(1.0) Introduction
We have all heard that studying law in local universities are in English and the lecturers would prefer as such. The problem that remains is that, we would not be speaking English in our courts. In fact, we can only speak Bahasa Melayu.
This raises the question and need of English in law schools, when in reality, our judiciary uses the Malay language. Is this premise true?
We would have to uncover the related laws below and determine the validity of such premise.
(2.0) The Legal Authorities
(2.1) Statute
What is considered to be the National Language?
Section 3 of the Interpretation Acts 1948 and 1967 (Consolidated and Revised 1989) provides that the national language is provided for by article 152 of the Federal Constitution.
Article 152 of the Federal Constitution in turn states that the National Language shall be the Malay language.
According to section 8 of the National Language Act 1963/1967 (NLA), it stipulates that;
"All proceedings in the Federal Court, Court of Appeal, the High Court or any Subordinate Court shall be in the national language"
However, the provision provided an exception;
"Provided that the Court may either of its own motion or on the application of any party to any proceeding and after considering the interests of justice in those proceedings, order that the proceedings shall be partly in the national language and partly in the English language."
Case closed, it means that we can actually use English in our courts by making an application, but we need to mix it up with Malay.
To test this, we may view a number of case laws as below.
(2.2) Case Laws
In Dato' Seri Anwar Ibrahim v Tun Dr Mahathir bin Mohamad [2011] 1 MLJ 145, it was a Federal Court case where Anwar Ibrahim tried to sue Mahathir for defamation, but his suit was struck out by the High Court and and appeal dismissed in the Court of Appeal.
His appeal was dismissed, because when he filed a memorandum of appeal, it was not in the national language, which rendered the purported record of appeal filed by Anwar useless and incurably defective.
However, Anwar found it to be hypocritical for the courts to say so, because when they struck out and dismissed his action, they gave their grounds/reasons for judgement in English.
Hence, in accordance with section 8 of the NLA and article 152 of the Federal Constitution, the proceedings from the High Court and Court of Appeal were all null and void.
The Federal Court dismissed Anwar Ibrahim's appeal eventually. The court found that the definition of 'proceeding' under section 8 of the NLA includes the 'institution or commencement of action, judgement, execution and taking of an appeal or writ of error.'
Therefore, when the judge gave their 'reasons/grounds' of judgement in English, it did not contravene the law as it was not part of the 'proceeding' definition. The instant case and appeal was not null nor void.
Even if reasons or judgment is part of the proceeding definition, the proviso to section 8 of NLA has the exception where courts have the discretion to use the national language and English in their proceedings. Hence, it would be fine as court retains discretion to use English for that matter.
Especially that, the parties had asked for leave of court in the instant case, in High Court and Court of Appeal to conduct proceedings in English and was granted. Why would Anwar now challenge this?
However, the author believes that it is hypocritical still, because court can reserve discretion at any stage of the proceedings and this will cause miscarriage of justice. If court can deliver grounds of judgement in English, why did they reject the memorandum of appeal when it is in English?
Until today recently, in Rekha d/o Munisamy v Ortus Expert White Sdn Bhd & Anor [2021] 5 MLJ 836, citing the Anwar Ibrahim case, the memorandum of appeal and notice of motion must be in the national language as it is imperative and mandatory to be adhered.
If the memorandum of appeal is not in Bahasa Melayu, the record of appeal is useless and does not qualify as such to be competent to be presented. Also, court documents must also be translated into the Malay language as per Order 92, Rule 1 of the ROC.
Perhaps the memorandum of appeal is a question of procedure or rules of court, not a matter of discretion. From the author's view, as long as the memorandum of appeal is in Malay and other strict procedures are complied, then what happens next in court or proceedings can be in English.
Similarly in Harcharan Singh a/l Piara Singh v Public Prosecutor [2011] 6 MLJ 145, the appellants argued that all the 3 judgements from the High Court, to Court of Appeal and Federal Court were not in the National Language, thus it all became null and void.
You may be wondering how can they appeal when there is already a Federal Court judgement. Well, Rule 137 of the Rules of the Federal Court 1990 allows them to review their own decision and set aside the sentence, but must be extremely cautious only in rare and exceptional cases.
The Federal Court stated that again, 'grounds of judgement' does not fall within the definition of section 8 of the NLA. Court has discretion to provide them in either English or the National Language.
Even if grounds of judgement were defined as judgement, court still has discretion to use the English language in court, to conduct it be it on their own motion or application by the parties.
In Wong Leh Yin v Public Prosecutor [2013] 5 MLJ 820, they argued that the petition of appeal by the Public Prosecutor in the High Court of Sibu needs to be in English only, not Bahasa Malaysia. They argued that according to article 161(2)(b) of the Federal Constitution and Point 2C of the '20-Point Malaysia Agreement' English is an official language in Sarawak for all purposes without limitation of time.
Court held that, by virtue of section 1(2) of the NLA, the National Language will be applied to the States of Sabah and Sarawak, on such dates as the respective state authorities may be enactments of the legislatures appoint and different dates.
Therefore, when they provided the 20-Point Malaysia Agreement, it states that;
"English shall be an official language of Borneo."
However, it is an official language, not the official language. Therefore court decided that Bahasa Melayu or the National Language may be applied in court, because both Bahasa Melayu and English are among the official languages of the country.
Court even daringly say that the 20-Point Agreement is uncertain or ambiguous, which is true given that it is only an inspirational document and not binding.
(3.0) Conclusion
To conclude, do not worry that that learning law in English is pointless. In fact, we can if we apply to the court for leave or the court themselves wants the proceedings to be in English. Since many judges and lawyers study abroad in English and that our local laws are influenced by common law, then it makes sense to use English in our courts.
However, filing a memorandum of appeal and making translations of court documents in Malay is compulsory and if there are strict procedures requiring us to file something in Malay, then it must only be in Malay.
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