KUALA LUMPUR, Feb 14 — Malaysia has used the English text of the Federal Constitution — the language it was created in — as the authoritative text since the country’s formation in 1963, but there are now plans to push for the Malay translation to be the final authority.

While Attorney General Tan Sri Idrus Harun recently announced such plans, this idea for the Malay translation of the Federal Constitution to override the English text actually dates back to 22 years ago.

Whose idea was it? Why was there such an idea? How will this be done? What is Article 160B?

Hop on to the time travel machine along with Malay Mail, as we trawl through the official parliamentary records in the Hansard.

Setting: The year is 2001. Tun Dr Mahathir Mohamad is the prime minister, and he has two-thirds majority support in Parliament.

This is crucial, as any changes to the Federal Constitution can only happen with votes from at least two-thirds of all members in the Dewan Rakyat and the Dewan Negara.

(On top of that, some Federal Constitution provisions also need the Conference of Rulers’ consent or the Sabah and Sarawak governors’ consent before any changes can be made.)

What and why (Hint: making BM great)

The Constitution (Amendment) (No.2) Bill 2001 was tabled for the first time in the Dewan Rakyat on July 30, 2001 to propose changes to the Federal Constitution. It was later presented to the Dewan Negara on August 6, 2001 for debates.

It quickly became law about two months after going through Parliament debate — on July 31 and August 1, 2001 at the Dewan Rakyat, and on August 13 and August 14, 2001 at the Dewan Negara.

It received royal assent on September 6, 2001, was gazetted on September 27, and kicked in on September 28, 2001.

The Bill proposed 13 changes: to amend nine Articles, insert two new Articles (Article 160A, Article 160B) and make amendments to two Schedules. (Watch out for Section 46 of the Eleventh Schedule).

On July 31, 2001, Tan Sri Rais Yatim, a minister in the Prime Minister’s Department at that time, introduced the Bill at its second reading to MPs in the Dewan Rakyat. (He is currently the Dewan Negara speaker.)

Rais said the proposed Article 160B would enable the Yang di-Pertuan Agong to prescribe — or state — that the translation of the Federal Constitution in the national language is authoritative.

Article 160B states: "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.”

Rais also explained the proposed Article 160A that would create a new specific provision for the reprinting of the Federal Constitution, saying that previous reprints — via a general provision under the Revision of Laws Act 1968 — will continue to be authoritative until they are replaced by new reprints under Article 160A, which he said will allow for the national language to be strengthened.

As Section 46 of the Eleventh Schedule makes the English language text of the Federal Constitution the authoritative text, Rais said the Bill proposed to delete this line.

Section 46 states that the English text shall prevail if there is any conflict or discrepancy between the English text of a written law and any translation. In other words, the English text will be the ultimate version relied on if there are differences with the translated version of laws.

Separately on August 13, 2001 at the Dewan Negara, Rais said with the deletion of Section 46, the Malay language will be the authoritative language in the countries’ legal texts in the years to come whenever the laws are reprinted.

Later at the Dewan Negara on August 14, 2001, Rais said the English text will still remain the authoritative copy if Section 46 is not amended.

Rais cited discussions between the Attorney General’s Chambers and the Prime Minister’s Department, which he said found that the deletion of Section 46 would accommodate making Malay the official language, and that it would enable it to be the authoritative language for all laws after they are translated or after royal assent.

Rais said that all of the country’s laws including the Federal Constitution have already been translated into Malay, which meant they could immediately be the authoritative text once the proposed constitutional amendment takes effect.

In response to questions on whether making the Malay version of laws authoritative would affect scholarship and research, Rais said there would also be English versions of each law for those who wish to study or wish to argue on common law or comparative law points.

When introducing the Bill at the Dewan Negara on August 13, 2001, Rais said a country’s constitution was not static but should go through changes for improvements, noting that the Federal Constitution had been amended around 36 times since the independence of Malaya in 1957, including an amendment in 2001 that created Putrajaya as an additional federal territory.

He said the Bill would include amendments to a list of areas in line with the country’s development and progress, naming the listed items such as equality for women’s rights under the law, the Election Commission’s composition and matters relating to voters, and empower the Malay language as the authoritative legal language for Acts or laws enacted by Parliament including the Federal Constitution.

Did the Dewan Rakyat and Dewan Negara lawmakers have anything to say?

Yes, they did.

Although many of them focused on the other proposed amendments to the Federal Constitution under the Bill, such as disallowing gender discrimination amid the limited debate time given, some of them managed to raise their concerns about Article 160B.

Key concerns included potential rewriting and indirect amendments to the Federal Constitution, the need for accuracy and solutions for mistranslations.

In the August 1, 2001 debate at the Dewan Rakyat, then Jelutong MP Datuk Seri Lee Kah Choon questioned the need for Article 160B, as the Federal Constitution resulting from negotiations was created in English and recognised as the authoritative text.

Noting that the courts have made multiple interpretations of the Constitution while guided by its English language text, Lee questioned what would happen to those past court decisions if they were to be in conflict with the Malay translation in the future.

He also questioned who would do the translation and who would decide if it truly reflects the true meaning and spirit of the Constitution as agreed upon its creation, highlighting that Article 160B did not state who would be the translators such as whether there would be a committee or the qualifications of such committee members.

Questioning the logic of the proposed Article 160B, he remarked: "The original is still the original. I don’t know how we can say the translation from the original is more authoritative than the original.”

Lee likened Article 160B to be akin to wanting to "rewrite the supreme law of the land”, highlighting there could be inaccuracies in translations, noting for example how "the age of compulsory retirement” in the Bill was itself translated to "umur persaraan paksa” despite "wajib” meaning "compulsory” while "paksa” means "forced”.

Stressing that he did not disagree with the widespread use of Bahasa Malaysia, he said he was only raising concerns as the proposed Article 160B covered a wider subject than just the use of BM as it touches on the foundation of Malaysia’s existence.

But if Article 160B does become law, Lee urged the relevant ministry to present the Malay translation of the Federal Constitution to Parliament for approval first, before letting it be authoritative.

In his response to Lee, Rais said past court decisions would continue to be authority, but said the Malay language’s status as the national language was already enshrined in Article 152 of the Federal Constitution and Section 7 of the National Language Act. (Article 152 states the Malay language as the national language. Section 7 says the Yang di-Pertuan Agong may prescribe Malay translations of any written law enacted before September 1,1967 to be authoritative).

Rais also said the courts have interpreted provisions according to its spirit and not just on the face of it, with experts from Dewan Bahasa, Attorney General’s Chambers and local universities providing support for interpretation and translation.

On the same day, then Machang MP Mohd Yusoff Mohd Nor supported the proposal to add on Article 160B, but shared the same concerns as the Jelutong MP, noting that any mistranslation of the original text in English to Malay may indirectly result in amendments to the Federal Constitution.

Mohd Yusoff cited as example List II or the State List in the Federal Constitution’s Second Schedule revolving around the word "precepts” in the phrase "creation and punishment of offences by persons professing the religion of Islam against precepts of that religion”, which he noted was translated into "rukun-rukun Islam” which would actually be referred to as "pillars of Islam” in English instead.

He urged Rais to provide assurance on how errors in the Malay translation of the Federal Constitution — which the Yang di-Pertuan Agong would state to be authoritative — would be remedied.

In an immediate response, Rais said the views given were in line with the spirit of the Federal Constitution constantly being modified from time to time to improve the harmony of those living in one country, noting there are no man-made books that are perfect and that Islam views only the al-Quran to be perfect.

He said that efforts to improve would be taken if discrepancies in meaning or terms are discovered from time to time, adding that the courts will be the final arbiter if there are disputes.

On August 14, 2001 at the Dewan Negara, lawmaker Datuk Ghazi Ramli supported the Bill but highlighted that the Malay language was quite limited, indicating the desire for accuracy and questioned if there were fully-skilled experts to carry out the translation.

Ghazi also asked how the government would ensure the Malay translation follows the original intention, such as whether there would be certain English words in brackets or reference to the original text in English if there is confusion.

On the same day at the Dewan Negara, Rosli Mohd Hassan agreed with Malay being the absolute legal language, and hoped judges and lawyers would also use the Malay language exclusively and in total.

Earlier on July 31, 2001 in the Dewan Rakyat, Bagan Datuk MP Datuk Seri Ahmad Zahid Hamidi congratulated the government on its efforts to encourage the use of the Malay language, and noted that neighbours Indonesia and Brunei had been using the Malay language for their authoritative text.

On August 1, 2001 in the Dewan Rakyat debate, then Batang Lupar MP Datuk Seri Wan Junaidi Tuanku Jaafar welcomed the idea of using Malay for the authoritative text of the Federal Constitution, and expressed hope that the courts already have sufficient experience and discretion when using Malay text, as Malaysia had been using the English text as the foundation to define the Constitution all this while.

Even in the parliamentary debates, there were also noticeable differences with some lawmakers choosing to use the Bahasa Malaysia terminology — like then Kepong MP Tan Seng Giaw — while others used Bahasa Melayu to refer to the Malay language.

Also on August 1, 2001, Tan said there was no dispute in having the Bahasa Malaysia text of the Federal Constitution as the authoritative text, but said the use of Bahasa Malaysia in all official affairs should be language that is accurate and precise.

On August 13, 2001 at the Dewan Negara, lawmaker Datuk Abdul Aziz Abdul Rahman said the government has been tolerant as the legal text’s authoritative language remained as English after independence for 43 years and despite the Malay language being the national language.

He noted, however, that Malaysia was lagging due to translations in Malay coming out late for matters such as science and law, and said making the Malay language authoritative for the Federal Constitution would bring about a new approach.

In outlining the new approach once Malay replaces English as the authoritative legal language, he suggested that international lawyers who come to Malaysia would in the future need to hire those fluent in Malay to be translators for the law, while foreigners would have to use skilled professionals to translate the legal text in Malay to their own languages. He said Malaysia would be an independent country with its own language.

Also on the same day, lawmaker Datuk KRA Naidu at the Dewan Negara expressed support for Article 160B’s introduction and the deletion of Section 46 as independence had been achieved for more than four decades and as Bahasa Malaysia had developed and its use was at a satisfactory level.

But he said Malaysian students should still study English as an international language to be used in international conventions, international business and also information and communications technology (ICT), noting its importance for international trade with other countries and to be leaders at international conventions.

Out of the 193 MPs, the 172 MPs who were present in the Dewan Rakyat all voted in support of the Bill at the second reading, while all 154 MPs present at the third reading voted in support of the Bill. This all took place on August 1, 2001.

On August 14, 2001, all 53 lawmakers present in the Dewan Negara voted in support of the Bill at the second and third reading.

Fast forward to the future

On September 28, 2001, the amendments took effect, with Article 160A and Article 160B inserted into the Federal Constitution, while Section 46 of the Eleventh Schedule was deleted.

These changes make it possible for the Malay translation of the Federal Constitution to override the English language text, if the Yang di-Pertuan Agong states so in the future.

Currently, the Federal Constitution in the English language is still the authoritative version in Malaysia.

Even the Malay translation of the Federal Constitution acknowledges that it has yet to become the authoritative version that will override the English text if there are any disputes or discrepancies.

Unlike the English text of the Federal Constitution that has been reprinted — typically to update it with amendments — 17 times from 1958 until 2020 (in the ‘50s, ‘60s, ‘70s, ‘80s, ‘90s, 2002, 2003, 2006, 2010 and 2020 itself), the Malay translation has only been reprinted thrice: in 2006, 2010 and 2020.

For the Malay translation of the Federal Constitution, its 2006 reprint only states it was translated by the Attorney General’s Chambers’ drafting division.

Both the 2010 and 2020 reprints of the Malay translation carried the same note stating that the Federal Constitution was translated in 1963 and that the translated text was published in 1972.

The note also said an event was held on September 29, 2003 for the Yang di-Pertuan Agong to launch the national language text of the Federal Constitution, and that the translated text was published in 2003.

However, the AGC’s Laws of Malaysia website — which is the official online database for laws — did not make available the purported Malay translations said to be published in 1972 and 2003, and only made available to the public the reprints of the year 2006, 2010 and 2020.

Both the 2010 and 2020 reprints of the Malay translation of the Federal Constitution had this note on their very first page, stating: "Teks ini HANYALAH TERJEMAHAN oleh Jabatan Peguam Negara bagi Federal Constitution. Melainkan jika dan sehingga ditetapkan sahih di bawah Perkara 160B Perlembagaan Persekutuan, teks ini bukan perundangan”.

In English, the note means: "This text is ONLY A TRANSLATION by the Attorney General’s Chambers for the Federal Constitution. Unless and until prescribed as authoritative under Article 160B of the Federal Constitution, this text is not law.”