No new lawsuits against vernacular schools can be filed on same issue, says lawyer for Dong Zong and Jiao Zong

Malay Mail

PUTRAJAYA, Feb 20 — Following the Federal Court’s majority ruling today, no new court cases can be filed to challenge the constitutionality of vernacular schools in Malaysia on the same legal points, a lawyer said.

Lawyer Wong Kong Fatt, who represented two organisations overseeing the affairs of local schools that use the Chinese language to teach, was commenting on the implications if the Federal Court decision today.

Wong, who is the lead counsel for United Chinese School Teachers’ Association of Malaysia (Jiao Zong) and United Chinese School Committees’ Association of Malaysia (Dong Zong), noted that the Federal Court’s majority decision meant that a previous ruling by the Court of Appeal — which said vernacular schools are constitutional — remains valid.

Since the Federal Court dismissed an application by two non-governmental organisations — Islamic Education Development Council (Mappim) and Confederation of Malaysian Writers Association (Gapena) — for leave to pursue their appeal against the Court of Appeal decision, Wong said this will be the end of the case.

“In fact, today leave is already refused, and therefore the applicants cannot go further with any appeal. Because the Federal Court is the apex court, so there’s no more appeal,” the Dong Zong and Jiao Zong lawyer told reporters at the lobby of the Putrajaya court complex here following the Federal Court’s decision.

When asked about the hypothetical possibility of other NGOs mounting court challenges against vernacular schools in the future, Wong said the same matter cannot be relitigated in the courts due to the legal principle of res judicata.

“They cannot challenge via the same provisions, because the court already decided the issue and that will be res judicata.

“Res judicata means a court has decided on the same provisions of laws, so there shouldn’t be another case, another party bringing the same matter to the court for any further litigation. So that’s the end of the matter,” he said. This is because the matter had been decided on its merits by the Court of Appeal.

When asked if this means it would be unlikely that any other NGOs can file new court challenges against vernacular schools, Wong said they could attempt to do so, but argued that the res judicata principle would stand in the way of such cases.

“Of course, if they wanted to bring, to me it’s speculative. They could, but of course, we are going to stand behind to object to it, because the reason as I mentioned just now is actually res judicata. We are going to say it is res judicata and therefore they cannot go any further,” he said.

When commenting on the effect of the Federal Court’s majority ruling today, Wong said it means the Court of Appeal’s decision — which recognised the use of Chinese and Tamil languages in vernacular schools or national-type schools as legal — remains valid.

“The resulting decision is that the use of Chinese and Tamil in teaching and learning in SJKC and SJKT is not unconstitutional, it is actually within the right and protected and preserved by Article 152 of the Federal Constitution. So, we are very happy today that the teaching and use of Chinese and Tamil can continue formally in our education system,” he said, referring to the Malay acronyms of national-type Chinese primary schools (SJKC) and of national-type Tamil primary schools (SJKT).

Currently, Wong said there are 1,302 SJKCs and 527 SJKTs in Malaysia.

He said there are now about 20 per cent of students in SJKCs who are non-Chinese, with this group comprising Malays and Indians, among others.

Jiao Zong chairman Cheah Lek Aee told Malay Mail that the SJKCs nationwide have roughly an estimated 500,000 students and that this would mean that a rough estimate of 100,000 students are non-Chinese.

Traditionally, students at SJKCs and SJKTs are mainly from ethnic Chinese and ethnic Indian communities.

But in a July 5, 2023 press statement on its website, Dong Zong had said there has been an increase in the percentage of non-Chinese students out of the entire student population at SJKC over the years.

Based on data from Dong Zong for 17 of the years from 1989 to 2020, there were initially 17,309 students or 3.05 per cent of total SJKC students in 1989 who were non-Chinese.

Over the years, the non-Chinese students at SJKC increased to 32,203 or 5.52 per cent (1994), 52,043 or 8.66 per cent (1998), estimates of 65,000 or 10.66 per cent (1999), an estimated 71,644 or 12 per cent (2011), 80,024 or 13.32 per cent (2012), 87,463 or 15.31 per cent (2014), estimated 94,608 or 18 per cent (2017), and an estimated 101,011 or 19.75 per cent (2020).

Read here for Malay Mail’s simplified summary of the Court of Appeal’s 41-page judgment on the matter of vernacular schools.

Out of the four NGOs who had failed to challenge vernacular schools’ constitutionality at both the High Court and Court of Appeal, only two had filed applications for leave to appeal at the Federal Court, namely Mappim and Gapena. The remaining two NGOs, Ikatan Muslimin Malaysia (Isma) and Ikatan Guru-Guru Muslim Malaysia (i-Guru), did not attempt to pursue an appeal at the Federal Court.