This note will confine itself to the constitutionality or otherwise of the Chief Minister’s initiative.
Primacy of BM: Article 152(1) of the Federal Constitution clearly provides that the national language shall be the Malay language and shall be used for all “official purposes”. Under Article 152(6), “official purpose” means any purpose of the federal or state governments or of any public authority.
The primacy of BM is reiterated further in section 2 of the National Language Act 1963/67 and the preamble to the Education Act 1996.
But along with such nationalistic provisions, the Constitution and laws embrace a linguistic diversity that is part of our rainbow-hued, federal nation. For example, the case of Mohammad Syawwaal Mohammad Nizar (2010) clarified that it is not unconstitutional to teach science and mathematics in English because under section 17 of the Education Act, Malay is the main but not the sole medium of instruction.
Despite Article 152, there are some permissible exceptions to the exclusive use of BM in administration, communication and instruction.
Sabah and Sarawak’s special rights: Under Article 161(3), no Act of the Federal Parliament curtailing the use of English in Sabah and Sarawak shall become law unless approved by the Legislative Assembly of these states. It is noteworthy that the National Language Act 1963/67 which sought to promote Malay as the sole official language was never adopted by the Sarawak Assembly.
Under Article 161(5), native languages may be used in native courts and native laws and, in Sarawak, in the State Assembly until otherwise provided by an enactment of the State Legislature.
Article 161E(2)(d) provides that any federal constitutional amendment affecting the rights of Sabah and Sarawak to use any language in their states or in Parliament shall not be passed without the concurrence of each state’s Yang di-Pertua Negeri.
Article 24(8) of the Sarawak Constitution provides that for 10 years after Malaysia Day and thereafter until the Legislature provides, all proceedings in the Dewan may be in English or native languages.
In addition to constitutional entrenchment, the above special safeguards for Sabah and Sarawak are also mentioned in the Malaysia Agreement 1963, concluded between the United Kingdom, Malaya, North Borneo, Sarawak and Singapore. Under our Federal Constitution, Article 169(c), international agreements made before Malaysia Day are binding on the Government.
The Malaysia Agreement in section 61(2) allows Sabah and Sarawak to use English for any official purpose. Sabah replaced this by amending its Constitution to adopt Bahasa Malaysia as the official language of the State Cabinet and Assembly.
But Sarawak has never formally repudiated English and the Sarawak Assembly never adopted the National Language Act 1963/67.
Minority languages: Under Article 152(1)(b) federal and state governments have the right to preserve and sustain the use and study of the language of any other community. Relying on this provision, section 28 of the Education Act, in a spirit of large-heartedness, recognises the existence of Chinese and Tamil schools by providing for “national-type schools”. These institutions use Chinese or Tamil as the main medium of instruction, with Malay and English as compulsory subjects.
These “national-type schools” are given the status of Government or Government-aided schools and maintained, at least partly, by the Government (section 28, Education Act).
Parental rights: Under Article 152(1)(a), linguistic pluralism is protected by providing that no person shall be prohibited or prevented from using (otherwise than for official purposes) any other language. Likewise no one can be prohibited or prevented from teaching or learning any other language.
The Education Act supports the spirit of multi-lingualism and multi-culturalism by providing that in all “national schools”, facilities for teaching Mandarin, Tamil or indigenous languages shall be made available if the parents of at least 15 pupils in the school so request.
The Merdeka University case clarified that there is a constitutional right to teach and learn any language as a separate subject but there is no right to use it as the medium of instruction (unless permitted by the Government under Article 152(1)(b) or section 28 of the Education Act).
Use of English: Under section 4 of the National Language Act, permission is given for the use of English for such official purposes as the Yang di-Pertuan Agong may deem fit. Under section 5, the use of English in Parliament and Legislative Assemblies is allowed with permission.
In relation to the Borneo states, a number of seminal documents and provisions permit the use of English in these states till otherwise provided. Among them are: the Malaysia Agreement 1963, the 18-Point Agreement with Sarawak, the 20-Point Agreement with Sabah and Article 161(3) of the Federal Constitution.
Expatriate schools: Under section 15 of the Education Act, education in expatriate or international schools is not subject to the national education system and curriculum. Recent policy directives permit up to 40% of the pupils to be citizens.
Kindergartens: Under sections 23 and 25 of the Education Act, languages other than Malay may be used as a medium of instruction in kindergartens and child care centres.
From the above it follows that the Federal Constitution, while adopting Malay as the nation’s official language, is flexible to sustain and support other languages.
In the context of Sarawak, English was never dethroned officially as the National Language Act 1963/67 has not yet been ratified by the Sarawak State Assembly. Tan Sri Adenan Satem is on solid ground constitutionally.
Shad Faruqi is Emeritus Professor of Law at UiTM. The views expressed are entirely the writer’s own.
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