Lawyers: Risky for BM translation of Federal Constitution to override original English text

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Malaysia should continue using the English text of the Federal Constitution — which is the original language it was created in — as the authoritative text, instead of letting the Malay translation override it to be the final authority, lawyers have said.

Shafwan Zaidon

Following Attorney General Tan Sri Idrus Harun’s proposal for the Malay translation to be made authoritative, lawyers pointed out to Malay Mail that doing so may “mess up” the DNA of the country’s most important law, and totally change the original meaning of words in the Federal Constitution under the guise of “translation”.

Constitutional lawyer Andrew Khoo said the Malay or Bahasa Malaysia translation of the Federal Constitution should not be the authoritative text now or even in the foreseeable future, agreeing it was safer to rely on the English text since it is the language in which the Federal Constitution has been scrutinised in the courts so far.

“We have had problems with the BM translation in the past. For example, the word ‘parent’ in Article 12(4) of the Federal Constitution has been variously translated as ibu bapa, ibu dan bapa and ibu atau bapa. Which is correct? Which is definitive?

Saw Siow Feng

“Some people may say this is a small matter, but the imprecise or incorrect translation may lead to the extinguishing of rights and the loss of protection provided under the Federal Constitution,” he told Malay Mail when contacted.

Ibu bapa means parents, while ibu dan bapa is ‘mother and father’, and ibu atau bapa is ‘mother or father’.

In Malaysia, there have been multiple cases of an initially non-Muslim parent converting to become a Muslim, and subsequently secretly converting his or her young children — some as young as three years old — to become Muslims without even asking the other parent who remained non-Muslim.

Such cases also involve attempts by the Muslim convert parent trying to bring the fight for custody of the young children to the Shariah courts after converting them to Muslims, even though the children were born from civil marriages involving two non-Muslims and their custody should be decided in the civil courts.

In concluding that it was illegal for a parent to unilaterally convert children to Islam without seeking the other parent’s consent, the Federal Court in 2018 unanimously ruled in Hindu mother M. Indira Gandhi’s case that the English version of the Federal Constitution is authoritative.

For the Federal Constitution’s Article 12(4) which says a “parent or guardian” shall decide the religion of a person under the age of 18 for matters such as religious instruction, the Federal Court had in Indira’s case said the English version of “parent” prevails over the Bahasa Malaysia translation of “ibu atau bapa” (mother or father), and had also pointed out that the Federal Constitution’s Eleventh Schedule says words in the singular (e.g. parent) should be interpreted to include the plural (e.g. parents), and vice versa.

Khoo pointed out that the attorney-general has not consulted the Malaysian Bar on the BM version of the Federal Constitution, and indicated the Malay translation has yet to fully be able to reflect the precise meaning of words in the English text of the Federal Constitution.

“In my view, the BM translations have not been adequately debated upon and stress-tested to ensure that the exact meaning in the English language, including all its subtleties and nuances, have been adequately captured and reflected in the BM translations.

“Many of the Articles in the Federal Constitution have never been challenged before, and each time a new part is looked at in litigation, we are learning more things about its different shades of meaning and potential implications.

“My personal view is that we have not yet arrived at the point where total and absolute reliance can be placed on the BM translations with confidence,” he said.

“This is not a matter of linguistic nationalism. This is about protecting basic rights, fundamental liberties and governmental responsibilities, and as the Chief Justice reminded us, the rule of law and constitutional supremacy,” Khoo concluded, referring to Chief Justice Tun Tengku Maimun Tuan Mat’s speech at the Opening of the Legal Year 2023 on Monday.

Constitutional lawyer K Shanmuga pointed out that there are issues with the Malay translation of the Federal Constitution, as some Malay words used have gone beyond translating the English text and would actually amount to amendments due to the change in the meaning of the words.

“The existing BM translation is not suitable. There are provisions that are amendments, and not mere translations.

Choo Choy May

“For instance, Article 12(4)’s ‘parent’ is translated as ibu atau bapa, contrary to the finding in the Federal Court decision in Indira Gandhi,” he said when contacted, referring to the latest Malay translation of the Federal Constitution.

“Another example is the word ‘profess’ (in person professing the religion of Islam) is translated to menganut. The word menganut is not a direct translation to the word ‘profess’. If a court asks if someone professes a religion, they are not meant to go behind what he says. They do not look into his actual beliefs.

“Whereas menganut is more appropriately translated as a ‘believer’, and that would mean the courts have to look at what he actually believed,” he said, referring to another important word in the Federal Constitution.

Apart from these two examples which he recalled, Shanmuga said there may be “a whole host of other problems with the translation”, noting: “No one has ever properly reviewed it, word for word, as far as I know.”

“The Federal Constitution was a product of substantial negotiation in 1957, and every word used the subject of much debate and intense study. When Malaysia was formed, further negotiations took place,” he said, referring to Malaysia’s formation in 1963.

“We cannot foresee all the potential disputes that can arise as to the meaning of all the different words in the Constitution. Certain words have multiple meanings in English, and no ideal word in BM has all that nuance and meanings (and vice versa). In translating a legal document, there will always be debates about the use of a word.

“So, whilst a BM version of the Constitution can be used for purposes of public education, the authoritative version should not be changed,” Shanmuga said.

Lawyer Fahri Azzat disagreed with making the Malay translation of the Federal Constitution the authoritative version, due to several reasons including legal terminology in the Malay language still being “relatively new and developing”.

“I do not think it is developed or complete enough to replace all the words in English whilst retaining the nuances of the English words or phrases. We are still developing legal terminology for the Malay language. It is far from settled and established. For example, the courts describe ‘Judicial Review’ as Semakan Kehakiman. Translators from Dewan Bahasa Pustaka prefer Kajian Semula Kehakiman,” he told Malay Mail when contacted.

He also noted that the preparations for crafting the Federal Constitution — including the Reid Commission’s report and the draft Constitution itself — were done in the English language.

“Secondly, the Federal Constitution’s foundation was crafted in English by judges drawn from the Commonwealth: England, Pakistan, India and Australia. The English language used in the Federal Constitution comes with all the nuances, historical precedents, conventions and concepts of the common law. There is a real risk that when BM is used in its place, all these nuances and understandings inherent to those words go missing,” Fahri, who is also the Malaysian Centre for Constitutionalism and Human Rights director, said.

Pointing out that many principles of law applied in Malaysia originate from English and Commonwealth authorities, Fahri did not believe that Malay terminology has reached the point where it can accurately reflect the nuances of its legal historical development.

“Thirdly, from an institutional standpoint, we lack the precedents, nuance and competency to tackle something as fundamental as an authoritative translation of the Federal Constitution.

“It is not simply a question of changing the words but what is meant by the Constitution. To translate the Federal Constitution from English to Malay is akin to translating our DNA from one language to another and has every potential to turn it into something different,” he said.

In pointing out the lack of institutions in Malaysia which can authoritatively translate the Federal Constitution which is a complex document as compared to other types of laws, Fahri said: “It’s like messing with your DNA. The very things that make us up. For example, you cannot read the Federal Constitution like you would a normal statute. It has its own canon of interpretation.”

He also questioned who should be translating the Federal Constitution, asking whether it should be the Attorney-General’s Chambers which would be part of the executive branch of government since it drafts and proposes legislation, or if it should be Parliament which is the legislative branch of government as it has the power to amend the Federal Constitution if there is a two-thirds majority.

“Or should it be the Judiciary, since they are the government organ tasked with protection and interpretation of the Federal Constitution? If they are the designated interpreters, should it not be the Judiciary that devises the authoritative BM text? Or perhaps, poets should translate it since they are, in the arts, the most exalted of wordsmiths,” he said.

Cautioning against making the BM version of the Federal Constitution the authoritative version, Fahri said it could possibly be inaccurate, create more or greater ambiguities, or even risk “corrupting or harming important concepts inherent to the Federal Constitution”.

“Precious judicial time, effort and expense will be wasted in interpreting the translation and figuring it out. Although we can have a BM version of the Federal Constitution, it should not be the authoritative version. The idea of having is a nice one but not a necessary one.

Miera Zulyana

“I think there should be far stronger political, legal and urgent reasons for having an authoritative BM version of the Federal Constitution than simply desiring one,” he said.

Lawyer Honey Tan said Malaysia should as a matter of principle have a Malay version of the Federal Constitution which would be authoritative or prevailing if it differs from the English text, but only after consulting the Malaysian Bar and the public for their views.

“In principle, we ought to have an authoritative Bahasa Malaysia version of the Federal Constitution. Since Bahasa Malaysia is the national language, it is only right that the authoritative text of the Federal Constitution — our most important law — be in that language.

“However, the draft BM version should be updated, and then sent to the Malaysian Bar for our feedback.

“The government should also upload the draft to the relevant website to seek comments on the translation,” she told Malay Mail briefly when asked for her views.

On Monday, Idrus proposed making the Malay translation replace the original English text of the Federal Constitution as the authoritative version, but said the proposal requires the Yang di-Pertuan Agong’s approval.

Article 160B of the Constitution states that: “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.”

Currently, the English text for the Federal Constitution is the authoritative text in Malaysia. – MMO