MUET, Legal Profession and the Elephant in the Room — Aidil Khalid

Out of nowhere, in a speech that was supposed to be on the 2015 budget, Prime Minister Najib Razak announced that beginning next year, students would need to have a minimum of Band 4 in the Malaysian University English Test (MUET) for entry into public institutions to pursue their studies in law, followed by a minimum of Band 5 before the law degree could be conferred upon them.

My first thought when I heard the news was how odd it was for such an announcement to be made in a speech on the budget. But after having perused the full text thereof, I got the idea that such a move was made “to enhance graduates’ employability” because, as it stands to date, “53,000 graduates remain unemployed after six months of graduating”. Getting all these unemployed graduates their respective jobs would certainly strengthen our economy.

 

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That the English language is the global language today is an obvious fact, which no one in his right mind would ever dispute. And that we should strive to raise the standards of the English language among students is also another fact to which I believe no reasonable person would object.

But if I may borrow the words of Imran Mustafa and Wan Mohd Aimran Wan Mohd Kamil in their brilliant article entitled “A Rhetorical Tautology” (The Malaysian Insider, July 2, 2012), “the real issue worthy of contestation is the hidden assumption… that it is only through the raising of the level of English that our nation can ‘develop’.”

Likewise, the real issue worthy of contestation here is the “hidden assumption” through such a move of the increased requirement, that only through the raising of the level of English will the problem of graduates’ unemployability be solved. And this is particularly so when one considers the legal profession is a profession where stress should be given – at least legally speaking – not to the English language, but rather to the national language.

Section 8 of the National Language Act provides that the language of the courts shall be the national language. The national language, in turn, is Bahasa Melayu, as enshrined under Article 152 of the Federal Constitution. Thus the language of the courts is Bahasa, not English. And the authoritative texts of the law shall also be Malay texts, and again not English, in accordance with Section 6 of the National Language Act.

All these constitutional and statutory provisions have been clearly and repeatedly stressed and reiterated in many judicial precedents, one of which being the infamous Court of Appeal’s decision in Datuk Seri Anwar Ibrahim v Tun Dr Mahathir Mohamad [2010] 1 CLJ 444. In that case, the appellant’s memorandum of appeal was declared defective for having been written in English instead of the national language. The judge giving the judgment of the court, Abdul Malik Ishak JCA, held that “all proceedings… in the Federal Court, Court of Appeal, the High Court or any subordinate court shall be in the National Language.”

In another case, Zainun Dahan v Rakyat Merchant Bankers Bhd & 1 lagi [1997] 4 CLJ SUPP 279, Nik Hashim JC (as he then was) held as follows:

“Penggunaan Bahasa Melayu di mahkamah tidak boleh dipermudahkan dan diambil ringan. Perlembagaan Persekutuan (‘Perlembagaan’) menetapkan bahasa kebangsaan negara ialah Bahasa Melayu (Perkara 152). Dengan peruntukan undang-undang di atas, maka keraguan atas penggunaan Bahasa Melayu dalam prosiding mahkamah tidak boleh dipersoalkan lagi. Jadi, penggunaannya hendaklah dilaksanakan dengan ketatnya oleh semua pihak” (emphasis mine).

Despite the supreme status of the national language as enshrined under the constitution, the provision of which is reverberated in the National Language Act and further provided under our Rules of Court, the fact remains that many lawyers, if not most of them – and not to forget the judges as well – simply refuse to comply with this basic and fundamental constitutional provision.

At best, perhaps, they may speak of the provision, yes, but they do not actually put it into practice. And even if they wish in good faith to comply, many are ill-equipped to do so because they lack the confidence to speak and write in the national language, while others are simply too anglophile to utter even a word of Malay in the courts.

Now, coming back to the issue at hand, why is there this obsession with the English language, particularly in the legal profession – as can be seen from the increased requirement in MUET – when the more pressing issue that should be addressed is the failure to use Bahasa Melayu in courts?

For a long time now, we have been witnessing outright infringements of the provisions of Article 152 of the Federal Constitution as well as Section 8 of the National Language Act and Order 92 of the Rules of Court 2012, continuously and repeatedly, by the very persons who should be the guardians of the law and the constitution, namely the lawyers and the judges themselves.

The government should be addressing this problem – ie. how the legal profession and legal practitioners can be put back on the right constitutional track rather than allowing them to depart further and further from the letter and spirit of Article 152. This is the elephant in the room, which unfortunately is being deliberately ignored not only by the government, but also by fellow practitioners in the legal profession.

Many lawyers, senior practitioners and old-timers included, fail to acknowledge this fact. They keep on complaining and whining about the poor grasp of the English language among the young graduates and junior practitioners, yet they neglect the very fact that while there is no doubt having a flair in the English language is an added advantage – and one should always strive to improve one’s proficiency in the language – it is however never a necessity, legally speaking.

Fluency in Bahasa, on the other hand, is a necessity; it is a must, and if you don’t have it, you simply shouldn’t be practising law at all, at least not in the Semenanjung part of the nation. For how else could you expect to conduct your practice effectively unless you have the ability to communicate in the language of the courts?

Today, if you frequent the courts, you will see how lawyers simply refuse to oblige to this position of the law, and repeatedly use the reason that “the justice of the case” calls for the use of English in courts, when in reality, they are merely hiding their own deficiency in the national language. And this brings me to the following anecdote that is so rampant nowadays, and that in no way stands as an isolated case:

It was in the Kuala Lumpur Sessions Court, and the trial was for a claim that had something to do with purported medical negligence. The counsel for the plaintiff was a senior and reputable member of the Bar, with, I believe, over 15 years of standing. He started off with questioning the witness in Bahasa as required under the law. Yet, since he – the lawyer, I mean – kept stumbling and mumbling and stammering and stuttering every few words, he then asked that he be allowed to proceed in English.

“For the interest of justice,” he told the judge with a straight face.

Acting for the adverse party, of course, that ridiculous ground was objected to by the defendant’s counsel: what interest of justice are we talking about here?

The judge agreed with the defendant’s counsel and ruled that since the witness took his oath in Malay, it showed that he preferred to testify in Malay rather than English. It followed therefore that it would only be proper for the questioning to be conducted in the national language as well. So the counsel for the plaintiff had no choice but to continue as such.

This turned out to be a huge handicap for him. There came a point where he was putting various suggestions to the witness, and the witness was required to answer as to whether he agrees or disagrees with those suggestions, and something along these lines transpired:

“Adakah kamu setuju bahawa ‘standard of care’ di hospital kerajaan dengan ‘standard of care’ di hospital swasta adalah sama?” asked the plaintiff’s counsel.

“Ya, saya setuju,” answered the witness.

“Adakah kamu setuju kalau saya katakan ‘standard of care’ itu di samping, hospital kerajaan juga kena samakan dengan ‘workload of patience’ perbandingan hospital swasta?” asked the plaintiff’s counsel – whatever he meant by that horrendously constructed sentence.

“Tidak setuju.”

“Hah, tak setuju?”

The dissatisfaction was apparent. Obviously the plaintiff’s counsel wanted an affirmative answer, but instead was given otherwise. So he repeated the question, only this time, against the earlier ruling of the court, the question was asked in English: “Do you agree if I say that whilst the standard of care required in the government hospitals remains the same, their workloads on the other hand, in terms of the number of patients involved, far exceeds that of the private hospitals?”

“Ya, saya setuju.”

“Oh, so now, when I ask in English, you agree?”

“Saya tak berapa faham bila ditanyakan dalam bahasa Melayu tadi sebab soalan peguam berbelit dan tidak memberikan sebarang makna yang munasabah,” came the witness’ reply.

To recapitulate, and in case you’ve missed the point, let it be made clear that I am in no way implying that there is no need to learn and improve one’s proficiency in the English language. Quite the contrary, indeed, there is nothing to lose by being able to speak and write impeccable English, just like it would be an added advantage to be fluent in Mandarin, Tamil, Arabic, Korean, Japanese, or any other language for that matter along side the national language.

But it is a whole other matter when it is made a mandatory requirement to practise law in Malaysia when clearly the language of the courts is Bahasa Melayu, not English.

Of course, admittedly one could argue that be that as it may, many references are still in the English language, since many of our judges write their judgements in English, and thus one would have to be conversant in the language in order to have a proper grasp of the law. But this would be a debate of chicken or egg, because unless and until the constitutional provision of Article 152 and the National Language Act are strictly enforced and complied with, and the unconstitutional practice of using English in our courts is put to a stop, references in the national language will remain as they are today, and left with much to be desired.

 

* Aidil Khalid is a lawyer practising in Kota Damansara, Selangor.

* First appeared in The Malaysian Insider, 14 October 2014.

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