No, it’s not sedition. The constitutionality of vernacular schools is indeed in question
There isn’t a Constitutional right to the schools
Faidhur Rahman Abdul Hadi, Malay Mail Online
The comments of MCA Religious Harmony Bureau Chairman Datuk Ti Lian Ker against Umno Petaling Jaya Utara division deputy head Mohamad Azli Mohemed Saad give us something to ponder. (Probe Umno man for sedition over call to scrap Chinese schools, says MCA).
According to Datuk Ti Lian Ker, suggesting the discussion of possible abolition of vernacular schools using Chinese as the medium of instruction at the coming UMNO general assembly, Mohamad Azli falls afoul of Article 152 of the Federal Constitution which, in addition to enshrining Malay as the national language of Malaysia, supposedly provides the right for non-Malay medium schools such as Chinese and Tamil schools to be established to provide for education in the mother tongue of minority Chinese and Indian communities and this is sedition under the Sedition Act 1948.
But is this really the case?
I believe the issues that arise should be dealt with as answers to two questions: firstly, whether our Federal Constitution protects the right to the use of the mother tongue of any particular community as the medium of instruction for any schools; and secondly, if there is such a right, whether a call for a debate with a view to abolition of Chinese (or indeed Tamil) schools, in existence for more than half a century here as reminded by Dong Zong deputy president Chow Siew Hon, is sedition under the Sedition Act 1948.
First of all, there is a need to state the position of the Federal Constitution on this matter. Article 152(1) states that the national language of Malaysia is the Malay language.
However, there are two provisos as set out in Articles 152(1)(a) and (b), namely, that no person shall be prohibited from using, teaching and learning any other language, unless for official purposes; and that nothing shall prevent the right of the Federal Government or any State Government from preserving the use and study of language of any other community in Malaysia.
At a glance these two provisos would appear to protect the existence of Chinese and Tamil vernacular schools.
However, a closer scrutiny of the said provisos to Article 152 would reveal otherwise, and this could be gleaned from the decision of the Federal Court in Merdeka University v Government of Malaysia.
In this case, Dong Zong had requested the Federal Government for an incorporation order issued pursuant to Section 6 of the University and University Colleges Act 1971 for the establishment of a university, namely the Merdeka University, using Mandarin Chinese as the medium of instruction. This was rejected by the Government at the time as being against the national education policy.
Subsequently, Dong Zong sued the Government at the High Court and was dismissed. This was appealed at the Federal Court and Their Lordships Lord President Suffian Chief Judge of Malaya Raja Azlan Shah J, Federal Court Justices Salleh Abas and Abdul Hamid held, by a majority (with Justice Seah disagreeing) that if an order for the incorporation of the university were to be made, it would be, notwithstanding its privately owned nature, a public authority as it would be exercising powers under the University and University Colleges Act 1971 as the legal basis for the functioning of the university.
And as the university would be a public authority, use of the Chinese language as the medium of instruction would be for an official purpose and thus, prohibited by Article 152(6) of the Federal Constitution.
Thus from the above reasoning it is deduced that Chinese and Tamil schools, being established pursuant to the Education Act 1996, are also public authorities within the ambit of the above interpretation, and therefore the use of Chinese and Tamil as the medium of instruction within those schools are similarly prohibited.
But do the aforementioned provisos to Article 152(1) protect the right to receive instruction in a language other than the Malay language?
To this, His Lordship Suffian LP postulated that the word “using” in proviso (a) to Article 152 does not include “teaching in” any language apart from the national language.
Thus, while the proviso protects the teaching and learning of any other language – including one’s mother tongue – the protection however does not extend to the use of those languages as medium of instructions in schools.
Thus the answer to the first question, namely whether the Federal Constitution protects the right to establish vernacular schools is, quite frankly, no. By virtue of the above precedent we can safely conclude that no such right exists.
