PUTRAJAYA, Feb 20 — The Federal Court today in a majority decision rejected two non-governmental organisations' (NGOs) application for leave to appeal against a previous court ruling which found vernacular schools to be constitutional, which means the existence of vernacular schools in Malaysia continues to remain legal.
Justice Datuk Mary Lim Thiam Suan, who chaired the Federal Court's three-judge panel, delivered the majority decision which was agreed to by Federal Court judge Datuk Rhodzariah Bujang.
Federal Court judge Datuk Abdul Karim Abdul Jalil dissented.
Two non-governmental organisations who had challenged the constitutionality of vernacular schools — Islamic Education Development Council (Mappim) and Confederation of Malaysian Writers Association (Gapena) — had wanted to pursue their appeal.
As Mappim and Gapena failed to obtain leave for appeal, this means the Federal Court will not be hearing their appeal, and the Court of Appeal's decision — which found vernacular schools to be constitutional — still stands.
Mappim and Gapena had previously failed at both the High Court and Court of Appeal to challenge the constitutionality and legality of vernacular schools.
What the Federal Court said
After nearly two hours of court proceedings and 20 minutes of deliberations, the Federal Court panel’s chair Lim thanked lawyers for all parties for their submissions, before delivering her brief judgment for the majority of the panel.
“This is a majority decision. We are not satisfied that we ought or should exercise our discretion to grant leave on the amended question under Section 96(b) of the Courts of Judicature Act 1964,” she said, adding that Mappim’s and Gapena’s application for leave to appeal would also not fulfil the requirements under Section 96(a) of the same law.
After having stated that the two NGOs’ bid for leave to appeal failed to meet the requirements of both Section 96(a) and Section 96(b), Lim said the Federal Court dismissed Mappim and Gapena’s leave application without any order for costs.
In Malaysia, those who wish to appeal to the Federal Court against Court of Appeal decisions for civil cases must first obtain leave from the Federal Court for the appeal to be heard.
The conditions to obtain leave for appeal from the Federal Court are namely Section 96(a) and Section 96(b).
Section 96(a) is when leave for appeal is being sought for a question of general principle being decided for the first time or an important question where it would be to the public advantage to have a Federal Court decision, while Section 96(b) is when leave for appeal is being sought when it involves the effect of any provision in the Federal Constitution including the validity of any written law relating to such constitutional provisions.
While Mappim and Gapena had previously listed eight legal and constitutional questions that they wanted the Federal Court to grant leave on and to decide on, the two NGOs’ lead lawyer Mohamed Haniff Khatri Abdulla this morning informed the Federal Court that they were proposing to just apply for leave based on one of the eight questions.
Haniff amended this question by inserting the words “medium of instruction” and had only relied on Section 96(b) to argue that Mappim and Gapena should be granted leave of appeal for this question.
This is the amended question which the two NGOs had wanted to obtain leave for the Federal Court to hear and decide on, but ultimately failed to get leave on: “Whether medium of instruction in the process of teaching and learning in the Chinese and Tamil national type schools, established under Sections 2, 17, and 28 of the Education Act 1996 [Act 550], are official purposes, and therefore subjected to the obligation under Article 152(1) of the Federal Constitution, which requires the use of the national language for all official purposes?”
Out of the 12 respondents in the appeal, only two respondents agreed to the amended question and agreed for leave of appeal to be granted to Mappim and Gapena.
These two respondents are the 11th respondent (Persatuan Gabungan Kebajikan Guru-guru Bersara Sekolah Tamil Malaysia); and the 12th respondent (collectively the three organisations, Majlis Bahasa Cina Malaysia; Persatuan Tamil Neri Malaysia; and Gabungan Persatuan Bekas Pelajar Sekolah Tamil Malaysia (Pertama)).
The other 10 respondents — including the education minister and the Malaysian government — all opposed this constitutional question which the two NGOs had wanted to get leave for appeal on.
