JOHOR BARU – The Attorney-General’s recent proposal to use the Malay translation of the federal constitution as the authoritative version will require much more than just approval by the Yang di-Pertuan Agong, lawyers said.
Those interviewed by The Vibes expressed concerns about the precision of the text and interpretations, given the nuances of both languages and the shortcomings of translation.
An activist worried that matters held unconstitutional based on the English text could then become constitutional, such as the conversion of minors by one parent without the other’s consent (unilateral conversion).
Speaking to The Vibes, former Malaysian Bar president Salim Bashir said that for the Bahasa Malaysia (BM) version of the constitution to be made the authoritative text in Malaysia’s legal system, the translation must mirror precisely the language in the original English version.
He suggested that drafters look back to the intentions of the Reid Commission and Parliament’s Hansard to ensure the spirit of the original version of the text is maintained.
“It is a timely call and an understandable move to float the idea so as to be in consonance with Article 160B of the federal constitution on the use of the national language.
“However, unlike the construction of federal statutes, here, we are dealing with the supreme law of the land.
“The construction of wordings, semantics, and nuances of the proposed Malay version must invite a strict and flawless interpretation close to precision of the English wordings in the current text.
“The drafters must delve into the intentions of the Reid Commission and Hansard of some past constitutional amendments to know the exact meaning and definite intentions of the words,” Salim said when contacted.
He added that drafters can also look into case laws to understand further the meaning of provisions in the constitution.
Additionally, the views of other stakeholders such as the Bar should be taken into account to avoid conflict over the interpretations of the document.
King’s assent not enough?
Meanwhile, lawyer A. Srimurugan, who represented single mother Loh Siew Hong in her fight against the unilateral conversion of her children in court, stressed that legislative intervention is necessary before the BM version of the constitution can take precedence over the English one.
To implement Attorney-General Tan Sri Idrus Harun’s proposal, Parliament would have to convene and assent to changes with a two-thirds majority.
This, according to Srimurugan, is required to prevent translations from clashing with case laws that have ruled on how legal provisions are to be interpreted.
“The English text has authority in courts, and their decisions over the interpretation of the constitution are binding.
“If the attorney-general can just (through his own volition) translate the constitution, it would mean he has the power to simply overrule the Federal Court,” he told The Vibes.
Such a move would also shake the legal system where the practice has been to give precedence to certain statutes in English over Bahasa Malaysia ones, he added.
“The Penal Code, Evidence Act, and Criminal Procedure Code are some examples of pre-independence legislation that was drafted in English.
“From my knowledge, there are no official Malay versions that have been enacted into law. So when there are conflicts, English always prevails,” Srimurugan explained.
Consequences for unilateral conversion of minors
Echoing Srimurugan, Global Human Rights Federation president Shashi Kumar said the change in language could see situations where the unilateral religious conversion of minors could suddenly become constitutional.
This is because Article 12 (4) of the federal constitution in English states that the religion of a minor is to be determined by the “parent”, while the Malay version of the document instead uses “ibu atau bapa” (mother or father), Shashi pointed out.
He suggested that Putrajaya look into correcting Article 12(4) before making the Bahasa Malaysia version of the federal constitution authoritative.
“The statement by the attorney-general does not mirror the objectives of the newly formed unity government.
“The use of the Malay text would allow unilateral conversions of minors, which would be morally and religiously incorrect,” Shashi said.
The attorney-general made the suggestion on January 9, drawing concern from some in the legal fraternity and from interfaith groups.
PAS Youth has backed the proposal from the Attorney-General’s Chambers to make the Malay version of the federal constitution the authoritative text. PAS Youth chief Ahmad Fadhli Shaari has expressed support for the move, saying it was in line with raising the stature of the national language. – The Vibes, January 19, 2023
