PUTRAJAYA: In a split decision, the Federal Court has dismissed a leave application by two Malay-Muslim interest groups to set aside a Court of Appeal ruling that it is constitutional for vernacular schools to use Mandarin or Tamil as their medium of instruction.
A three-member bench chaired by Justice Mary Lim said the Islamic Education Development Council (Mappim) and Confederation of Malaysian Writers Association (Gapena) failed to cross the threshold as required under Section 96 of the Courts of Judicature Act 1964.
“The applicants failed to satisfy us that we could use our discretion to grant them leave and hear the appeal on a single amended question of law,” said Lim, who was joined by Justice Rhodzariah Bujang in the majority ruling.
Justice Abdul Karim Abdul Jalil, who dissented, took the position that the merits of the case appeal should be heard.
The amended question was whether the medium of instruction in Chinese and Tamil national schools – as established under Sections 2, 17 and 28 of the Education Act – are for official purposes and therefore subject to Article 152(1) of the Federal Constitution, which requires the use of the national language for all official purposes.
Lawyer Haniff Khatri Abdulla, who represented Mappim and Gapena, said there was a public interest element involved.
“The apex court should hear and determine the issue decided by the High Court and Court of Appeal,” he said.
Three respondents, the Malaysian Chinese Language Council, Persatuan Tamil Neri Malaysia and the Confederation of Former Tamil School Pupils, supported Mappim and Gapena’s application.
Senior federal counsel Liew Horng Bin, appearing for the government and the education minister, submitted the applicants failed to establish that the case was of public importance and merited an appeal.
“I have instructions from my clients to oppose the application as they have a desire to preserve and maintain vernacular schools,” he said.
Eight other respondents – which included MCA, Gerakan, MIC and Sekolah Menengah Persendirian Chong Hwa Kuala Lumpur – also opposed.
Delivering the unanimous verdict of a three-member Court of Appeal panel on Nov 23, Justice Azizul Azmi Adnan said vernacular schools had long been recognised in the legislative framework of the education system since even before Malaya’s independence and the existence of the 1957 constitution.
He said a vernacular school was not a public authority and, as such, the use of a non-Malay medium of instruction for teaching could not be said to violate the law.
Mappim, Gapena, Ikatan Muslimin Malaysia (Isma) and Ikatan Guru-Guru Muslim Malaysia (I-Guru) had appealed to the Court of Appeal from two separate High Court judgments issued on the same subject matter.
However, Isma and I-Guru opted against taking the case to the Federal Court.
They wanted a declaration that Sections 2, 17 and 28 of the Education Act – which permits vernacular schools, and Mandarin and Tamil as their medium of instruction – are inconsistent with Article 152(1) of the constitution.
They also wanted vernacular schools to be converted into national schools within six years, and for the pupils in these schools to learn Tamil in Year 1 and 2, Mandarin in Year 3 and 4, and Arabic in Year 5 and 6.
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