1721/12/16-14th
CLARIFICATION ON THE AUTHORITATIVE
TEXT OF THE FEDERAL CONSTITUTION
I am grateful to my friend Mr. K.
Shanmuga for drawing my attention to the status of the national language version
of the Federal Constitution. In my article, “The word 'Parent' in Article 12(4) of the Federal Constitution”
which was published in the Online Malay Mail, and Bar Website on 5 December
2016, I stated that the national language version of the Federal Constitution
is in force. It is not. The error is regretted.
For the sake of convenience, I
reproduce Clause 160B which reads:
“160B. 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.”
This amendment came into effect on 28
September 2001.
On September 30, 2003, The Star
carried the story under the heading that the “Malay version of Federal
Constitution launched”. The Star reported that the Yang di-Pertuan Agong has
launched the Malay version of the Federal Constitution at a ceremony attended by,
among others, the then Deputy Prime Minister Datuk Seri Abdullah Badawi (now
Tun Abdullah Badawi). It also stated that the Malay version of the Federal
Constitution will supersede the English text as the authoritative Supreme law
of the Country when it receives Royal Assent from the Yang di-Pertuan Agong.
So, what is the effect of Clause
160B? It requires the Yang di-Pertuan Agong to prescribe that the national
language text to be authoritative when it is so translated. The Yang di-Pertuan
Agong’s role is confined to prescribe such national language text to be
authoritative. There is no evidence to show that the Yang di-Pertuan Agong has
acted in accordance with Clause 160B. But, if we are looking at the words
“where this Constitution has been translated into the national language…” and
coupled with the fact that the Yang di-Pertuan Agong has launched the national
language version, it could be argued that the first condition “where this
Constitution has been translated into national language” has been satisfied;
but, the second condition seems not to have been fulfilled even after fifteen
years. However, the national language version is in circulation.
In Indira Gandhi a/p Mutho v Pengarah
Jabatan Agama Islam Perak & Ors [2013] 5 MLJ at p. 572, Lee Swee Seng, then
a Judicial Commissioner has stated: “If the framers had wanted the decision of
a single parent to be all-sufficient in any and every situation, they could
have used the expression ‘… decided by either of his parents …’ or ‘… decided by any one of his parents …’ or
even ‘… decided by his father or mother…’ as is the current translation used in
the Bahasa Malaysia translation done by the attorney general’s chambers. It
seems that before 2002 the Bahasa Malaysia translation of the Constitution as printed
by the government printers had used the words ‘ibu bapa’ instead of ‘ibu atau
bapa’ in art 12(4). The translation of ‘parent’ into ‘ibu bapa’ is a direct
translation whereas the translation ‘ibu atau bapa’ is an interpretative
translation. The official version
remains the English version under art 160A as the relevant prescription of
the national language version under art 160B has not been effected. Learned
senior federal counsel (‘SFC’) Encik Noorhisham has not submitted otherwise.”
(emphasis is mine)
The national language version of the
Federal Constitution is indeed very popular and is available in the market. It
is being treated as the authoritative text notwithstanding the fact that the
English version is still the authoritative text. The attitude to hold that the
word “parent” means either the father or mother is consistent with the
unauthoritative national language text but not the English text which is still
the authoritative text.
It would be suggested that the
national language version should be corrected to reflect, the true spirit, that
is, both parents, father and mother must consent to convert a child under the
age of eighteen years before it is prescribed as the authoritative text.
Otherwise it will defeat the objective of the current move in Parliament which
aims to make it compulsory that both parents must consent to the conversion of
a child under eighteen to Islam.
If Parliament were to amend Article
12(4) and make it clear that a person under the age of eighteen could only be
converted with the consent of the father and mother or guardian much of the
confusion that had hitherto generated could be avoided.
K. Siladass
17.12.2016
No comments:
Post a Comment