Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 MarsdenLR 1552

COURT OF APPEAL PUTRAJAYA
MOHD ZAI MUSTAFA – Appellant
Versus
MENTERI PENDIDIKAN MALAYSIA & ORS AND OTHER APPEALS – Respondent
[Civil Appeal Nos: W-01(IM)(NCVC)-682-11/2021 W-01(IM)(NCVC)-59-01/2022 W-01(IM)(NCVC)-60-01/2022 W-01(IM)(NCVC)-61-01/2022 W-01(IM)(NCVC)-64-01/2022 W-01(IM)(NCVC)-65-01/2022 D-01(NCVC)(A)-402-06/2022 & D-01(NCVC)(A)-458-06/2022]

Petitioner Advocates:Mohamed Haniff Khatri Abdulla,Aidil Khalid ,Respondent Advocate: Liew Horng Bin

The court ruled that vernacular schools are not public authorities and their existence does not violate the Federal Constitution, affirming the legality of Tamil and Chinese as mediums of instruction.

Headnote:(A) Education Act 1996 - Sections 2, 17, and 28 - Federal Constitution - Articles 5, 8, 10, 11, 12, and 152 - Legality and constitutionality of vernacular schools challenged - Provisions of the Education Act 1996 were not inconsistent with the Federal Constitution - Schools using Tamil or Chinese as a medium of instruction were not public authorities and did not contravene the Constitution. (Paras 13, 32, 50, 63)

(B) Locus Standi and Justiciability - Ordinary citizens possess locus standi to seek legal redress regarding constitutional violations - Courts should not shy away from adjudicating matters of law and constitutional construction. (Paras 70, 71)

Facts of the case:
The appeals arose from challenges to the legality of the vernacular school system in Malaysia, initiated by various non-governmental organizations against the Minister of Education and the government. The plaintiffs contended that certain provisions of the Education Act 1996 were unconstitutional. (Paras 1-3)

Findings of Court:
The court found that vernacular schools do not constitute public authorities and that their existence does not infringe upon fundamental liberties guaranteed by the Federal Constitution. All appeals were dismissed except for one. (Paras 13, 50, 71)

Issues: The key issues included whether vernacular schools were public authorities under the Federal Constitution and whether their existence infringed upon fundamental liberties. (Paras 32, 63)

Ratio Decidendi: The court reasoned that the vernacular schools were not public authorities and that their operation did not violate the Federal Constitution, emphasizing the voluntary nature of enrollment in such schools. (Paras 50, 68)

Result: Appeals dismissed, except for Appeal No 458, which was allowed.

Judgement Key Points

Key Points: - The court held that vernacular/national-type schools are not public authorities and their existence does not violate the Federal Constitution. (!) (!) (!) - The use of Tamil or Chinese as a medium of instruction in national-type schools is protected by the proviso to Article 152(1)(b) and is not an official purpose, thus permissible. (!) (!) (!) - Sections 2, 17, and 28 of the Education Act 1996 were examined for consistency with Article 152(1), and the court found no inconsistency regarding the establishment and maintenance of national-type schools. (!) (!) (!) (!) - The court emphasized that enrolment in vernacular schools is voluntary and that government policy effects are not proper subject matter for constitutional construction. (!) (!) (!) - Ordinary citizens have locus standi to seek redress regarding constitutional violations, and courts should adjudicate matters of law and constitutional construction. (!) (!) - The appellant appeals relating to the suitability of Order 14A for disposal were dismissed, and the specific issues were resolved on questions of law and construction rather than factual disputes. (!) (!) (!) - The High Court’s finding that vernacular schools were not public authorities was upheld, and Appeal No 458 was allowed. (!) (!) - The Constitution allows using languages other than Malay in non-official contexts, including education, given historical use prior to Merdeka. (!) (!) (!)

What is the legality and constitutionality of vernacular (national-type) schools under the Education Act 1996 in relation to Article 152 of the Federal Constitution?

What is the status of vernacular schools as public authorities under the Federal Constitution and the impact on language use in schools as a medium of instruction?

What is the locus standi and justiciability of ordinary citizens to challenge constitutional violations related to education policy and vernacular schools?

Table of Content
1. introduction of the appeals and parties involved. (Para 1 , 2 , 3)
2. reliefs sought in the writ actions. (Para 4 , 5)
3. determination of suit suitability for o 14a. (Para 6 , 8)
4. details of the kota bharu originating summons. (Para 9 , 10 , 11)
5. summary of the court's findings. (Para 12 , 13)
6. arguments on the appropriateness of o 14a. (Para 15 , 16 , 18 , 19)
7. court's analysis on the justiciability of the issues. (Para 22 , 23 , 24 , 25)
8. court's reasoning on the education act's provisions. (Para 31 , 32 , 33 , 34)
9. interpretation of article 152 of the federal constitution. (Para 37 , 40 , 41 , 42)
10. distinction between public authorities and schools. (Para 49 , 50)
11. historical context of vernacular schools. (Para 54 , 56 , 61)
12. conclusion on fundamental liberties and national-type schools. (Para 63 , 64 , 68)
13. final conclusion and dismissal of appeals. (Para 70)

Azizul Azmi Adnan JCA:

Introduction

[1] The appeals in the present case related to challenges on the legality and constitutionality of the vernacular schools system in Malaysia. There were eight appeals, which emanated from three suits filed at the High Court: two were commenced as writ actions in the High Court at Kuala Lumpur (Suit No WA-21NCVC-84-12/2019 and WA-21NCVC-2-01/2020), while the third case was an originating summons action commenced in the High Court at Kota Bharu (OS No 10 DA-24NCVC-66-02/2020).

The Parties

[2] The plaintiffs at first instance were the office bearers of various non-governmental organisations: Gabungan Pelajar Melayu Semenanjung (GPMS), Pertubuhan Pembangunan Pendidikan Islam Malaysia (MAPPIM), Gabungan Persatuan Penulis Nasional Malaysia (GAPENA), Pertubuhan Ikatan Muslimin Malaysia (ISMA) and Ikatan Guru-Guru Muslim Malaysia.

[3] In all the cases, the Minister of Education and the government of Malaysia were named as defendants. Several other parties representing various interests were subsequently included as co-defendants.

The Two Writ Actions In The High Court At Kuala Lumpur

[4] In the writ action WA-21NCVC-84-12/2019 (referred to here as "Suit 84"), the plaintiffs sought the following reliefs:

(a) a declaration that ss 2, 17 and 28 of the Education Act 1996 (which relate to the establishment and maintenance of vernacular or national-type schools where the medium of instruction is either Tamil or Chinese [We are aware that there is, strictly speaking, no single spoken Chinese language, but a number of different dialects based upon a uniform script. Nonetheless, for the purposes of this judgment, we have adopted the nomenclature employed in legislation and in the Federal Constitution]) were inconsistent with art 152(1) of the Federal Constitution (which among others established Malay as the national language) and that accordingly these provisions were null and void to the extent of such inconsistency;

(b) a declaration that the existence of such national-type schools was in contravention of certain provisions in the Federal Constitution providing for the fundamental liberties of individuals, specifically art 5 (the right to life and liberty), art 8 (the right to equality before the law), art 10 (the right of freedom of speech and expression), art 11 (the right to religion) and art 12 (the right of equal access to education); and

(c) an order directing the Minister of Education and the government to bring national-type schools into compliance with art 152(1) within a period of 6 years of judgment.

[5] Suit 84 was heard together by the High Court at Kuala Lumpur with the writ action WA-21NCVC-2-01/2020 ("Suit 2"). The plaintiff in Suit 2 sought similar reliefs as the plaintiffs in Suit 84. In Suit 2, the plaintiff sought for declarations that:

(a) ss 17 and 28 of the Education Act 1996 were in contravention of art 152 of the Federal Constitution; and

(b) such provisions of the Education Act 1996 , in so far as they related to national-type schools, were void.

[6] Some of the defendants in Suit 2 and Suit 84 made

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2023 MarsdenLR 1552

The court ruled that vernacular schools are not public authorities and their existence does not violate the Federal Constitution, affirming the legality of Tamil and Chinese as mediums of instruction.

What is the legality and constitutionality of vernacular (national-type) schools under the Education Act 1996 in relation to Article 152 of the Federal Constitution?

What is the status of vernacular schools as public authorities under the Federal Constitution and the impact on language use in schools as a medium of instruction?

What is the locus standi and justiciability of ordinary citizens to challenge constitutional violations related to education policy and vernacular schools?

Cases Referred (5)