Language in the legal context
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The accused replies to this charge in the court, in what is known as the Plea. All charges for whatever crime is read in the court. The nature of the crime will decide as to whether the matter will be heard in a subordinate or superior court. The location of the court the accused goes to depends on the jurisdiction of the arresting police station, that is, the area in which the crime has taken place. At the court, the charge will be read, and the judge will ask the accused how he pleads. There are two ways in which an accused may respond: Guilty, or Not Guilty. (a) Plea of Guilty If the accused pleads guilty, that is, that he enters an admission of guilt, then a ‘Judgement’ in ‘Default’ (JID) will be made. If, at this time the accused has still not obtained the services of a lawyer because he cannot afford to, then the Legal Aid bureau will provide him with one. This voluntary or pro bono service is only applicable to an accused if, and only if, he has pleaded guilty to the crime. The duty of that lawyer is to ensure that the accused gets a reasonable sentence. During sentencing, it is the duty of the court to ensure that the accused understands the nature and consequences of his plea (UNCP). This means that the accused knows what he is being accused of, understands the crime, and the punishment that will ensue. In order to ensure that the accused understands this, an interpreter is often called to assist. If it turns out that the accused had a reason for committing the crime, then he cannot plead guilty. For instance, if the crime was for the theft of a vehicle and the accused says that he took it to rush a friend to hospital, then there are extenuating circumstances that require his reasons be examined at a trial. Therefore, he cannot plead guilt, and the court cannot sentence him based on those facts. In this case then, the accused will go to trial. (b) Plea of Not Guilty If, however, the accused does not plead guilty, then the case goes to ‘Trial’. However, an accused need not be detained in jail whilst he awaits his trial. He may be released on bail or a good behaviour bond, that is, a promissory that he will not abscond. (iii) Facts of the Case/Tender the Evidence At the time the accused is charged and tenders his plea, the Prosecuting Officer (PO), who is the Chief Inspector of the police station under which the jurisdiction of the crime falls, will present the facts of the case, which is the chronological story of the crime. Together with this, the PO will tender the evidence, that is, the item that has been stolen. This is necessary, since the accused must see the evidence involved before he enters his plea. (iv) Mitigation/Record The counsel for the accused will then provide mitigation, that is, reasons for why bail should be granted, for example, the good character of the accused. The magistrate will then ask the Prosecuting Officer for a record of the accused. This is an account of all the accussed’s previous convictions. The record will be tendered, and then a decision will be given by the magistrate as to whether to grant or refuse bail. There are some differences with murder cases. In a murder case, the plea is not tendered. Instead, when the charge is read to the accused, the only requirement is that the accused understands the charge. After the charge has been read, the Prosecuting Officer will bring the case up to the High Court, where then the plea is taken, and the other usual processes continued. (v) Trial The premise in every criminal trial is to prove beyond all reasonable doubt. This means that it is the duty of the state, represented by the Public Prosecutor is to prove that there is a very strong case that the accused committed the crime. The duty of the defence is to cast a doubt onto the case. Unlike civil cases, there is no discovery and inspection session, and new evidence may be brought in during the case. (a) Examination/Cross Examination/Re-examination The first stage of the trial consists of the Examination. At this stage, only the witnesses for the prosecution are called. As with civil cases, the processes of examination, cross-examination, and re-examination are taken with each witness. During the examination of the witnesses, it is the duty of the prosecution to prove the worthiness of the witness. It is the duty of the Defence Counsel to create doubt on the character, honesty, or statement of the witness. (b) Judgement After all the witnesses for the prosecution have been examined, a Judgement will be given. In this judgement, the judge will determine whether or not to allow the prosecution to proceed with the case. He determines whether or not there is a prima facie case - that is, whether or not there is a high probability (‘more probable than not’) that the accused did commit the crime and that the prosecution does have a case. The judge will then either rule that there is either no case, or that there is one. If the judge rules that there is no case, then he will give the accused a Discharge Not Amounting to an Acquittal (DNAA). The DNAA is not the same as a finding of Not Guilty. It basically rules that the case and the accused have been discharged. Therefore, the accused may still be arrested at a further date, as and when the prosecution obtains further or better evidence. If the accused has not been given a DNAA, then the trial continues. After all the witnesses for the defence have been called, the judge will reserve judgement to review the facts of the case. Later, judgement will be given. There are two possible outcomes to the judgement, (i) an acquittal, in which the accused is found Not Guilty and set free, or (ii) a conviction, in which the accused is found Guilty. (c) Witness for the Defence It is at this stage then that the defence is called. This is the stage at which the witnesses for the Defence are produced and examined, cross-examined, and re-examined. (d) Sentencing If the accused is found Guilty, then Sentencing will be passed unto him. At the sentencing, the same steps as at a bail-hearing are taken. The steps include mitigation, previous conviction (record), and then passing of a sentence. (vi) Appeal An Appeal may be made against a sentence. In cases where the sentence is the death penalty, the appeal is automatically processed, without the defence having to request for it. 3.6 Language Policies and Legal Education A true appreciation of the language choice and use patterns of legal professionals will require some understanding of past and present language policies. This would also include the legal training these lawyers have received and information including the medium of instruction in the institutions where they received their training both locally and abroad. 3.6.1 Pre-Independence Language Policies Before the colonisation of Malaya by the British, Malaya was a relatively homogenous society, with a single language of communication, BM. In the late nineteenth century and early twentieth century, the British brought in migrant workers from China and India to work in the tin mines and plantations. The number of these immigrant workers was considerable. This resulted in the birth of multicultural and multilingual Malaya. The society thus consisted of peoples of various religions, ethnic backgrounds, and languages. Prior to British rule, the education system of the Malays consisted of non-formal education, focusing mainly on teachings of the Quran, good behaviour and morality, spiritual knowledge and martial arts. It also included instruction in the rudiments of handicraft, and apprenticeship in agriculture, fishing, and hunting. The more formal system of religious studies was centred on ‘pondok’ (hut) schools, and was presided over by an ‘ulamak’ (religious teacher). During the period of British rule, a more formal system of education was established. The British brought in a modern secular education system, which resulted in some schools using English as the medium of instruction and others, the Malay language. At the same time, Malay-medium schools were also established. Education in the Malay-medium (MM) began in 1821 at a branch school of the Penang Free School. By the year 1938, seven hundred and eighty-eight Malay-medium schools had been established in the Straits Settlements and the Federated Malay States. Initially, education in these Malay schools varied little from the ‘pondok’ schools with its focus on religious studies. They placed strong emphasis on religious instruction. This was a strategic manoeuvre on the part of the British to gain the trust of parents, as the curriculum of the MM school appealed to many parents and prompted them to send their children to these schools instead of the ‘pondok’ schools. Later, the focus of education in the MM schools shifted to the 3R’s; reading, writing, and mathematics. These MM schools only provided education up to the elementary level. English-medium (EM) schools on the other hand, provided education from elementary, through secondary, and went on to the tertiary level as well. Because the EM-educated had more opportunities to further their education, they were able to enter occupations that were considered important in society, whilst the MM-educated in the main became trainee teachers. This created a cultural and economic gap between the MM-educated and the EM-educated. This socio-economic gap also served to make English important in the eyes of the masses, since it was seen to be the language of the urban elite and the intellectuals. In 1938, there were 46 government, 59 government-assisted, and 106 private English schools in the Malay Peninsula. These schools were targeted at the urban young, with the objective of training and producing junior administrative officers to support the British administration. Schools like the Malay College at Kuala Kangsar (MCKK), which initially took in sons of royalty and noblemen, used the English language as a medium of instruction. The issue of whether one was educated in English or in Malay at times caused an economic and social divide among the people. The status and importance accorded to the Malay language declined a little during the British occupation. Besides the EM and the MM education system, the Chinese and Tamils were also allowed to establish their own schools, with the native language in each case, as medium of instruction. Malay was no longer the sole medium of communication amongst the races. It was, however, the colloquial form of the language which was used by members of all major ethnic groups. Though it was the government that formulated these policies, it was private individuals and societies set up by the people that promoted the use of the national language. Societies like ASAS 50 (Angkatan Sasterawan) in 1950, and the Malay Language Society (Persatuan Bahasa Melayu) of University of Malaya in 1955, were established to promote and expand the use of BM. It is the establishment of societies such as these, whose membership was drawn from Malay intellectuals, that played a major role in raising the status of Malay as the national language. 3.6.2 Post-Independence Language Policies When Malaya achieved independence in 1957, BM (Malay) became enshrined as the national language, as stipulated by Article 152 of the Federal Constitution. Article 152 of the Federal Constitution is as follows: 152. (1) The national language shall be the Malay language and shall be in such script as Parliament may by law provide: Provided that- (a) no person shall be prohibited or prevented from using (otherwise than for official purposes), or from teaching or learning, any other language; and (b) nothing in this Clause shall prejudice the right of the Federal Government or of any State Government to preserve and sustain the use and study of the language of any other community in the Federation.
(a) of all Bills to be introduced or amendments thereto to be moved in either House of Parliament; and (b) of all Acts of Parliament and all subsidiary legislation issued by the Federal Government, shall be in the English language. (4) Notwithstanding the provisions of Clause (1), for a period of ten years after Merdeka Day, and thereafter until Parliament otherwise provides, all proceedings in the Federal Court, the Court of Appeal, or the High Court shall be in the English language: Provided that, if the Court and counsel on both sides agree, evidence taken in the language spoken by the witness need not be translated into or recorded in English. (5) Notwithstanding the provisions of Clause (1), until Parliament otherwise provides, all proceedings in subordinate courts, other than the taking of evidence, shall be in the English language. (6) In this Article, ‘official purpose’ means any purpose of the Government, whether Federal or State, and includes any purpose of a public authority. (Federal Constitution, 2000:133) As set by the laws of parliament, BM was required to be the written language in official communication. However, outside of official communication, no one was hindered or prevented from learning, teaching, or using, any other language. Thus, this article safeguarded the rights of other ethnic groups to maintain their language and culture, whilst at the same time promoting the use of the national language. The Malays have always had a sentimental attachment to BM, insisting that it be the national language. Politicians supported their cause, as the Malays were the largest voting majority. But eventually, as the other races gained political ground, they began to call for the use of Chinese, Tamil and English. This issue generated some friction amongst the three major races, and was one possible cause of the racial riot of May 13th 1969. The riot highlighted the urgent need for unity, harmony, and stability amongst the people. As a result, the government enacted a law, which stated that “the status of BM as the national language may no longer be questioned [the issue to] forever be removed from the arena of public discussion” (Constitution Amendment Act, 1971). However, the use of English was permitted up to a period of ten years after independence, and allowed in both houses of parliament and, in courts of law. In order to further promote the use of BM as the national language, and from there, expand its common use amongst the masses, the government established the Dewan Bahasa dan Pustaka in 1956. The government also made BM the medium of instruction in schools and the medium of communication in the administration of the nation. In 1957, the ASAS 50 sent a memorandum to the government regarding the Education Report of 1956, calling for a single schooling system, one that used only BM as the medium of instruction from the primary up till the tertiary level. Working in tandem with the new nation’s national aspirations, the Report of The Education Committee, 1956, was the result of a committee that was set up under the then Honourable Minister of Education, Dato’ Abdul Razak bin Dato’ Hussein, to study the existing education systems. This committee proposed a new national educational policy that made BM the national language and the medium of instruction. This report is more commonly known as the Razak Report, and was enacted in parliament as the Education Ordinance of 1957. This report recommended that the teaching of BM and the learning of BM by all pupils shall be a condition of government-assisted schools. In order that this recommendation was followed, the government had to ensure that there would be enough teachers qualified to teach BM. For this reason, the report also recommended that a Language College (Maktab Perguruan Bahasa) be set up to train teachers to teach BM. The institute would have a dual function of not only training BM language teachers, but also that of conducting research into languages found in Malaya and the teaching of these languages. It also recommended that qualifications in BM were necessary. The first of these was a requirement that teachers exhibit a certain level of proficiency in the BM language as a requirement for teaching in government secondary schools. The second was that BM be a compulsory subject at the Lower Certificate and National Certificate of Education national examinations. Besides these stringent requirements, the report also recommended a way of promoting the learning of the national language (BM), by way of providing incentives and rewards for the attainment of adequate proficiency in the language. This required that proficiency in BM be a: (a) necessary qualification at the various levels of entry into the government service; (b) factor to be taken into consideration in the selection of pupils to secondary schools, and be made compulsory in all examinations that are organised by the government; (c) requirement for anyone aspiring for a scholarship from public funds; (d) compulsory requirement in teacher-training courses and examinations. In order to implement BM as the national language successfully in the shortest period of time, the report recommended that immediate steps be taken to ensure that the standards of BM language teaching in secondary schools be raised. It was also recommended that the BM language be made a ‘principal’ subject in the Higher School Certificate examination. In addition, for the study of BM, special bursaries were provided for students studying BM at universities. Specialised courses in BM language were also introduced in teacher training colleges. Whilst the implementation of the national language at the administrative and adult levels had been set, it was felt that the biggest challenge would come from the education of the young. For that purpose, the report defined the levels and types of schooling, plus their medium of instruction. There would basically be two levels of schooling: primary, and secondary. The first level, the primary level, would consist of six years of education, for children aged six to thirteen years, and be divided into two types, Independent Primary Schools, and Assisted Primary Schools. Assisted Primary Schools are different from Independent Primary Schools in that they receive aid from public funds. However, both are subject to inspection and to the general rules relating to schools as laid down by legislation. Primary-level education is further divided into two types; national-type, which has BM as the medium of instruction, and vernacular-type primary, which has vernacular languages as the medium of instruction. Despite the variety in the medium of instruction, BM would be a compulsory subject. The same requirement was made of English, as it was felt that the lack of proficiency in the English language would be a disadvantage to students at higher levels of education, as well as for employment. Secondary-level education was also divided into two sections, independent secondary schools, and direct grant secondary schools. Direct grant secondary schools would come under the control and direction of the Minister for Education, and like the primary schools, both would come under the inspection of the government. The secondary schools are further divided into two types, vocational education, and full secondary education. The vocational school is designed to prepare students for specific employment, and provides education in fields such as agriculture, animal husbandry, and domestic science. Full secondary education, on the other hand, is designed for a variety of employment, and also as preparation for further education at the tertiary level. The non-vocational secondary education system, which takes five to six years of study, is further divided into two sections, a lower secondary level of three years, followed by two years of upper secondary. At the lower secondary level, students are required to sit for, and pass, the Lower Certificate of Education (LCE), in order to advance to the upper level. Students, who are unable to advance, leave for employment or for teacher training colleges to train as primary school teachers. Those who are able to continue their studies to the upper level receive either an academic education tailored for university entrance examinations, or a vocational education, which is tailored towards specific skills for employment. At the end of the secondary education, all who complete this level is required to sit for an examination, the National Certificate of Education, known as the Federation of Malaya Certificate of Education (MCE) (presently known as Sijil Pelajaran Malaysia (SPM)). This examination would contain a compulsory BM paper. To strengthen the position of BM even further, ASAS 50 recommended that an economic value be attached to the language, by requiring that an emphasis be given to having a Pass in the subject as a requirement for employment. With the system of education stipulated by the Razak Report (1956), the next move was to implement the use of the national language as the medium of instruction. For this, the Ministry of Education undertook a conversion plan. Steady and transitory measures were undertaken in stages. The conversion of Malaysian schools from EM to MM began in 1970. The Rahman Talib Report, 1960, reviewed the Razak Report and, recommended that the conversion begin at 1962. However, this did not take place until nearly 10 years later, after the racial riots of 1969. This delay was due to the lack of qualified teachers who could teach in BM. At the initial phase, all standard one classes of EM schools in the peninsula were converted into MM. This conversion was conducted in stages, with the conversion at every level occurring as the class of 1970 primary progressed up the rungs of primary education. By 1983, the conversion was complete up until the tertiary level, with all instruction in BM. In Sabah and Sarawak, the conversion process started in 1977, and was completed by 1990. Until 1977, the Lower Certificate of Education could be taken in either BM or English. In 1978, students from Peninsular Malaysia and Sabah sitting for the LCE exam had to take it in Malay. The only exception was in Sarawak where the conversion took place a few years later. After 1980, the SPM and the PMR examinations were conducted only in BM. The effect of converting all the examinations, including the major ones, into solely BM ensured that BM was learned. It was now an important language to learn and knowledge in BM was essential for the advancement to higher levels of education. Students in EM schools taking the SPM were required to pass BM. If students wanted to gain admission to universities, students had to sit for the Higher School Certificate (HSC) or the equivalent Sijil Tinggi Persekolahan Malaysia (STPM) examination. This school-leaving examination could be taken in English or BM depending on whether one takes the HSC or STPM. In 1982, the HSC could only be taken by candidates in Sarawak, effectively reducing access to alternatives. But whilst the entire conversion process was relatively successful, it was deemed in 1960 by the Rahman Talib Report that for the process to be fully effective, the entire system needed to be drastically implemented. The building of more secondary schools was recommended to provide more opportunities for students with a MM background to achieve a higher level of education. Further, the use of the BM exclusively as the medium of instruction was recommended, so that the transitional stage would become uniform in the fastest possible time. The use of BM in the training of teachers, as well as in textbooks, was also recommended. Some recommendations made by the report had been followed. This resulted in the establishment of 363 Malay secondary schools in 1974. In 1968, all Arts subjects taught in Year One at the lower secondary level was taught in Malay. Finally, all EM schools had been converted to MM by 1975. |