I have to admit that I am not aware of the recent Federal Court's decision to allow the admission of a Queen's Counsel to handle a defamation case. If this is true, it is a decision, as E-Three pointed out, that should be rightly applauded ('Queen's counsel and Bahasa Malaysia?' July 2).
What I wish to flesh out here is something that the writer has hinted at in his commentary - the hypocrisy in the use of Bahasa Malaysia in the courts. It is another sad legacy of the former Chief Justice's damaging reign. Another tragic tale of the judiciary being corrupted by the politics of this country.
It is, as I understand it, the policy to make Bahasa Malaysia the 'language of the court'. As a result of this, all applications, affidavit, and other court documents filed has to be in BM. Lawyers are supposed to argue or file their written submission in BM. Judgments are supposed to be written in BM. English may be used in court documents but only as a translation to accompany the BM version. Arguments may be made in English with the court's leave but unless leave is obtained, it has to be in BM. If you were to file a court document in English, you can be assured it would be rejected.
But let's be honest - most judges prefer English. They would prefer the court documents in English, the arguments in English... they might not admit this officially, but even the most cursory perusal of all the law journals will all show that the bulk of the decisions by the judges are in English.
Has there been any published Federal Court decision in BM? None. However, to keep up the with the pretense, in line with this BM policy, lawyers then have to prepare applications, arguments, etc. in BM and then accompany them with an English translation. This means one thing - more senseless work. Because officially, it has to be in BM, but unofficially it is English.
And I'll be honest - if I had a choice, I would prefer everything to be in English. And I dare say a great deal of the practitioners would to. I do not say this because I am terrible in BM (which I am) but because conducting matters in English is more precise, efficient and a less hypocritical approach.
However, I am not saying BM should not be used at all; because it is our national language, respect should be accorded.
What I would like to propose and hope the current judicial administration would consider however is not a total conversion to English but to allow parties a choice as to which language (BM or English) they want to litigate in or even better to allow parties to file their court documents, etc. in either in BM or English.
The reasons for this proposal is as follows: Firstly, one of the underlying philosophies of law as practised, adopted and promoted by our courts are that parties should be free to conduct their matters as they best see fit as long as they do not harm another i.e. freedom of choice. To then force all parties that come to court to conduct their matters in BM instead of English seems to offend one of the basic tenets of the law. This is especially so when English is, I think, the second major language in this country and is widely used not only in business but also in the judiciary, and the number one language in the world.
Secondly, it is a question of intellectual honesty. Most of the judges write in English. All major cases in this country and in the Commonwealth are in English. Most of the law imported through the courts or legislature from other jurisdictions are in English. The law developed and used by our courts stretches back almost 400 years and is in English. Therefore, anything worth quoting and being used in our jurisdiction will be in English.
And more importantly, BM does not have enough words to express legal concepts or complex arguments (one just has to look at the latest istilah undang-undang , unwieldly new words that never fit and bastardisations of English).
BM also lacks the subtlety English has when forwarding a complicated or complex argument. This is because it is generally a new language and also more importantly, a euphemistic one. It lacks the directness that English language permits. In short, it is therefore imprecise. And this is not good especially when the legal profession is all about the precise use of language.
I often compare the use of BM in legal arguments to the use of a hammer instead of a screwdriver. The job will indeed be done but it will be messy and brutal whereas the use of English would be like using a screwdriver - elegant and each turn of the argument can be appreciated.
Thirdly, it's about practicality and costs. When a lawyer has to draft something - a client is charged for each minute spent on a piece of work. So if a piece of work is drafted in English and then has to be translated to BM and vice versa it would mean one thing - the client has to pay the lawyer more fees. And these fees are spent on merely duplicating the work. This is an inefficient use of time and money. The life of a litigator is often a frenzied and stressful one and usually they would have to scramble to draft and file a voluminous court document, affidavit, etc. on an impromptu basis and file it as soon as possible. Having to get it translated then hampers the litigators and in a sense, their clients as well.
Fourthly, to apply a modified version of an often used test to decide on the justice of a particular matter - who would be prejudiced if BM was not made compulsory? The answer is obvious - no one. How the judiciary conducts itself should not be dictated by the political whims or issues of the day.
Furthermore, if everybody (litigants and judge) wants to conduct the matter in English, the justice of the matter is to have it that way and the administrative side of the judiciary should respect that and not just reject documents because they are in English. BM should be used when circumstances demand it - when a litigant is more comfortable in Malay - not just for the sake of using it.
The judges appointed to the bench are generally of capable intellect and more than capable of understanding BM and English equally well (if not the latter more than the former) and therefore should be able to conduct the matter in both languages. This surely is the direction in which the judiciary should be heading - cheaper and greater access to justice, efficiency, intellectual honesty and more just conduct of cases.
The prime minister has also exhorted the use and implementation of English in this country. Why should the judiciary prove the exception?
