This article first appeared in Forum, The Edge Malaysia Weekly on January 16, 2023 - January 22, 2023

The Attorney General of Malaysia’s speech during the opening of the legal year 2023 on Jan 9 has set off 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. He also affirmed unequivocally the principles of separation of powers and respectful co-operation between the constitutional organs — that is, the executive, the legislature and the judiciary. The principle of independence of the 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 reads, “The Federal Constitution acts 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 on Sept 28, 2001, by way of Constitutional (Amendment) (No.2) Act 2001 (Act A1130), section 12. The article reads, “Where this Constitution has been translated into 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 have demonstrated that a people’s language shapes and is shaped by culture, ethos and traditions. Institutional arrangements that constrain 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 simpliciter out there that is free from perspective that 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 Bahasa Malaysia version then). When Sabah and Sarawak formed Malaysia, the issue of continued usage of the English Language was of special concern for the Borneo entities.

If the AGC’s programmatic signal were to be effected and a literal reading of Article 160B applied, there results a major substantive amendment of the Federal Constitution. Linguistic nationalists have a legitimate desire that this goal be achieved given the passage of more than 20 years since 2001. However, this desire ought to be tempered, that notwithstanding the yearning that Bahasa Malaysia be primary in our discourse and intercourse, the impact of an authoritative Federal Constitution in its Bahasa Malaysia version has serious ramifications.

The effect of the YDPA prescribing the Bahasa Malaysia translation as authoritative means that once the executive (the cabinet) decides and conveys such a decision to the YDPA through the prime minister, the YDPA will have to prescribe (unless one reads “may” as discretionary). This means that 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 the other organs, are enjoined by Article 160B to construe laws in accordance to Bahasa Malaysia. This is unless a version of the Basic Feature doctrine holds sway to limit Article 160B.

As pointed out by many, the unilateral conversion of Indira Gandhi’s children by the Muslim ex-spouse, which was set aside by the Federal Court (2018), may have had a different outcome if the Bahasa Malaysia text of Article 12(4) were applied. The Bahasa Malaysia version reads, “Bagi Fasal [Art 12](3) agama seseorang yang di bawah umur lapan belas tahun hendaklah di tetapkan oleh ibu atau bapanya atau penjaga.” If “atau” is read as “or”, it denotes a disjunctive rather than conjunctive reading for “parent”. The conjunctive reading is what emerges in the English version, and pursuant to the Federal Constitution, Eleventh Schedule, read with Article 160(1), that a singular includes the plural, such an interpretation is consistent with the welfare of the child and with good sense that the 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 that 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 find its application and meaning in practice. Other examples abound. For example, parliament, courts, constitutional monarchy, property rights, taxation and language of commerce and federalism have no direct place in Malay language and lifeworld. These institutional arrangements have their meanings in historical antecedents in the birthing of modern states.

The disquiet from a wide range of Malaysian citizenry is not borne out of being anti-national language but a legitimate concern on the change of fundamental norms through Article 160B.

The ramifications to the whole body of jurisprudence developed and recognised both in Malaysia 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.

Philip Koh Tong Ngee is an advocate and solicitor of the High Court of Malaya and an adjunct professor of Universiti Malaya and the University Monash Malaysia School of Business

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