Language makes the law

 

(The Star) - Saya taruh sama engkau, engkau terbaring. (I put it to you, you are lying.)

A report in The Star of this courtroom gaffe in 1981 has appeared in many comedy routines and was even cited in a 1988 study titled “Malaysia’s National Language Policy and the Legal System”.

It occurred after the Chief Registrar issued a directive that all court correspondence, lower court judgments, witness testimony and lawyers’ submissions must be in Bahasa Malaysia (BM).

In 1990, Chief Justice of Malaya (now called Chief Judge of Malaya) Justice Hashim Yeop Sani was “treated” to a literal gaffe while presiding at an appeal in the Supreme Court.

Superior courts allow lawyers to submit in English but counsel were doing it in BM that day. While the female young lawyer spoke confidently, opposing senior counsel just did so-so in his basic BM.

But when he said: “Yang Arif, saya berdoa” (Your Honour, I pray for), the late Justice Hashim smiled and interjected: “Tak payah berdoa Encik ...” (No need to pray Mr ...). Not understanding, the lawyer continued: “Ya, Yang Arif.

Saya berdoa” (Yes, Your Honour. I pray for) so Justice Hashim interjected again: “Tak payah berdoa Encik... Saya bukan Tuhan, saya hanya hakim. Memohon cukup. (No need to pray Mr ... I’m not God. I’m just a judge. Asking will do.”

Former Chief Justice Tun Zaki Azmi chuckles as we swop stories from his time as a lawyer and judge and when I covered court cases.

He remembers a legal officer who spoke with an accent and would describe a matter as “impotent” when he meant important. Lawyers have improved their BM but many are floundering in English now.

Mahsa University’s Chancellor sighs when I ask about the repercussions for the Malaysian legal system.

“Our civil law is based on English Common Law. How would you learn English Common Law without learning English?” asks Zaki.

“Any country applying English Common Law will write decisions in English, whether it’s India, Pakistan, Bangladesh, African countries and the Caribbean Islands.

“If you want to use BM, you must still learn English and then write the judgment in BM because there are only a small number of articles and judgments in BM, maybe 0.1% of what we should know.

“Don’t misunderstand me, I’m not saying BM is not important, it is,” stresses Zaki, who is also Chancellor of Multimedia University, chairman of Universiti Malaya’s Board of Governors and an adjunct professor to a few public universities.

Law, he contends, is unlike medicine.

A law student only learns the basic principles but for every case, you have to read law text books and reports, he says.

While your law library today can be the Internet, you still have to read in English, he adds.

“If you don’t understand English you will be left behind in the law,” says Zaki, who was in the Legal and Judicial Services for 16 years before moving in 1985 to private practice for 22 years until his appointment to the Federal Court in 2007.

Zaki, who retired in 2011, believes many successful people in Malaysia speak good English although they specialise in other fields.

He cites two emeritus professors: Prof Datuk Dr Nik Safiah Karim, a linguistics expert in BM who speaks English well and obtained a doctorate in Philosophy in Ohio, United States (US); and Prof Datuk Dr Asmah Omar, also a BM expert, who did her PhD in Language and Linguistics at University of London in the United Kingdom (UK). They hold the Academic of the Year award for 2012 and 2011 respectively.

More use of English in the superior courts has created a conundrum.

BM documents filed in the subordinate courts are apparently drafted quite well but those in the higher courts are often a literal translation of the English, just to comply with procedural requirements, says Zaki.

“In practice, hardly any High Court judge reads the BM pleadings. They read the English text.”

Asked whether stressing on BM as the language of the court is wrong, Zaki says no, but points out that someone doing a case on company law would be hard-pressed to find research material in BM apart from a few textbooks.

“As far as company law is concerned, you’d look to Australia. You would even expand your research to the UK and the US but all their books are in English.”

He adds that anyone wanting to argue a new point of law or interpretation must be strong in English to read up cases and opinions.

“If you want to limit your practice to the lower courts, fine. But if you want to expand, you have no choice.

“Say you’re doing a theft case in the magistrate’s court and the facts are such it borders on whether it is theft or not, and you want to know how the Indian or Australian courts have decided, you would have to read them in English.

“In litigation, those with good English do better.”

The authoritative text for most laws is now in BM but Zaki reminds that for the Federal Constitution it is still in English.

He says judges generally refer to the English version but “if a statute is ambiguous, we have resorted to the BM copy for a better interpretation and understanding of Parliament’s intentions.”

While tenancy and sale and purchase agreements are now in BM, complex corporate agreements remain in English.

Zaki says the BM legal vocabulary is limited.

“Even France and Germany, with a developed legal language, use English in international contracts. What more Malaysia, where BM is less developed?”

“I’m happy the Government has recognised the importance of English in the Malaysia Education Blueprint 2013-2025.”

One way to improve English in schools, he reckons, is to invite eminent persons to talk on different subjects on a regular basis.

“Ask those who speak English well — like former (Health director-general) Tan Sri Dr Ismail Merican to talk on medicine, (Pemudah co-chair) Tan Sri Yong Poh Kon on business and (former Chief Secretary to the Government) Tan Sri Sidek Hassan on administration.

“In the US, former astronauts speak in schools and inspire the students to greater heights.” But schools here need the permission of the Education Ministry.

“I believe if the ministry lays down clear rules, for example, no politicians and what are the topics speakers may touch on, it should be safe.

“It’s done elsewhere, I don’t see why it can’t be done here.” Pitching for better English in the legal system, he says: “Look, you can’t practise Syariah law without knowing and understanding Arabic. And if you want to know Chinese law you have to know Chinese. Why is it different for English Common Law?”

Zaki is glad most law faculties here are teaching in English again.

“Really, you just need to know simple English to understand law. There’s no need for literary English.”

When his late father (former Lord President Tun Azmi Mohamed) asked him to read law, Zaki demurred saying he was weak in English.

“I only obtained a credit but he told me I didn’t need high-flying English, just simple English.”

Zaki points out one could practise medicine without knowing English.

“It’s science. But the law is language. Language makes the law and how you express yourself makes the law.”