SEPT 19 — I begin this piece by stating the obvious, namely, while it is one thing to disagree and dispute any particular law or public policy, it is a whole other thing to mislead and misrepresent the same so as to lend justification for such disagreement or dispute.
This principle is all the more applicable given Kua Kia Soong’s highly misleading article appearing in the Malay Mail Online on 18 September 2015, titled “Mother tongue schools and the Constitution”. His article is in response to distinguished constitutional law scholar Emeritus Professor Datuk Dr Shad Saleem Faruqi’s recent stating of what should be obvious for all to see, namely that vernacular schools (or fondly referred to as mother tongue schools by its proponents such as Kua Kia Soong) exist contrary to the Constitution and are not protected by any of its provisions.
That Kua Kia Soong, being a respected academic within his circles, can pen such an article is both disconcerting and disappointing for in the said article, rather than representing constitutional provisions, particularly Article 152 of the Constitution, for what they are, he has chosen to mislead and misrepresent the same to readers thus committing a serious crime against his chosen profession, academia. His misrepresentation thus calls for a response to set the position right in respect of the constitutionality of UiTM vis-à-vis vernacular schools and this article is an attempt at such.
In his article, Kua Kia Soong touches upon two issues, namely whether the existence of the MARA University of Technology (known commonly as UiTM) and its policy of limiting student admissions to Bumiputras only is compatible with integration and constitutional and secondly whether vernacular schools are constitutional. The short answer to the first question is yes and the short answer to the second question is no. The elaboration on both these answers may be found below under their respective headings.
The constitutionality of UiTM
On UiTM, Kua Kia Soong puts two questions to the distinguished constitutional law scholar. Firstly, how does the existence of UiTM promote integration and secondly, does the same existence square with the Federal Constitution. The answer to both questions requires that we firstly delve a little into the history of this great institution before examining the constitutional provision under which it operates, namely Article 153 of the Constitution. UiTM was first set up as Dewan 1 Latehan RIDA in 1956 as a result of Dato’ Onn Jaafar’s visit to the then Ceylon (now Sri Lanka) in 1951. During his visit, he had observed that the natives of Ceylon, the Sinhalese, were far behind in their participation of the Ceylonese economy, then dominated by ethnic Tamils, and that to balance this, a rural development programme was established by the Ceylonese government to provide opportunities to the Sinhalese to catch up economically with the Tamils. The situation there then was similar to the situation here were Malay participation in the local economy was wanting. Thus the Rural and Industrial Development Authority (RIDA) was set up to provide opportunities to Malays in a similar fashion. This need was known to and accepted by the pre-independence leaders of the non-Malay communities namely Tun Tan Cheng Lock on behalf of the Chinese and Tun VT Sambathan on behalf of the Indians by their involvement in constitutional negotiations and their subsequent agreement to the existence of Article 153 of the Constitution. Of the provisions of Article 153, two Clauses thereof are pertinent to the existence of UiTM. They are Clauses (2) and (3) respectively.
Clause (2) reads “Notwithstanding anything in this Constitution, but subject to the provisions of Article 40 and of this Article, the Yang di-Pertuan Agong shall exercise his functions under this Constitution and federal law in such manner as may be necessary to safeguard the special provision of the Malays and natives of any of the States of Sabah and Sarawak and to ensure the reservation for Malays and natives of any of the States of Sabah and Sarawak of such proportion as he may deem reasonable of positions in the public service (other than the public service of a State) and of scholarships, exhibitions and other similar educational or training privileges or special facilities given or accorded by the Federal Government and, when any permit or licence for the operation of any trade or business is required by federal law, then, subject to the provisions of that law and this Article, of such permits and licences.” Clause (3) goes on to add “The Yang di-Pertuan Agong may, to ensure in accordance with Clause (2) the reservation to Malays and natives of any of the States of Sabah and Sarawak of positions in the public service and of scholarships, exhibitions and other educational or training privileges or special facilities, give such general directions as may be required for that purpose to any Commission to which Part X applies or to any authority charged with responsibility for the grant of such scholarships, exhibitions or other educational or training privileges or special facilities; and the Commission or authority shall duly comply with the direction.” Hence the above Clauses of Article 153 of the Constitution form the basis upon which UiTM exists, namely to advance educational and economic opportunities for not just Malays of peninsular Malaysia but also natives of Sabah and Sarawak. Section 1A of the Universiti Teknologi MARA Act 1976 thus states that the establishment of UiTM is pursuant to and in accordance with Article 153 of the Federal Constitution.
So does UiTM square with an integrationist agenda? Obviously one cannot expect a community that is less advantaged economically to integrate with one that is more developed in that area, so the answer is as resounding yes. Throughout its illustrious 59 year history, UiTM has given birth to thousands of Bumiputra engineers, doctors, lawyers, accountants, architects and the like who go on to form successful partnerships with their non-Bumiputra counterparts in this increasingly competitive and liberalised world. These Bumiputra and non-Bumiputra sink and swim together in facing off economic challenges from their non-Malaysian counterparts abroad and that they are successful in doing so they have UiTM to thank. And obviously, as demonstrated above, this is all compatible with the Federal Constitution and in line with the integration championed by the likes of Tunku Abdul Rahman, Tun Tan Cheng Lock, Tun VT Sambathan and other independence leaders of yore as part of the social contract.
The unconstitutionality of vernacular schools
In his article, Kua Kia Soong correctly sets out the wording of Article 152 of the Federal Constitution, namely that the Malay language (and no other language) is the sole national language of the Federation and that communities other than the Malay and Bumiputra communities have a right to learn and teach their native languages. However, rather than accept and propound what should be settled law on the construction of Article 152, he chooses to misrepresent the same by bringing up and elaborating different approaches to constitutional interpretation as though the construction of Article 152 was still open to dispute when it is not. He does this vide a selective reading and portrayal of the judgment of their learned Lordships deciding in the well-known case of Merdeka University v Government of Malaysia. In that case, the establishment of Merdeka University was denied by the government as being against educational policy as it intended to use Chinese as its medium of instruction. This was upheld by the High Court and all the way up to the apex court, namely the Federal Court.
Kua Kia Soong postulates that although the court has decided (and rightly so) that the right to learning and teaching in a language other than the national language is protected by Article 152, the right to learning and teaching ‘in’ such a language does not exist, he goes on to dispute this interpretation as not being “liberal” and that “constitutional provisions on rights should be liberally interpreted” by including a right to learn and teach in a language within the right to learn and teach a language and cites Michael Beloff QC, the counsel for Merdeka University and His Lordship George Seah, being the sole dissenting judge deciding in that case. By doing so, Kua Kia Soong fails to distinguish between lawyers, who argue a position in court, and judges, who decide upon which position between two opposing arguments, to take, based on the reasoning given for each position. Micheal Beloff QC’s argument on Article 152, including his selective reading of Article 8(2) (which 3 already stated within itself that it was to be qualified by other provisions of the Constitution, including Article 152) had already been considered and rejected by a majority of their Lordships deciding in the case. As for the view of justice George Seah, being a minority, his judgment is not determinative of the reading of Article 152 of the Constitution.
He also cites two eminent lawyers, the late Raja Aziz Addruse, former President of the Malaysian Bar and Soli J. Sorabjee, former Attorney General of India on how the practice is within other jurisdictions where rights are supposedly more liberally interpreted, and urges that the Malaysian judiciary take note and follow accordingly. To refute this notion, one need only make reference to the judgment of His Lordship the late Raja Azlan Shah J in the case of Loh Kooi Choon v Government of Malaysia, where His Lordship stated “Whatever may be said of other Constitutions, they are ultimately of little assistance to us because our Constitution now stands in its own right and it is in the end the wording of our Constitution itself that is to be interpreted and applied, and this wording can never be overridden by the extraneous principles of other Constitutions.” This extraneous principles would of course, include the so-called “liberal” interpretation of Article 152 preferred by Kua Kia Soong.
Of course, as Kua Kia Soong rightly pointed out, the existence of Chinese and Tamil vernacular schools have never been subject to the constitutional litmus test as the setting up of a university using a vernacular language as its medium of instruction was in the case of Merdeka University. The vernacular schools have existed for 200 years while the university had yet to become operational. But ultimately, the same question will have to be decided by the courts, i.e. whether there is a right to education in a language other than the national language as opposed to merely a right to learn a language other than the national language. The final answer to this question will determine whether vernacular schools are allowed to continue. So how should the courts decide? Without in any way seeking to decide on behalf of any future court convened to determine this issue, I believe the closing paragraph of the majority of their Lordships deciding the case of Merdeka University may be used as a guide and so I reproduce the said paragraph in full below:
Before departing from this case, we would like to remark that it is unfortunate that there is a widespread tendency on the part not only of the Chinese to demand the establishment of this or that institution of learning as part of a campaign to win favour with the electorate. This is especially marked when a general election is looming. An unfortunate effect of this tendency is the need to appeal to racial and linguistic sentiments and the arousing of strong emotions on the part of those whose language is being championed and equally strong reactions on the part of those whose language is thought to be threatened. It is realized that this is a legacy from pre-Merdeka days when the different races were educated in separate compartments.
Now that we have been in charge of our own destiny for 25 years (as it was then), our people should be mature enough to realise the importance as regard sensitive issues of keeping the political temperature down rather than up, they should agree to regard universities and schools as an educational rather than a political problem, and that they are a vital instrument in nation-building” The above must be read with another other case on point, Public Prosecutor v Mark Koding, wherein His Lordship Mohamed Azmi J said as quoted below:-“In the event, it is my finding that the Accused is not guilty of sedition when he advocates for the closure of Tamil or Chinese schools. Whether or not such closure is advisable or feasible is, of course, another matter to be decided elsewhere and not in this court. There is nothing unlawful in allowing Chinese or Tamil schools to continue.
Based on the above, I humbly submit, that the question to ask, is that whether vernacular schools do more harm than good in the process of nation building? In my opinion, the answer is simply this: while in the past, good reasons may have existed for the preservation of the languages and cultures of non-Bumiputras, if we are to move forward as a nation, this status quo of allowing the schools continued existence is no longer tenable. Thus perhaps, it is time their respective communities deliberate what is good for the nation as a whole, and decide whether their schools form part of that good. If the conclusion is that they do not, then perhaps it is time we adopt a single stream education system for integration, as practised in all other parts of the world, in recognition of the need to strengthen nation-building. This, I submit would be a solution that is both constitutional as well as in keeping with the social contract agreed by our forefathers.
* Faidhur Rahman Abdul Hadi is a member of Young Professionals (YP).
** This is the personal opinion of the writer and does not necessarily represent the views of Malay Mail Online.