Sunday, April 20, 2008

The National Language in the Courts

A very common question asked by friends who aren't in the legal profession, or friends outside of Malaysia, is whether Malay has to be used in court. For the purposes of this blog entry, allow me to side-step the debate surrounding the correct usage of the term Bahasa Malaysia or Bahasa Melayu, and just refer to all generically as the Malay language.

The short answer to the posed question is that strictly under the law, all proceedings and court papers have to be in the national language i.e. the Malay language.

This is covered specifically under statute as well as the rules governing court procedure. But it was not always the case where it was compulsory to use Malay in the court.

In Malaysia pre-independence, the English language was used in all the courts. Even when the National Language Act was introduced in 1963 making the Malay language the official language of Malaysia, the courts were exempted from making the transition from English to Malay.

However, on 30 March 1990, the National Language (Amendment) Act 1990 came into force which removed the exemption enjoyed by the courts. The new section 8 now reads:

All proceedings (other than the giving of evidence by a witness) in the Federal Court, the Court of Appeal, the High Court or any Subordinate Court shall be in the national language

Provided that the Court may either of its own motion or on the application of any party to any proceedings and after considering the interests of justice in those proceedings, order that the proceedings (other than the giving of evidence by a witness) shall be partly in the national language and partly in the English language.

Subsequently, the Rules of the High Court 1980 which governs the manner in which court proceedings are carried out was also amended to mandate the use of the national language. However, this restriction unfortunately only applies to court proceedings within West Malaysia. Sabah and Sarawak still continue to be allowed to use the English language. In fact, the Rules of the High Court 1980 directs that for Sabah and Sarawak, any document to be used in court shall be in the English language and may be accompanied by a translation in the Malay language.

"Order 92 Rule 1 of the Rules of the High Court

(1) Subject to subrule 2, any document required for use in pursuance of these rules shall be in the national language and may be accompanied by a translation thereof in the English language...

(2) For Sabah and Sarawak, any document required for use in pursuance of these rules shall be in the English language and may be accompanied by a translation thereof in the national language ..."

If you speak to some senior lawyers who moved out of litigation, the compulsory switch from the English language to the Malay language more or less cemented their decision to leave litigation for good. This also signalled the start of the 'mandatory' component of every pupillage, translation!

All court documents now need to be translated into the Malay language, and I am sure every single pupil would have done their significant share of helping lawyers to translate affidavits or other cause papers into Malay. Some of the larger law firms can afford to employ dedicated translators to help with some of the translation. But ultimately, there is still no escaping from doing your own translation work. Having worked hours and hours crafting an affidavit, you then spend as many hours leafing through English-to-Malay dictionaries to translate your work. I always find it ironical that the English portions are marked 'Terjemahan' ('translation' in Malay) when in actual fact, the English portions are drafted first and then translated into Malay.

This compulsory use of the Malay language is relaxed somewhat at the High Court when lawyers are making submissions. Generally, the Registrars and the Judges allow you to file in your skeletal written submissions in English, as well as to orally submit in English. At the subordinate courts, the use of Malay is still more or less compulsory. This means written and oral submissions all have to be in Malay. With my atrocious command of Malay, no surprise then that I do not look forward to my matters at the subordinate courts.

At the appellate courts, being the Court of Appeal and the Federal Court, English is almost exclusively used. I know of certain appellate judges who will tick off Counsel for failing to file in the English translation of the court papers at the High Court level, when these documents are referred to at the appellate stage.

English is also widely-used in the written judgments of the Courts. I would estimate at least 90% of the reported judgments are in the English language.

It is a pity that the court system had to adopt the usage of the Malay language, and could not enjoy the previous exemption. From a commercial point of view, nearly all contracts are drafted in English and it would make sense for litigation arising from these contracts to continue in English. The language used in international commerce is largely English, so again, if parties negotiate for Malaysian courts to adjudicate on a dispute, it would be a plus for the Court language to be in English.

But the use of the Malay language in the Court is necessary as this is a common language understood by all Malaysians. In a criminal court for instance, if charges are being read out to an accused who is unrepresented, the Malay language would largely be understood by all.

6 comments:

Weng Tchung said...

I suppose none of us are exempt from taking our court procedure rules as we find them, especially when they have statutory force behind them.

I agree that the use of the Malay language in the courts is significantly important, especially in the lower courts and in proceedings of a criminal nature, where defendants may not understand much English. The lawyer should realise his client's need to have a fair trial outweighs his preference to speak in English.

I also think the fact that many lawyers or even judges are English-educated and do not have a good command in Malay is irrelevant to the question of whether the Malay language should be used in courts.

From a commercial perspective however I think the use of the Malay language in court-related proceedings may not inspire much confidence. Precision and accuracy in the drafting of commercial legal documents are of paramount importance and may not easily be reconciled with the need to translate them into the Malay language, which ironically are then treated as the originals themselves. Carefully negotiated and drafted words will be lost in translation. The same logic applies to judgments. I doubt whether a judge's reasoning can be adequately preserved or replicated in its translated form.

One final point relates to the difference in the rules of practice between West and East Malaysia. I find it highly amusing and comically discriminatory that the rules are not uniform and that certain states are entitled to more 'advantageous' rules than others. But such is the difficult relationship between law and politics.

leesh said...

This commercial dimension also arises for instance, in the area of intellectual property. With Malaysia emphasising the importance of the protection of IP rights, and with the setting up of two dedicated IP courts in the Kuala Lumpur courts, it is a step backwards to then have to shackle the development of IP law with strange forced translations of IP terms into the Malay language.

Anonymous said...

I still don't understand why even after 50 years of independence still there Malaysian that can't speaks Malay language properly or refuse to accept and honour Malay language. Wheres at the same time speaks their mother language arrogantly in public without thinking of other race sensitivity. Why can't you all accept the fact that this is a country that was built based on his own unique stories. Become Malaysia with his own casting. History shows that Malays has been accepting Chinese & Indians to be with them & yet allowing you to keep your own believe, language and tradition. We have even agree to have a racial base school. But they'll be only one main language Bahasa Melayu, Malay Sultan and Agama Islam as the official religion.

That is Malaysia. Our grand fathers has created it that way. We do not want to touch your sensitivity so please do not touch ours. To us Bahasa Melayu, Agama Islam, Raja Melayu are very sensitive to us.

My legal terms and English might not be as good as you but I know for sure majority of Malays have a similar feelings as mine.

Weng Tchung said...

What is truly difficult to comprehend, after 50 years of independence, is how every single word spoken by one race about or relating to or in connection with another race must be taken as being a racist remark, regardless of the context in which those words are said, and notwithstanding the reasons given for that which is said.

I should be very sorry if such unwarranted comments were to distract one's attention from what is otherwise a very valid and pertinent discussion about the use of the national language in our courts. I think Lee Shih deserves better.

leesh said...

Anon: I think you have misconstrued the point of this discussion. However, I do refer you to this interesting discussion arising from HRH Tengku Mahkota of Kelantan's recent speech which touches on some of the issues you have raised.

In the context of the Court system, Weng has pointed out the importance and the need for the usage of Malay in terms of access to justice.

Equally forceful are the advantages of using English from a commercial point of view. English is the lingua franca of international commerce. In this age of globalisation, we have little choice but to pick up English or risk being left behind.

Your other points on racial sensitivity and mother tongue (which is not even the English language) are unfortunately not relevant to this discussion.

Ultimately I do not question the position of the Malay language as the national language. However, commercial considerations compel all of us to ensure that we have a good grasp of the English language as well.

kushairy bujang said...

English is the language of court of sarawak. other languages, including bahasa malaysia are forbidden from being used for proceeding in our courts other than for the taking of evidence. this is because the National Language Act 1963/67 (act 32) has not been extent to sarawak until today. the Act cannot come into operation in sarawak because the state legislative assembly of sarawak has not approved by ordinance the act or the relevant provision of it pursuant to Article 161(3) of the federal constitution. Articles 161(1),161(2)(b) and 152 of Federal constitution decreed all proceeding in courts in sarawak shall be in english. but there few dpp and lawyers still use bahasa malaysia as languange of court while courts proceedings. are you agree that the proceeding in court in sarawak using b malaysia was illegal, unconstitutional and null as decreed by article 161 (1),161(2) (b) and 152 federal contitutions from insp Kushairy bujang kuching sarawak

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