Lawyer seeks judicial review of PPSMI decision

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KOTA KINABALU: A senior practicing lawyer filed an application for judicial review at the High Court here yesterday over the Education Minister’s decision to abolish the teaching and learning of Science and Mathematics in English (PPSMI).

Marcel Jude Joseph filed the ex-parte application at the High Court’s registry about 11am naming the Minister of Education as the sole respondent.

He is seeking an order of certiorari in so far as the State of Sabah is concerned to quash the respondent’s decision to abolish the PPSMI, and to continue implementation of PPSMI.

The applicant, who is involved in the field of education by virtue of being the deputy president of the Association of Ex-students of La Salle and Sacred Heart is also seeking an order to restrain the respondent from abolishing PPSMI and a declaration that the decision by the respondent to abolish the PPSMI is ultra vires and unlawful.

In his statement of claim, Marcel pointed out that the PPSMI is a government policy aimed at improving the command of the English among pupils at primary and secondary schools in Malaysia.

He said PPSMI’s inception as a Malaysian Government policy was the result of the cabinet meeting on July 19, 2002 under the administration of the then prime minister Tun Dr Mahathir Bin Mohamad which led to its introduction in year 2003.

Marcel pointed out that the rationale for the decision to change the medium of instruction from the Malay language to English for the teaching and learning of Science and Mathematics subjects was made based on the government’s concern on the nation’s human capital development towards achieving the standard of a developed country, as well as an early preparation to compete in the era of globalization.

He contended that the respondent’s action to abolish the PPSMI is ultra vires and unlawful in regard to the Sabah state as unlike the other states in the Federation of Malaysia, Sabah occupies a unique or special position.

He said Article 152 of the Federal Constitution states that Malay language is the national language but everybody is free to learn and use other languages except on official purposes such as any purpose as regards to the government, federal or state and any purpose of a public authority.

All court proceedings, parliamentary documents and meetings must be conducted in Malay language.

However, he pointed out that under Article 161 of the Federal Constitution, in the case of Sabah and Sarawak, English is the official language of the Courts and the government and the legislative body and for all other official purposes.

The applicant said no act of parliament terminating or restricting the use of the English language in judicial and court proceedings as well as in the states of Sabah and Sarawak shall come into operation until the act or the relevant provision of it has been approved by enactments of the legislatures of both states.

The law that will terminate or restrict the use of English in Sabah and Sarawak, he said, is the National Language Act 1963/67 which states that the national language, that is, Malay language, shall be used for official purposes.

In further referring to Article 161 for the application of National Language Act in Sabah and Sarawak, the applicant said, both states must first pass a law in the State Legislative Assembly to accept the National Language Act 1963/67.

He said if it is for the usage of Bahasa Malaysia in the courts to replace English, the law of acceptance must be passed in both State Legislature of both Sabah and Sarawak and for the other purposes or usage of English, the particular legislative body must pass a law to accept implementation of the National Language Act 1963/67.

Marcel pointed out that it would appear that this has been done for Sabah and the Sabah law in question is the National Language (Application) Enactment 1973.

However, he said there appears to be an anomaly as the fourth preamble of the Enactment states that the legislature of the States of Sabah seeks to give its approval under Clause (3) of Article 161 of the Federal Constitution with regards the use of the English language for proceedings in the High Court in the State or for such proceedings in the Federal Court as mentioned in Clause (4) of Article 161 and for purposes of restricting the use of the English language in the State in the Legislative Assembly or for other official purposes.

He contended that the words “High Court in the State” is utterly confusing and misleading as there is no High Court of the State of Sabah or the High Court of the State of Sarawak since Malaysia Day and even before.

The applicant said that there is only the High Court of Borneo and later the High Court of Sabah and Sarawak and this supported by Article 121 of the Federal Constitution which now expressly refers to High Court in Sabah and Sarawak and previously the High Court in Borneo.

He said another anomaly that affects the validity of the Enactment is that the Sabah Legislative Assembly cannot unilaterally declare the termination of English usage in courts but it must be done jointly or bilaterally with the Assembly in Sarawak.

Since a portion of the National Language (Application) Enactment 1973 is defective or not clear, the applicant held, then it follows that the entire of the said enactment is null and of no effect or rendered ineffective and therefore the remaining declarations in the enactment regarding the restriction or termination of the usage of English is null and void of legal effect.

It therefore follows that unless and until the National Language (Application) Enactment 1973 is amended or re-enacted it is currently ultra vires the Federal Constitution of Malaysia particularly Article 161 and Article 121, he said.

He also said that Section 17 of the Education Act 1996 which in any event does no state that Bahasa Malaysia shall be the main medium of instruction and is the only medium of education while Point 2 of the 20 points Agreement states that English should be an official language of North Borneo for all purposes, State or Federal, without limitation of time.