. Undoubtedly, the current Malaysian public education system is severely flawed in many ways and has its limitations in encouraging more interracial interaction, but it is most unfortunate that vernacular schools have become an easy scapegoat for those seeking to politicise the national education system to further divisive race-based policies to the detriment of minority groups. Instead of picking on the low-hanging fruit, more concerted effort should be channelled towards reforming the broken education system and establishing greater national unity. That starts by not targeting the existence of vernacular schools as the barrier to national harmony.
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