The language of justice in the courts


  • Through Many Windows
  • Sunday, 03 May 2020

RECENTLY, for the first time in Malaysia, the Court of Appeal streamed live hearings online.

I welcomed it because I had wanted various sections of the judiciary and the Attorney General’s Chambers to function online as early as a week after the first movement control order. There was no reason not to and it is not rocket science to determine which sectors could function without the need to meet face to face.

Furthermore, these two institutions affect people’s lives significantly and deal with justice which should not be delayed where possible.

So when the hearings were streamed online I was expecting firstly, at least general commendation of the judiciary for doing so. This would enable a greater number of people to understand how our justice system functions.

Secondly, I was expecting constructive comments on how the streaming system or the interface could be improved for better clarity and speed.

Thirdly, maybe even comments from laypeople on whether the procedure of justice as aired is “fair and just”.

To my disappointment yet again, the Malaysian public that commented failed to address any of these issues. Instead, Netizens and some offline commentators expressed their surprise that the English language is still being used in the courts.

Frankly, there are two kinds of citizens who speak up for the national language in my opinion: firstly, the type that understand the rational need for and role of a national language for a sovereign nation, and the other type who project themselves as “pejuang bahasa Melayu” or “champions” of the national language.

The “champions” will usually shout the most simplistic state-ments and slogans for maximum popular appeal among the targeted audience.

The rational and responsible citizens know that the status of the Malay language as the national language is enshrined and provided for in Article 152 of the Federal Constitution.

Article 152(1) clearly provides that “Bahasa Melayu” shall be the “Bahasa Kebangsaan”, or the national language, for all official government purposes.

However, Article 152(4) provides that notwithstanding clause (1), for the first 10 years after Merdeka Day and thereafter until Parliament provides otherwise, all proceedings in the Federal Court, the Court of Appeal or a High Court shall be in the English language.

Then on Sept 1,1967, came the National Language Act 1967 (NLA). It contains Section 8 which makes provision for the language of the courts as follows: “All proceedings (other than the giving of evidence by a witness) in the Federal Court, Court of Appeal, the High Court or any Subordinate Court shall be in the national language:

“Provided that the Court may either of 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 pro-ceedings (other than the giving of evidence by a witness) shall be partly in the national language and partly in the English language.”

Hence, while Section 8 of the NLA provides that the national language shall be the language in the courts, the courts have the discretion to have the proceedings partly in the national language and in the English language if the interests of justice in that particular case so requires. In other words, in the interest of justice, our courts allow dual languages. “Interest of justice” is a very important concept including consideration of the nature of the law and jurisprudence involved, the facts of the case, and so on.

It may be interesting to note that the late Karpal Singh was the first to challenge the validity of court judgements written in English as being void and inconsistent with the provisions of Section 8 of the NLA. The Federal Court disagreed with him and held that the courts have a wide discretion whether to write the judgements in the national language or in English.

In any event, from my own experience in the courts for many years, the judges have largely conducted the proceedings in the national language. It must be highlighted to the public that all cause papers are filed into court using the national language in compliance with the NLA.

It is therefore very misleading to give the misimpression to the public that the national language is not the medium of proceedings in the courts when it actually is.

The judiciary is not oblivious to the fact the national language is the national language. I am certain that the previous and the current Chief Justices were and is cognizant of the status, role and evolution of the national language in our courts.

If we want more of the national language to be used, we need more legal resources in that language and those responsible for this must do their part. Probably this still takes time.

I am afraid it is impractical and unproductive to demand a date be set for the full implementation of the national language as the only medium of communication in the courts if that is the direction that we want to go in the long run.

Some West Malaysian commenters often forget that Malaysia also comprises Sabah and Sarawak. They are still stuck in the notion that Malaysia means Peninsular Malaysia alone. Hence, they forget that in Sabah and Sarawak, the official language in the courts is still English. I do not think this fact alone makes Sabahans and Sarawakians less patriotic.

Hence, the fact is that Malaysia, like many other countries in the world, has dual languages in courts.

In the Hong Kong courts, by virtue of Section 3(1) of the Hong Kong Official Language Ordinance, both English and Chinese are used officially in court proceedings.

Likewise, both the Constitution of India and Section 7 of India’s Official Languages Act 1963, quite apart from the English language, Hindi or other languages of the state may be authorised to be used as court proceedings.

So the policymakers, the rational citizens and stakeholders must carefully decide whether we really want a singular or dual language in the courts in the long run, putting aside pseudo patriotic facades.

Therefore we need to under-stand that when we wish to discuss the issue of official language in the courts, there are many important considerations that we need to address, especially the overriding principle of justice and exactly in which direction we want our country to go.

Jahaberdeen is the founder of the Rapera Movement, a movement that encourages thinking and compassion among the citizens. He may be contacted at rapera.jay@gmail.com. The views expressed here are solely his own.

Article type: free
User access status:
   

Did you find this article insightful?

Yes
No

95% readers found this article insightful

Across the site