ii

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

iv

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?