AG’s ‘BM constitution authoritative’ push raises alarm

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Indira Gandhi case cited.

The Malaysian Consultative Council of Buddhism, Christianity, Hinduism, Sikhism and Taoism (MCCBCHST) is concerned with Attorney-General Idrus Harun’s proposal to make the Bahasa Malaysia translation of the Federal Constitution the authoritative text.

Council secretary-general Gowri PS Thangaya said it could impact cases where one parent converted his or her child or children to another religion.

Citing the case of M Indira Gandhi as an example, she noted that the Federal Court ruled that in Article 12(4), the singular word “parent” included the plural “parents”.

“But the BM translation of the Federal Constitution provides: ‘Bagi maksud Fasal (3) agama seseorang yang di-bawah umur lapan belas tahun hendaklah ditetapkan oleh ibu atau bapanya atau penjaganya. (The religion of a minor below the age of 18 must be determined by the mother, father or guardian)’.

“If the BM version is made the authoritative text, it would have the effect of over-ruling the Federal Court’s decision in the Indira Gandhi case as it would mean ‘a single parent could convert a minor of marriage, thereby changing the import of the Federal Constitution by the translation process’,” she added in a statement.

Therefore, Gowri said the original text, which is in the English language, should remain authoritative.

“A translation can be made but the original text must remain the authoritative text. This is because if the translation is defective, it can be corrected by reference to the original text,” she added.

Addressing the Opening of the Legal Year 2023 yesterday, Idrus said the constitution serves as the cornerstone in implementing the separation of powers.

“Therefore, for the year 2023, pursuant to Article 160A of the Federal Constitution, the Attorney-General’s Chambers (AGC) plans to reprint the Federal Constitution to incorporate the latest historic constitutional amendments.

“The AGC also plans to propose to the government that the prescription of the Federal Constitution in the national language be the authoritative text in line with Article 160B of the Federal Constitution. These two plans are subject to the approval of the Yang di-Pertuan Agong,” he added.

Article 160A states “the authority appointed under federal law for the purpose of revising laws may, with the consent of the Yang di-Pertuan Agong, authorise the printing of copies of this constitution, including all amendments in force at the date of such authorisation; and any copy of this Constitution so printed shall be deemed for all purposes to be a true and correct copy of the Federal Constitution”.

Article 160B reads “where this constitution has been translated into the national language, the Yang di-Pertuan Agong may prescribe such national language text to be authoritative, and thereafter if there is any conflict or discrepancy between such national language text and the English language text of this constitution, the national language text shall prevail over the English language text”.

However, Gowri argued that the amendment to add Article 160B to the constitution was unconstitutional as it seeks to make a translated version override the original text.

“The MCCBCHST calls for Article 160B to be amended. The words in Article 160B at the end, that is ‘if there is any conflict of disagreeing between such national language text and the English Language text of this Constitution, the national language text shall prevail over the English text’ should be deleted.

“The following words should be added instead: The original text of the Federal Constitution should remain the authoritative text,” she added.

In 2018, the Federal Court ruled in favour of Indira Gandhi, a Hindu mother who hauled her ex-husband to court after he had converted their three children to Islam without her knowledge or consent.

This was lauded as a landmark decision, which reaffirmed the civil court’s constitutional role and declared unilateral conversions as unlawful.

In April last year, the apex court cited the precedent set in the Indira Gandhi case when it denied a Buddhist-turned-Muslim mother’s application for leave to restore her two children’s unilateral conversion to Islam. – Malaysiakini