Press statement by Kua Kia Soong, SUARAM Adviser 2 September 2019
The Honourable Michael J Beloff QC, former President of Trinity College, Oxford, Treasurer of the Honourable Society of Grays Inn and Counsel for Merdeka University Bhd in the suit against the Government of Malaysia in 1981/82 has affirmed the constitutionality of vernacular schools in Malaysia. Ever since the 1982 Federal Court judgement against the establishment of Merdeka University, some politicians and constitutional lawyers have used it as an argument against the existence of vernacular schools in Malaysia.
In his Foreword to the forthcoming book by Kua Kia Soong, “200 Years of Chinese Education in Malaysia: A Protean Saga”, Michael Beloff QC writes:
“There is nonetheless the unresolved and much disputed issue as to the reach of the Merdeka University judgment itself. Does it mean that Chinese primary and secondary schools which use Chinese as the medium of instruction (and their Tamil analogues) are also operating unconstitutionally? I would make four points:
“(1) The Federal Court nowhere said that its judgement cast any doubt on the constitutionality of vernacular schools;
(2) The only judicial dictum that I have found on this issue said unequivocally, “there is nothing unlawful in allowing Chinese or Tamil schools to continue’’ (Public Prosecutor v Mark Koding Mohammed Azmi J);
(3) Whether viewed through the lens of “authority’’ or “power’’, there are obvious differences between the functions of a university on the one hand and a school on the other, which suggest that a read across from one entity to another would be inappropriate;
(4) On the international plane there is a growing sensitivity to the preservation and protection of the linguistic rights of minority groups, notably the Universal Declaration of Linguistic Policies 1996.
“This would make a challenge to schools which use a vernacular rather than the national medium of instruction (and have done so for more decades prior to the enactment of the Constitution than thereafter) as unpropitious as it may be – it is to be thought unlikely.”
Michael Beloff QC says that among the ten other Commonwealth jurisdictions he has taken up over the years, the Merdeka University case was the most interesting and arguably the most important case in which he has ever appeared.
He reminisced about the fact that the Chinese educational bodies which mounted the constitutional challenge had commissioned a supporting opinion co-authored by such legal luminaries as Professor Sir William Wade QC and Sir Peter (later Lord) Rawlinson QC, himself once an Attorney-General of England and Wales. However, their views were dismissed in a single sentence, and without any reasoning, the case was ultimately decided against the Chinese educationists.
In 1978, the ability to make appeals from the Federal Court to the Privy Council on constitutional cases was terminated and any application for leave to appeal would have been, in the then Attorney-General’s words “an exercise in futility’’. How hypothetically the Privy Council would have decided on such appeal can therefore be no more than an exercise in somewhat profitless speculation.
Nevertheless, Michael Beloff mentions in this Foreword that he had mentioned the Merdeka University decision to his friend and mentor Sir Thomas Bingham, later holder of the triple crown of successively the posts of Master of the Rolls, Lord Chief Justice, and Senior law Lord, and he had expressed the view that there were at the very least cogent arguments in favour of Merdeka University.
To round up his Foreword, Michael Beloff QC further affirms the positive contributions of the Malaysian Independent Chinese Secondary Schools:
“As someone who has visited Malaysia on many occasions over almost forty years in various roles as speaker, lecturer, legal adviser, advocate and arbitrator, I have in consequence a deep affection for the country in all its rich diversity as well as many friends in all its main ethnic groups. I respectfully (and with all the appropriate caution of an outsider) believe that the Chinese secondary school movement which has provided, with its hugely dedicated promoters and supporters, sixty secondary schools, is a force for good rather than any threat to national unity or prosperity.”