Episode 25: Education Knows No Bound: Exploring the Rights to Education in Malaysia

1.0 INTRODUCTION

In Malaysia's dynamic and culturally diverse landscape, education is a vital component of both societal advancement and personal development. The educational journey of children in Malaysia is thoroughly examined in this essay, which delves into both formal and informal learning environments and transcends national borders. As we examine this intricate fabric, it becomes necessary to confront a pressing issue that clouds the country's educational scene: the existence of children who are left behind and unable to participate in the formal school system.

Malaysia's demographic diversity, a source of strength and resilience, also gives rise to disparities in educational access. Despite commendable efforts by the government to ensure education for all, a subset of children finds themselves on the periphery of the formal education system. The complicated interplay of socioeconomic variables, cultural nuances, and regional discrepancies is what gives rise to this unfortunate reality.

Economic challenges stand prominently as a barrier, preventing some families from affording the costs associated with formal education. While primary education is compulsory, hidden expenses such as uniforms, textbooks, and transportation may prove prohibitive for economically disadvantaged families. In rural areas, geographical barriers compound the issue, making it challenging for children to physically reach educational institutions.

The interrelated elements of Malaysia's educational environment highlight the difficulties encountered by particular populations. An in-depth comprehension of the matter is shown by looking at children' education in formal and informal contexts. The primary issue of youngsters falling behind in the formal education system stems from Malaysia's heterogeneous populace. Although variety builds resilience, it also makes gaps in educational opportunity more likely. Children who do not receive formal education are made more prevalent by the combination of socioeconomic variables, cultural quirks, and regional differences.

In this exploration, we not only shed light on the challenges faced by children in Malaysia but also seek to highlight the resilience of a nation that continuously strives for equitable educational opportunities. By understanding the intricacies of these challenges, we pave the way for informed discussions on policy reforms, community engagement, and innovative solutions that propel Malaysia toward a future where every child, irrespective of background, can claim their right to education and contribute to the nation's growth and prosperity.

2.0 RIGHTS TO EDUCATION IN MALAYSIA

The right to education is a universal right which includes the right to compulsory and free education, and it should be provided to those who are not yet adults, not yet rational, not yet mature, those who are not generally ascribed to rights and such basic education helps children to mature and develop their own abilities in order to face the world in adulthood. In Malaysia, the right to education is guaranteed to all citizens of the Federation and enshrined under Article 12 of the Federal Constitution. [1] Pursuant to the Article, it is stipulated that without prejudice to the principle provided in Article 8 of the Federal Constitution, [2] there shall be no discrimination against any citizen on the grounds only of religion, race, descent, or place of birth in the administration of any educational institution maintained by a public authority, and, in particular, the admission of pupils or students or the payment of fees or in providing out of the funds of a public authority financial aid for the maintenance or education of pupils or students in any educational institution, whether or not maintained by a public authority and whether within or outside the Federation.

The importance of the right to education in Malaysia can be illustrated in the case of Jakob Renner (An Infant Suing Through His Father and Next Friend, Gilbert Renner) & Ors v Scott King, Chairman Of Board Of Directors Of The International School Of Kuala Lumpur & Ors, where the court laid down the principle that justice is in favour of providing continuous education for children whose educational needs are likely to be threatened. [3] Therefore, the aforesaid case highlights the importance of education for all children being in a group of affected persons. Hence, it is one of the state’s functions to guarantee that education is available to all children living within the country. [4]

Malaysia adheres to the guiding principles of three conventions, which are the Universal Declaration of Human Rights (UDHR), United Nations Convention on the Rights of the Child (CRC) and the International Covenant on Economic, Social and Cultural Rights (1966), which are aligned with the Federal Constitution of Malaysia's provisions as well as applicable laws and regulations. Malaysia has embraced the principles, ideas, and standards outlined in the UDHR as well as the CRC as a United Nations member. In accordance with Article 28 of the CRC, it set forth that the right to education is an undeniable basic right for every growing human being. [5] Malaysia, however, has reserved the applicability of Article 28(1)(a) of the CRC amongst other articles on the ground that this article is not consistent with the Federal Constitution, its domestic laws such as the Education Act 1966 and national policies of the Government of Malaysia and with the Syariah law. Nonetheless, in 2010, the Malaysian Government withdrew three earlier reservations to the CRC, namely Article 1, the definition of the child, [6] Article 13 in respect of freedom of expression [7] and Article 15, regarding freedom of assembly and participation. [8]

Furthermore, Malaysia is not a signatory to the 1951 Refugee Convention [9] or its 1967 Protocol. [10] Thus, it does not differentiate between irregular migrants, asylum-seekers, and refugees. In addition, Malaysia does not have an appropriate system in place to govern the status and rights of asylum seekers, refugees, or irregular migrants. As such, all are treated alike in being persons who have no authority or permission to be in Malaysia and have no protection of the law. [11] This can be observed under Section 6(1) of the Immigration Act 1959/63 which provides that no person other than a citizen shall enter Malaysia unless he has a valid Entry Permit issued to him under Section 10 or his name is endorsed upon a valid Entry Permit in accordance with Section 12, and he is in the company of the holder of the Permit, or he is in possession of a valid Pass lawfully issued to him to enter Malaysia. [12] In 2002, the Government amended the Education Act 1996, making primary education compulsory. [13] Besides, monetary aids and other forms of assistance have also been afforded to the eligible children. Yet, the incompatibility of domestic laws with the CRC remains unresolved, particularly on the lack of legislative and administrative laws for child refugees, hence depriving them of their rights to formal and government-funded education. As Malaysia does not grant jus soli (birthright citizenship), the statelessness of refugees will be ‘inherited’ by their children. The only accessible path of knowledge for refugee children is through programs offered by the United Nations High Commissioner for Refugees (UNHCR), NGOs, or community-based organisations. According to UNHCR’s statistics, there are approximately 133 community-based learning centres throughout the nation that provide informal parallel education.

The Committee on the Rights of the Child had in their Concluding Observation urged the Malaysian government to take necessary measures to ensure the accessibility of refugee children to free and formal primary, secondary and other forms of education, as well as official examinations. [14] Nonetheless, Malaysia has yet to accept such recommendations. To date, there exists the non-recognition of informal education, the lack of certified education, inaccessibility to public examination, and the fact that refugee children have next to no chance of pursuing tertiary education. They can only rely on memorandums of understanding signed between UNHCR and some six private universities in hopes for enrolment, whereupon a prohibitive cost would await them. Although scholarships are offered, there are extremely limited placements and due to this, these considerations effectively deter refugee parents from sending their children to community-based learning centres. [15]

In conclusion, Malaysia has laid a strong legal foundation for the rights to education through Article 12 of the Federal Constitution and its commitment to the CRC. These instruments exemplify Malaysia's dedication to fostering an inclusive and equitable education system for its citizens. However, challenges persist, particularly concerning the rights of refugee children. Addressing these challenges requires a holistic approach, including the development of a specific legal framework for the education rights of refugees, ensuring that the transformative power of education reaches every corner of Malaysian society.

3.0 RELEVANCY OF BUMIPUTERA QUOTA IN THIS AGE

“It shall be the responsibility of the Yang di-Pertuan Agong to safeguard the special position of the Malays and natives of all the States and the legitimate interests of other communities in accordance with the provisions of this Article.” [16] Article 153 has always been in the centre of debate in this nation. Article 153(2) [17] and Article 153(3) [18] further states that the Yang di-Pertuan Agong is required to exercise his function in accordance with Article 40 of the constitution to safeguard the special position of bumiputeras when it comes to positions in the public service, scholarship, training and even permits or licences for operation of any trade or business required by federal law.The effects of said article is more prominent when it comes to the issue of bumiputera quota in local institutions, which lead to years of frustration building up in non-bumiputera communities negatively impacted by this policy.

When asked about this policy, The current prime minister stated: "If we do away with that now, we will see the disparities which had taken place in Universiti Malaya during the 1970s and 1960s.” [19] At that time, there were zero Malay students in the engineering faculty. Over at the medical faculty, malay students only make up 12 percent of the total students. [20] However, Prime minister Anwar Ibrahim acknowledged that despite retention of the system, efforts should be taken to ensure that the non-Malay/Bumiputera students with excellent results would get a fair chance and not be denied from securing a place in local universities. [21]

The question of whether this policy is still effective has been discussed quite often. Over the years, there have been many alternatives being floated around. Some would claim that a needs-based quota would provide assistance to those who need it while avoiding discrimination against other candidates on a racial basis. Others would say that affirmative action itself, no matter based on race or income, is inherently unfair, and we should move towards a more merit based system. But these changes would likely mean political suicide for whoever chooses to venture down this path as it would face the same result as the previous governments’s attempt to ratify ICERD. [22]

While it’s true that the current system seems untouchable,the government has been moving towards a more meritocratic approach when it comes to university admissions. But, Article 153(8a) of the constitution [23] states that the Yang di-Pertuan Agong may be required to give directions to educational institutions to reserve a proportion of places for the bumiputeras as the Yang di-Pertuan Agong may deem reasonable and the educational institutions shall comply with such directions. This may be the reason why the government has been reluctant to alter its admission policy for its matriculation program.  For SPM leavers, the two main choices provided by the government would be Matriculation or STPM. The former only requires one year for completion while the latter requires closer to two years. While there is no such thing as an “easy pre-u program”, Academic Teo Kok Seong says Matriculation is an alternative to the Sijil Tinggi Persekolahan Malaysia (STPM) which is tougher and harder to score in. [24] Despite STPM being more time consuming and academically demanding, based on data from the 2018/2019 academic year, students who go through the matriculation system stand a better chance of gaining entry into a public university compared to a STPM student. 96.9% of matriculation students gained entry into public university as compared to only 73.4% of STPM students. [25] This is a major problem as the matriculation program has a racial quota of 90:10 with 90% of the seats allocated for the bumiputera students while the non-bumiputera students have to fight tooth and nail for the remaining 10%. This issue has long been a source of frustration for the non-bumi community. Those who are fortunate enough would opt for Alternative programs from IPTS like A-levels while others would have to go through STPM. Both of which require a longer completion time compared to Matriculation. This policy is partially to be blamed for the brain drain happening in this country, which is shown in the recent story of a student named Ho shu xin. She was rejected by the matriculation program and did her A-levels instead. She was later accepted into Harvard and UCLA. [26] This is merely one of many instances where deserving students were rejected by public institutions.

The government's own move to a more meritocratic system of placements in public institutions indicates that the government itself sees the potential unfairness the current system brings. But even so, the system is likely here to stay unless the government has an immense amount of political will to attempt changing the system.

4.0 STATELESS CHILDREN’S HARDSHIPS IN GAINING FORMAL EDUCATION

Statelessness is a complex issue that impacts millions of individuals globally, including a sizable portion within Malaysia. According to the 1954 Convention relating to the Status of Refugees, a stateless person is considered stateless if they are not recognized as a national by any state under the operation of its law. [27] In short, a stateless person is an individual who does not have nationality from any nation. In Malaysia, statelessness manifests itself primarily among the Rohingya population, children of undocumented migrants, and individuals from various ethnic minority groups. 

A sizable percentage of Malaysia's stateless population is made up of Muslim minority   Rohingyan from Myanmar. Based on a statistic by the United Nation High Commissioner for refugees (UNHCR),  there are 161,150 refugees and asylum seekers from Myanmar as of end October 2023. [28] Many Rohingyan who fled persecution and ethnic cleansing in their home country come to Malaysia in order to seek safety and security. [29] Their statelessness, nevertheless, comes with a lot of difficulties. Their lack of citizenship or legal status makes it difficult for them to exercise fundamental rights including work, healthcare, and education. They are also exposed to exploitation, discrimination, and arbitrary incarceration because of their lack of legal status.

Ultimately, the refugees are not the only one affected by their status of statelessness but children born to undocumented migrant parents in Malaysia also encounter the same problem. Despite being born and raised in Malaysia, they are often denied citizenship due to their parents’ undocumented status. This situation perpetuates a cycle of statelessness, as these children grow up without nationality, facing obstacles in obtaining education and employment, perpetuating a cycle of poverty and marginalisation. This will result in illiteracy and will make these children more vulnerable to being abused and exploited. [30]

The issues that stateless people in Malaysia face are complex. The inability to obtain education is one of the main problems. Children who are stateless frequently face obstacles when trying to pursue higher education or to even enrol in school. Without proper documentation, it is almost impossible for these children to gain access to formal education. [31] Hence, perpetuating the cycle of poverty. Rights to education should not be a privilege only to the selected few but should be made available to every child as it is a basic human right guaranteed under article 26 of the Universal Declaration of Human Rights. [32]

Despite the fact that these children are unable to gain formal education, various NGOs such as Borneo Komrad have been working hard to eradicate illiteracy among undocumented children. Borneo Komrad initiated the Sekolah Alternatif educational project in 2018, initially in Semporna, followed by Tawau and Kota Kinabalu. The main objective of the establishment of Sekolah Alternatif is to inculcate literacy to the marginalised undocumented children mainly in Sabah. [33] Even so, this is far from enough to accommodate the needs for education for all the stateless children throughout Malaysia. The only way to uplift the living quality of these children is through education. [34] It will be hard to break the cycle of poverty that lasted for generations without being able to gain access to formal education due to the status of being undocumented.

A multifaceted strategy is necessary to address the educational problems that stateless children experience. It begins with recognizing and acknowledging the existence of these stateless children as an equal human being. Governments, international organisations, and advocacy groups must work together to implement policies that ensure inclusive education for all, regardless of nationality or legal status. In order to give stateless people access to the possibilities and privileges that come with having a legal identity, efforts should also be directed at creating avenues for them to get their identities documented. This entails making birth registration and nationality determination processes easier for them, as well as providing legal documents that enables them to fully engage in society, including pursuing their academic goals.

Ultimately, the situation of statelessness highlights the severe humanitarian crisis that deprives individuals of their fundamental rights and opportunities. Due to their undocumented status, the stateless face relentless struggles and a never ending discrimination. Their statelessness has robbed these children of their dreams and impacted not only their present but also their future prospects as an individual.

5.0 IS THERE ANY EDUCATIONAL OPPORTUNITIES FOR ROHINGYA REFUGEES? 

Refugees and their rights have regrettably received limited attention in Malaysia, where the absence of a formal legislative or regulatory framework has left educational opportunities for refugees largely unaddressed. [35] The Malaysian government's decision not to confer legal status upon refugees within its borders has resulted in their classification as illegal immigrants. This precarious status not only exposes them to the risk of discrimination but also denies them fundamental rights, including access to education.

Amidst the Rohingya refugee crisis, a contentious debate has arisen in Malaysia surrounding the allocation of quotas for Rohingya refugees in public universities (IPTA). In a recent statement, Higher Education Minister Datuk Seri Mohamed Khalid Nordin addressed concerns about the admission of Rohingya refugees to pursue higher education in local Malaysian institutions. [36] He unequivocally asserted that this initiative does not compromise the country's sovereignty. Responding to dissenting voices critical of the decision to permit Rohingya refugees access to local universities, the minister emphasised the intrinsic right to education for every human being. In doing so, he underscored Malaysia's commitment to a more humanitarian approach, emphasising the importance of extending educational opportunities to those in need, irrespective of their refugee status. This move reflects a broader dedication to fostering inclusivity and recognizing the universal right to education as a fundamental aspect of human dignity.

Despite the Minister’s reassurances, Public has been vocal about the admission of Rohingyas to IPTA. In this case, allowing Rohingya refugees to access higher education institutions might be perceived as a compromise to the nation's sovereignty. [37] Detractors argue that such a move might strain resources, impinge on the rights and opportunities of local citizens, and even potentially lead to demographic and cultural changes. [38] This concern often hinges on the balance between fulfilling humanitarian obligations and maintaining control over national policies and resources. 

This disjunction starkly underscores a palpable divide between public sentiment, policy implementation, and the imperative questions of fairness, empathy, and the universal application of human rights. In the realm of refugee rights, the 1951 Refugee Convention emerged as a pivotal benchmark, delineating fundamental minimum standards for refugees, including rights to housing, work, and education, aimed at facilitating dignified and independent lives during displacement. Unfortunately, Malaysia has not ratified this convention.

Conversely, within the domestic legal framework, Articles 8 and 12 of Malaysia's Federal Constitution serve as the primary provisions addressing non-discrimination and equality. Article 8(1) unequivocally asserts equality before the law and equal protection, [39] while Article 8(2) expressly prohibits discrimination based on religion, ethnicity, descent, place of birth, or gender. [40] Article 12 further safeguards individuals from educational discrimination. [41] Malaysia has strategically embedded these constitutional provisions to align with fundamental human rights principles outlined in the Universal Declaration of Human Rights (UDHR), particularly within Articles 5 to 13.

It is noteworthy that Malaysia's commitment to the right to education, as encapsulated in Article 26 of the UDHR, resonates with the global aspiration for universal education. However, the UDHR, being a declaration and not a binding treaty, does not impose direct legal obligations on nations. This nuanced understanding sheds light on the intricate interplay between Malaysia's constitutional guarantees and international human rights frameworks, emphasising the need for a comprehensive and coherent approach to ensure the protection of fundamental liberties and human dignity.

6.0 CONCLUSION

In conclusion, the exploration of Malaysia's constitutional flexibility in the context of the right to education reveals a nuanced and evolving landscape. Malaysia's commitment to providing education as a fundamental right is evident in the constitutional framework that recognizes and safeguards this essential aspect of human development. The journey through the legal provisions and historical context demonstrates the responsiveness of Malaysia's constitution to the changing needs of society. While the constitutional flexibility allows for adaptations and improvements, challenges persist in ensuring universal access and quality education for all. The interplay of cultural, economic, and political factors adds layers of complexity to the realisation of educational rights. It becomes clear that ongoing efforts are required to bridge gaps, address disparities, and uphold the spirit of inclusivity embedded in the constitutional fabric.

REFERENCES

[1] Federal Constitution (Malaysia) art 12.

[2] Federal Constitution (Malaysia) art 8(1).

[3] Jakob Renner (An Infant Suing Through His Father and Next Friend, Gilbert Renner) & Ors v Scott King, Chairman Of Board Of Directors Of The International School Of Kuala Lumpur & Ors [2000] 5 MLJ 254.

[4] Makhtar, M., Asari, K. N. & Mohd Yusob, M. L. (2015) Right to Education for Irregular Migrant Children in Malaysia; A Comparative Analysis. Pertanika Journals of Social Sciences & Humanities, 23(S), 85, 89. Retrieved from <http://www.pertanika.upm.edu.my/resources/files/Pertanika%20PAPERS/JSSH%20Vol.%2023%20(S)%20Nov.%202015/08%20JSSH%20Vol%2023%20(S)%20Nov%202015_pg85-96.pdf>. Site accessed on 17 Oct 2023.

[5] Convention on the Rights of the Child (United Nations) art 28.

[6] Convention on the Rights of the Child (United Nations) art 1.

[7] Convention on the Rights of the Child (United Nations) art 13.

[8] Convention on the Rights of the Child (United Nations) art 15.

[9] Convention Relating to the Status of Refugees 1951.

[10] Protocol Relating to the Status of Refugees 1967.

[11] See footnote 4 above.

[12] Immigration Act 1959/63 (Act 155) (Malaysia) s 6(1).

[13] Education Act 1956 (Act 550) (Malaysia).

[14] Committee on the Rights of the Child, Consideration of Reports Submitted by States Parties under Article 44 of the Convention, 44th sess, 1228th mtg, CRC/C/MYS/CO/1.

[15] Munir-Asen, K. (2018). (Re)negotiating Refugee Protection in Malaysia: Implications for Future Policy in Refugee Management. Bonn, Germany: Deutsches Institut für Entwicklungspolitik gGmbH. Retrieved from  <https://www.die-gdi.de/uploads/media/DP_29.2018_01.pdf>. Site accessed on 16 Nov 2023.

[16] Federal Constitution (Malaysia) art 153(1).

[17] Adie Zulkifli.(2023 July,8). Quota system in public universities to stay, says PM Anwar.New straits times.Retrieved from <https://www.nst.com.my/news/nation/2023/07/928823/quota-system-public-universities-stay-says-pm-anwar>. Site accessed on 16 Nov 2023.

[18] See footnote 17 above.

[19] See footnote 17 above.

[20]  International Convention on the Elimination of All Forms of Racial Discrimination, open for signature 21 December 1965,United Nations, Treaty Series, vol. 660, p. 195

[21] Minderjeet Kaur (2019, April 24). Matriculation an easier path to public universities than STPM, says don. Free Malaysia Today. Retrieved from <https://www.freemalaysiatoday.com/category/nation/2019/04/24/matriculation-an-easier-path-to-public-universities-than-stpm-says-don/>. Site accessed on 16 Nov 2023.

[22] Koh Jun Lin (2019, July 5). STPM vs matriculation students: Who stands a better chance? Malaysiakini. Retrieved from <https://www.malaysiakini.com/news/482498>. Site accessed on 15 Nov 2023.

[23] Yu Ang Tan.(2023 June, 24).I Got Accepted Into Harvard & UCLA But Was Rejected By M’sian Pre-U. This Is The Story Of My Journey. Weird Kaya. Retrieved from <https://weirdkaya.com/accepted-harvard-rejected-matriks-pre-u/> Site accessed on 15 Nov 2023.

[24] Convention Relating to the Status of Stateless Persons 1954.

[25] Figures at a Glance. United Nations High Commissioner for Refugees Retrieved from <https://www.unhcr.org/my/what-we-do/figures-glance-malaysia#:~:text=UNHCR%20in%20Malaysia.-,As%20of%20end%20October%202023%2C%20there%20are%20some%20184%2C220%20refugees,or%20fleeing%20persecution%20in%20Myanmar> Site accessed on 15 Nov 2023.

[26]  Eleanor, A., & Lindsay,M., (2020, 23 Jan) The Rohingya Crisis. Council on Foreign Relations Retrieved from <https://www.cfr.org/backgrounder/rohingya-crisis> Site accessed on 15 Nov 2023.

[27]  Ida Lim. (2023, 30 Jun). ‘Invisible’ in Malaysia: Why are people born here stateless and will the government's citizenship proposals fix or worsen the problem? Malay Mail  Retrieved from <https://www.malaymail.com/news/malaysia/2023/06/30/invisible-in-malaysia-why-are-people-born-here-stateless-and-will-the-govts-citizenship-proposals-fix-or-worsen-the-problem/76895> Site Accessed on 15 Nov 2023.

[28] Stateless Children. SUHAKAM Retrieved from <https://suhakam.org.my/portfolio/stateless-children/> Site Accessed on 15 Nov 2023.

[29] Universal Declaration of Human Rights (United Nations) art 26.

[30] (2023, 30 Aug) Sabah group takes on daunting ‘three Ms’ mission  Aliran Retrieved from <https://m.aliran.com/thinking-allowed-online/sabah-group-takes-on-daunting-three-ms-mission> Site accessed on 15 Nov 2023.

[31] Adrian David (2021, 20 Dec). Education vital for stateless children. New Straits Time Retrieved from <https://www.nst.com.my/news/nation/2021/12/756185/education-vital-stateless-children> Site accessed on 15 Nov 2023.

[32]  Mahaseth, H., Banusekar, S., (2022). Living in the Shadows: Rohingya Refugees in Malaysia. Asian Journal of International Law, 12, 259-266. 

[33] Bernama (2023, June 20). Rohingya refugees in local varsities no threat to Malaysian’s sovereignty. The Star. Retrieved from <https://www.thestar.com.my/news/nation/2023/06/20/admission-of-rohingya-refugees-into-ipt-no-threat-to-malaysia039s-sovereignty> Site accessed on 16 Nov 2023.

[34] Sydi Alif (2023, Oct 31). Comment section not passing the vibe check as netizens cherry picking which refugee to help. Sinar Daily. Retrieved from <https://www.sinardaily.my/article/211975/malaysia/national/comment-section-not-passing-the-vibe-check-as-netizens-cherry-picking-which-refugees-to-help> Site accessed on 16 Nov 2023.

[35] Adlin Sahimi (2023, Nov 1) NUTP questions viability of extending public education to refugees. Sinar Daily. Retrived from <https://www.msn.com/en-my/news/national/nutp-questions-viability-of-extending-public-education-to-refugees/ar-AA1jdqpe> Site accessed on 16 Nov 2023.

[36] See footnote 2 above.

[37] Federal Constitution (Malaysia) art 8(2).

[38] See footnote 1 above.