PUTRAJAYA — The Federal Court will decide on Nov 11, on whether to grant leave to a lawyer who is seeking to pursue a challenge on the constitutionality of the existence of vernacular schools.
Chief Judge of Malaya Tan Sri Azahar Mohamed fixed the date after hearing submissions from counsels representing all parties in the case.The petitioner, Mohd Khairul Azam Abdul Aziz, needs to obtain leave from a single Federal Court judge under Article 4 (4) of the Federal Constitution, as he is challenging the competency of the federal legislature to pass laws.
In a motion filed on Oct 23 this year, he sought a declaration from the Federal Court that it was unconstitutional for Parliament to pass an amendment to Sections 17 and 28 of the Education Act 1996, providing for the continued existence of vernacular schools.
In his application, he named the Education Minister and the Government of Malaysia as respondents.
Mohd Khairul Azam contends that Chinese and Tamil national-type schools established by the Minister of Education, were contrary to Article 152 (1) of the Federal Constitution which states that the national language shall be the Malay language and shall be in such script as Parliament may by law provide:
(a) provided that no person shall be prohibited or prevented from using (otherwise than for official purposes), or from teaching or learning, any other language.
In today’s proceedings in the Federal Court, Mohd Khairul Azam’s counsel Datuk Shaharudin Ali told the court that his client was seeking a declaration that section 28 and section 17 of the Education Act were invalid on the grounds that Parliament had no power to pass these two sections.
Shaharudin said any amendment to Article 152 (1)(a) of the Federal Constitution must first receive the consent of the Conference of Rulers.
Senior federal counsel Alice Loke Yee Ching argued that Mohd Khairul Azam’s leave application was misconceived as it did not meet the requirement under Article 4 (3) of the Federal Constitution which allows a law to be challenged on the ground that Parliament had legislated on a matter that it had no power to do so.
She said the proceedings instituted by Mohd Khairul Azam was a challenge to the constitutional validity of sections 17 and 28, adding that the High Court was competent to hear a challenge where the validity of the law was being challenged.
Justice Azahar also heard submissions from counsels for proposed interveners – the lawyers comprised Datuk Dr Gurdial Singh Nijar who appeared for the United Chinese School Committees’ Association of Malaysia (Dong Zong) and the United Chinese School Teachers’ Association of Malaysia (Jiao Zong), and Datuk Bastian Pius Vendargon who appeared for Majlis Bahasa Cina Malaysia and Persatuan Tamil Neri Malaysia (also known as the Malaysian Chinese Language Council and the Malaysian Tamil Neri Association respectively).