Case summary of Mohd Zai bin Mustafa (in the capacity as Secretary of MAPPIM) v Menteri Pendidikan Malaysia & Ors and other appeals [2023] MLJU 3031

The Court of Appeal, Putrajaya, heard the appeal of Mohd Zai bin Mustafa (in the capacity as Secretary of MAPPIM) v Menteri Pendidikan Malaysia & Ors and other appeals [2023] MLJU 30311. On December 8, 2023, the judges, Supang Lian, M Gunalan, and Azizul Azmi Adnan JJCA, rendered their decision. This case is one of the most prominent and controversial of 2023, as it drew significant attention from the internet community due to its discussion of the national constitutionality of preserving vernacular schools and the issue of race. 

The plaintiffs in this case were representatives of numerous Malay/Muslim educational NGOs, such as the Islamic Education Development Council MAPPIM, Confederation of Malaysian Writers Association (GAPENA), GPMS, and Ikatan Muslimin Malaysia (ISMA). The High Courts of Kuala Lumpur and Kota Bharu jointly considered the cases, which were subsequently appealed to the Court of Appeal. They challenged the constitutionality and legality of vernacular schools (Sekolah Jenis Kebangsaan) on the grounds that these schools purportedly violate the constitutional provision that Malay is the national language. These lawsuits contested sections 2, 17, and 28 of the Education Act 1996, contending that they contravened Article 152(1) of the Federal Constitution, which defines Malay as the national language. The appellant also contended that vernacular schools are in violation of the Federal Constitution, the provisions that authorise them are null and void, and the government is obligated to convert all such schools to Malay-medium within a six-year period. The Minister of Education and the Government of Malaysia were the primary respondents. Other co-defendants included Dong Zong, Jiao Zong, and a variety of associations that represented the educational and cultural interests of Chinese and Indian individuals. 

It is crucial to emphasise and define specific components of this case prior to getting deeper into its complexities. For instance, the term “vernacular schools” is not utilised and recognised globally,rather, it is restricted to specific countries. Consequently, a vernacular school, which is also referred to as a national-type school in the Malaysian education system, is a primary school that employs either Mandarin (SJKC) or Tamil (SJKT) as its medium of instruction. These schools have been the subject of continuous debate and discussion in Malaysia and are an alternative to the national schools, which are Malay medium (SK). 

Additionally, it is essential to comprehend the legislation that has been published, as Section 17(1) of the Education Act 19662 mandates that the national language shall serve as the primary medium of instruction in all educational institutions within the National Education System, with the exception of a national-type school established under section 28 and any other educational institution that the Minister has exempted from this subsection. Additionally, the minister has the authority to establish national schools and national-type schools, subject to the provisions of this Act, under Section 28 of the Education Act 1966. The minister is responsible for the maintenance of these schools. Furthermore, Article 152(1) of the Federal Constitution3 stipulates that the Malay language is the national language and will be written in a script that is designated by Parliament. Nevertheless, individuals are permitted to employ, instruct, and acquire additional languages for non-official purposes. Furthermore, both the Federal and State governments have the authority to uphold and encourage the study and use of other languages. 

Issues 

One of the numerous issues in this case is whether the provisions of the Education Act 1996, specifically Sections 2, 17, and 28, which permit vernacular schools, are in conflict with Article 152(1) of the Federal Constitution. Additionally, the Court of Appeal was required to ascertain whether vernacular schools violate the fundamental liberties outlined in Articles 5, 8, 10, 11, and 12 of the Constitution. However, these concerns also included the question of whether vernacular schools are “public authorities” under the Constitution’s Articles 152(6) and 160(2), and whether the use of Chinese or Tamil as a medium of instruction by such schools constitutes a prohibited “official purpose” under the Constitution. 

Judgement’s Reasoning 

The primary concern was the phrase “official purpose” in Article 152(6), which limits the use of non-Malay languages in government and public authorities. According to the Court,  vernacular institutions are not considered public authorities in accordance with Articles 152(6) and 160(2). In contrast to universities, which are regulated by the Universities and University Colleges Act 1971, vernacular schools do not operate independently of the Ministry of Education or exercise autonomous statutory authority. Consequently, their utilisation of Chinese or Tamil as the medium of instruction does not comprise an official purpose and, as a result, does not violate Article 152(1). Moreover, the Court confirmed that vernacular institutions are not public authorities and, as a result, do not fall under the restriction outlined in Article 152(1) of the Federal Constitution. 

Additionally, the Court highlighted the historical and legal continuity of vernacular schools since before Merdeka, and there was no indication that the Constitution intended their abolition in terms of the historical and legal context. The Court acknowledged the multicultural and multilingual nature of Malaysian society by citing a number of historical documents, including the Barnes Report (1951), Fenn-Wu Report (1951), and Razak Report (1956). The formulation of education policies following Merdeka was significantly impacted by these reports. 

With regard to the Education Act 1996, Sections 2, 17, and 28 were examined. Section 17 mandates that Malay be the principal medium of instruction, but it permits exemptions for national-type institutions. The minister is granted the authority to establish and maintain these institutions under Section 28. The Court confirmed that these provisions are constitutionally permissible and legitimate. 

The plaintiffs claimed that vernacular schools infringed upon Article 5, which refers to liberty, Article 8, which pertains to equality, Article 10, which involves expression; Article 11, which relate to religion, and Article 12, which pertains to education. The Court rejected these arguments, observing that enrolment in these institutions is entirely voluntary. The existence of vernacular institutions does not deprive individuals of their rights; rather, it provides an alternative that is indicative of Malaysia’s multicultural identity. 

Judgement 

The Court of Appeal issued a comprehensive ruling, denying all appeals except for those that pertain to the classification of vernacular schools as “public authorities.” The court determined that the disputes were appropriately resolved through legal arguments, without the necessity of oral testimony. Schools, unlike universities (as in the Merdeka University case), are not established as corporations, do not exercise statutory powers, and are not directly controlled by the government in a manner that classifies them as public authorities. 

Moreover, the court determined that the utilisation of Tamil and Chinese in these educational institutions does not qualify as a “official purpose” under Article 152(6). Consequently, their utilisation is permissible and safeguarded by Article 152(1)(b), which enables the preservation and ongoing utilisation of community languages. 

The court also observed that vernacular institutions were in existence prior to Merdeka and were not abolished upon the implementation of the Federal Constitution. Therefore, their creators did not intend to forbid their continuation. Additionally, the plaintiffs were unable to establish that vernacular institutions violate fundamental liberties. Parents are at liberty to select national institutions in lieu of these schools, and attendance is voluntary.  Consequently, it is impossible to establish any form of coercion or violation of personal rights and liberty. 

Legal Principle 

The significant legal principle that can be examined in this case is that vernacular schools are not public authorities and are therefore not subject to the official language requirement outlined in Article 152. The constitutional protection of Tamil and Chinese in these institutions is enshrined in Article 152(1)(b). The Court emphasised a purposive and historical interpretation of the Constitution, acknowledging the continuity of vernacular education as a component of Malaysia’s post-independence social compact. 

The Court observed in the obiter dicta of this case that the Constitution permits diversity in education and language, provided that it does not undermine national interests. The judiciary should refrain from interfering with government policy unless there is an obvious constitutional violation. Malaysia’s pluralistic society must be acknowledged and respected in public discourse and policy.

Conclusion 

In summary, the law explicitly states that Section 17(1) of the Education Act 1996 allows for the establishment of additional national-type schools, including Sekolah Jenis Kebangsaan China and Sekolah Jenis Kebangsaan Tamil, which are established by the Minister. These institutions are not obligated to utilise the national language Malay as their principal medium; they may instead employ Mandarin or Tamil. Additionally, the provisions of the Education Act do not violate Article 152(1) of the Federal Constitution, as they do not explicitly prohibit the use of the Malay language. In accordance with Section 17(2) of the Education Act, vernacular schools not only do not discourage the use of the Malay language, but they also implement numerous initiatives to promote its use and respect. Therefore, I do not believe that it is accurate or reasonable for individuals to assert that vernacular schools are unconstitutional or do not adhere to any laws in Malaysia. This is because they are nearly identical to Malay medium schools (Sekolah Kebangsaan), except the big difference is that they use a different language as their primary medium. 

This groundbreaking decision establishes the constitutional legitimacy of vernacular institutions in Malaysia. It reaffirms the principle that constitutional interpretation must be contextual, historically informed, and sympathetic to Malaysia’s distinctive multicultural landscape. The ruling of the Court of Appeal is a significant reaffirmation of the rights of minority languages and educational diversity. It establishes that the operation of national-type schools is not illegal or unconstitutional, but rather an expression of Malaysia’s rich cultural heritage, which is protected under the Federal Constitution.

Reference(S)

1[2023] MLJU 3031

2 Education Act 1966 (Act 550), S 17

3 Federal Constitution, Article 152(1)