Recently, a suit challenging the constitutionality of vernacular schools was dismissed. The Muslim teacher group that brought the suit has plans on appealing the decision. Regardless of the outcome of the upcoming appeal, it has stirred up discussion online as to whether vernacular schools are actually constitutional. We may refer to the recent Federal Court decision in the case of Mohd Khairul Azam bin Abdul Aziz v Menteri Pendidikan Malaysia & Anor  1 MLJ 398.
The applicant sought a declaratory order against the respondents that Parliament had no power by virtue of Article 152 of the Federal Constitution (‘FC’) to enact sections 17 and 28 of the Education Act 1996 (‘the impugned provisions’). They argued that even if Parliament had power under the FC to enact laws pertaining to matters of Education, such power had to be exercised without violating Art 152 FC which provides that the national language shall be the Malay language.
On the other hand, the respondents contend that the applicant’s leave application did not meet the requirements of Art 4(3) FC. It was also contended that the applicant’s real complaint was that the impugned provisions were invalid for violating Art 152 FC but since such a complaint did not fall within Articles 4(3) or (4), the leave application should be dismissed.
- Whether the present application comes under art 4(4) of the Federal Constitution so that leave of a judge of the Federal Court is required.
- Whether applicant’s real complaint was that the impugned provisions are invalid for conflicting with art 152 of Federal Constitution which declared Malay language as national language.
- Referring to Petroliam Nasional Bhd (Petronas) v Kerajaan Negeri Sarawak, it was held that Arts 4(3), (4) and 128(1)(a) FC apply only where the validity of a law is challenged on the ground that it ‘makes provision with respect to a matter with respect to which Parliament… has no power to make laws’. As such, the declaratory reliefs sought by the applicant did not come within the ambit of Art 4(3) and (4). Hence, the declaratory reliefs sought by the applicant were not within the exclusive original jurisdiction of the Federal Court.
- Referring to the case of Merdeka University Berhad v Government of Malaysia that was cited by learned counsel for the applicant, the main issue in Merdeka University was whether there was a contravention of art 152. The question before the Federal Court in Merdeka University is therefore irrelevant to the question in the present application. There, the Federal Court was not called upon to decide whether Parliament made a law on a matter that is not in the Federal list. Besides, s28 of the Education Act 1996 allows the Minister to establish national schools and national-type schools. Section 17 of the same Act allows such schools to be exempted from using the national language as the main medium of instruction. However the national language shall be taught as a compulsory subject. As such, these are areas in which Parliament may make laws with respect to matter on ‘Education’.
- The present leave application instituted by the applicant under Art 4(4) is a challenge to the constitutional validity of the impugned provisions (i.e. it is inconsistent with Art 152). This is not a case where declaration is sought that the impugned provisions are invalid on the ground that it is related to a matter with respect to which Parliament had no power to make such law. The declaratory reliefs sought by the applicant do not come within the ambit Arts 4(3) and (4) FC and are thus not within the exclusive original jurisdiction of the Federal Court. The declaratory reliefs sought for are within the original jurisdiction of the High Court and thus the case should be referred to said court.
- The applicant’s main contention was that the national-type Chinese and Tamil schools established by the Minister of Education pursuant to the impugned provisions were contrary to Art 152 FC. This was not a case where a declaration was sought that the impugned provisions were invalid on the ground that they were related to a matter with respect to which Parliament had no power to make laws. Hence, the declaratory reliefs sought were not within the exclusive jurisdiction of the Federal Court and did not come within the ambit of Arts 4(3) and (4) FC. The declaratory reliefs sought for were within the original jurisdiction of the High Court which was the competent forum to hear such challenges.
In consequence and in view of all the above, this leave application must be dismissed.
Parliament has power to make laws on issues regarding to education, and the laws on establishing vernacular schools are included in ‘education’. As such, the existence of vernacular schools are indeed constitutional as they do not contradict Art 152 of the FC.