iii
LANGUAGE CHOICE AMONG LEGAL PRACTITIONERS IN LOWER
COURTROOM OF AMPANG SESSION COURT AND MAGISTRATE
COURT
WIRDAWATI BINTI AHMAD @ MOHD ISA
A report submitted in partial fulfilment
of the requirements for the award of the degree of
Bachelor of Science with Education (TESL)
Faculty of EducationUniversiti Teknologi Malaysia
APRIL 2010
v
To my beloved bak and mak
Haji Ahmad bin Haji Tahir and Hajjah Ramlah binti Haji Shafie
To my inspiring brothers and sisters
Abang, kak no, kak ce, gakti, onye, abang cik, kak bona and edy
Thank you for all the prayers, love and encouragement
vi
ACKNOWLEDGEMENT
Bismillahhirrahmannirrahim..
My deepest appreciation goes to my supervisor, Associate Professor Dr. Hadina bt.
Habil for her guidance, patience and time spent in seeing me through the completion
of this project. I could have never done it without you.
My heartfelt thanks goes to my family who never stop giving me the full-time love
and supports throughout my hard time in UTM. Without you I do not think I can
make it.
Special thanks to Ampang Session and Magistrate Court Judge, Magistrate, Deputy
Public Prosecutors and staffs who willing to be my participants and respondents for all
the cooperation and support throughout the data collecting period.
My gratitude and love goes to friends in particular: Muni, Yana, Ina, Jaja, Fiza, and
Yanna, and all who have helped me in one way or another in my studies and this
project. Thanks for all your ideas and encouragement throughout the years.
Last but not least my special thanks goes to those people who directly or indirectly
helped me in completing this project.
Thank you very much.
vii
ABSTRACT
Malaysia is a multilingual country, and thus, people who are proficient in more
than one language have a choice of which language to use in what situation. The same
situation occurs in the courtroom where legal practitioners can choose which language
to use since there is an act permits the usage of both languages during the proceeding.
Some legal practitioners intend to use BM but some are more comfortable with
English. Due to that, this study examines the choice of language among legal
practitioners in a courtroom proceeding since the situations triggered the code-
switching and code-mixing phenomena among them. The objectives of this study are
to discover which language is mostly used, and to identify the most influential factor
that contributes to the choice of the language during the trial. In order to validate the
study, data were collected through interviews, observations and field-note takings in a
court proceeding of a rape case in a subordinate court where BM and English were
used. The data were analyzed according to the frequency of the words used and the
situations that triggered the choice of the languages. The findings showed that BM
was the most language frequently used in the subordinate courtroom proceedings and
this was influenced by the interlocutors’ language proficiency and other situational
and metaphorical factors. The findings revealed that, the choice of language in the
courtroom depends on the similarity between the languages used and the
communicative intend because the choice of language in this setting is more on getting
the accurate evidence to support the judgment decision. Therefore, the findings of this
study could be used as a guideline for future research in the field of curriculum and
other areas which relate to the current language situation in Malaysia for future legal
practitioners.
viii
ABSTRAK
Kepelbagaian bangsa dan bahasa di Malaysia mendorong kepada rakyatnya
yang fasih dengan pelbagai bahasa untuk memilih dan mengguna bahasa-bahasa
tersebut bergantung kepada situasi yang bersesuaian. Senario pemilihan bahasa ini
juga berlaku di mahkamah apabila terdapat akta yang membenarkan penggunaan
Bahasa Melayu (BM) dan Bahasa Inggeris (BI) semasa perbicaraan kerana dikalangan
pengamal undang-undang lebih cenderung menggunakan BM berbanding BI begitu
juga sebaliknya. Oleh yang demikian, kajian ini dijalankan bagi mengetahui
pemilihan bahasa ketika perbicaraan di mahkamah samada BM atau BI dikalangan
pengamal undang-undang dimana gaya percampuran bahasa sentiasa berlaku ketika
perbicaraan. Objektif utama kajian ini untuk mengetahui apakah bahasa yang sentiasa
digunakan oleh pengamal undang-undang dan apakah faktor kepada pemilihan bahasa
tersebut. Data bagi kajian ini diperolehi melalui interviu, pemerhatian dan
pengambilan nota percakapan semasa perbicaraan satu kes rogol disalah sebuah
mahkamah rendah dimana penggunaan BM dan BI adalah dibenarkan. Data yang
diperolehi dianalisis berdasarkan frekuensi perkataan yang digunakan dan hasil kajian
ini menunjukkan BM merupakan bahasa yang sentiasa digunakan semasa perbicaraan.
Faktor ini dipengaruhi oleh mereka yang terlibat didalam perbicaraan kes tersebut dan
tujuan komunikasi itu dijalankan. Ini kerana pemilihan bahasa semasa perbicaraan
adalah untuk memperkukuhkan bukti kes serta mempermudahkan keputusan
pengadilan. Maka, hasil kajian ini dapat digunakan sebagai salah satu panduan bagi
kajian masa hadapan didalam bidang kurikulum atau bidang-bidang lain yang
berkaitan dengan pembelajaran bahasa dikalangan pengamal undang-undang yang
besesuaian dengan situasi bahasa di Malaysia.
ix
TABLE OF CONTENTS
CHAPTER TITLE PAGE
Declaration
Acknowledgment vi
Abstract vii
Abstrak viii
Table of Contents ix
LIST OF TABLES xiv
LIST OF FIGURES xv
LIST OF ABBREVIATIONS xvi
LIST OF APPENDICES xvii
CHAPTER 1 INTRODUCTION
1.0 Introduction 1
1.1 Background of Study 3
1.1.2 Linguistic situation in Malaysia 4
1.1.3 Malaysian legal and judiciary system 6
x
1.2 Statement of Problem 9
1.3 Research Objectives 12
1.4 Research Questions 12
1.5 Significance of study 13
1.6 Definition of terms 14
1.6.1 Language choice 14
1.6.2 Code-Switching 14
1.6.3 Code Mixing and Borrowing 15
1.6.4 Code Alternation 15
1.6.5 Cross Examination 16
1.6.6 Trial 16
1.6.7 Proceeding 16
1.6.8 Solicitor 17
1.6.9 Interpreter 17
1.6.10 Plaintiff or Claimant 17
1.6.11 Defendant 18
1.6.12 Mooting 18
1.6.13 Judge Ground 18
1.6.14 Jury 19
xi
CHAPTER II LITERATURE REVIEW
2.0 Introduction 20
2.1 Bilingualism and multilingualism 20
2.2 Speech Community 23
2.3 Language Choice 24
2.4 The definition of Code-switching 26
2.5 Types of Code-Switching 29
2.6 Reason for code –switching 31
2.7 Language in Malaysian Professional
Setting
33
2.8 Language in Malaysian courtroom 34
CHAPTER III RESEARCH METHODOLOGY
3.0 Introduction 37
3.1 Participants 37
3.2 Research Instrument 38
3.2.1 Observation 38
3.2.2 Semi-Structured Interview 38
3.2.3 Field-Notes 39
3.3 Research Procedure 39
3.3.1 Pilot Study 41
3.3.2 Field work 41
xii
3.3.3 Data Analysis 42
CHAPTER IV FINDINGS AND DISCUSSION
4.0 Introduction 43
4.1 Findings and Discussion 44
4.1.1 Pattern of Language Used
During the trial
44-46
4.1.2 Reasons of Code-Switching 47-57
4.1.3 Types of Code-Switching 57-65
4.1.4 Perceived of Positive and
Negative Effects for the Code-
Switching During the Trial
65
CHAPTER V CONCLUSION, LIMITATION ANDRECOMMENDATION
5.0 Introduction 68
5.1 Conclusion 68
5.2 Limitations 70
5.3 Recommendation 71
xiii
REFERENCES 74 – 77
APPENDIX 78
Appendix A1 – Transcription 1 78
Appendix A2 – Transcription 2 88
Appendix A 3 – Transcription 3 94
Appendix A 4 – Transcription 4 100
Appendix A 5 – Transcription 5 107
Appendix B – Sample of Semi-Structured Interview
Question
120
Appendix C 1 – Letter of Permission 1 122
Appendix C2 - Letter of Permission 2 124
xiv
LIST OF TABLES
Table 1 Flow of the trial and the choice of language during trial
Table 2 Domains of language use
Table 3 Bahasa Melayu
Table 4 English
xv
LIST OF FIGURES
Figure 1 Malaysian Population by Ethnic
Figure 2 Model of Bilingual Communication
Figure 3 Research Procedure and Data Analysis
xvi
LIST OF ABBREVIATIONS
BM Bahasa Melayu
J Judge
L Lawyer
DPP Deputy Public Prosecutor
Dr Doctor
W2 Witness no 2
W3 Witness no 3
W4 Witness no 4
V Victim
D V Initial for DPP’s name
M R / E R Initial for Lawyer’s name
X Indication for the witnesses, victims and accusedname
xvii
LIST OF APPENDICES
APPENDIX TITLE PAGE
A1 Transcription 1 78
A2 Transcription 2 88
A3 Transcription 3 94
A4 Transcription 4 100
A5 Transcription 5 107
B Sample of semi-structured interview question 120
C1 Letter of Permission 1 122
C2 Letter of Permission 2 124
CHAPTER 1
INTRODUCTION
1.0 Introduction
Courtroom is the place where legal trials take place. According to Black’s
Law 7th Edition Dictionary (1999), trial is a formal examination of evidences and
determination of legal claims in an adversary proceeding. This means that, during the
trial, evidences that being presented and the way how the lawyers and judges
examining the proceeding require a language that could be easily understood by the
parties. Eventhough language does not influence the judgement, language determines
the concise information of the proceedings and flows of the trial since language
becomes the only medium of communication in the trial setting. Therefore, language
in courtroom is assumed important, because communication during the examination is
one of the precision forms to deliver the messages and speakers in this situation could
manipulate speech to achieve a beneficial result.
2
In Malaysia lower court of law, according to Malayan Law Journal (2003), the
proceeding may be commenced or conducted partly in the national language and
partly in English or wholly in English. It is provided that a certificate of urgency
explaining the urgency of the matter in English is filed by the solicitors concerned and
copies of all such documents in the national language shall be filed within two weeks
or within such extended period as the court may allow. This means that, only national
and official languages are allowed during the proceeding at the lower courtroom and
permission has to be sought from the court in order to use other language during the
day of the proceeding. Judges, magistrates, lawyers and public prosecutors are the
legal practitioners who will be choosing and using the language throughout the
proceeding.
Legal practitioners are the people who are actively involved in defending and
justifying all the claims by the parties during the trial. The way of asking and arguing
require them to be good in the language that they use and choose. Since Bahasa
Melayu (BM) and English are allowed during the trial, this will create a situation when
some lawyers or public prosecutors will only use BM or English or both BM and
English.
Legal practitioners who graduated from local universities might not have
problem in using and choosing the language but those who graduated from overseas
might have problem of using BM in the courtroom. However, there are universities in
our country which conduct the law course using English as medium of instruction;
such as UiTM( Mara University of Technology) and IIUM ( International Islamic
University). Completing the whole 4 years to become a legal practitioner require them
to be fluent in English. Eventhough the medium of instruction were in English, when
they join the service, BM is the primary language used in the courtroom. More or less,
there is a contradiction in the language used when studying law and the language used
while working in the courtroom. Thus, when choosing those law terminologies or
3
other technical terms or law jargons, legal practitioner who are graduated from UiTM
and IIUM would use the language they are most comfortable with, which is English.
Therefore, this study was carried out to investigate the choice of language
among legal practitioners during trial; whether BM or English. This is also to find out
what are the most influential factors that contribute to the choice of the language and
the effect of choosing the language throughout proceeding.
1.1 Background of Study
Malaysia, made up of Peninsular Malaysia (West Malaysia) and Sabah and
Sarawak (East Malaysia), is a nation of diverse ethnicity.
Note : Population projections based on the adjusted 2000 population census
(Source: Department Of Statistics Malaysia)
Figure 1 : Malaysian Population by Ethnic Group
4
As in Figure 1 above, this plural society of 28.7 million in 2009 consist of the
Malays and other indigenous people who form about 70% of the population of the
country; the Chinese, who constitute about 22.7%, form the second largest group; the
Indians who form about 6.9% is the third largest group in the composite population of
Malaysia while the minority groups like the Thais, Eurasians, Arabs and peoples of
other descent are so small in number that they are all designated under the term
‘other’.
Therefore, Malaysia is considered as multilingual and multicultural country
since the populations are from various ethnics and cultures and within each ethnic
group, a variety of languages and dialects are found (David, 2003). Malaysian could
acquire more than one language in their linguistic repertoire. For example, if a person
is an ‘M’ race and came from ‘A’ state, he might have his indigenous dialect; ‘A’
dialect. Since he is Malaysian, BM is the national language and must be acquired by
every citizen, and English as the second language in the country, therefore he could
have the ‘A’ dialect, BM and English in his linguistic repertoire. Hence, he whould
choose which language that is appropriate to his domain. According to Holmes
(2000), there are five domains which can be identified in many multilingual societies,
namely; family, friendship, religion, education and employment. Thus, for this study,
the researcher was interested to see the choice of language in the courtroom since
employment is one of the domains to a multilingual Malaysian.
5
1.1.2 Linguistic situation in Malaysia
The Malays make up the dominant group with Malay language or BM as their
native language , while Indian and Chinese are the groups which came to Malaya as a
result of migration and brought with them their indigenous languages (Asmah, 1982).
Chinese brought the Hakka, Cantonese and Hokkien, while Indian brought the Tamil
language. Since each ethnic group has their own linguistics and cultures which define
them different from each other, the Malaysia government had chosen a common
language that could unify them as one nation. Thus in 1957, BM had been established
as the national language of Malaysia (Asmah, 1982). Before that, even when the
Malays was the dominant group, BM was just a vernacular language and used as
medium of instruction in the vernacular school. It never went beyond the primary
level of education. It was also confined only to the Malay section of the society.
Then, from 1957, BM ceased to be a vernacular language and obtain its status as the
national language of Malaysia, which had to be acquired by every Malaysian.
However, after 10 years BM was legislated as national language, English
became another language accorded as official language. That was due to Malaya
being colonized by British and basically, Malaysians were emboldened to acquire the
language and the English language become the second most important language in the
country to be acquired by Malaysian (Asmah, 1982). The recognition accorded to
English as the second most important language in Malaysia did not interfere with the
status of BM as national and official language at that time. The different role of these
two languages would not commit to any controversy since both languages were
common to the people. BM becomes the lingua-franca in the Malay Archipelago and
it is normal to hear Chinese and Indian using BM in their social interaction. English in
the other hand becomes the language of international relations as well as a world
language for the dissemination and exchange of knowledge and technology.
6
“For long time to come, and probably for as long as there is Malaysia
on the surface of the earth, there will be a sure need for materials written in
foreign language in the field of knowledge, and on the basis of the background
history of Malaysia there is no foreign language other than English that is more
feasible for teaching to the Malaysians”.
(Asmah, 1982:53)
This means that the knowledge of English should be acquired by Malaysian.
The important of the language could become the major yardstick for future nation
achievement together with the country development. As a result, Malaysian becomes
a bilingual or multilingual society since the people are using more than one language
including BM and English in their linguistic repertoire. According to Ain Nadzimah
and Chan (2003), the notion of bilingual implies that, the bilingual will have at least
two languages in mind, providing with a choice of language to be used. The bilingual
very often has to decide which language should be ‘activated’ and which language
should be ‘deactivated’ to achieve the communicative intent. Therefore, Malaysian
who acquire more than one language have opportunity to be more adaptive and
competent to any speech situation involving the languages, especially in their domain
of work or profession. All in all, the linguistic situation in Malaysia encourages the
use of BM for intra-national needs and English for international purposes ( Ain
Nadzimah and Chan , 2003).
7
1.1.3 Malaysian legal and judiciary system
Judges, magistrate, lawyers and public prosecutor are the legal practitioners
who actively involve in the trial. Since this study is looking at the language choice
among legal practitioners during the trial in lower courtroom, Malaysian legal system
and Malaysian judiciary should be considered in the discussion.
The Malaysian legal system is based on the common law, or in other words, it
is part of the common law system or a member of the common law countries which
also includes countries such as Singapore, India, Australia, New Zealand and Hong
Kong. Most of the countries of the common law would have some form of historical
tie with Britain, the strongest form being a history of British colonization ( Sharifah
Suhanah, 2007). This shows that Malaysian legal system influenced by the common
law which is being practiced by countries that were colonized by the British.
Therefore, it is no doubt if the language of law that being practiced in our country is
English. As a result, the permission of using English other than BM during the
proceeding is much influenced by this situation. The usage of BM and English is one
of ways that could help the legal practitioners to make the public understand the
disputed situation. Judges and magistrates could also understand more on the
proceeding for the sake of completing the judgment to those proceeding affairs.
According to David (2003), Malaysian legal system is modeled on the English
adversarial system. This means that, the two parties are pitted against each other
before an independent judge in adducing evidence and constructing the ‘truth’.
Plaintiff and defendant are the defending or denying person, in other words in every
legal action, whether civil or criminal, there are two sides. The person suing is the
plaintiff and the person against whom the suit is bought is the defendant. In some
instances, there may be more than one plaintiff or defendant which depends on the
8
circumstances of the cases. Different to the other country, there is no jury system in
the Malaysian legal system. This was abolished in the mid-eighties, and consequently
it is the responsibility of judges to hear the evidences and the respective arguments
and pass the judgments.
David (2003) also mentioned that although BM is the national language, the
court has the discretion, especially in the interests of justice, to allow proceedings to
be held in English, if and when counsel and witnesses are unable to speak BM.
However, lawyers have to seek permission from the court to conduct the examination
in English. In any case the formalities of the legal process, like the calling out of the
cases which is should be conducted in BM.
Based on Malayan Law Journal (2003), Malaysian judiciary is federally
constituted and has a single structured judicial system consisting of two parts; the
superior courts and the subordinate courts. The subordinate courts are the Session
court and Magistrate court whilst the superior courts are the two high courts which are
the Court of Appeal and the Federal Court. For this study, the researcher was
interested to discover the language phenomenon happening in the subordinate
courtroom since all the proceedings may be commenced or conducted partly in BM
and partly in the English or wholly in English unlike the High court where only
English is allowed during proceeding.
According to Asmah (1982), the reason for English to become one of the
official language after 10 years of BM being the only official language was to give
time for the people to be familiar with BM in various domains of life. The act
provided a possibility of a stretch of the grace period in the court of law and in the
legal domain in general. As a result of the provision, English remained the language
in all legal proceedings until 1982 but in 1990, the language policy had been changed
9
and all the proceedings in lower courtroom should be carried out in BM. Eventhough
BM becomes the language used in the courtroom, English is still needed. This is due
to the Malaysia legal system which is based on the common law and the cases that
relate to it was conducted in English. Moreover, those laws that exist before
independence were commenced in English and became the forms of reference to the
lawyers and prosecutors. They will cite cases from the form of reference which is in
English to strengthen the testimony.
1.2 Statement of Problem
As being mentioned earlier, Malaysian could be considered as a bilingual or
multilingual society since the people acquired BM and English. This situation leads to
the choice of language among the people according to the domain. For example, BM
is used in the government office and English is used most in the private sector.
In a research on domain by Fishman (1978) (Rubin, see also 1968), the
language choice is discussed in term of the following domains; the family, the
playground and street, the school, the church, literature, the press, the military, the
courts and governmental administration (Fishman 1972b, p.441). However, not all
languages are used for all domains. It is believed that certain language is particularly
situated to certain domains. This is clear that, for this study language in the courtroom
is one of the domains of workplace that influence the interlocutor or legal practitioners
to choose the language that suit the trial situation. Since BM and English are the
languages that will have the high frequency to be used in the trial, legal practitioners
would choose which language and switch whenever they feel more appropriate during
the proceeding.
10
According to Manual Prosedur Kerja kes-kes Sivil and Jenayah di Mahkamah
(1997), there are working procedures or flow that must be followed before, during and
after the trial. But, for this research, only some part of them which meet this research
purposes could be obtained. This is due to the privacy and confidentiality of the
Malaysia’s judiciary. Thus the flow can only be summarized as follows: -
Table 1 : Flow of the trial and the choice of language during trial
Content Language
1. The arrival of judge in the courtroom BM
2. Interpreter announce the case of the
day
BM
3. If the accuse does not admit to the
offence, a trial will be carried out.
BM or English or other language that
could be understood by the accused –
interpreter
4. Lawyers and prosecutor examining
the fact of the case in the language
most favourable to the client.
BM
English with judge permission:-
the whole trial
for the citation of a case
5. Witness examination based on the
questions from lawyers and
prosecutor
BM or English or other language that
could be understood by witness –
interpreter
6. Decision from judge BM or English
Source : Manual Prosedur Kerja kes-kes Sivil and Jenayah di Mahkamah (1997)
11
From the Table 1, we could see that the languages that used are BM and
English since only these two languages are allowed during the trial. However,
indigenous languages like Mandarin, Tamil, Hokkien and etc. are also allowed as long
as there is interpreter to interpret the examination in BM or English. This is to ensure
that the judge will be able to understand the examination and be able to commit the
judgment.
Since the interlocutor could use more than one language, switching and mixing
of code would occur. The changes and switches could be from BM to English or from
English to BM. Apart from the bilingual or multilingual community, this also could
be influenced by proficiency using the language. This is due to the educational
background among the legal practitioners. Some legal practitioners who are local
graduates will be able to conduct the examination in BM while the others who are
overseas graduates will face some difficulty to converse in BM fluently. However,
there are also situations where local graduates who also have some difficulties in using
BM because they are used to using English in their mooting during their study years in
university. This also could create a situation where they have to choose and use both
languages; whether BM or English. Legal practitioners will tend to switch the code
when they start to examine the case to the witnesses, citing cases from legal form of
reference in order to strengthen their argument and also to the BM terminologies that
have been synchronized in all lower courtrooms in Malaysia. Such situation could
affect the flow of the trial because repetition and justification during the examination
have to be done in more than once and some extra time will be consumed. Therefore
this research was carried out in order to discover the exact problem occur regarding
the usage of both BM and English among the legal practitioner in a trial.
12
1.3 Research Objectives
The objectives of this research are :-
To discover which language is used most during the trial; BM or
English
To identify the reasons for code-switching and its occurance.
To identify the type of code-switching during the trial
To discover what is the potential effect of the language use to the trial
proceeding
1.4 Research Questions
This research should answer the following research questions:-
What is the language mostly used during a trial?
What are the reasons of switching from one language to another and when does
it occur?
What is the type of code-switching that can be found during the trial?
What are the perceived positive and negative effects for the code-switching
during the trials?