Language in the legal context
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| (iii) has been charged under a security offence, or the Dangerous Drugs Act, 1952
The High Court has the jurisdiction to hear criminal cases, which carry the death penalty. Specifically, the jurisdiction of the High Court in criminal cases is provided in Sections 22, 26, 31 and 35 of the Courts of Judicature Act, 1964. The High Court has the jurisdiction to hear civil cases in respect of: (i) divorce and matrimonial causes (ii) admiralty (iii) bankruptcy and company cases (iv) appointment and control of guardians of infants and their property (v) appointment and control of guardians of disabled persons and their estate (vi) grant of probates of wills and letters of administration Together with bearing the burdens of serious cases, the high court has the power to advise the subordinate courts regarding any questions that arise relating to the provisions of the constitution, review decisions made by quasi-judicial bodies, and issue writs of habeas corpus, mandamus, quo warranto, and certiorari, and also to direct sale of land that has been charged or mortgaged. In addition to the original and supervisory jurisdiction, the High Court also has appellate jurisdiction. In the instance of criminal cases, the high court is empowered to hear appeals from the subordinate courts, if the case involves a fine of not less than RM25; the accused has not pleaded guilty and been convicted; or the accused was acquitted. In the instance of civil cases, the case must not involve a settlement more than RM10,000 excepting maintenance of spouse and children. 3.3.2.4 The Sessions Court The Sessions Court is the top most court in the hierarchy of subordinate courts. This court has jurisdiction over both civil as well as criminal cases, and can try all criminal offences other than those that are punishable by death. As for civil cases, the Sessions Court has unlimited jurisdiction to hear suits where the amount in dispute does not exceed RM250,000 and with the consent of the parties involved, try cases exceeding RM250,000 but the award is limited to the statutory limit of RM250,000 only. In keeping with its position at the top of the Subordinate Courts hierarchy, the Subordinate Courts Acts also gives the Sessions Court judges supervisory powers. That is, the judges may call for and examine the record of any civil proceedings before a Magistrates or Penghulu Court within the local limits of jurisdiction of the Sessions Court of which he is a judge (Ahmed and Ahilemah, 1987:286). The purpose of this is to check on the correctness, legality and propriety of any decision recorded or passed, as well as to ensure the regularity of the proceedings. If the judge finds any illegalities, improprieties, or irregularities, then he has the powers to forward the record for the attention of the High Court, accompanied by any necessary remarks. The High Court will then give such orders that are necessary to secure that substantial justice is done. Sessions Court judges are members of the Judicial and Legal Service of the Federation who have been appointed by the King on the recommendation of the Chief Justice. 3.3.2.5 The Magistrates Court Second in hierarchy of the Subordinate Court is the Magistrates Court. The Magistrates court has the jurisdiction to try civil and criminal cases, as well as issue summonses and warrants. Further jurisdiction then depends on the class of the magistrate. There are two classes of magistrates: (i) a First Class Magistrate which is appointed at the recommendation of the Chief Justice, and (ii) a Second Class Magistrate which is appointed by the Ruler or Yang di-Pertua Negeri. A First Class Magistrate has the jurisdiction to try all offences where the maximum term of imprisonment provided by law does not exceed ten years or which are punishable with a fine only or cases involving robbery or housebreaking. Generally, a First Class Magistrate may pass any sentence allowed by law not exceeding: (i) five years imprisonment
However, in some cases, for example, the Dangerous Drugs Act 1952, Customs Act 1967 and Betting Act 1953, the Magistrate may impose a fine higher than RM10,000. In contrast, the jurisdiction of a Second Class Magistrate’s jurisdiction is much smaller. He may try any offence where the maximum penalty is 12 months’ imprisonment, or punishable only with a fine. In sentencing, a Second Class Magistrate may award a prison sentence of not more than 6 months’ imprisonment, or a fine not exceeding RM1,000 or a combination of both. In civil disputes, the magistrate is also limited to actions or suits for the recovery of debt amounting to not more than RM3,000. 3.3.2.6 The Penghulu Court Established under the Subordinate Courts Act, 1948, the Penghulu Court can be found only in West Malaysia. The court is limited to the mukim (district) where the Penghulu resides, and as such, the Penghulu is appointed by the Ruler of the specific state in which that mukim is situated. The civil jurisdiction of the court is provided under Section 94 of the Subordinate Courts Act, which states that a Penghulu Court may hear and determine original proceedings of a civil nature in which the plaintiff seeks to recover a debt or liquidated demand in money, with or without interest, not exceeding RM50 and in which all the parties to the proceedings are persons of an Asian race, who speak and understand the Malay language. The criminal jurisdiction of the Penghulu is limited to the trial of offences of a minor nature. This is normally specified in his letter of authority, and for which the punishment is a fine not exceeding RM25. As with civil cases, penalty may only be applied to persons of an Asian race. In the event that a lawful order by the Penghulu is not obeyed, the issue may be brought up to a Magistrates Court. A person who is charged in a Penghulu Court, has a right to choose to be tried in a Magistrates’ Court. In the event that this option is taken up, the case shall be transferred from the Penghulu Court to the Magistrates Court. 3.3.2.7 Courts with Specific Jurisdiction Other than the courts of law mentioned earlier, there are four other courts that deal with a and limited jurisdiction. They are as follows: (i) Juvenile Court (West Malaysia and Sabah) This court tries offenders who are below 18 years of age. It is presided over by a First Class Magistrate who is assisted by two assessors. The court is not open to the public, as a measure to safeguard the privacy of minors. If the offender is found guilty, a conviction is not recorded against him, and he will not be put in prison. Instead, the offender is placed in the custody of an approved school until the age of 21 years.
This court tries offenders who are members of the armed forces, and is presided over by the President of the Court-Martial, and two or more officers. The court rules similar to a civil court. (iii) Syariah Court The Syariah Court is a Muslim court, whose main function is to enforce religious observance and to apply family law, especially in matrimonial practice. (iv) Native Court (Sabah and Sarawak) The jurisdiction of the court is the native laws of the specific ethnic groups in the states. 3.3.2.8 Tribunals other than Courts of Law
To hear appeals from taxpayers who are not satisfied with the assessments made by the assessment officers. (ii) Public Services Disciplinary Board The board’s main function is to maintain discipline among members of the general public services of the Federation, and to decide on matters of dismissal, reduction of rank, salary, and deferment of increment. (iii) Industrial Court The purpose of this court is to decide on trade disputes, and come up with solutions, so that industrial peace can be achieved quickly. (iv) Professional Disciplinary Bodies The objective of these bodies is to maintain professional standards, ethics, and discipline amongst the practitioners of the specific profession. An example of this type of body is the Bar Council. 3.4 The Legal Profession
3.4.2 The Legal Services The Legal Services comprises the Attorney General, the Solicitor General and Parliamentary Draftsman, the Judicial and Legal Commission, and the Legal Aid Bureau. (i) Attorney General The Attorney General is a civil servant who is qualified to be a judge of the Federal Court appointed by the Seri Paduka Baginda Yang di-Pertuan Agong (the King) at the advice of the Prime Minister. The duty of the Attorney General is to advise the Seri Paduka Baginda Yang di-Pertuan Agong or Cabinet or any Minister on legal matters. In sum, he is the Legal Adviser to the Executive.
The Solicitor General assists the Attorney General in his duties. He stands in the Attorney General’s stead when he is unable to do his duties. The Parliamentary Draftsman prepares drafts on Bills that are to be introduced in Parliament by Ministers. (iii) Judicial and Legal Commission The Judicial and Legal Commission is responsible for overseeing the appointment, transfer, and promotion of officers in the public services who are required to have legal qualifications. The commission consists of the Chairman of the Public Services Commission, the Attorney General, and one or more members appointed by the Seri Paduka Baginda Yang di-Pertuan Agong in consultation with the Chief Justice. The persons who are qualified to serve the commission are persons who are or have been judges of the superior courts, or a judge of the Supreme Court (before independence). (iv) Legal Aid Bureau The Legal Aid Bureau is a body that provides legal counsel for persons who are not represented in court because they cannot afford to pay for counsel. 3.4.3 Legal Practitioners Legal practitioners comprise Advocates and Solicitors. In Britain, advocates are referred to as Barristers, who deal with all matters of litigation. Their main function is to go to court and argue cases. The Solicitor, on the other hand, handles all the preparatory stages of a court action, in addition to other non-litigious matters like contracts, wills, and conveyance. Although a solicitor needs to have a current practicing certificate, he is not qualified to represent clients in court. Though these two roles are fairly distinct in Britain, there is no division between them in Malaysia. A practicing lawyer in Malaysia is called both an advocate as well as a solicitor. In order to go into practice, legal professionals need to be members of the Bar. For this, they need to be ‘called to the Bar’, that is, to be admitted as members. There are two Bars in Malaysia; one for West Malaysia, and one for East Malaysia. A member of the West Malaysian Bar is not entitled to practice in East Malaysia without a license to practice in that specific state, and vice-versa. In addition, whilst the members of the West Malaysian Bar are allowed to practice inter-state on the peninsula, Sabah members of the East Malaysian Bar are not allowed to practice in Sarawak, and vice-versa. 3.5 The Legal Process A client never just walks into the office of a legal firm. Usually, he will come on referral. Since the advertising of legal services is not allowed, then the potential-client will usually have heard of the firm or legal professional by word-of-mouth. As a result, when the client first enters the office, he will already have the name of a specific lawyer to refer to. Which language will be used greatly depends on the situation at the time. When the client approaches the receptionist and makes his request, the receptionist will respond in the language initiated by the client. Subsequently, the receptionist will introduce the lawyer to the client in that established language, and any further discussion will probably take place in that language. After the issue of contention has been established, it is usual for the client to leave the matter in the lawyer’s hands, since legal matters are generally too complex for the common man to understand. In any case, the client’s interest in the whole matter is usually to get compensation for damages incurred or for aid in defence of the charge. Further communication then usually takes place between the legal professionals of both sides that is, lawyer to lawyer. 3.5.1 Case Process This study aims to examine language choice and use at each step of the way in a civil or criminal matter. Therefore, it is important to understand the different processes that are part of a civil matter or criminal matter. It would also be necessary to see what happens in the chronology of the processes. Language is an integral part in each of these processes. The following sections discuss these processes in detail. 3.5.1.1 Civil Matter The processes involved in a civil matter are attached in Figure 3.4. Figure 3.4 Civil Matter Process Figure 6: Civil Matter Process (i) Letter of Demand The first process in any civil case must be the Letter of Demand. This is absolutely essential, since it sets the scene for the whole case. Essentially, the Letter of Demand will inform the defendant that such-and-such matter has occurred, resulting in damages to the plaintiff. Blame is apportioned to the defendant, and payment of damages demanded. The defendant will be given fourteen days to respond to the demand otherwise the matter will be taken to court. The most important thing in the Letter of Demand is the sum that is being demanded. This sum must be fixed, and cannot be changed after the letter has been sent out. The final settlement can be less than sum demanded, but not more. Usually, the average law-abiding man will, upon receipt of the Letter of Demand, feel reasonably pressured to settle the sum without incurring the inconvenience of trying to settle the matter in court. In which case, negotiations will take place between both parties, and a sum will be negotiated upon. Parties are strongly encouraged to settle outside of court. (ii) Negotiation The process of negotiation will result in letters going back and forth between the legal professionals, and these letters are usually written in English. These letters are confidential, and carry the seal of confidentiality in the term WITHOUT PREJUDICE, which is typed in bold at the top of the letter. This means that nothing that is brought up in the letter can be used as evidence in court. For instance, the defendant may accept blame, for the purposes of going ahead with negotiation, but if the matter is not to be settled in an amicable manner and is taken to court, this admission of fault cannot be used against him, or even be brought up in court. If, after negotiation, the matter cannot be settled, then the case will go to court. The same will also happen if the defendant has not responded to the Letter of Demand. Nonetheless, even if the case goes to court, the process of negotiation still can, and does, continue, and both parties can reach a settlement at any time of the legal proceedings. This can even take place up to the last minute prior to the judge pronouncing judgement. Usually, in cases that involve banking loans, only 20 per cent of cases are settled outside of court, with 80 per cent going straight to court because there was no response to the Letter of Demand. In personal injury cases, a greater proportion will be settled out of court, since there is potential in these cases for negotiation. (iii) Writ/Summons The first process once both parties decide to go to court is the Writ/Summons. The Writ (for Superior Courts) and Summons (for Subordinate Courts) is basically a letter of notice to the defendant, stating that action is being taken against him. It is the court version of the Letter of Demand. With the Writ/Summons is appended the Statement of Claims, which states the case at hand, that is, what the whole issue is about. Both the Writ and Statement of Claims are referred to collectively as the Summons. The Summons is filed with the court, and a copy is served on the defendant, with notice that the defendant has to enter an appearance in court within 14 days of the Summons being served upon him. As proof of having served the Writ, an Affidavit of Service (AOS) is later filed with the court. The AOS is basically a declaration to the fact that something has been served, and is prepared after anything has been served. It consists of a statement attesting to the fact that something, in this case the Summons, has been served, and includes the testament of the server, as well as any evidence of postage, for example, registered mail confirmation. The AOS is affirmed by a Commissioner of Oaths, and becomes a legally binding document. The plaintiff will then send an additional reminder to the defendant regarding the court date. (iv) Appearance On the date stated in the Summons, the defendant is supposed to enter an Appearance. The defendant does not have to appear in person, but his counsel/lawyer must at least be there to represent him. If an appearance is not entered, that is, if neither the defendant, nor his lawyer is at the court at the appointed time and place, then the appearance is recorded as not entered. (v) Judgement in Default If appearance was not entered, then the case goes straight into a Judgement in Default (JID). The JID takes place when there has been no challenge to the case (since the defendant did not respond). The judge will then give judgement in absentia and that requires the defendant to pay the amount demanded by the plaintiff. The JID in effect, serves to move blame to the defendant. (vi) Statement of Claim/Statement of Defence If, however, the defendant or his lawyer is present at court, an appearance is entered. The defendant then puts up a challenge to the plaintiff’s Statement of Claim, by serving a Statement of Defence upon the plaintiff. The Statement of Defence must answer each and every issue brought up by the Statement of Claim in numerical order. The plaintiff must Reply to the Statement of Defence within 14 days of it being served. These last two steps may be repeated several times, as claims and defence are argued. (vii) Summary Judgement If the civil matter is still not settled, and if the judge feels that there is sufficient cause to proceed with the case, then the judge will give a Summary Judgement, under Order 26A of the Lower Courts, or Order 14 of the Higher Courts, for the case revise. (viii) Pleadings The Statement of Claim, Statement of Defence, and Reply are known as Pleadings. Whatever either party intends to bring up in court must be entered in the Plea; otherwise it will be inadmissible in court. Therefore, the contents of the Pleadings are very important and this process is often repeated several times. (ix) Discovery and Inspection Before the trial commences, both parties get together for the Discovery and Inspection session. This gives both sides the opportunity to see and inspect all non-privileged documents. After this inspection, no new evidence may be brought in. (x) Trial There are three steps that occur and recur within the trial in the course of questioning a witness. These steps include the following: (a) Examination-in-Chief / Cross-Examination / Re-examination (i) Examination in Chief (EIC), which is conducted by the counsel for the plaintiff.
(xii) Judgement The judge will normally choose to Reserve Judgement; that is, to delay judgement, in order to review the facts of the case. Later, the judge will give his Judgement, in which he apportions blame and damages if necessary. (xiii) Appeals If either party is dissatisfied with the judgement, then they may appeal. An ‘Intention’ to ‘Appeal’ is served and filed in the court higher than the court in which the case took place. For instance, a Magistrate’s Court case would be appealed to the High Court. This notice of appeal must contain valid reasons for an appeal. For instance, it may be based on the matter of a finding of law; that is, where the judge is thought to have wrongly applied the law. Or, the appeal may be based on a finding of fact, where the evidence or reaction of a witness is considered suspect. Whatever the reason, however, no new evidence may be brought into play in the appeal. 3.5.1.2 Criminal Matter There are a number of ways in which a person may find himself involved in a criminal case. One example is when he is caught in the act of stealing, and is arrested. This person is then taken to the police station of the area where the crime occurred, and he will be cautioned. This means that he will be told that anything that he says may be used as evidence against him. If the person chooses to say anything after this caution, it is taken down and considered as a cautioned statement. Another way a person may find himself involved in a criminal case is when a warrant of arrest or summons is issued against him. This is done when the State feels that it has sufficient evidence against him to warrant an arrest. The State can also request a suspect to come to a police station for questioning. At this stage, the suspect has not as yet been charged with an offence. Under Section 112 of the Criminal Procedure Code, a warning is issued to the suspect, stating that anything he says may be used to incriminate him. If he so chooses to say anything it could incriminate him and provide the State with sufficient evidence to arrest him. He could then be charged with a criminal offence. Thereafter, his status changes from suspect to accused, and, under Section 113, he is given a caution. The processes involved in a criminal matter are attached in Figure 3.5. Figure 3.5 Criminal Matter Process (i) Arrest The first step with the arrest then in a criminal case is when the State institutes a charge against a person. The State/government are the ones who can institute a charge against a person. This is different from a civil matter. In a civil matter the adversaries are the Plaintiff and Defendant. In a criminal matter, the adversaries are the State (represented by the Public Prosecutor) and the Accused. Criminal cases can also be differentiated from Civil ones by their labelling: for example, Civil: Adam and Eve; Criminal: State vs. Adam. (ii) Plea |