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2022 MarsdenLR 2043
HIGH COURT MALAYA KUALA LUMPUR
MOHD ALIF ANAS MD NOOR & ORS – Appellant
Versus
MENTERI PENDIDIKAN MALAYSIA & ORS AND ANOTHER CASE – Respondent
[Civil Suit Nos: WA-21NCVC-84-12-2019 & WA-21NCVC-2-01-2020]
Vernacular schools' existence and operation under the Education Act 1996 are constitutionally valid and do not infringe the Federal Constitution's provisions.
Headnote:(A) Federal Constitution – Article 152(1) – Education Act 1996 – Sections 2, 17 and 28 – Challenges to the constitutionality of vernacular schools – Court held that statutory provisions allowing vernacular schools do not contravene the Federal Constitution – The plaintiffs' claim was dismissed. (Paras 1, 2, 144)
(B)
Locus Standi – Plaintiffs' standing to bring forth claims against vernacular schools was examined and found lacking, thus reinforcing the Court's findings on the main issues. (Paras 134)
(C)
Judicial Precedent – The presumption of constitutionality was applied to the Education Act 1996, as the plaintiffs failed to demonstrate a clear transgression of constitutional principles. (Paras 144, 145)
Introduction
[1] These two suits essentially sought to declare that the existence of vernacular schools in this country is against the Federal Constitution. This Court heard these suits under O 14A of the Rules of 2012 by way of examining the approved questions of law, principally on whether the statutory provisions governing vernacular schools are contrary to the Federal Constitution and whether the existence of the vernacular schools infringes certain other constitutional provisions.
[2] At the end of the hearing of the questions under the O 14A proceedings, which were held in open Court for over two days, I answered the questions in the negative, highlighted my main reasons for the same, and consequently ordered that both the suits be dismissed. This judgment contains the full reasons for my decision.
Key Background Facts
[3] The 1st plaintiff in the first suit (Suit 84) is the President of Gabungan Pelajar Melayu Semenanjung (GPMS) and is suing on its behalf, whilst the 2nd plaintiff is the Secretary of Majlis Pembangunan Pendidikan Islam Malaysia (MAPPIM) and is suing on its behalf. The 3rd plaintiff is a representative of Gabungan Persatuan Penulis Nasional Malaysia (GAPENA). The plaintiff in the second suit (Suit 2) is the chairman of Pertubuhan Ikatan Muslimin Malaysia (ISMA), also suing on behalf of the association.
[4] The plaintiffs filed these writ actions in Suit 84 and Suit 2 primarily against the original two defendants, namely the Minister of Education and the Government of Malaysia, and in their statements of claim essentially sought the following reliefs:
(i) A declaration that ss 2, 17 and 28 of the Education Act 1996 , to the extent these provisions permit the establishment of national type schools - Chinese and Tamil national schools which conduct teaching and learning in the Chinese and Tamil language in their respective medium of instructions, is contrary to art 152(1) of the Federal Constitution and is therefore invalid and void to the extent of the said contradiction;
(ii) A declaration that the existence of national type Chinese and Tamil schools has further also resulted in a situation that is inconsistent with art 5 (the right to life or personal liberty), art 8 (right to equality), art 10 (right to freedom of speech, assembly and association), art 11 (freedom of religion), and art 12 (rights in respect of education) of the Federal Constitution; and
(iii) A declaration that the 1st and 2nd defendants shall take all steps necessary to ensure that the existence of national type Chinese and Tamil schools existing in Malaysia, shall be in accordance with art 152(1) of the Federal Constitution, within six (6) years from the date of this decision.
[5] Given the same underlying issues and common main defendants, parties agreed for the two actions - Suit 84 and Suit 2 - to be heard together. By agreement also, several other parties, who initially applied to intervene in these suits, are made as additional defendants in this action. These defendants (with the exception of PUTRA, the 12th defendant in Suit 84 and 3rd defendant in Suit 2, who later withdrew) are associations which essentially promote Chinese and Tamil education in the country, and also including political parties.
[6] I then allowed the application by the 1st and 2nd defendants, the 6th and 7th defendants, and the 13th defendant, supported by all the other defendants in Suit 84 (and similarly in Suit 2) for the suits filed by the plaintiffs to be disposed of by way of the determination of the following questions of law pursuant to O 14A r 1 of the Rules of 2012 ("the RC 2012"):
(i) Whether ss 2, 17 and 28 of the Education Act 1996 are inconsistent with art 152(1) of the Federal Constitution; and
(ii) Whether the establishment and existence of Chinese and Tamil national type schools is inconsistent with arts 5, 8, 10, 11 and 12 of the Federal Constitution.
[7] I have also accepted that there are two other questions, as pro
