Right To Basic Education

Federal court upholds the constitutionality of vernacular schools in a case filed by two NGOs, the Islamic Education Development Council (Mappim) and Confederation of Malaysian Writers Association (Gapena) for a leave petition at the Federal Court of Malaysia. Despite a recent suit, the Federal Court has decided to uphold the constitutionality of vernacular schools (otherwise known as national-type schools).

In Malaysia the public primary school system in Malaysia is divided into two categories based on the medium of instruction used: (1) Malay-medium National Schools, and (2) Non-Malay-medium National-type Schools, known as vernacular schools, which has Chinese/Mandarin-medium and Tamil-medium, National-type Schools.

In delivering an unanimous decision of a three-member Court of Appeal panel Justice Azizul Azmi Adnan underscored that vernacular schools have long been recognized within the legislative framework of the education system even preceding Malaya’s independence and the 1957 constitution. He clarified that a vernacular school does not constitute a public authority, therefore, employing a non-Malay medium of instruction does not run contravene the laws of Malaysia.

The case, began in 2019 and has gone through two High Courts and three Courts of Appeal. The NGOs claimed that the existence of vernacular schools do not give their students an adequate command of the Malay language, which would affect their ability to earn a living and to fully interact with all the facets of the malaysian society.

“ Section 2 defines national-type schools to be a government primary school or government-aided primary school which uses the Chinese or Tamil language to be the main medium of instruction; and where both the national language and English language are compulsory subjects that must be taught.

Article 152(1) states that Malaysia’s national language is the Malay language, while Article 152(1)(a) states that no one shall be prohibited or prevented from teaching or learning any other language or from using any other language (if it is not for “official purposes)”

The court of Appeal said that such a decision is the choice of the parents to have the child study at a national type school with the benefits of vernacular language in mind, also preserving the sense of connection to one’s culture and heritage and this makes the promotion of diversity and multiculturalism in Malaysia’s society unique and using Malay to teach subjects is not compulsory in vernacular schools.

Challenging discrimination in schools

Naim Frasheri Primary school had an integrated population of ethnic Albanian, Romani and Egyptian pupils. Through a special program invitation, the school encouraged Romani and Egyptian children to the school with extending support and aid as school supplies and food as they were much poorer than the ethnic Albanians.

This provoked a ‘white fight’ and restlessness in the society between the Romani/Egyptian and Albanians as, very soon, the Romanians and the Egyptian kids outnumbered the Albanians.

The ERRC (European Roma rights centre) complained of unlawful racial segregation and that the Roma and Egyptian children at Naim Frasheri School were suffering from discrimination. The school discrimination was contrary to Protocol No.12 to the European Convention on Human Rights which Albania was also a part of it. Everyone in Albania is protected from discrimination based on race, ethnic origin, or colour by any public authority or in relation to any right protected by law. Not all European countries have agreed to be bound by Protocol no.12, but Albania has.

The European court issued a judgement largely agreeing with ERRC and It held that Albania had violated Article 1 of Protocol no.12 to the convention.

The Court affirmed that “discrimination means treating differently, without an objective and reasonable justification, persons in relevantly similar situations,” although in some circumstances different treatment is necessary to correct inequalities. Racial segregation, though, is not the kind of differential treatment that corrects inequalities – it instead violates a “fundamental value of democratic society” The Court cited that the school segregation violated the Convention’s prohibition against discrimination.