KOTA KINABALU: A Sabah-based think-tank has urged the Attorney General’s Chambers (AGC) to adopt democratic and consultative procedures over replacing the English text of the Federal Constitution with the Bahasa Malaysia translation as the authoritative text.
Wisdom Foundation chairman Datuk Seri Wilfred Madius Tangau implored Attorney General Tan Sri Idrus Harun, who announced the proposal on Jan 9, not to rely entirely on Article 160B if the AGC wished to initiate the transformation.
This process could be seen as a significant constitutional amendment, Tangau said, bearing similar significance to the creation of the 1957/1963 Federal Constitution, where inaccurate translations would change individual as well as collective constitutional rights.
In a statement here on Tuesday (Jan 17), he said the Foundation recognised the desire for change as it was only right in principle for the supreme law in the country to be in the national language.
"This enables the majority of Malaysians, with their first language being Bahasa Malaysia, to better understand their rights as enshrined in the Constitution.
"Nevertheless, this proposed change arouses deep concern, especially in Sabah and Sarawak, as the Bahasa Malaysia translation has not been presented to the Federal Parliament and the state assemblies of Sabah and Sarawak and subjected to adequate debate and scrutiny.
"Further, the Malay language is still in the process of developing better legal terms to bear the same nuances and meanings as in English," Tangau added.
Idrus, had in his speech at the Opening of the Legal Year (OLY) 2023 on Jan 9, said the AGC would bring forward the proposal to the government for the prescription of the Federal Constitution in the national language to be the authoritative text, in line with Article 160B of the Federal Constitution.
Article 160B states that where the Federal Constitution has been translated into the national language, the Yang di-Pertuan Agong may prescribe such national language text to be authoritative.
It also states that if there was any conflict or discrepancy between the national language text and the English language text of the Constitution, the national language text should prevail over the English language text.
Tangau, who also is Tuaran MP, contended that it would be a grievous mistake to treat this monumental transformative project as a simple translation job of the mid-20th century English language to modern day Bahasa Malaysia.
This would be compounded if the matter was handled by limited authorities before presentation to the Yang di-Pertuan Agong for endorsement.
Without democratic proceedings in place, he added, this procedure might lead to the rise of tension in federal-state relations, upset governmental responsibilities, threaten basic rights and fundamental liberties, and the rule of law.
"Within the purview of the Borneo States, Article 161(3) of the Federal Constitution states that English remains as the language used in the High Court of Sabah and Sarawak unless a change is approved by the Legislature of the State.
"Hence, the act of amending and making Bahasa Malaysia as the authoritative text without consent from Sabah Sarawak can be challenged as an unconstitutional act as it goes against the intention and spirit of this provision within the supreme law," Tangau stressed.
He explained that English was used officially to create the 1957 Federal Constitution and in the signing of Malaysia Agreement 1963 (MA63) as the British Government was also included in these proceedings.
He said it was important to acknowledge that language develops over time, with English used in that period bearing nuances and intentions made specific to that particular context of time.
"Hence, a premature change of the authoritative text to Bahasa Malaysia would fail to reflect the true intention of the 1957/1963 Federal Constitution and MA63.
"A translation needs to reflect the rights of all Malaysians within the correct context and to uphold the original spirit and intended nuances during the creation of the 1957/1963 Federal Constitution.
"It must also be remembered that our supreme law permits references to English laws if there are gaps or omissions in our statutes," Tangau said.
He said the responsibility to review the translation of the Constitution to become the authoritative text which was a major amendment should not rest on the AGC alone.
"It is a power and duty to be shared by all the three branches of powers in governance to include the legislature and judiciary at both the federal, state, and regional level," he said.
Towards this end, he recommended several measures to ensure a holistic approach should the proposal were to advance including having special Parliamentary and State Assembly proceedings to debate the super amendment to the Federal Constitution.
Besides that, Tangau proposed setting up a Special Select Committee in Parliament to supervise the translation process, conducting meetings with relevant stakeholders to receive input as well as performing physical and/or virtual surveys to receive views from the public.
