by Wan Zafran Pawancheek
Published November 6, 2020
There’s this widespread misconception that the Malaysian courts ‘mainly’ use English.
This misconception extends even to law students. Twice at least have I heard students boast about how they don’t ‘need’ to know Malay, because it’s ‘not necessary’ once they enter ‘actual’ legal practice.
In reality, the Malaysian courts are Malay language-first.
Yes, the English language is often used. Legally however, that use is by exception.
The clearest requirement for official judicial/legal use of the Malay language can be seen in the National Language Acts 1963/67:
Language of Courts
8. 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 proceedings (other than the giving of evidence by a witness) shall be partly in the national language and partly in the English language.
Legalities aside, the Malay language is a practical necessity for advocates and solicitors of the courts. Here’s what really happens in day-to-day practice:
Formal and informal interactions with parties/stakeholders related to the courts - i.e. with court interpreters, court registrars, judges’ secretaries, process servers, bailiffs, and so on - tend to be in Malay. Unless you’re so ‘exclusive’ or high-flying a lawyer, where you can afford to avoid interactions with all except for superior court judges and other counsel, it’s impossible to avoid use of Malay in legal practice.
The lower courts are greater in number than the superior courts. They predominantly use Malay. They also tend to be much more Malay-language oriented than the upper/appellate courts. At some point, every lawyer will have to deal with the Sessions or Magistrates’ courts, either at the behest of a client or because those are the default courts of first instance.
Lawyers who cannot speak Malay well can be perceived as arrogant. In some cases, such folks may even be publicly condemned or questioned. (I do not intend to touch on the propriety or political nature of such episodes. I just mention it for the fact that it does happen in Malaysia.)
There is an unspoken rule in our courts: that it is embarrassing for judges to maintain/impose proceedings entirely in English if the lawyers before them opt to use Malay. This sort of makes sense: how can you ‘hear’ parties if you speak a different language from them? And then there’s the National Language Acts. Thus judges addressed in Malay often respond likewise.
I’ve never seen a Malaysian judge stop a lawyer from speaking, writing or submitting in Malay. To the contrary, I’ve seen senior lawyers preferring to struggle in broken Malay (all the while profusely apologizing) the moment a judge addresses them in Malay, just to not be seen as incompetent. In practice, it can be quite unpersuasive, if not rude, for a lawyer to continue in English when the judge himself does not.
Witnesses and laymen have room to speak in the language they prefer. Lawyers, not always. Some judges may, whether rightly or wrongly, even humiliate lawyers who refuse to use Malay. I’ve personally seen a senior lawyer get outright shamed in open court, as he refused to conduct his case in Malay despite it being the only language his client understood.
For lawyers, not being conversant in Malay is, at best, a disservice to clients.
At worst, it is professional negligence. Consider:
As a lawyer, you will have dealings with third parties: the Attorney-General’s Chambers, government ministries/departments, land/revenue/other authorities, regulatory bodies, commissions, tribunals, and so on. Such matters often require Malay or dealing with Malay-speaking staff.
Judges are not all cut from the same cloth. Most are excellent. A few are not. A select handful have poor English. After a few years in practice, you’ll notice the special ones quickly: those with their questionable English grammar, incomprehensible judicial notes, wayward accents, and so on. Such judges may hold proceedings and decide in Malay entirely, and cannot be faulted for it. If so, they can be reasoned with only in Malay.
Poor comprehension of written Malay can lead to misunderstandings and mistaken translations. I’ve seen trusts, wills, contracts and other instruments written in Malay that made no sense, legally or linguistically. They were obviously drafted carelessly, by someone with no understanding of accurate/idiomatic Malay usage. Such documents are dispute-timebombs just waiting to happen.
Court documents in English have no validity, almost without exception. (Well, in Peninsular Malaysia, at least.) While exceptions to the validity of English documents emerge during emergencies/ambiguous legal scenarios, such happens rarely. Without legal force, English-language documents become merely aids to interpretation. They are not something a lawyer can strongly stand by. Study O. 92, r. 1 of the Rules of Court 2012 (“Language of documents”):
… 1. (1) Subject to paragraph (2), any document required for use in pursuance of these Rules shall be in the national language and may be accompanied by a translation thereof in the English language, except that the translation for the purpose of Order 11, rule 6(4) and rule 7(1) shall be prepared in accordance with rule 6(5) of that Order:
Provided that any document in the English language may be used as an exhibit, with or without a translation thereof in the national language.
(2) For Sabah and Sarawak, any document required for use in pursuance of these Rules shall be in the English language and may be accompanied by a translation thereof in the national language except that the translation for the purpose of Order 11, rule 6(4) and rule 7(1) shall be prepared in accordance with rule 6(5) of that Order.
Many students don’t realize, at least until after their internships/pupillage, that the non-Malay advocates who regularly practice in the Malaysian courts speak/write far better Malay than many Malays. Law students should do well to shadow from their betters, early. Moreover for non-Malays, knowing Malay well can be a serious advantage for building rapport. Not only do you look impressive, but if you want to start cultivating a diverse clientele? Well, a non-Malay lawyer who speaks good Malay stands miles apart from the crowd. Yes, people notice.
Despite the above, many lawyers are just not that keen on using Malay as an official language of the courts. And their reasons are sound:
The law is more often taught and read in English.
The authoritative version of statutes can be in Malay and English. However, pre-Merdeka/pre-Independence laws still in force are often exclusively in English, even to this date.
Many judges, especially superior court judges, prefer English. In fact, more often than not, judges direct their registrars/interpreters to whisper for English language copies of documents from lawyers.
Our legal terms of art were refined over centuries of legal practice. Many have no Malay language equivalent. Loaded Latin terms (like res ipsa loquitur, res judicata, stare decisis) are of somewhat easier import. But commonplace words can be especially problematic. Consider words like ‘misrepresentation’, ‘fraud’, ‘lying’: there are distinct differences, especially in how they are argued. Yet all are often translated the same way into Malay as ‘penipuan’ (or that odd transliteration, ‘frod’). Ambiguity can lead to injustice.
Legal authorities are almost always in English. Common law cases often refer to and only make sense when read against authorities from other English-speaking jurisdictions, such as the UK, India, Singapore, Australia and other Commonwealth countries. In my own experience, I’ve cited a few cases that were written in the Malay language, but those instances were few and far in between. It’s also much more difficult to obtain relevant/on-point Malay language cases that are decided by the Court of Appeal or the Federal Court (which cases have more persuasive weight).
Commercial disputes are the bread-and-butter of many lawyers, and feature as a large aspect of litigation work. For most commercial matters, documents and evidence tend to be in English. If court documents are instead in Malay, reference/citations can be a constant literary/translation exercise. This wastes time and money.
Those in favour of strengthening the use of the Malay language in our courts tend to skew ideological/nationalistic, not practical. They may not care that litigants want justice first. Forced dabbling in linguistics does not assure that food will be restored to the table.
Enforcing Malay usage increases the barrier of access to justice for many cases. Many lay clients either cannot read or don’t want to read documents written in Malay. Translations can be costly. More work means more time spent, and higher legal fees/surcharges.
In short, usage of English is never a certainty for court advocates. But usage of Malay almost always is.
No matter what anyone else tells you, the Malay language dominates in our civil/criminal courts. Learn it. If not for the fact that it’s necessary for legal professionals, then learn it for the fact that you’re a Malaysian. We should all try to be competent in our national language.
Note: I appreciate the irony of an article such as this being written in English. However, writing it in Malay would be preaching to the choir. I’d like to change a few adamant English-speaking minds instead.