The Cabinet on Wednesday should strike out the Education Minister, Datuk Seri Hishammuddin Hussein’s directive under Section 8 of 1996 Education Act in unlawfully and unconstitutionally barring national primary school pupils from transferring to Tamil or Chinese primary schools although a revers transfer is allowed.

As pointed out by DAP MP for Ipoh Barat, M. Kulasegaran last week, many parents have complained that they have not been able to transfer their children from national primary schools to Tamil or Chinese primary schools, as the policy of the Education Ministry is to allow only a one-way transfer – from Tamil or Chinese primary schools to national primary schools but not vice versa.

Kulasegaran cited the case of a 37-year-old woman who had sent two appeals to the Education Ministry to transfer her eight-year-old son from national primary school to a Tamil primary school, but was rejected on both occasions on the policy ground of “racial integration”.

In the case in point, her son and three other boys had been caned by a female teacher in a national primary school in Perak state for turning up late for an Arabic language class for which she had lodged a police report in February this year.

The school however denied that it had forced any non-Muslim pupil to attend the Arabic language classes. Unhappy with that school, she transferred her son out temporarily to another primary school in Kuala Kangsar while waiting for approval for his transfer to a Tamil school.

Perak Education Director Datuk Mohamed Zakaria Mohd Noor had confirmed in the Star last Tuesday (22nd May 2007) that there is such a policy directive barring the transfer of pupils from national primary schools to Tamil or Chinese primary schools.

He said the policy was meant to encourage racial integration, adding: “We advise the parents (of this pupil) to stay in the national school. Whatever complaints you have, please come forward and we will discuss them seriously.”

Although the Education Minister has the powers under Section 8 of the 1996 Education Act to issue policy directives and regulations to give effect to the law, it is clearly provided that such Ministerial powers are limited both by the enabling Act and the Constitution.

Section 8 specifically stipulates that the Minister’s powers to issue “directions of a general character” must not be inconsistent with the provisions of the Act.

The Preamble of the Act declares without any ambiguity the “general principle” which the Education Minister must uphold — “that pupils are to be educated in accordance with the wishes of their parents”.

Furthermore, this fundamental principle of the parent’s freedom of choice in education specifically recognized in the Education Act 1996 is also given constitutional protection in Article 152 (1)(a) and (b) on the inextinguishable right of a Malaysian from “using (otherwise than for official purpose), or from teaching or learning, any other language”.

Education Department officials can attempt to dissuade parents who are minded to transfer their children from national primary schools to Tamil or Chinese primary schools, but they must respect the constitutional right of the parents to make the final decision.

The Education Minister and Education Department officials must realize that to deny parents their freedom of choice in education recognized by the Education Act 1996 and the Constitution is both unlawful and unconstitutional and invites constitutional challenges in the courts.

MIC President, Datuk Seri Samy Vellu and Cabinet Ministers from MCA, Gerakan, SUPP and other Barisan Nasional component parties from Sabah and Sarawak should take a common stand at the Cabinet meeting on Wednesday to ensure that the provisions of the 1996 Education Act and the spirit and intent of the Constitution are fully respected by the striking out of the Education Minister’s directive barring the transfer of students from national primary schools to Tamil or Chinese primary schools.

Hishammuddin should be aware that the arbitrary and unlawful prohibition of transfer of national primary school pupils to Tamil or Chinese primary schools by way of a Ministerial directive runs afoul of internationally-recognised principles and declarations on the parents’ fundamental rights of freedom of choice in education for their children.

This is particularly pertinent as Hishammuddin is spearheading Malaysia’s bid for a seat on the executive board of the United Nations Education, Scientific and Cultural Organisation (Unesco) at its 34th annual general meeting in Paris in October. One purpose of Hishammuddin’s educational visit to China is clearly to lobby for China’s support in the UNESCO board election in October.

It would be most unfortunate if Hishammuddin’s refusal to uphold and respect the parental right to freedom of choice in education for their children as spelt out in the 1996 Education Act, the Malaysian Constitution and international instruments and declarations on the right to education of children becomes an international issue putting Malaysia in the dock.