JANUARY 11 — The Attorney General (AG) of Malaysia Speech to the Opening of the Legal year 2023 dated January 9, 2023 has set up a firestorm of views.
The whole speech is a laudable affirmation of democratic constitutional practice. The AG rightfully celebrated the adherence to the Federal constitution by the major organs of our nation including the governance of difficult political transitions. The AG also affirmed unequivocally the principles of separation of powers and respectful co-operation between the constitutional organs, i.e. the Executive, the Legislature and the Judiciary. The principle of Independence of judiciary was also lauded as part of the foundation of our juridical order.
What was the paragraph that elicited public discourse and disquietude?
Para 14 of AG’s speech reads,
“The Federal Constitution act as our cornerstone in implementing the separation of powers. Therefore, for the year 2023, pursuant to article 160A of the Federal Constitution, the 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 to be the authoritative text in line with Article 160B of the Federal Constitution. These two plans are subject to the Approval of the Yang DiPertuan Agung.”
Article 160B of Federal Constitution was introduced in 2001 and came into effect from 28th September, 2001 by way of Constitutional (Amendment) (No.2) Act 2001 (Act A1130), section 12 .The Article reads,
“Authoritative Text
“Where this Constitution has been translated onto the national language, the YDPA 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.”
It is significant that Art 160B itself recognises that no translation can be completely similar in its lexical and semantic range. Linguistic scholarship and discourse analysis studies has demonstrated that a people’s language shapes and is shaped by culture, ethos and traditions .Institutional arrangements that constrains a polity have both textual determinants and a language world has an interpretive horizon as to how a text is to be applied in a community. There is no text simplciter out there that is free from perspective which is not culled from one’s culture and tradition or practices.
When the Merdeka Constitution was promulgated the Reid Commission, the White Paper and the version of the Federal Constitution that was accepted by the people of the Federation of Malaya was the English version (there was no BM version then). When Sabah and Sarawak formed Malaysia the issue of continued usage of English Language was of special concern for the Borneo entities.
If the AGC programmatic signal were to be effected and a literal reading of Article 160B applies there results a major substantive amendment of the Federal Constitution. Linguistic nationalists have legitimate desire that this goal be achieved given the passage of more twenty years since 2001. However this desire ought to be tempered that notwithstanding the yearning that BM be primary in our discourse and intercourse the impact of an authoritative Federal Constitution in BM version has serious ramifications.
The effect of YDPA prescribing the BM translation as authoritative means that once the Executive ( the Cabinet decides ) and convey such a decision to YDPA through the Prime Minister the YDPA will have to prescribe ( unless one reads “ may “ as discretionary “ ) . This means that if by popular vote of majority in an election the Executive through Article 160B can amend the Federal Constitution by simple majoritarian rule. The Judiciary like other organs are the enjoined by the Article 160 B to construe laws in accordance to Bahasa Malaysia. Unless a version of Basic Feature doctrine holds sway to limit Article 160 B.
As pointed out by many the unilateral conversion of Indira Gandhi children by the Hindu spouse which was set aside by the Federal Court( 2018) may have a different outcome if the BM text of Art 12 (4) . The BM version reads ,” (4) “Bagi Fasal [Art 12](3) agama seseorang yang di bawah umur lapan belas tahun hendaklah di tetapkan oleh ibu atau bapanya atau penjaga.” if reading “atau “as “or” thereby denoting a disjunctive reading rather than conjunctive( “parent” in English Version and pursuant to Federal Constitution , Eleventh Schedule read with Article 160(1) that a singular includes plural) which is consistent with the welfare of the child and with good sense that consent of both parents is required for the conversion of a minor child.
This oft cited case is illustrative of the many issues arising on the language of texts especially one which forms and shapes the constitutional governance of a nation. A modern constitutional state birthed out of post-colonial construct permits a nation to take her place in a modern world where many institutions not perhaps known in Malay nomenclature or discourse have to finds it application and meaning in practice. Other examples abound, e.g. Parliament, Courts, Constitutional monarchy, Property rights, Taxation and language of Commerce and Federalism have no direct place in Malaya language and lifeworld .These institutional arrangements have their meanings in historical antecedents in the birthing of modern states.
The disquiet from wide range of Malaysian citizenry is not borne out of being anti national language but a legitimate concern on the change of fundamental norms by a sleight of hand through Article 160 B.
The ramifications to whole body of jurisprudence developed and recognised both in Malaysian and globally will result in Malaysia being treated with concern and anxiety. The uncertainty generated to the democratic ordering and protection given to rights both personal and property will impair the stability of our beloved nation.
* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.
