OCTOBER, 13 — Education opens up the doors to the realm of knowledge; knowledge helps to develop a person’s mind and to be analytical. It trains him or her to avoid acts or conduct which may cause harm, pain to oneself or others. Most importantly, education helps to prevent the destruction of peace and harmony in a society, and in the country. It would not be an exaggeration to say that universal peace could be realised if knowledge is respected, is shared, and there is no fear to seek it wherever it maybe. Knowledge has no territorial limits, nor does it have religious limitations and any attempt to do so would only demonstrate the fear deep seated in one’s mind.

It would seem that from the time the human race began to think, the idea to learn from nature, from the neighbourhood and even from barbaric invaders would have been overwhelming. As far as the barbarian invaders were concerned, it may be apposite to describe that there was nothing to learn from them except to submit to their brutish whims and fancies. And what they taught is to respect their authority and adopt a slavish course of life.

The invaders’ language, their way of life, their culture, their religion had to be accepted under force of arms and violence. The vanquished had no choice; but, the popular view seems to be that although the emphasis on education was present its availability was limited. The majority of the populace was deprived of education, which remained an exclusive privilege of a few and the so-called parasitical upper class. To this minority group or class, education was a sort of ornament for the purpose of displaying scholarship that had been attained and to enjoy the finer aspects of literature that had then been created. This group, albeit a minority, having achieved political power deliberately and brutally deprived education to the greater populace.

Thus the schools that sprung up millennia ago were meant for selected people; for example, the school started by Confucius was meant to bring out efficient administrators, and Plato’s Academy in Athens to see the growing numbers of philosophers. It is probable that Confucius and Plato or Socrates, for that matter must have envisaged an orderly state administration thus Confucius wanted to perfect the state craft; Socrates through the medium of Plato clamoured for those who know how to rule-to be rulers. Looking at the objectives of those eminent thinkers we may not be totally out of sync in concluding that the education they were aiming had different purposes: One was to achieve administrative excellence and an obliging citizenry in a broad sense, the Confucian anticipation, and the Socratic expectation of a philosopher ruler. However, their objective was not to cover the populace in its entirety, and education was only available to those who could afford it: Although Confucius is said to have denied insisting on fees and Socrates stigmatised collecting fee for education.

The idea of establishing schools and through which to educate the children in a general way is a modern development. European countries, especially Britain and France having acquired colonies in Asia and Africa established schools to cater their colonialists’ needs; namely, the human support they needed to maintain effectively their iron-fisted control over the people. They needed locals who would be useful in the colonial administrative engine. This could have had a positive effect in creating a unique class of pliant ethnic subordinates.

Another salient point that needs to be remembered is that in the ancient world of brutal invasion and oppressive rule slavery was a distinguishing mark of the upper class, and the slaves could not think freely, for their mind was controlled through doubtful literature, literature that destroyed self-confidence and required slavish obedience. And it is said that a mind controlled by falsities and false promises will not function effectively. But, the moment they are unshackled from slavery they do perform well. They believe in themselves and they believe what the country and the leaders stand for: Because, their freed minds enthrall in doing something good.

By twentieth century, education had become a very important armour in a persons’ life; to live a decent life, to think and to be free. To this end, the importance of education not only had to be re-affirmed but new emphasis had to be put in place. Thus, we could discern that the framers of the Malayan (later Malaysian), Federal Constitution following universal call did give prominence to education by including it as part of the fundamental liberties.

Article 12 of the Federal Constitution reads:-

“Without prejudice to the generality of Article 8, there shall be no discrimination against any citizen on the grounds only of religion, race, descent or place of birth —

(a) in the administration of any education institution maintained by a public authority, and, in particular, the admission of pupils or students or the payment of fees; or

(b) in providing out of the funds of a public authority financial aid for the maintenance or education or pupils or students in any educational institution (whether or not maintained by a public authority and whether within or outside the Federation).”

This provision, no doubt, guarantees the inalienable right of the citizens of Malaysia to education. What sort of education is a moot-point.

The primary question that begs the answer is whether the law must cater the quantity or quality, or it just cater for both the quantity as well as the quality of education. It may be true, eradication of illiteracy must have been the primary objective, and the message was clear that there will be no element of discrimination on any ground.

This brings us to the point, whether separating the pupils in schools on the grounds of religion and race is a profitable exercise or such an exercise has the quality of destroying the fragile veneer of overall unity aiming to see a Malaysian society. And whether overt separation of students based on religious and racial grounds, however, transient satisfies the spirit of Article 12 is another important question that calls for profound scrutiny. Aside this, should eligibility and entitlement to education be based on race and religion?

The answers could be found in Article 12, but whether they are given positive attention is another matter. These are troubling questions, but looking at Article 12 there is, doubtlessly, no room for discrimination in education. Article 12 is a fair provision, yet when we look at the implementation, doubts do surface. If we take education as a bottomless pit, then, we cannot see the rationale behind the restriction in the acquisition of education after a certain level; for example, Chinese and Tamil children could only get government aided primary education of upto six years.

Chinese and Tamil primary schools are Government aided but Chinese secondary schools need to be self-sufficient whereas Tamil educations see its premature cessation at standard six. The continuation of Tamil education beyond standard six is littered with manifold restrictions. For example, in a secondary school there must be not less than 15 students who enroll to take Tamil as a subject. It is voluntary. It is not compulsory. We must not ignore the fact that the human nature is such it looks to benefit before embarking on a course. Thus, Tamil language, in this country or universally, supposedly has limited financial clout. This very thought may not be wholly correct but its applicability, locality wise and population wise maybe limited.

This is due to the fact that education is equated with monetary gains ignoring the value it could instill in a person. Every language has a mine of wisdom, world wise experience and lots of other valuable knowledge which are there to be explored but remain concealed through sheer neglect or bias. If people suffer under the weight of ignorance, poverty, social disparities and continual social injustice their desire to acquire knowledge would be wanting.

However, if we are to look at the intention of the Government soon after Merdeka it could be gleaned that there was a definite acceptance that Chinese and Tamil schools shall be recognised and remain protected. They are here to stay and notwithstanding the fact they are not official languages, they are part of the Malaysian language group to remain as a permanent feature of the Malaysian language point.

To add impetus to the enshrined provision in the constitution, section 15 of the Education Act 1996 spells out the National Educational System. That section says:

“The National Education System shall comprise-

(a) pre-school education;

(b) primary education;

(c) secondary education;

(d) post-secondary education; and

(e) higher education.”

Expatriate schools and International schools are not covered by this By section 29A(1) of the Act of 1996 it is provided that the Minister of Education shall prescribe primary education shall be compulsory. Further, section 29A(2) states that every parent who is a Malaysian citizen residing in Malaysia shall ensure that his (or her) child who has attained the age of six years on the first day of January of the current school year that child is enrolled as a pupil in a primary school in that year and remains a pupil in a primary school for the duration of the compulsory education.

The Minister of Education is under a statutory duty to prescribe the National Curriculum to be used in schools in the National Education System.

Paragraph 2 of the schedule to the Education Act 1996 spells out the core subjects at the primary level, and they are:

(a) the National Language;

(b) the English Language;

(c) the Chinese Language, for pupils in national-type schools

(d) the Tamil Language, for pupils in national-type schools (Tamil);

(e) Mathematics;

(f) Science;

(g) Local Studies;

(h) Islamic Education, for pupils professing the religion of Islam; and

(i) Moral Education, for pupils not professing the religion of Islam.

When we look at these statutory provisions we are assured that the existence of Chinese and Tamil schools are guaranteed and protected.

The prudent way of looking at all the statutory provisions in relation to the Malaysian-language issue is to demonstrate the inviolable position of Bahasa as the national as well as official language of Malaysia; and to acknowledge Chinese and Tamil as protected languages. They cannot be equated with any other foreign language which had not been in the contemplation of the framers of the constitution.

We could now turn to look at Article 152 of the Constitution which reads as follows:

“1. The national language shall be the Malay language and shall be in such script as Parliament may by law provide.

Provided that —

(a)no person shall be prohibited or prevented from using (otherwise than for official purposes), or from teaching or learning, any other language; and

(b)nothing in this Clause shall prejudice the right of the Federal Government or of any State Government to preserve and sustain the use and study of the language of any other community in the Federation.

In so far as the National language is concerned there is not an iota of doubt that Bahasa is the National language, and it is also the official language.

There is a clear prohibition from using any language for official purpose except the use of English language as allowed by section 4 of the National Language Act 1963 which reads as follows:-

“4. The Yang di-Pertuan Agong may permit the continued use of the English language for such official purposes as may be deemed fit.”

In interpreting Article 152 Tun Suffian, the then Lord President of the Federal Court, pointed out in the case of Merdeka University Bhd v. Government of Malaysia ([1982] 1 MLJ 243 at page 249) that it must be read together with Section 2 of the National Language Act 1963/67 which reads as

“2. Save as provided in this Act and subject to the safeguards contained in Article 152(1) of the Constitution relating to any other language and the language of any other community in Malaysia the national language shall be used for official purposes.”

The words “any other language and the language of other community in Malaysia” in Section 2 would seem to deal with two groups of language: One, any other language meaning the language or languages in Malaysia. In other words, reading Article 152 and Section 2 of the National Language Act, the language of other community in Malaysia are rendered constitutional protective shield whereby both groups of language, eg. those that fall under the group of “other language” and, next group which has been clearly identified as “the language of any other community in Malaysia”. But, they cannot be used for official purposes.

Recently some have adopted a very eristical course by advancing an interpretation of Article 152 not intended by the framers of the Constitution.

Those who seek to adduce a sort of meaning not envisaged by the framers of the Constitution seem to have chosen a narrow point of view in relation to Article 152. Their first argument is that there is no mention in the Constitution about Chinese and Tamil schools. Therefore, so they contend that under Article 152 it is not necessary for the Government to support those schools. In order words, Chinese and Tamil schools need not be aided by the Government.

In support of this contention they argue that any language can be taught at the expense of those races who want to protect their languages. They refer to Japanese and Thai languages, as example. To begin with Japanese is not a language that has greater following in this country although it is true that during the Japanese occupation their language was learnt by all and spoken by all to keep their heads on their shoulders.

Chinese and Tamil languages were part of this country before the arrival of the Japanese and their transient rule here. Any equation of Chinese and Tamil with Japanese is misconceived.

Another reality that is being ignored is the fact Chinese and Tamil schools exist in this country and are supported by the public fund by virtue of the arrangements reached by the leaders of the various communities prior to the Merdeka, and that overt arrangement or agreement had been the guiding principle in the formulation of the language policy of this country.

This could be discerned from Articles 12 and 152 which are complemented by the Education Act 1996. Reference to the Schedule of the 1996 Act would show that Chinese and Tamils schools are accorded protection. And this protection and support cannot be withdrawn, as it has a duty to protect these schools.

In view of the protection that are now in place would it be fair to challenge these provisions and begin a campaign against the existence of Chinese and Tamil schools? What could be the motive behind these people who are raising issues against Chinese and Tamil schools? Why must they continuously challenge the existence of Chinese and Tamil schools? One way of looking at it is that, their motive is to see open friction and hatred amongst all the races and hamper national unity. Fortunately, this type of calls emanates from irrational people putting aside national interest, and they themselves are a minority.

Having said that, we might as well look into the position how the courts had been dealing with this kind of irrational behaviour.

The first case to go to court was Melan bin Abdullah & Anor v. P.P. ([1971] 2 MLJ 280). That was a case involving Utusan Melayu which published a report and the editorial sub-heading read: “Abolish Chinese and Tamil Schools in this country.” In that case, the editor-in-chief of the Utusan Melayu and the author of the sub-heading in the report were charged under section 4(1)(c) of the Sedition Act 1948, which provides that “any person who prints, publishes any seditious publication shall be guilty of an offence.” Both of them were convicted and fined. They appealed.

The editor-in-chief of Utusan Melayu did give evidence to the effect that he had organised seminars and discussions, relating in particular to sensitive issues. However, the then special President of the Special Sessions Court had stated, “there may be some justification for saying that it would be impossible

for him to go through each and every article........., but, he had given a blanket authorisation to his sub-creditors, in the circumstances, the editor-in-chief, was not entitled to the protection afforded under section 6(2) of the Sedition Act, 1948 which reads as follows:

“6(2) No person shall be convicted of any offence referred to in section 4(1) (c) of (d) if the person proves that the publication in respect of which he is charged was printed, published, sold, offered for sale, distributed, reproduced or imported (as the case may be) without his authority, consent and knowledge and without any want of due care or caution on his part, or that he did not know and had no reason to believe that the publication had a seditious tendency.”

The conviction and sentence against the editor-in-chief was set aside.

As for the sub-editor who authored the impugned heading, Chief Justice Ong who heard the appeal said that:

“Sedition, must have ‘seditious tendency’ and it is for the prosecution to establish such tendency all they had to show to the satisfaction of the court was that the publication questioned one of the matters specified in paragraph (f). (See pp 282, 283)”

As far as the sub-heading eg. “Abolish Tamil or Chinese Medium Schools in this country” is concerned, Chief Justice Ong went on to hold that, “... once the conclusion is reached that the sub-heading offends against the absolute prohibition imposed by paragraph (c) of sub-section (2) on any matter specified in paragraph (f) of sub-section (1) the prosecution would have proved their case to the hilt. The sub-heading clearly violated what is laid down in proviso (a) to article 152(1) of the Federal Constitution. It therefore comes squarely within the definition of “seditious tendency” as extended by paragraph (f).

The conviction against the author of the sub-heading was upheld.

In Public Prosecutor v Mark Koding ([1983] 1 MLJ 111), Mark Koding, a Member of Parliament was charged for uttering seditious words in Parliament, an offence punishable under Section 4(1)(b) of the Sedition Act 1948. In the impugned speech of Mark Koding, he had called for the closure of Chinese and Tamil schools, and the abolition of the use of the two languages on signboards which, the prosecution said, are protected by proviso (a) to Article 152 of the Federal Constitution. Mr Justice Mohamed Azmi ruled that, “all the Prosecution need to prove is that the accused has made a speech or uttered words which qualify the speech or words as one having a seditious tendency.

In this case, it is sufficient if the words or speech impugned have a tendency to raise discontent or disaffection amongst the inhabitants of Malaysia; or a tendency to promote feelings of ill-will and hostility between the different races in Malaysia; or a tendency to question any matter, right, status or position established or protected by the provision of Article 152 of the Federal Constitution.”

The learned judge relied on the case of Public Prosecutor v Ooi Kee Saik & Ors ([1971] 2 MLJ 108) where Raja Azlan Shah (later Lord President) said that, what the prosecution had to prove is that the words complained of or words equivalent in substance to those words were spoken by the accused.

Raja Azlan (later Lord President) also said in the Indian cases the learned judge ruled that:

“It is immaterial whether or not the words complained of could have the effect of producing or did in fact produce any of the consequences enumerated in the section. It is also immaterial whether the impugned words were true or false. (See Queen Empress v Ambra Prasad ILR 20 All 55). And it is not open to the accused to say that he did not intend his words to bear the meaning which they naturally bear (See Maniben v Emperor (1933) AIR Born 63).”

Raja Azlan Shah J (later the Lord President) stated very clearly that a line must therefore be drawn between the right to freedom of speech and sedition. In this country the court draws the line. The question arises: Where is the line to be drawn; when does free political criticism end and sedition begin? In my view, the right to free speech ceases at the point where it comes within the mischief of section 3 of the Sedition Act. The dividing line between lawful criticism of Government and sedition is this — if upon reading the impugned speech as a whole the court finds that it was intended to be a criticism of Government policy or administration with a view to obtain its change or reform, the speech is safe. But if the court comes to the conclusion that the speech used naturally, clearly and indubitably, has the tendency of stirring up hatred, contempt or disaffection against the Government, then it is caught within the ban of paragraph (a) of section3(1) of the Act. In other contexts the word ‘disaffection’ might give a different meaning, but in the context of the Sedition Act it means more than political criticism; it means the absence of affection, disloyalty, enmity and hostility.

After considering the cases of Melan v P.P. and Merdeka University above, Mr Justice Azmi ruled that Mark Koding was not guilty of sedition in advocating the closure of Tamil or Chinese schools. He also added that there was nothing unlawful in allowing Chinese and Tamil schools to continue. This is a strange decision because it assumes that calling for the closure of Chinese and Tamil schools would not have the tendency of stirring up hatred. If Melan v P.P. had gone too far in giving a very narrow interpretation, Mark Koding’s case has given a carte blanc to spew irrational outbursts against recognised vernacular schools in this country.

That was not the end of the matter. On the issue of signboards in Chinese and Tamil, the learned judge went on to say that he was satisfied that Mark Koding was referring to signboards. Such signboards are erected under the Road Traffic Ordinance and therefore they are erected for official purpose.

In the event, this particular part of the impugned speech is not protected under proviso (a) which provides that no person shall be prohibited or prevented from using any other language otherwise than for official purpose.

The words used by the accused cannot therefore be said to have seditious tendency since he does not in fact call in question the existence of any right protected by any part of Article 152. In the context of the two paragraphs of his speech, he was in fact demanding for the implementation of the national language as provided for in that Article. But, on the third part of his speech the accused has, to my mind, committed a breach of paragraph (f) of section 3(1) by demanding the amendment of the Constitution if his demand for abolition or closure of Chinese and Tamil schools, and for discontinuance of the use of such languages on road signboards contravened Article 152. By doing so, he has questioned the provision of Article 152 by demanding for its repeal or amendment should it prove necessary. To my mind, it makes no difference if such repeal or amendment turned out to be unnecessary. The ban on questioning the existence of Articles 152, 153 or 181 of the Federal Constitution is made absolute by paragraph (c) of section 3(2) of the Sedition Act.

Mr Justice Azmi was also of the view that “advocating for the implementation of the national language within the ambit of Article 152 cannot in any case constitute seditious tendency, unless by such advocacy a person uses such fiery language which is apt to produce conflict and discord amongst the people or to create race hatred, in which event, the speech transgresses paragraphs (d) and (e) of section 3(1). After considering the impugned speech sentence by sentence, and reading the speech as a whole and having considered the context in which it was made, he found Mark Koding guilty.”

Mark Koding was convicted and was placed on bond of to be of good behaviour under section 173A of the Criminal Procedure Code.

What could amount to a seditious tendency is a question of fact. In England where the law of sedition originated the question whether the alleged speech had in fact seditious tendency was left to the jury, who were laymen, and the judge only ruled only on the law. In our country a judge decides both the question of fact as well as the question of law. Therefore, the so-called trained legal mind of the judges might not appreciate the significance of simple words conveying simple meaning whereby even though the tone might be fiery the politicians’ speech laden with political emotions may not be sufficient to ignite or agitate a revolution or disorderly riot. Therefore, it seems that the objective element in extracting meanings from certain expression of words used could be given undue weight thus destroying the very essence of freedom of speech. Besides, it is said that the intention of the speaker is not important, but looking at the way the courts draw their conclusion which appear to be so artificial, it would be apt to look into the entire speech and the circumstances when the speech was made: if this is ignored, then, the essence of freedom of speech would certainly lose its valued importance.

Innocuous observations; or statements explaining certain allegations by loose-mouthed politicians could also be misconstrued, misinterpreted, twisted and concluded as sedition. Narrow-minded people with narrow-minded political objectives could distort every blameless statements and observations to further party politics and destroy the fundamental liberties we cherish.

Needless to say police too could embark on actions on flimsy reports and those reports whose motive is purely political vendetta. The dangers of the seventies and eighties are different from what we are facing today. In the seventies we were living with the threats of Communist which are no longer there.

Today, religious fundamentalism is ripping the world apart and inflicting damage hitherto unthought of. If communist activities were covert, the present religious fundamentalism has come to the open challenging every sphere of ordinary life. It must also be remembered that by curbing freedom of speech or thoughts can we achieve peace and harmony? Aside that outlawing speech and severe punishment alone would not suffice to deter people who are minded to cause harm. It is the training of the minds to see realties of life, of the importance of peace and harmony that ought to be inculcated and nurtured — so where do we begin? I submit we must begin the education of understanding, the education of respect, the education of loving fellow-beings in schools, in kindergartens, in primary schools, in secondary schools and right upto the apex of the school of learning. The schools must be the source of love, human care, human understanding and nothing short of those elements would suffice. Threats of primitive sanctions have not deterred serious crimes and do not work in this cruel, greedy world.

Without doing any violation to the spirit of the use and propagation of the National language, knowledge in Chinese and Tamil languages would only enhance human values, and they should not be abandoned. In a multi-racial society being conversant in various languages would always be an asset, and understand one another better. Thus the calls for the abolition of Chinese and Tamil schools only go to show the narrow-minded vision, which the rational World is disinclined to countenance.

* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail Online.