What if tomorrow the Federal Court tells the Federal Constitution to abandon the English it has spoken since 1957 and converse only in Bahasa Malaysia? Could one directive rewrite our legal DNA—or unravel it? The puzzle matters to every Malaysian because every protection we rely on—speech, worship, property—lives inside those English words.

I. WHAT, EXACTLY, IS BEFORE THE JUDGES?

In July 2025 a Kuala Lumpur suit asked the Federal Court to declare the Bahasa Malaysia text the sole “authoritative” Constitution.¹Mohamed Haniff Khatri Abdulla v Government of Malaysia (Originating Summons filed 21 July 2025, High Court Kuala Lumpur).

The applicant leans on Article 160B, a sleeping clause inserted in 2001.

It says the Yang di-Pertuan Agong ‘may’ proclaim the Malay text supreme once it is “prescribed.”²Federal Constitution art 160B. No Agong has touched the trigger in twenty-two years.³Attorney-General Idrus Harun, Speech at Opening of Legal Year 2023 (Putrajaya, 9 January 2023).

The court therefore must solve two riddles:

Can judges compel a switch the King himself has never made?

Should they, given seventy years of precedent, two Borneo treaties and a room-full of translation landmines?

II.  WHEN DID LANGUAGE BECOME A LEGAL BOOBY TRAP?

In 2003, the government launched a glossy Bahasa Malaysia reprint of the Constitution. Launch, though, is not proclamation. The omission mattered when Indira Gandhi reached the Federal Court.⁴Indira Gandhi a/p Mutho v Pengarah JAIPk [2018] 1 MLJ 545 (FC). The English text of Article 12(4) uses the singular word “parent”.

Under common-law grammar, that includes both parents. The Malay translation said “ibu atau bapa”—mother or father. One vowel switched the custody of the children. Nine years of litigation followed before the Court ruled that the English “parent” still prevails.⁵Indira Gandhi (n supra).

Had Article 160B been activated earlier, a single mistranslation might have altered family law for 30 million Malaysians.

III.  SABAH AND SARAWAK: THE FEDERAL FIREWALL

A larger obstacle stands in Kuching and Kota Kinabalu. The Malaysia Agreement 1963 is an international treaty registered at the United Nations. Annex XI states:

“In case of doubt the English text shall prevail.”⁶Malaysia Agreement 1963 art XI (‘in case of doubt the English text of the Agreement shall prevail’) UNTS No 10760.

Parliament alone cannot rewrite that promise; every signatory—including the United Kingdom—must agree.⁷AskLegal, ‘Five Facts You Didn’t Know about MA63’ (5 August 2024).

Article 161 of the Constitution keeps English for assembly and court business in Sabah and Sarawak until their legislatures consent to change.⁸Federal Constitution art 161(1)–(2).

In 2023 Sarawak assemblyman Baru Bian reminded Putrajaya that English remains an official language of his state “without limitation of time.”⁹’Baru: Sarawak Not Bound by National Language Act 1963/67, English Remains One of Its Official Languages’ Borneo Post (27 October 2023).

A unilateral switch would feel, to East Malaysians, like a breach of the federal bargain.

IV.  WHY OTHER COMMONWEALTH COUNTRIES HESITATE

India: Dual Authority, Not Supremacy

In 1987, India inserted Article 394A into its constitution. By it, the President may issue an authoritative Hindi constitution, yet the English original remains equally binding.¹⁰Constitution (Fifty-eighth Amendment) Act 1987 inserting art 394A (India). The Supreme Court still cites both versions whenever wording diverges.¹¹LiveLaw, ‘Justice in English: Indian Courts, Language and Accessibility’ (5 June 2025).

Canada: The Equal-Authenticity Rule

Since 1891 Canadian judges treat English and French statutes as “equally authentic.”¹²Canadian Pacific Railway Co v Robinson (1891) 19 SCR 292 (SCC). Courts read both and pick the meaning that best fulfils legislative intent.¹³Michael Beaupré, ‘Judicial Approaches to the Interpretation of Bilingual Legislation’ (Canadian Institute for the Administration of Justice, 21 August 1987). Even so, Ottawa still struggles to translate six decades of jurisprudence.¹⁴Gowling WLG, ‘A First Ruling on Bill 96’ (16 August 2022).

South Africa: Eleven Official Languages, One Legal Headache

Section 6 of the South African Constitution promises equal use of eleven tongues.¹⁵Constitution of the Republic of South Africa 1996 s 6. Yet the Supreme Court of Appeal ruled there is no workable duty to retro-translate every statute.¹⁶ Lourens v Speaker of the National Assembly [2016] ZASCA 11. Activists still sue for complete translation, but Treasury cannot foot the bill.¹⁷Slator, ‘Translation Case against South African Government Reaches Supreme Court’ (22 June 2016).

V.  THE LESSON?

Declaring a fresh language “authoritative” rarely silences the older one. It doubles the texts judges must compare and multiplies opportunities for conflict.

VI.  THREE PILLARS OF JUSTICE AT RISK

(1). Fairness

Law treats citizens equally only when everyone reads the same words the same way. Mistranslations like ‘ibu atau bapa’ risk stripping rights without debate.

(2). Consistency

Thousands of decisions from Datuk Harun’s sedition appeal to Semenyih Jaya rest on English phrasing.¹⁸Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat [2017] 5 CLJ 526 (FC). If Bahasa Malaysia suddenly governs, lawyers will reopen settled cases to test new wording. Malik Imtiaz Sarwar warns it “could open the floodgates.”¹⁹Y Shuman, ‘Take Nuance into Account as Applying Malay Version of Federal Constitution Not as Straightforward, Experts Say’ *The Edge* (11 January 2023).

(3). Judicial Independence

An independent judge follows the law, not the flavour of the month.

A single state-run translation office could tweak clauses quietly, softening checks on executive power. Linguistic edits are harder to spot than formal amendments, yet they are easier to force through politically.

VII. LEARNING FROM HISTORY: TRANSLATION SLIP-UPS THAT COST THE WORLD

South Korea’s EU-South Free Trade Agreement²⁰ The South Korea-EU Free Trade Agreement (FTA) is a comprehensive trade agreement between the European Union and South Korea, aiming to eliminate or reduce tariffs and trade barriers on various goods and services. It also addresses other trade-related areas like services, investment, government procurement, and intellectual property.  collapsed after 207 Korean mistranslations—”transfusion” for “transplantation” among them—forcing renegotiation and millions in delays.²¹’10 Serious Translation Errors in Legal Texts’ ACT Translations (2022).

A single Spanish word—’solemnidades’—(meaning “formalities” or “legal requirements”)—added US $760 million to Ecuador’s arbitral bill in Occidental Petroleum.²²INGCO International, ‘The High Cost of Legal Translation Errors’ (2021): In the Occidental Petroleum vs. Ecuador arbitration case, a mistranslation of the Spanish word “solemnidades” (meaning “formalities” or “legal requirements”) into “legal requirement” in the English translation of the arbitral decision significantly impacted the final award. The tribunal initially interpreted this mistranslation to mean that a broader range of legal requirements had to be met, leading to a higher damages award of US$1.77 billion. A later annulment committee, reviewing the case with the correct understanding of “solemnidades,” reduced the damages by US$760 million, which is about 40% of the initial award. This highlights the critical role of accurate translation in international arbitration. 

Prime Minister Suzuki’s ambiguous ‘mokusatsu’ arguably triggered the atomic bombing of Hiroshima: (‘No comment’ or ‘not worthy of reply’?).²³Ibid: https://www.nsa.gov/portals/75/documents/news-features/declassified-documents/tech-journals/mokusatsu.pdf.  In July of 1945 allied leaders meeting in Potsdam submitted a stiffly-worded declaration of surrender terms and waited anxiously · for the Japanese reply. The terms had included a statement to the· effect that any negative answer would invite “prompt and utter destruction.” Truman, Churchill, Stalin, and Chiang Kai-Shek stated that they hoped that Japan would agree to surrender unconditionally and prevent devastation of the Japanese homeland and that they patiently awaited Japan’s answer. Reporters in Tokyo questioned Japanese Premier Kantaro Suzuki about his government’s reaction to the Potsdam Declaration. Since no formal decision had been reached at the time, Suzuki, falling back on the politician’s old standby answer to reporters, replied that he was withholding comment. He used the Japanese word mokusatsu, derived from the word for “silence.” As can be seen from the dictionary entry quoted at the beginning of this essay, however, the word has other meanings quite different from that intended by Suzuki. Alas, international news agencies saw fit to tell the world that in the eyes of the Japanese government the ultimatum was “not worthy of comment.” U. S. officials, angered by the tone of Suzuki’s statement and obviously seeing it as another typical example of the fanatical Banzai and Kamikaze spirit, decided on stern measures. Within ten days the decision was made to drop the atomic bomb, the bomb was dropped, and Hiroshima was levelled. Translation errors are not academic; they reshape history.

VIII.  COULD LANGUAGE FORM PART OF MALAYSIA’S ‘BASIC STRUCTURE’?

The Federal Court now protects certain constitutional fundamentals from amendment. In Indira Gandhi the Court said separation of powers and minority rights cannot be removed.²⁴Indira Gandhi (supra) 574–75. Language, tightly woven into Malaysia’s common-law identity and Borneo bargain, might join that list.

If so, Article 160B cannot validly extinguish English without a two-thirds amendment plus state consent.²⁵Yi Heng Leong, ‘The Malaysian Approach to the Basic Structure Doctrine’ (SSRN, 2 May 2024).

IX.  DEMOCRATIC PROCESS, NOT JUDICIAL SHORTCUT

Constitutional change should reflect popular will. A judicial decree sidesteps Parliament, the Dewan Negara, and the state assemblies. Sabah’s Wisdom Foundation has urged, “proper democratic consultation” before any switch.²⁶’Be Democratic: Consult Stakeholders over Malay Translation of Federal Constitution, Says Sabah Think-Tank’ *The Star* (17 January 2023).

X.  A PRAGMATIC ROAD FORWARD

Malaysia can honour Bahasa Malaysia without burning its English foundation. The Canadian-Indian model offers a blueprint.

Parliament could pass an amendment—backed by Sabah and Sarawak—declaring both texts equally authentic.

A permanent Translation Commission of linguists and judges could harmonise clauses line by line. New amendments would appear simultaneously in both tongues.

Judges would train in bilingual interpretation, just as colleagues in Ottawa and New Delhi do.

XI.  FINAL QUESTIONS FOR A NATION AT MANY CROSSROADS

Will future Malaysians trust a Constitution whose meaning hinges on a translator’s comma? Could silent edits, cloaked as “language pride,” slip past Parliament’s two-thirds safeguard?

Might Sabah and Sarawak conclude that the 1963 bargain has been broken?

Above all, in a land where language, race and faith intertwine so tightly, are we ready to gamble our legal compass on the hope that nothing gets lost in translation?

The Constitution has outlived Confrontation, Emergency and the internet age—all in English.

Changing its voice is not heresy; Canada and India show it can be done well. But any switch must walk through Parliament’s front door, not sneak in via courtroom back stairs.

Until then, the safest answer to Haniff’s audacious plea is a polite but firm “Belum lagi.”²⁷Federal Constitution art 159 (amendment procedure).

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Gratitude:

The author thanks UK Menon, KN Geetha, TP Vaani, JN Lheela and Lydia Jaynthi.

Acknowledgements: the image is from Luis Caroca, Unsplash

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