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This is a great judicial decision reflecting objectivity and independence, a sound knowledge of the law, a strong awareness of our constitutional history and a commendable understanding of the spirit of moderation and accommodation that permeates the Constitution of 1957 and 1963.
The basic issues in this case were the following:
1. Whether Sections 2, 17 and 28 of the Education Act 1996, which permit the setting up and maintenance of vernacular schools as part of the country’s national education system, are contrary to Article 152(1) of the Federal Constitution? This issue arises because Article 152(1) declares the Malay language to be the national language of the Federation.
2. Whether the use of Tamil and Chinese as the medium of instruction in vernacular schools is an “official purpose” and therefore forbidden by Article 152(1)(a)? This issue arises because Article 152(1)(a) provides that the Malay language shall be used for all “official purposes”,
3. Whether the Education Act 1996 can permit the medium of instruction in vernacular schools to be Chinese or Tamil despite the Federal Court decision in the case of Merdeka University Sdn Bhd (1982)? That case laid down that each university is a public authority under Section 7(1) of the Universities and University Colleges Act 1971 and its purpose is an “official purpose” under Article 152(1)(a).
4. Whether Sections 2, 17 and 28 of the Education Act 1996 were a violation of the constitutional right to personal liberty (Article 5), right to equality (Article 8), freedom of speech, assembly and association (Article 10), freedom of religion (Article 11) and rights in respect of education (Article 12)? This contention was so frivolous and untenable that the judge dismissed it summarily.
In his learned judgment the judge noted that though Article 152 gives Malay an exalted position and prescribes that the national language shall be the Malay language, the constitutional provision is in fact replete with several exceptions.
First, Article 152(1)(a) provides that no person shall be prohibited or prevented from using (otherwise than for an “official purpose”) or from teaching or learning any other language. This implies that all other languages in our dazzlingly diverse nation can be used for non- official purposes. The learned judge noted that the National Language Act 1963/1967 also states that no person shall be prohibited or prevented from using other languages for non- official purposes.
Second, what amounts to an “official purpose” is defined in Article 152(6) which provides that “official purpose” means any purpose of the Federal or State governments or of a public authority.
Third, the determining issue in this case was whether the use of Chinese and Tamil in privately run vernacular schools is an “official purpose” and whether vernacular schools are a “public authority? On these issues the court held, following the Merdeka University case, that all statutory authorities exercising powers vested in them by federal or state law are public authorities. Thus, a university established under the Universities and University Colleges Act 1971 is a statutory and a public authority. However, the judge distinguished his case from the Merdeka University case. A national-type vernacular school under the Education Act 1996 does not sufficiently exhibit the requisite public element to be regarded as a statutory or a public authority. Therefore, its use of a non-Malay language for teaching is not for an official purpose and is protected by the exception in Article 152(1)(a) of the Constitution.
Fourth, Article 152(1)(b) provides that nothing in Article 152(1) shall prejudice the right of the Federal or State governments to preserve and sustain the use and study of the language of any other community in the Federation. This power exists as an exception to Article 152(1) and can be exercised in relation to all purposes, official or non-official.
In any case, vernacular schools are not an official purpose. The Merdeka University case is irrelevant to the situation of vernacular schools because a university under the Act of 1971 is a statutory body with an official purpose whereas a vernacular school under the Education Act is not a “public authority” or a body corporate pursuing an “official purpose” under Article 152(1)(a).
The learned judge also found strength in the case of Mohd Khairul Azam Abdul Aziz v Menteri Pendidikan[2020] 1 MLJ 398 in which the Federal Court held that Section 28 of the Education Act 1996 allows the Minister to establish national schools and national type schools and Section 17 of the same Act permits such schools to be exempted from using the national language as the medium of instruction subject to the national language being taught as a compulsory subject.
A very significant aspect of this judgement is that the judge paid attention to the history of vernacular education in this country and interpreted the Constitution in the light of its history and legislative intention. He noted that vernacular schools predate independence and the Federal Constitution. His learned judgement took note of the Barnes Report 1951, the Fenn-Wu Report of 1951, the Razak Report of 1956, the White Paper of the Rulers’ Proposals on the status of the official language, and the Rahman Talib report. He found that in all these deliberations and Reports, there was never a mention of the abolition of English, Chinese or Tamil language schools. He therefore concluded that Article 152, the Education Act 1961 and the Education Act 1996 never intended to prohibit the use of other languages other than Malay in vernacular schools.
The broader implication of this decision is that it recognises that the country built by our forefathers was founded on moderation and accommodation. The supreme Constitution did not create a melting pot. Instead, it allowed the country’s dazzling diversity to manifest itself in a mosaic. Perhaps, this was our winning formula for becoming and, for remaining, at least in our early decades, an exemplar for much of Asia and Africa as a country where unity did not mean uniformity and where what were sought was a unity in diversity.
[MONTHLY CASE COMMENTARY] The monthly case commentary is extracted from the Consti Bulletin, which is a collaboration between the Faculty of Law, Universiti Malaya and the Malaysian Bar Council.
In this commentary, current holder of the Tunku Abdul Rahman Chair at Universiti Malaya, Emeritus Prof Datuk Dr Shad Saleem Faruqi will dissect the case of Mohd Alif Anas v Menteri Pendidikan (2021).