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Language in the legal context


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CHAPTER THREE
THE MALAYSIAN LEGAL SYSTEM AND THE

LANGUAGE IN THE LEGAL CONTEXT

3.0 Introduction
Legal systems do not emerge out of nothing; they possess a history, and reflect ideas, and make use of institutions, which have developed over time, and been moulded by cultural and political forces.

(Simpson in Wu Min Aun, 1999: xvii)


To better comprehend the phenomenon of language choice and use in the Malaysian legal domain, a description of the Malaysian legal system and language in the legal context must be described .

3.1 History of the Nation


In order to understand the Malaysian legal system, an overview of the history of Malaya (later Malaysia) is necessary. Besides enabling us to trace local and foreign influences that have shaped the legal system as it is today, it would also help the reader to place this study in its proper context of investigation. The heavy dependence on the English language is better understood by tracing the history of Malaysian law. The Malaysian legal system is also described in detail so that the situations (domains and sub-domains) being investigated can be clearly defined.

3.1.1 Early Malaya


Sultan Iskandar Shah ruled Malaya in the fourteenth century and this marked the beginning of the Malacca Sultanate. The legal system of the Malacca Sultanate in the two centuries following Sultan Iskandar Shah proved to be well organised and was codified. At the time, according to the Sejarah Melayu (Malay History), the ruler was the source of law and the fountain of justice. Concepts of crime and punishment, the power to set an offender free, or penalise him, rested entirely on the ruler, and was largely arbitrary. The Sultan was assisted in the administration of his empire by a group of Chieftains, who administered justice.
Two law digests governed the Malacca Sultanate. One was the Undang-undang Melaka (Laws of Malacca, also known as Hukum Kanun Melaka). This digest had forty-four chapters and provided jurisdiction over issues related to the land and its people. It also covered a wide range of criminal and civil matters. The digest spelt out penalties according to Islamic as well as customary law. The second digest, the Undang-Undang Laut Melaka (Maritime Laws of Malacca), comprised twenty-five chapters, and jurisdiction was related to maritime matters, that is, rules and regulations to be observed at sea.
Both digests were based on the patriarchal law of Adat Temenggong, and Islamic Laws belonging to the Shafii tribe. Islamic law visibly influenced the Undang-Undang Melaka. It had eighteen sections referring directly to Islamic laws. The Undang-Undang Laut Melaka, on the other hand, showed very little influence from Islam.
Both the digests served to codify the patriarchal law of the Adat Temenggong for the first time, and were instrumental in influencing the legal history of some states:
(i) Laws of Pahang (1595)
(ii) Laws of Kedah (1605)
(iii) Laws of Johore (1789)
(iv) Ninety-nine Laws of Perak (1878)

From 1511 until 1641, Malacca was a thriving port of trade. It was occupied by the Portuguese and was governed by a Governor, or Captain of the Fortress. Whilst the administration of justice pertaining to Portuguese nationals came under the jurisdiction of Portuguese judges, non-Christian Asian subjects were subject to their respective community leaders. As a result, Portuguese law was not introduced in Malacca.


After the Portuguese, the Dutch occupied Malacca from 1641 to 1795. As there is no evidence to the contrary, it can be assumed that the Dutch treated the subjects of Malacca much as they did with the people of Java who were left to their own native customs and laws. Dutch laws, based on Colonial Statutes, were applied only to Dutch nationals. Presumably, both the Portuguese and Dutch governments were only interested in Malacca for its commercial value.
Later, the British (from 1795 to 1801) occupied Malacca. From 1801 to 1807, the Dutch once again occupied Malacca. In 1824, the British took over once again and this time, they started leaving their mark on the administrative and legislative system.

3.1.2 The British Period


When the British took permanent possession of Malacca in 1825, they started a regular administration of law. In 1826, Malacca became part of the Straits Settlements, and came under the jurisdiction of English Law. When Penang was leased to the British, the island was regarded as ‘terra nullius’, an uninhabited land. But in actuality, it had been settled by a relatively large Malay population, who observed Kedah laws. This was because Penang had belonged to the Sultanate of Kedah.
Nonetheless, the British employed the Royal Charter of Justice of 1807 in Penang. This is probably “the most significant event in modern Malaysian legal history as it marked the first statutory introduction of English law into the country” (Wu Min Aun, 1999:14). In 1872, the Privy Council declared English Law applicable because the occupancy of the island was by the British.
In the meantime, the rest of Malaya slowly came under British administration. In 1874, Perak became a British protectorate state, followed by Sungai Ujong (a district of present day Negeri Sembilan), and Selangor. This was later followed by Pahang in 1887 and the whole of Negeri Sembilan in 1889. These four British protectorates became known as the Federated Malay States.
A British Residential System was established in the Federated Malay States. Whilst the Malay Rulers held sovereign power, the actual governance was within the domain of the British Residents. These residents proceeded to establish a bureaucracy modelled on the British Civil Service. The British Resident was consulted and his approval was sought on all legal matters. Only matters that concerned religion and customs were referred to the Rulers. The rulers seemed to play the role of a puppet, and the British Residents as puppet-masters. This historical event has probably led to the present day system of administration where the constitutional monarch is merely a token, and it is the civil service that handles all administrative matters.
Later, in 1909, the Siamese transferred rights of sovereignty, protection, administration, and control of Kedah, Perlis, Kelantan, and Terengganu to Great Britain. In 1914, Johore agreed to receive a British adviser, and so, together with the four states of Kedah, Perlis, Kelantan and Terengganu, became known as the Unfederated Malay States.
Johore was unlike the other Unfederated Malay States in that it had had greater exposure to British influence by virtue of its geographical proximity to Singapore. Under the rule of Sultan Abu Bakar, Johore formulated a written constitution in 1895, so, even before the British took over, Johore had already established a modern administrative structure.
Meanwhile, in Borneo, James Brooke obtained Sarawak by cession from the Sultan of Brunei in 1841. In 1865, North Borneo (later known as Sabah) came under the control of British companies by cessions from the Sultans of Brunei and Sulu. By 1882, the cessions of Sarawak and North Borneo were transferred to the British North Borneo Company, and in 1888, Sarawak and Borneo became protected states.
By the time of the Japanese invasion during World War II in 1941, British control of Malaya comprised:

(i) Sarawak and North Borneo as protected states


(ii) nine protected states: four Federated Malay States and five Unfederated Malay States
(iii) the Straits Settlements

After World War II, Malaya comprised:


(i) Sarawak and North Borneo as crown colonies
(ii) The Malayan Union - the Straits Settlements was dissolved and Malacca and Penang joined the nine Malay States to form the Malayan Union
(iii) Singapore as a separate colony

3.1.3 The Nation of Malaysia


However, the Malayan Union proved unpopular and was abolished. Instead, in that same year, the Federation of Malaya was established. In July 1955, the nation’s first federal elections were held, with the Alliance party winning fifty-one of the fifty-two contested seats. The following year, the Reid Commission was set up to formulate a constitution for self-governance. On August 31st 1957, the Federation of Malaya became a self-governing country. Later, on 9 July 1963, under the Malaysia Agreement, North Borneo, Sarawak, and Singapore joined the Federation of Malaya to become Malaysia. However, two years later, on 9 August 1965, Singapore separated from Malaysia. The basic composition of Malaysia has remained the same since then, with the inclusion of the three Federal Territories of Kuala Lumpur, Labuan, and Putrajaya.
3.2 Law and the Nation
Contemporary Malaysian Law is a hybrid law, drawn from many sources. It is a blend of western, eastern, and indigenous laws. Whilst large sections of current codified law can be traced to British Law; Islamic and Customary laws have also influenced Malaysian Law.
Customary Law consists of customs and traditions of the Malays, which in the course of time acquired the character of law. Being the living law at a certain time in a certain place, customary law is adaptable to changing social needs. With such characteristics, they are not suitable for codification.

(Ahmad and Ahilemah, 1987: 33)


3.2.1 Pre-Independence British, Islamic and Customary Law

Prior to the British occupation, customary law in the Malay States could generally be divided into (i) the matrilineal system of the adat perpatih which was (and still is) observed in Negeri Sembilan and parts of Malacca; and (ii) the patrilineal system of the adat Temenggong which was (and still is) observed in the other parts of the peninsula. With the exception of Perak, whose laws were partly written in three digests, most of these customary laws were unwritten.


Initially, Hinduism influenced customs, but after the advent of Islam and the embracing of the faith by the rulers (and subsequently their subjects), Islamic law was used to modify the customary laws to make them conform to Islam. Before the British occupation, Islamic law was the law of the land although these Islamic laws were in actuality a hybrid; a blend of Islamic, customary, and Hindu laws.
When the British took over, Islamic law was referred to when referring to religious aspects of life. This was eventually expanded to other aspects of life where British law was thought to be insufficient or inappropriate for application to the native populace. As a result, a Council of Religion and Malay Customs was established in all states, to assist the Ruler in matters of religion and custom. The British also made use of the kadi (religious official), whenever they needed to refer to customary law. The kadi often misrepresented customary law as Islamic law. Presumably, this was done to add weight to the customary law, since anything that was declared religious law was generally seen as having greater legitimacy. Ultimately though, this practice of consulting Malay jury consults resulted in a tendency to observe Muslim law rather than customary laws in these matters.
In the meantime, customary law was slowly being whittled away indirectly by the British Residents. Even though the Malay States were only British protectorates and as English law was not formally introduced by legislature, the states had to act on the advice of the British Residents. The Residents favoured and introduced English law into the system. The Residents also played a role in the setting up of courts of justice. It was mostly an English and English-educated judiciary that brought the principles of English Law into the land. This often happened whenever matters that were not provided for by local laws arose. Subsequently, the Sultans were persuaded to adopt the Indian codification of the principles of English Law. As a result, various parts of the Indian Penal Code were adopted. The Malaysian Penal Code was established with reference to the Indian Penal Code.
The transition into the formal inception of British law can further be traced in the appeals system. Before 1896, all appeals in the Federated Malay States went to the Resident’s Court. The final appeal went to the Sultan in Council. However, in 1896, the Judicial Commissioner’s Regulations and Orders came into effect, and this abolished both the Courts of Residents and Sultans in Council. In its place was the Judicial Commissioner as the final Court of Appeal. Though the Sultans with the consent of the Residents appointed the Judicial Commissioner, it effectively removed the Sultans from playing an active role in the appeals process. In 1905, the Courts Enactment Act was enacted, creating the Supreme Court, abolishing the Judicial Commissioner’s Court and Senior Magistrates’ Court. The judges in these new courts were all trained in the English system of law. Naturally then, they referred to, and applied English law to matters where there was no written local law to refer to.

In 1893, Selangor state regulations provided that, with exception of local laws and established customs, all other matters arising in any of the courts of the state were to be dealt with and determined according to the principle, procedure and practices of the Straits Settlement’s Penal Code and Evidence Ordinance, and of the Indian Civil Procedure Code, Specific Relief Act and Court Fees Act (Ahmad and Ahilemah, 1987). The same events took place in the other states. In 1937, the Federated Malay States Civil Law Enactment, allowed the use of English law. This Enactment was extended to the other Malay States in 1951 and to the entire Federation of Malaya in 1956 through the Civil Law Ordinance.


Consequently, English law replaced Islamic and Malay customary law in many matters. This even resulted in the power of the Syariah Court being restricted and made ‘inferior’ to the civil courts. Until 1948, the Court of the Kadi had been part of the civil court, but in 1948, the Courts Ordinance established a judicial system for the Federation, and left the Syariah Court out of the Federal Court system. This has remained to this day, with the Syariah Court jurisdiction being applicable to certain facets of life for Muslims only. With respect to customary law, only issues related to family law and inheritance were retained. Where there were no other provisions made in the written law, English common law and rules of equity would apply. From this, it is obvious that there was dependence on the English language.
3.2.2 Post-Independence British Law and Malaysian Law
With the independence of Malaya from the British, certain parts of the Malaysian legal system also sought independence. There was a move at one time to refer to other models of legislation other than those of England. One of the models referred to was that of Australia. However, the reliance on English Law is still very evident.
Today, the judiciary is exclusively made up of Malaysians. Previously, all appeals on decisions made by the Malaysian Courts went to the Judicial Committee of the Privy Council in England. In 1978, this practice was stopped. However, most aspects of English law could not be removed. In a large part, this was due to the concept of the Hierarchy of Precedents.

When a judge applies or extends an established principle of law to new facts, or decides that the principle does not apply in a certain situation, he is making or changing the law. But a judge does not have the liberty to do just any of these, as he is subject to the rule of stare decisis, that is, to stand by cases already decided. In this situation, a judge follows principles which have already been in existence in previously decided cases -- decided by courts superior to, or by that court itself.

(Ahmad and Ahilemah, 1987: 113)

This means that each court is bound to the decisions made in its own courts, and to those set by the courts above it in hierarchy. Where no decision had previously been made on a new matter, then issue would be deliberated upon by the court highest in the hierarchy, and a decision made there, sets the precedent. However, wherever possible, the courts would also refer to precedents set by other courts in other nations. As such, the cases and decisions of the English courts and those in the Commonwealth continue to be of persuasive value. The judgements of Lord Denning in England, for instance, continue to have huge influence in the way legal professionals and judges in Malaysia read their cases. All these factors contributed to the dependence on the English language in the legal workplace.


This flow-on effect creates a culture of second-handedness in the Malaysian legislature as a result of the system being largely English in origin. This second-handedness stems from the fact that much of the local legislation is based on English models, and the courts continue to make decisions more often than not on the basis of English precedents (Wu Min Aun, 1999: xvii). The debate over which law, Malaysian, Customary, or English, takes precedence, continues in the courts till today. Considering all that has been mentioned earlier, dependence on the English language within the legal profession is so very clear.

3.3 Malaysian Courts of Law


This study examines language choice and use among legal professions and is situated in the Malaysian legal system. As a result, it is necessary to describe the Courts of Law in Malaysia and the processes involved in legal proceedings in each court. The Malaysian courts of law consist of the appeals courts, superior courts, and the subordinate courts. Before the reformation of the Judicial System in 1994, the superior courts comprised the Supreme Court and the High Court (see Figure 3.1).

Figure 3.1 The Hierarchy of the Courts of Law in Malaysia

Figure 3: The Hierarchy of the Courts of Law in Malaysia

Today, the Malaysian Courts of Law comprises the Federal Court, the Court of Appeal, and the High Court. The subordinate courts comprise the Sessions Court, the Magistrate Court, as well as the Penghulu (Tribal) Court in West Malaysia.

3.3.1 Composition of a Court of Law
In a court of law, there is the judge, the plaintiff, and the defendant. The judge represents the court, whose duty it is to examine and decide on a matter of law, brought up by the plaintiff and the defendant. According to the Malaysian legal system, a trial is based on the adversarial principle, in that there are two opposing forces or parties that attempt to prove their case by putting forward arguments and providing evidence. In this, then, the judge plays a role much like that of an umpire, who sees that the players play by the rules of the game. As for the judge, this means ensuring that the rules of procedure and evidence are complied with. When all issues have been raised, the judge makes a decision as to which party wins. Language therefore plays a very important role as it is only through the medium of language, both in its written and oral form that justice is met and served.
3.3.2 Courts of Law and their Jurisdiction
In the instance of the legal system, the playing field is the courts of law. What and which cases are heard and in which court the case is to be heard, depends largely on the jurisdiction of the court. Jurisdiction refers to the right to decide, that is, the rights and power of the court to try a case. There are four types of jurisdiction: original, appellate, supervisory, and referral (see Figure 3.2).
Figure 3.2 Types of Jurisdiction

Original jurisdiction refers to the right and power to try a case in the first instance; that is, to hear a case for the first time. Appellate jurisdiction refers to the right and power to hear and grant appeals. Supervisory jurisdiction refers to a courts power to supervise, oversee and control the activities of another court below it in hierarchy. Finally, referral jurisdiction refers to the power to determine or decide on an issue that has been referred to the court by a court below it in hierarchy.


3.3.2.1 The Federal Court


The Federal Court is the highest in hierarchy of all the courts. Previously, the Supreme Court was the highest in court hierarchy. However, the Supreme Court was renamed the Federal Court in 1994. The head of the Federal Court was originally the Lord President (pre-1994). Today, the head of the Federal Court is the Chief Justice. The Chief Justice is appointed by the Seri Paduka Baginda Yang di-Pertuan Agong (King), at the recommendation of the Prime Minister and after consulting the Conference of Rulers. The candidate must be a person who is qualified to be a Federal judge. The Chief Justice is joined by the President of the Court of Appeal, the two Chief Judges of the High Court, and four other judges, this accounting for the seven Federal Court judges. At any one time, a case or trial is presided over by a minimum of three judges, or more, depending on the importance of the case. But the number is always no less than three, and an odd combination (3, 5, or 7), since decisions are based on a majority vote.
One of the main functions of the Federal Court in its original jurisdiction ‘to the exclusion of any other court’ is to determine whether a law made by Parliament or a State Legislature is invalid. This is based on the ground that it makes provision to a matter with respect to which Parliament or, as the case may be. The State Legislature has no power to make the law. The Federal Court has exclusive jurisdiction to determine disputes between States or between the Federation and any State.
In addition, the High Court may also refer to the Federal Court any constitutional question, which arises in any proceedings before it and may stay the proceedings to await the decision of the Federal Court. The Federal Court evidently is the absolute interpreter of the Constitution and the final arbiter of disputes arising from it.
Finally, the Federal Court also makes final judgments on legal matters, which come before it on appeal from the Court of Appeal. It is the ultimate court in civil, criminal and constitutional matters. Article 121 (1) of the Federal Constitution provides that the Federal Court shall have appellate, original, consultative or advisory, and referral jurisdiction but it does not cover those matters under the jurisdiction of the Syariah Court.
3.3.2.2 The Court of Appeal
Next in hierarchy is the Court of Appeal. Any party that is dissatisfied with the outcome of a case has the right to appeal, and the court that rehears the case is called the appellate court. Article 121(1B) of the Federal Constitution provides the Court of Appeal with appellate jurisdiction to hear both civil and criminal matters originating from the High Court or the Sessions Court (criminal cases only).
The head of the Court of Appeal is the President of the Court of Appeal, who is appointed in a similar fashion to that of the Chief Justice. Ten other judges join him. As with the Federal Court, a case or trial is presided over by at least three judges, and decisions are based on a majority vote.
The Court of Appeals has original, appellate, and supervisory jurisdiction, although, with regards to civil cases, the court may not hear a case where the award is less than RM250,000 (US$1 = RM 3.80).
Each court in Figure 3.3 the Federal Court has a right to transfer appeals to a court above it in the hierarchy.

Figure 3.3 Hierarchy of Court Structure

Figure 5 check # Process of Appeals have to follow

3.3.2.3 The High Court


The High Court is also a superior court. In Malaysia, there are two high courts: The High Court of Malaya in West Malaysia, and The High Court of Sabah and Sarawak in East Malaysia. All cases are disposed of, or heard by, a single judge.
Although the high court has an unlimited jurisdiction over civil and criminal cases, it deals only with cases that are outside the jurisdiction of the subordinate courts. As such, a person who is tried in the high court usually has satisfied one of these three pre-requisites:

(i) been committed for trial after a preliminary inquiry,


(ii) his case has been transferred up from a subordinate court,
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