Mother tongue schools and the Constitution — Kua Kia Soong

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SEPT 18 — It has become a noticeable trend throughout much of modern Malaysian history that it does not just rain racism but it pours! Thus amid the racist chants and slogans at the recently “red shirt” rally in Kuala Lumpur, we also heard calls to “Hapuskan SJKC” (abolish Chinese schools). By extension, the chanters also want to abolish Tamil schools as well except that the main target of the red shirts was “the Chinese”, “Chinatown” Petaling Street and even “Chinese pigs” (when did animals attain ethnicity?).

I wouldn’t bother with racist trash except that this call to abolish mother tongue schools has been echoed by a law professor from Universiti Teknologi Mara who claims that mother tongue schools are not protected by the Federal Constitution. He said that “while the constitution permits the learning of other languages, it does not say that the medium of instruction must also be in mother tongue languages.” He was speaking at a national unity conference on the same day as the red shirts rally and he opined that mother tongue schools were not the uniting factor but a dividing one.

I am sure the professor’s intentions were good when he said, “If people don’t learn together, they won’t be able to live together.” He proposed that mother tongue languages should instead be promoted in national schools, and urged national schools to allow prayers of all faiths.

I have already dealt elsewhere, with the issue of integration within a context in which mother tongue schools, including English-medium schools, thrive. On this question of promoting integration, the most obvious questions for the UiTM professor are:
1. How does his integrationist ideal square with the “Bumiputeras only” institution at which he serves? Remember the Chinese and Tamil schools welcome all ethnic communities into their institutions even though these institutions are heavily subsidized by their own communities. UiTM and other MARA institutions, on the other hand are paid for by ALL Malaysian taxpayers.

2. Does the learned professor think that the Malaysian Federal Constitution condones such a racially discriminatory policy as that in UiTM?

Allow me here to discuss the constitutional provision for mother tongue languages in our country.

The Constitutional provision for mother tongue languages

When the federal constitution came into existence in 1957, there were already in existence some 1340 Chinese primary schools, more than 800 Tamil primary schools, 86 Chinese secondary schools and even a fully-fledged Malayan Chinese-language university, namely Nanyang University.

Article 152 (1) of the Federal Constitution provides:
“The national language shall be the Malay language… Provided that (a) no person shall be prohibited 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.”

This Article has been regarded as the constitutional safeguard or guarantee for the fundamental right to use and study mother tongue by the various communities in this country.  As far as I know, there has been no serious challenge to the existence of the mother tongue schools in Malaysia although the Chinese educationists did challenge the government’s rejection of Merdeka University in the early eighties.

In the case of the Merdeka University Bhd v Government of Malaysia in 1981 (2MLJ 356 and (1982) 2MLJ 243), the Government had refused to allow the establishment of such a university using the mother tongue of an ethnic minority group (Chinese) as the main medium of instruction. As a result, Merdeka University Bhd filed a suit against the Government in 1981. They were represented by Queen’s Counsel Michael Beloff. (See Kua Kia Soong, ‘The Chinese Schools of Malaysia: A Protean Saga’, New Era College 2008)

The Federal Court decided against Merdeka University and dismissed its appeal from the High Court, which had decided in favour of the Government.  The judgement was delivered on 2 July 1982 with a 4-1 majority decision with Justice George Seah giving a dissenting judgement.

Among other things, two important issues were involved:

(i) The interpretation of the word “using” in Article 152 of the Federal Constitution; and

(ii) Whether a university (either public or private sponsored) established under the UUCA is a “public authority”.

The illiberal interpretation of the Constitution

The High Court judge decided that the word ‘using’ appearing in Article 152 (1)(a) is confined to a medium of expression or communication within the language or ethnic groups concerned.  It does not extend to the use of the language as a medium of instruction.  This narrow interpretation was adopted by majority decision in the Federal Court.

The High Court judge added that it was significant that the proviso spoke of “teaching or learning” the language, but omitted the preposition of “in” thereafter, as in “teaching and learning in” that language. In other words, the judge was of the view that every person is entitled to teach and learn any other language, but he/she has no constitutional right to teach and learn “in” any other language. This would mean that no person can use their mother tongue as the main medium of instruction.

The judge had in fact given an extremely narrow and restrictive interpretation to a provision in the Federal Constitution, which is meant to safeguard fundamental human rights, including the right to use one’s own mother tongue.   Such a negative approach is not in line with the general trend of giving a wide and liberal interpretation to the Constitutional provisions as practised in other jurisdictions.

On the second point, namely, whether a private university is a “public authority”, the High Court decided that any university — whether public or private sponsored — established under the Universities and University Colleges Act 1971 (UUCA) is a public authority. The Federal Court also upheld this finding of the High Court that a university is a public authority on the ground that it is a statutory authority exercising powers vested in it by Federal law. Thus, as a public authority, the university has to use Bahasa Malaysia for official purposes, and therefore, only Bahasa Malaysia can be used as a major medium of instruction.

The liberal interpretation of the Constitution

Queen’s Counsel for Merdeka University Bhd, Michael Beloff argued that there was no law to back the policy which stipulates that Bahasa Malaysia shall be the sole medium of instruction in the Malaysian education system. To do this, the Government has to amend the Constitution to implement the National Education Policy.  Otherwise, the implementation of this policy violates Article 152 of the Constitution.

Queen’s Counsel was of the opinion that, based on Article 152 of the Federal Constitution, the National Language Policy which demands that only one language, Bahasa Malaysia, is to be used throughout the education system, is an unlawful policy.  He maintained that, “…merely because a policy is found in legislation does not mean it is lawful.”

Article 8(2), (relating to equality before the law) also provide:
“Except as expressly authorised by this Constitution, there shall be no discrimination against citizens on the ground only of religion, race, descent or place of birth in any law ... or the establishing or carrying on of any trade, business, profession, vocation or employment.”

The QC expressed the view that, while the promotion of the national language was a proper means of attaining national unity, there was also the right to use minority languages for non-official purposes. The right of minorities to use their own languages is a right of great sanctity and significance. He reminded the Court that national unity also requires the guarantee of minority rights in fields such as language.  The real threat to national unity in a multi-cultural multi-racial society comes only if and when the majority seeks to ride roughshod over minority rights.

He added that the Government was entitled to protect the national language with all the vigour and resources at its command as long as that promotion stopped short of “suppressing” other languages other than in the official sphere. The right to use a particular language was deprived of much of its value if it did not include the right to use it as a language of instruction. He submitted that the constitutional guarantees should be above the vagaries of politics and whims of the Government.

The lone dissenting judge, Justice George Seah took a different view from that of the majority judges of the Federal Court. Like Michael Beloff QC, he held that the constitutional right guaranteed by Article 152(1)(a) should be given a liberal interpretation and “no attempt should be made to whittle it down”.

“In my opinion, ‘using’ does not mean ‘speaking’ and it would be wrong to give such a narrow and artificial construction to the word ‘using’ when the only restriction imposed by Article 152(1)(a) is limited to using any other language ... for official purposes only ... There is nothing in Article 152(1)(a) to prohibit or prevent the using of the Chinese language for non-official purposes, and it is within the legitimate right of a businessman to put up his business signboard in the Chinese language as well as in the national language.” (p.253)

George Seah explained that an “official purpose” meant any purpose of the Government (whether Federal or State), and included any purpose of a public authority.  As to whether or not a private university is a public authority, George Seah J. was of the view that, “.... not every statutory authority would be a public authority  ...Only a statutory authority exercising powers vested in it by Federal or State Law would come within the definition of a public authority...”

Merdeka University, if established, would not be exercising “governmental or quasi-governmental powers”, and therefore, could not be a public authority, and the proposed use of mother tongue (Chinese) as a medium of instruction in the university would not come within the ambit of using for an “official purpose”. George Seah J. said, “Such use would not be unconstitutional but is expressly protected and guaranteed by Article 152(1)(a) of the Federal Constitution.”

Mother tongue schools’ right remains to be tested in the courts

Although the Merdeka University case was tested right up to the highest court in the land, the existence of the Chinese and Tamil schools has yet to be tested in the courts. While Merdeka University had not been established as yet, the Chinese schools have existed in this country for nearly 200 years. If such a case involving the right of the mother tongue schools to exist should go to court, the same issue of “using the mother tongue” will no doubt arise although the question of whether a school also constitutes a “public authority” may not…

Ultimately, the learned professor from UiTM has to ask whether a Constitution should be given a wide liberal interpretation or a narrow illiberal one. Raja Aziz Addruse, former President of the Malaysian Bar was of the view that:
“In considering the scope and extent of fundamental rights, our courts appear to have been content to focus on the restrictions on those rights, as imposed by Parliament, rather than examine the purport and intent of the rights themselves.” (See Raja Aziz Addruse: “Constitutional Litigation” - a paper presented at the 50th Anniversary Commemorative Law Conference held at Kuala Lumpur on 15-16 August 1997)

Soli J. Sorabjee, former Attorney General of India, in his paper entitled “Judges and the Constitution” presented at the same Law Conference, was also of the view that:
“A most generous Bill of Rights can be reduced to a parchment of promises by narrow and insensitive judicial interpretation. The success of a Constitution, even of the most meticulously drafted, depends upon the way in which it is worked and interpreted by those who are entrusted with its implementation.   If the persons who are to work the Constitution are men of vision and integrity, they would be able make the best even of a defective Constitution. If they are lacking in these, no Constitution can help the country…It is a sound principle that constitutional provisions must be construed not in a narrow and constricted sense, but in a wide and liberal manner so as to anticipate and take account of changing conditions so that the constitutional provision does not get atrophied or fossilised but remains flexible enough to meet the newly emerging problems and challenges.”

Hence, our Federal Constitution ought to be given a more liberal interpretation by our Courts. In particular, the use and study of mother tongue should be given the widest interpretation so that there can be truly inter-ethnic understanding in this country.

Finally, I honestly do not believe that our multi-ethnic society in the 21st century cannot devise methods to ensure effective inter-ethnic integration in the midst of our multi-lingual education system. In my previous article, I have proposed various ways in which our multi-lingual streams can interact to promote integration while sharing state-of-the-art facilities and encouraging healthy competition in sports, the arts and sciences. It is ultimately only a question of political will.

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

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