Chief Judge of Malaya Azahar Mohamed fixed the date after hearing submissions from parties to the action.
Lawyer Mohd Khairul Azam Abdul Aziz filed a motion on Oct 23 to seek the declaration under Article 4 (3) of the Federal Constitution.
But he needs to obtain leave from a single judge under Article 4 (4) of the constitution as he is challenging the competency of Dewan Rakyat and Dewan Negara to pass laws.
Under Section 17 of the overhauled Education Act, passed in 1996 to replace the Education Ordinance of 1956 and the Education Act of 1961, the national language is stated as the main medium of instruction except in national-type schools established under Section 28 or other educational institutions exempted by the minister.
The section also states that schools using other than Malay as their medium should teach the language as a compulsory subject.
Meanwhile, Section 28 of the Education Act covers the establishment and maintenance of national and national-type schools.
It states that the education minister may establish national schools and national-type schools and shall maintain such schools.
Senior federal counsel Alice Loke Yee Ching, representing the education ministry and the government, said Khairul’s leave application was misconceived.
She said federal legislature (Dewan Rakyat and Dewan Negara) were competent to pass the law as education came under the First list Ninth Schedule in the constitution.
Loke said a litigant could only come straight to the Federal Court if Parliament had passed a law which it was incompetent to legislate.
“The leave application is misconceived because Parliament had conducted its business in accordance to the constitution,” she said.
Loke said Khairul should begin his action in the High Court if he thinks amendments to Sections 17 and 28 violate Article 152 of the constitution.
“The action must commence in the High Court when one challenges the validity of a law passed by the legislature,” she said.
Khairul’s counsel Shaharudin Ali said the minister could not be empowered to set up Tamil and Mandarin schools as the consent of the Conference of Malay Rulers needs to be obtained as they were the guardian of the national language.
“The government can only set up primary schools with Bahasa Malaysia as medium of instruction in the school curriculum,” he said.
The lawyer said Tamil, Mandarin or any other languages could only be taught outside the school system
“Leave ought to be granted as the application is not frivolous and vexatious,” he said.
Lawyer Gurdial Singh Nijar appeared for United Chinese School Committees’ Association of Malaysia (Dong Zong) and United Chinese School Teachers’ Association of Malaysia (Jiao Zong), while Bastian Pius Vendargon represented the Malaysian Chinese Language Council and Tamil Language Association as proposed interveners.
Outside the court, Khairul told reporters that he had other options if leave was not given.
“I also had plan B to pursue my legal challenge,” he added.