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Language in the legal context

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With the completion of the conversion at the primary and secondary school levels, it was expected that the conversion at the tertiary level would be relatively smooth. This did not necessarily prove to be the case, for even though the students were adept, the teaching staff had not been brought up line with the new system. As a result, the conversion of the process from English to BM at the university level had to be done gradually.
By 1983, all universities were required to use BM as the medium of instruction, because by that time, the intake of students was from MM schools. This did not quite take effect though, as in the case of University of Malaya (UM). In 1965, students had to undergo intensive English classes, in order to follow lectures that were conducted in English at tertiary level. The teaching staff were unable to keep up with the change in medium of instruction. Even today, this may be true as there is nothing in the offer of employment which stipulates fluency in BM as a requirement.
Nonetheless, Malaysian universities did contribute to the use of the national language. Four other universities were established, and together with University of Malaya, became the founding machinery that produced the new educated classes. The four universities are as famous:

• Universiti Sains Malaysia (USM) (established in 1969),

• Universiti Kebangsaan Malaysia (UKM) (established in 1970),
• Universiti Pertanian Malaysia (UPM) (in 1971), and
• Universiti Teknologi Malaysia (UTM) (established in 1972).

Universiti Kebangsaan Malaysia was established because University of Malaya was unable to solely use BM as a medium of instruction. As a result, Universiti Kebangsaan Malaysia was the only university that from its establishment incorporated BM as the medium of instruction. Today, most government universities have incorporated BM as a medium of instruction, with a few exceptions being where the lecturer is a foreigner or when the field of study is in the field of science and technology. However, there are privately funded universities in Malaysia who use the English language as a medium of instruction.

3.7 Language Use in the Legal Sector
The legal history of Malaysia is based on the Indian penal code, which itself was taken from the British legal system. Thus, its principles were set in the English language. This applied not only to the legal system, but also to that of the government and the administration, founded upon the system of parliamentary democracy and civil service, as practised in England.

Contemporary Malaysian law….is a hybrid….More often than not it also expresses itself in a foreign language, including the terminology. In the case of Malaysia, the language is English, with the Malay language increasingly developed to express and accommodate the law.

(Wu Min Aun, 1999: 168)
Effectively, the use of English in the legal workplace should have ended, yet to a certain extent, it still prevails nearly thirty-five years. Nonetheless, efforts have been made to formalise legal terms, in an effort to encourage and support its use in the courts of law.
Currently, all legal professionals are required to use BM in the Courts. The use of English is limited to the use of certain terms only. Submissions and judgments are required to be written and delivered in BMy in courts. The use of English is only permissible after an oral application has been made to the judge. However, in the interests of justice, witnesses are allowed to use a language other than BM (Article 152, Subsection 4, Federal Constitution, 2000:133). Article 152 of the Constitution, Section 4 states that for a period of 10 years after independence, and thereafter unless otherwise determined by parliament, all cases (with the exception of evidence given by witnesses) in the Federal Courts, High Courts, and Subordinate Courts, are to be in BM.
Initially, the move to use BM in the courts was viewed with scepticism. Indeed, a former Bar Council president urged caution in this respect and said that we must be cautious and not be hasty, because English has been in use for a long time. He further stated that the process of conversion must be implemented in stages, more through the form of an evolution than that of a revolution, because there is still a paucity of reference material available in BM.

The result of hesitations such as the one stated has resulted in the following situation:

Four decades have passed since independence, yet the national language has still not been fully enforced in the law courts. Independence was the start-off point for the regaining of a nation’s pride and honour – of sovereignty-yet this should not be the start and end of it. Other things too, should be extensions of sovereignty-like the use of language.

(Zaid Ibrahim, 1989)

History has shown that BM was used extensively in the states of Kedah, Perlis, Kelantan, Terengganu, and Johor in all matters official; meetings, correspondence, law, as well as judicial proceedings. It is also worth noting that the Malacca law and administration were in the Malay language as far back as 600 years ago. This is evidence that the language has the ability to support and meet the requirements of the legal sector.
In the years 1963 and 1967, the National Language Act was amended. Section 8 of the National Language Act 1963-1967 reads as follows:
All proceedings (other than the giving of evidence by a witness) in the Supreme Court, the high court or any subordinate court shall be in the national language or in the English language or partly in the national language and partly in the English language:
Provided that the court may either of its own motion or on the application of any party to any proceedings and after consideration the interests of justice those proceedings, order that the proceedings (other than the giving of evidence by a witness) shall be either wholly in the national language or wholly in the English language.

(Federal Constitution, 2000:134)

This section was repealed and substituted with effect from 30 March 1990 with the following:
All proceedings (other than the giving of evidence by a witness) in the Supreme Court, the high court or any subordinate court shall be in the national language.
Provided that the court may either on 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.

(Federal Constitution, 2000:134)

This act allows for an alternative, that is, the use of either BM or English. By giving this alternative, the less fluent parties will resort to using the alternative language that is permitted. The original Act gave a transitional time period of 10 years, but this amendment has added another transitional stage upon the initial one, and it does not have a use-by period. After over 40 years of independence, we still seem to be in the transitional stage.

3.7.1 Implementation of BM in the Legal Community

In 1989, the legal fraternity of Malaysia held a National Law Seminar, which was organised by the Institute of Policy Studies (Institut Kajian Dasar), Dewan Bahasa dan Pustaka (DBP), and a local Malay language newspaper, Utusan Melayu. The main issue of that seminar was language and the law; namely, that of the implementation of the national language (BM) as the language of the law. During the seminar, the problem of the slow implementation of the National Language Act was discussed. At this seminar, many suggestions were made. Contributors of these suggestions were respected academics, as well as legal luminaries.
One of them was Zaid Ibrahim, a prominent lawyer. He was of the view that Malay judges should play a role, by taking the initiative to increase the use of BM in their judgements. He added that precise and speedy translations needed to be made, and this required dedicated translators. His ideas were supported by Shaik Mohd. Noor Alam, who in his paper, Strategy and Preparations towards Implementing BM as a Language of the Law said that the lack of reference material in Malay was a contributory factor to the slow process of conversion.
A seminar on legal publishing was held in 1982, but since then only a few books have been produced. Shaik Mohd. Noor Alam urged Malay intellectuals to be the driving force behind the effort to make the national language the language of law. Towards achieving this, he suggested that a few main branches of the law could be selected, and the reference material translated. In addition, acts, enactments, and other subsidiary laws needed to be prepared in the national language, and then translated into English, and not the other way around as was the current practice. In his view, only texts in the national language should be referred to, and used, in court. Further, he pointed out that journals and law reports were still being published in English. An example of this is the Malaysian Law Journal. Shaik Mohd. Noor Alam felt that for as long as members of the Judiciary continue to preside over cases and write judgments in English, using English instead of BM for legal purposes may take a while to be fully implemented.
The legal community cannot depend on commercial publishers, because up till now, reports in BM have not gained a wide market, and these publishers may not be driven by economic reasons to publish. Therefore, this responsibility needs to be borne by the government, DBP, and the like. DBP needs to form a translation unit, or a unit that reports the cases that are decided by the courts. Finally, a law dictionary needs to be published in the national language, where the use and reference of legal terms and meanings would remain consistent.
Shaik Mohd. Noor Alam was also of the opinion that the strategy of enforcing the national language as the language of the law depended greatly upon the linguistic and legal expertise of members of the legal community. In his seminar paper he identified four groups of people; academics, the legal practitioners, corporate legal professional and the legal professional who are involved in the legal and judicial machinery.
He believed that academics play the biggest role as in the dictum ‘teach the teachers, and the teachers will teach the students’. He added that language problems of the locally-educated academics were solved through the full conversion of the national education system. The problem of foreign-educated academic staff would be solved through the exposure to the legal terminology in the national language. These efforts are intended to produce academic staff who are capable of handling lectures, and producing reading as well as reference materials in the national language. Given time, this group of academics would produce a second generation of legal professionals who are proficient in the national language.
As with the Razak Report (1956), it was suggested that these efforts should be supportive and provide incentives:
(a) sabbatical for those who require time to write original articles, or translate legal articles
(b) publications to be taken into consideration for the granting of a raise or promotion.
(c) government sponsored Masters or Ph.D. students who read law will be required to publish their thesis. The publication of the thesis would result in a few years being deducted from their bond of mandatory government service. For those who were given study loans, the publication of at least three legal articles of quality will be taken as settlement of the loan.

The second and third categories are the legal practitioners and corporate legal professionals. Currently, the Bar Council arranges national language courses for its members, and this is considered good, but it does not ensure the effectiveness of its members’ ability to use the national language. Therefore, the government needs to consider whether a Pass in the national language (BM) at the SPM level should be made one of the conditions for practising law in Malaysia.

Finally, the fourth category refers to the legal professionals who are involved in the legal and judicial machinery (including lawmakers, magistrates, and judges). The formulation of laws in the national language or English, and then its translation is actively being pursued, and we have every reason to believe that it will be successful. But law making must take into account the interpretation of the law. Interpretation touches on issues of rights between individuals in relation to an authoritative body. Therefore, interpretations are of interest to many people, and not just to the legal community. As interpretation draws a lot of attention, the language that is used is also likely to gain prominence. If English is used, it is English that will get prominence, and will continue to be the favoured language of the community. The same logic would apply to the national language.
Plans like these are likely to be effective, so long as there is effective follow-up action. The setting up of the Legal Department of Malaysia has played an important role in the implementation of the use of Malay since 1963. This department has established a national language department for the purpose of translating into BM all legal documents and all other document related to the law. In 1979, the department was revamped, and two special units were established. Unit A was responsible for the translation of all laws passed after 1 September 1967, and Unit B was responsible for all laws passed before that date. These units were extremely successful. All laws that passed after 1 September 1967 are available in BM as well as in English. It was also the case that a majority of the laws that were passed before 1 September 1967 that was composed in English have already been translated into BM.
Other than the translation unit, the department also set up a committee to look into the question of terminology. The committee comprises senior officers of the national language department, the officers responsible for translating the laws, and officers to supervise the translation. This committee has the task of coining new terms and expanding the legal terminology in BM for the Legal Department of Malaysia.
Notwithstanding the government’s efforts, the Bar Council too has contributed to playing its part by establishing a committee that would take steps to, from time-to-time, to disseminate translations of terminology from English to BM, for the purpose of increasing the precision of BM language use among legal professionals. This committee also arranges to have BM language classes for legal professionals.

Since the National Law Seminar that was held in June 1989, a law journal in BM, and the requirement of a Pass in BM language for employment for members of legal community have materialised. On 4 December 1989, the publication of a journal entitled Kanun: Jurnal Undang-Undang Bahasa Melayu [Kanun = Law (Arabic): BM Law Journal] was launched. This journal, published by the Dewan Bahasa dan Pustaka, was the result of a co-operative effort by the Dewan Bahasa dan Pustaka, the Supreme Court, and the Society of Muslim Legal professionals. The journal provided the legal community with an arena where issues of terminology could be debated upon as well as other issues related to language and the law. As observed by Tan Sri Datuk Hashim bin Yeop Sani (a High Court judge), “it cannot be denied that this law journal, God permitting, will play an important role in the implementation of Malay in this nation’s courts” (Shaik Mohd Noor Alam, 1982: 22).

Also, after the full conversion of schools into MM, the Legal Professions Act 1976, the act that supervises the legal profession in Malaysia, included one more requirement for one to be accepted into, and registered as, an advocate and solicitor in this country. That requirement stated that, after fulfilling the requirements of (1) reaching the age of 18, (2) good behaviour and not having been convicted of any criminal offence or been declared a bankrupt, (3) is a citizen of the Federation or a permanent resident of Malaysia, and (4) has undergone chambering satisfactorily, as of 1 January 1984, a person deemed to be eligible is required to pass, or be in a position to be exempted from, the Malay language qualifying examination (ibid.:34).
On 12 May 1992, a report on the survey of the use of Malay in the area of legal work and study was presented to the Minister of Justice. The survey was conducted by Dewan Bahasa dan Pustaka (Ahmad Mohd Yusof 1992). The survey involved 1,403 respondents from a cross-section of the following groups:

(a) judges, magistrates, and court registrars

(b) advocates, solicitors, and prosecutors
(c) law-makers and legal advisers
(d) academics and students

The survey found that, in the instance of the use of BM between groups (a) and (d), the percentage of the respondents who were proficient in BM was generally good, and higher than the percentage of those who were proficient in English. For judicial officers and academics, the percentage of proficiency in English was at least equivalent to that of Malay. However for groups (b) and (c), the percentage of those proficient in English was higher than that of Malay.

3.7.2 Use of Bahasa Malaysia among Academics
Respondents from groups (a), (b), (c), and academics had undergone tertiary education in English. A large portion too, had experienced bilingual tertiary education in BM and English. Overall, all the respondents had passed their BM exams at the secondary school level, but when they progressed to the tertiary level, the medium of instruction was in English. Members from groups (a), (b), and (c) were proficient in BM as a language of communication, though their thought process and language structures were greatly influenced by English.

3.7.3 Use of Bahasa Malaysia among Judges, Magistrates and Prosecutors

Almost all judges, magistrates, and prosecutors have used BM in the courts, but this is less so with the advocates and solicitors. However, even though there have been instances of the use of BM in civil and criminal cases, the majority of instances of the use of BM are confined to the Subordinate Courts, and few prosecutors or advocates have used Malay in trials at the Supreme and High Courts. Further, not all prosecutors and advocates are able to use BM in the presentation of submissions fluently. According to the survey, only 61 per cent are able to present submissions in BM fluently. The percentage of advocates and solicitors who can present submissions in BM even lower, and in the case of non-Malay advocates and solicitors, the percentage who is fluent is only 39 per cent.
In the instance of the use of BM in the Supreme, High, and Subordinate Courts, the survey shows that, even though a large portion of the judicial and legal community had used BM in the courts, the frequency of such use was low, and tended to vary according the type of court or case. On the whole, the largest showing of the use of BM is in the Subordinate Courts, with 21.1 per cent to 66.7 per cent of the members of the court using BM 75 per cent of the time. The percentage of those who use BM the least (less than 25 per cent of the time) is between 18.1 per cent and 56.7 per cent. This statistic shows that both languages are used in the courts, and that, in the case of the Subordinate Courts, at least, BM is equal to English in its use. Unlike the Subordinate Courts, the High Courts record a lower degree of the use of BM. At its highest, the use of BM is only between 7 per cent and 15 per cent. Therefore, in the High Courts, it is English that is widely used. Similarly, at the Supreme Courts, the use of BM is very low. At the very best, the use of BM is only 2 per cent, which means that English is used in the Supreme Courts most extensively, if not almost exclusively.
3.7.4 Legal Education and Training
On the whole, it is factors such as ethnicity, medium of instruction at tertiary level, position, age, and language of employment in the legal profession that influences the use or choice of BM in legal proceedings. The medium of instruction of the degree is probably the single-most important factor that influences the use of BM. All of the judicial and legal members who received a bilingual education in local tertiary institutions tended to use BM, at a high level. This group was also found to be fluent in the use of BM, and the percentage of those who used BM to a high level was greater than those who were educated in English. It is obvious that local tertiary institutions that implement bilingual study have influenced the use of BM in the courts. Local graduates who have been educated in the MM have a greater tendency to use BM in the practice of their profession.

In general, BM is used as the medium of instruction by local tertiary institutions for lectures and tutorials. However, English is also used. The survey found that more than half (59.2%) of academics use BM fully in the delivery of lectures, whilst 38.6 per cent present lectures in both languages. More Malay academics taught in BM, compared to non-Malay academics. The use of BM was lowest in tutorials and this applied to both students (5.4%) and academics (21.3%). For report writing, academics from UKM and Institut Teknologi MARA (ITM) tended to use BM (85.7% and 88.9% respectively), whilst academics from UM tended to use English. Amongst the students, there was equal use of BM and English. Forty-two percent wrote reports in BM, and 49.1 per cent in English. This pattern was also seen in moot trials where 46.8 per cent used BM fully, whilst 43.4 per cent used English fully. The rest (91.3%) of the academics said that they encouraged the students to use BM in moot trials, and noted that students use the BM language effectively for this purpose.

At the time the survey was conducted, around 400 to 500 English-educated people were graduating in law from foreign universities every year, in addition to the 300 English-educated graduates from the International Islamic University (IIU). This number of seven hundred or so students is over and above those doing their Certificate of Legal Practice (CLP) in the four private colleges that offered the course in the English-medium only. The numbers then, were far larger than those graduating from the local universities using BM as the medium of instruction.
Little has changed since that survey was done as far as the medium of instruction is concerned. Local universities such as UKM and UM are still practising their BM - for-lectures, English-for-tutorials, policy. However, the number of students reading Law in the English-medium system may have changed. With the economic downturn after 1997, fewer Malaysian students have been able to go abroad to further their studies. Instead, local tertiary institutions have had to increase their student intake, sometimes three, or four-fold, as in the case of UKM (pre-1997:50 and post-1997:150–200), in order to absorb the growing numbers seeking a place in a local institutions. Whether the students who would have gone overseas but now have to seek places locally will be divided equally between the local public institutions or the private institutions remains to be seen. What is certain is that this change could affect the extent to which the BM language and English are used in the legal domain.
3.8 Summary
Based on earlier studies (see Chapter Two) there is a general disposition towards the use of English in written and oral communication among those in the legal profession when dealing with legal matters. Whatever the frequency of use may be for BM and English, language has an important role in all legal proceedings and in the Malaysian legal workplace.
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