Take nuance into account as applying Malay version of Federal Constitution not as straightforward, experts say

Photo by Sam Fong/The Edge

Photo by Sam Fong/The Edge

-A +A

KUALA LUMPUR (Jan 11): The attorney general's recent announcement of plans to propose replacing the original English text of the Federal Constitution with the Malay translation as the authoritative version may not be "as straightforward as it sounds", and need to take the nuance of language into account.

Senior constitutional lawyer Datuk Malik Imtiaz Sarwar said this when commenting on AG Tan Sri Idrus Harun's announcement on Monday (Jan 9).

"Languages are nuanced, and we must give regard to structure and cultural differences, [while] some languages have words that others do not, and words may have more than one meaning," he told The Edge.

He added that the matter of interpretation is the "main battlefield" in constitutional cases.

"A cursory look at the key cases over the last two decades or so would show that clearly. The furore over the word 'parent' as opposed to 'ibubapa' gives some sense of how difficult this area has been," he said.

One such case where the matter of the authoritative version of the Federal Constitution arose was the landmark 2018 M Indira Gandhi matter regarding the unilateral conversion of her children by her Muslim-convert ex-husband.

The Federal Court unanimously said that the English version of the Federal Constitution is authoritative since it has not been shown that the Yang di-Pertuan Agong has prescribed the Malay translation to be authoritative.

The apex court said that in Indira’s case, the English version of the word "parent" prevails over the Malay translation of "ibu atau bapa" (mother or father).

The Federal Court subsequently ruled in Indira's favour, saying that it is unlawful for a parent to unilaterally convert the children to Islam without seeking the other parent’s consent.

Decision could open floodgates

Earlier this week, during his speech in the opening of the legal year 2023, Idrus said that the plan to propose the replacement of the authoritative text's language was in line with Article 160B of the Federal Constitution.

However, this will be subject to the approval of the King.

Article 160B states that where the Federal Constitution has been translated into the national language, the Agong may prescribe such national language text as authoritative.

It also states that should there be any conflict or discrepancy between the national language text and the English text of the Constitution, the national language text shall prevail over the English one.

Malik cautioned that the move could open the floodgates to more controversies, particularly with regard to previous constitutional cases which have been decided based on the English version of the Constitution.

Elaborating further, he pointed out that the lower courts are bound by decisions of the higher courts, and warned that if the Malay version of the Constitution becomes authoritative, some may call the precedents into question.

"The argument would be that decisions based on English words cannot be not be treated as being definitive of the meaning of the Malay provisions. This would lead to more controversies," he said.

'It is akin to a super amendment'

Constitutional expert Universiti Malaya Emeritus Professor Datuk Dr Shad Saleem Faruqi said that having an authoritative text of "our basic law" in the national language is "fully understandable".

However, he asserted that the process of adopting the Malay translation must adhere to the other mandatory provisions relating to enactment and amendment of constitutional laws.

Among such provisions that must be considered are Article 159(3) requiring a parliamentary majority of two-thirds and Article 159(5) requiring the consent of the Conference of Rulers.

"Article 160B cannot override all other relevant articles of the Constitution. It must be read in the context of other articles providing special procedural safeguards for enacting or amending some laws," he said.

He added that the authoritative Malay text must go through Parliament and the formal procedures of the amendment process.

"A translation replaces the earlier text with a new text. It is akin to a super amendment. A translation can affect the rights of our rulers, of Sabah and Sarawak, and of ordinary citizens.

"The supreme Constitution is not a piece of subsidiary legislation that can be enacted, amended and enforced by the executive without parliamentary sanctions," he said.

'Malay version has existed since 2003'

Prominent lawyer Mohamed Haniff Khatri Abdulla, meanwhile, hailed the AG's announcement as the "correct and accurate" decision given that Malay is the national language as enshrined in the Constitution.

"Although Malaysia has been independent almost 66 years ago, the issue of the valid version of the Federal Constitution as the highest law of the country has and still haunts us," he said.

He maintained that a valid Malay version of the Constitution has existed since 2003.

According to The Star report in September 2003, a Malay version of the text was launched by then Yang di-Pertuan Agong Tuanku Syed Sirajuddin Syed Putra Jamalullail. However, the report noted that there was no enforcement date of the Malay version.

Read also:
AGC moots BM translation to replace English text as authoritative version of Federal Constitution

Surin Murugiah