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Review of  Language Choice in Postcolonial Law


Reviewer: Geoffrey Sampson
Book Title: Language Choice in Postcolonial Law
Book Author: Richard Powell
Publisher: Springer Nature
Linguistic Field(s): Discourse Analysis
Sociolinguistics
Issue Number: 31.2424

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SUMMARY

Powell’s book is about the changing roles of Malay and English in the legal culture of Malaya, which gained independence from Britain in 1957. By “Malaya” I refer to the peninsular half of the modern state of Malaysia; “East Malaysia”, that is the north Borneo territories of Sarawak and Sabah, which joined Malaya to form Malaysia in 1963, is discussed only tangentially, a sensible decision in order to give the book focus. (East Malaysia has a different legal system, there are controls on movement of persons between the two halves of the country, and East Malaysia accounts for only a fifth of Malaysia’s population though rather more than half its area.) Powell works in a Japanese university; with degrees in history, politics, and linguistics and an English legal qualification, he has written extensively on linguistic aspects of law and on comparative legal culture, particularly in countries which were previously British colonies.

To explain the book’s coverage I must begin with some basic facts about Malayan society and law. Malaya is multi-ethnic and highly multilingual. The main ethnic groups, with approximate shares of the population, are Malays (60%), Chinese (25%), and Indians (7%). Constitutionally and legally, ethnic Malays (‘bumiputra’) enjoy a privileged position, with many university places, scholarships, and public-sector jobs reserved for them; in 2014 a government minister proposed reforming the electoral system to give bumiputra votes greater weight. Malaya has three legal systems: English Common Law, which it has continued to develop since independence, sometimes in ways that deviate from its English model; Sharia law, applying to family matters and some other areas for the Muslim population; and customary unwritten ‘adat’ law, nowadays little used in peninsular Malaya though it is still significant in East Malaysia. This book is concerned only with the first of these.

(Powell quotes Malay terms and names in up-to-date Malay orthography, for instance “Syariah” for Sharia. In this review, for simplicity I use the spellings likely to be most familiar to English-speaking readers.)

As an illustration of multilinguality, Powell quotes a lawyer, working in Malacca but originally from the up-country state of Perak, who “considered Cantonese her home language as it was what her Hakka mother and Cantonese father used with each other, but she had spoken Hokkien in the neighbourhood, Mandarin in the family business, Malay at primary school and English in her convent secondary school: ‘I just took it that if I have to communicate with this person I have to know this language, if I want to get through that class I have to use that language.’ ” Significant numbers of urban Malays, Chinese, and Indians use English as their home language.

Since independence there has been political pressure, stronger at some periods than others, for Malay to be treated as the national language for all purposes, including legal purposes. (Malayan lawyers cannot ignore political pressures; the Malaysian government has a history of interfering with the judiciary in ways that would be taboo in the English-speaking world.) All schoolchildren must study Malay, though many parents send their children to schools where teaching is not in Malay. The Malay language is an important symbol of bumiputra ascendancy; Powell quotes repeated calls in the past decade to abolish Chinese- and Tamil-medium schools or at least withdraw state support from them, and even a proposal that Chinese and Indian Malaysians not fluent in Malay should be expelled from the country. Prominent notices in courtrooms tell participants to “use the national language”. Since a Language Act was passed in 1967 it has always been open to a judge or an official to require any particular legal document or spoken activity to be in Malay, and sometimes this happens. But English, which before that date was effectively the sole legal language, is in practice still heavily used; less in lower courts, where plaintiffs and defendants may have little English and cases tend to turn on facts rather than law, much more in higher courts where jurisprudence is more relevant. Powell initially assumed “that where there is a vernacular understood by most citizens it is reasonable and desirable for the legal system to use it”, so he aims here to establish why the shift from English has not gone further than it has.

Chapter 1 defines this aim and describes the author’s research techniques, which included observation of court cases and law-school classes, and interviews with members of various groups: lawyers (Malaya has a fused profession with no division between solicitors and barristers), law students, and law lecturers. (Judges declined to be interviewed even anonymously – no doubt rightly in terms of their professional obligations.) Chapter 2 outlines the politics of vernacularization, in the context of Malaysia’s history and its ethnic and linguistic environment. Chapters 3 to 6 are concerned with: efforts to turn Malay into an appropriate legal medium in terms both of institutional standing and public perception; efforts to create a Malay ‘corpus juris’ – bodies of terminology, Malay texts of laws, teaching materials, etc. – needed for lawyers to be able to operate in the language; and efforts to ensure that legal training enables lawyers to do that, and that their working environments encourage or require them to do so. Chapters 7 to 9 examine the realities of Malay versus English in law schools, in law offices, and in courtrooms. Chapter 10 compares the experience of vernacularization in Malaya with that in other countries: Malaya is one of at least a dozen Common Law jurisdictions where the vernacular language is not English, and none have completely replaced English as the language of law, indeed for most of them English remains the sole legal medium – Powell finds that vernacularization has actually proceeded further in Malaya than in most comparator countries. Finally, in Chapter 11 the author argues that the bilingual legal environment which has evolved in Malaya, though it falls far short of politicians’ hopes for complete vernacularization, might be seen as a model for postcolonial law.

The central reason why English retains a large role in Malay law is that its sources are English (even though, as Powell points out, the twelfth-century origin of the Common Law lay in a trilingual environment where English was the junior partner of Latin and French). Unlike the Civil Law systems of Continental Europe, which aim for predictability via self-contained codes containing precise definitions, Common Law systems approach it progressively through the accumulation of detailed precedents set in individual cases; like English law, Malay law grants persuasive (though not binding) authority to precedents set in other Common Law jurisdictions. No-one would contemplate turning the serried ranks of law reports in English that line lawyers’ offices into Malay, or any other language.

Furthermore, law depends on an enormous range of terms of art, which mystify laymen but are as crucial for the functioning of the system as the technical terms of medicine are for that profession. For law to be conducted in Malay, all these terms must be given Malay equivalents – either neologisms, or existing words or phrases given novel senses – and the legal profession must familiarize itself with these new usages.

All this is a tall order. The government gave an official body concerned with Malay-language publications the task of defining Malay legal terminology, and it made a start by issuing lists of several thousand translation equivalents in 1970, but this was only a first instalment of what would be needed; later the undertaking ran out of steam. (Powell describes a 2013 occasion when the director general of the organization was invited to promote legal Malay to the profession, but chose to speak mainly about administrative Malay in the sixteenth century and about poetry, failing to answer the lawyers’ questions about scarcity of legal resources in Malay.) A former Bar President commented in 2013 “I love Malay, but legal language is something different and there still aren’t enough texts or materials. We need to focus on practicalities more than politics.”

Other considerations pull the same way. Politicians want to promote the language of the bumiputra, but with globalization they also want to make Malaysia a player in the international economy; English is a key there. Degrees from overseas law schools confer prestige, and the very fact that more scholarships to study abroad are available to bumiputra applicants make those lawyers for whom Malay is their mother tongue specially likely to have learned their law in an English-speaking country. And of course the fact that a language is a compulsory school subject does not guarantee that pupils all master it thoroughly. Chinese and Indians are over-represented in the Malayan legal profession, and some speak Malay better than others; Powell quotes one advocate’s attempt at a Malay version of “I put it to you that you are lying” coming out as “I put it with you, you are lying down”. Even if most members of the profession can do better than that, politicians pressing for vernacularization fail to appreciate that being able to use a second language for the purposes of everyday life is not the same as ability to use it for successful legal discourse.

More interesting from a linguistic point of view, many lawyers see Malay as inherently less suitable than English as a legal medium. Modern European languages have been heavily influenced by Latin (in the west) and Greek (in the east), and the classical languages with their rich inflexion systems make logical relationships very explicit. Even in English with its simpler system of inflexion, and even in spoken English, logic is rather explicit – arguably more so than is needed for most real-life purposes. Malay, an isolating language, has a reputation as the converse, a language with minimal expression of logical relationships; one textbook writer describes it as “a flexible, eel-like language” (Lewis 1947: xii). David Gil (e.g. 2009) uses a dialect of Malay to illustrate his thesis that the explicit logic supplied automatically in European languages is largely redundant with respect to the needs of human life. But if there is one important area of life where Gil’s thesis does not hold, it is surely law, where decisions often turn on the precise implications of sentences containing multiple levels of subordinate clauses.

Under Western influence, modern written Malay has developed rather more logical apparatus than is found in the rural spoken dialect discussed by Gil, but it is nevertheless a “logic-light” language. And the legal professionals interviewed by Powell often object to vernacularization because they see Malay as too vague for their purposes. Several second-year law students, “many of them Malay, went so far as to suggest that [Malay] was too vague, informal, mixed, or unstable for academic study”. An older lawyer suggested that “promotion of Malay had accompanied a decline not only in English but also in legal standards”. Powell’s observations and interviews “revealed a general tendency for more English as the complexity of a communication task increases”. He even heard anecdotes of lawyers deliberately introducing procedural complexity into their cases in order to ensure that they were heard by a court high enough in the hierarchy to permit the use of English.

There are also worries that representing concepts of English law by Malay neologisms does not necessarily leave the concepts unchanged, because words often have powerful associations which may be different from those of their English counterparts. One former Bar President has complained that translating Malaysian constitutional law into Malay has involved “amendment by stealth”, citing a case which he believes would have been decided differently on the basis of the English text even though it would be difficult to describe the Malay wording in question as an inaccurate translation. And the two languages have different discursive norms, requiring different styles of advocacy: a law lecturer commented “In Malay you have to build your case, you cannot take short-cuts”. For all these reasons, it sounds unlikely that English will be eliminated from Malayan law in the foreseeable future whatever political pressures are brought to bear.

The primary audience for this book is probably those concerned with legal and societal issues, but it is clearly of considerable relevance for many linguists.

EVALUATION

This is a solid book. It is hard to think that the task Powell has set himself could have been executed very much better than he has done.

As a linguist, I sometimes wished that he had gone into more specific detail on ways in which replacing English by Malay might modify the effect of law. He says that “With verdicts and reputations at stake, legal practitioners are understandably wary of the semantic and pragmatic implications of neologisms”, but he does not show us whether they often have reason to be wary. For instance, his table of twelve ways in which the official word-list forms Malay equivalents for English legal terms describes ‘perkongsian’ and ‘perkongsi lelap’ for “partnership, sleeping partner” as “rare instance[s] of Chinese with Malay affixation”. (The latter phrase appears in the book as ‘pekongsi …’, but I believe omission of ‘r’ may be a misprint.) ‘Per-’ and ‘-an’ are Malay affixes, which leaves ‘kongsi’ as the stem. This is surely the term written ‘gongsi’ in the modern Chinese romanization. But ‘gongsi’ in Chinese is not specifically “partner(ship)”; it is the more general expression for “firm, company”. Does this discrepancy merely reflect the misunderstandings that can occur when a word passes from one language to another, as when the French use ‘le tramway’ for the vehicle rather than its track? – or does it perhaps come about because in Malayan circumstances a commercial firm is assumed by default to be a partnership of Chinese, and if so might that mean that any discussion of corporate structure in Malay risks invoking inter-ethnic tensions? That is pure speculation on my part; issues like this are not an aspect of his subject which Powell chooses to cover.

But one should not criticize a book for not doing what its author did not aim to do, and Powell is explicit about this boundary to his enquiry: “I have mostly sidestepped the issue of how language choice affects the outcome of legal cases, even though this might appear to be the million-dollar question for legal language planners and was sometimes raised by lawyers wondering why I wanted to interview them about language at all.” He argues that “direct comparison of proceedings differing only in their choice of language would require some kind of elaborate and replicable experiment”. I wonder whether something could not be said without going to those lengths, but be that as it may, Powell has chosen to carry out an investigation that is “less interested in the respective merits of English or Malay as legal media than in what lawyers feel about them”. That is a choice he was entitled to make.

The author perhaps sometimes overestimates how much his readership will know about Malaysia. On p. 81 he says that the body charged with developing legal terminology was originally called ‘Balai Pustaka’ but its name was changed in 1959 to ‘Dewan Bahasa dan Pustaka’: this tells us little unless we know that (as a Malay dictionary informs me) ‘Balai’ is an office building, but ‘Dewan’ is a council or board. The name “Shah Alam” recurs through the book, and until near the end I took it to be an educational institution named after a local ruler – but then discovered that it is a new city founded in a place previously called Sungai Renggan.

The book is not particularly well proof-read. More than once it appears that Powell has inserted some rewording but forgotten to delete the phrase it is intended to replace. With most proof-reading errors one can see what he means, but for instance I suspect (without being certain) that “not” should be inserted in “did [not] obtain full Qualifying Board approval” (p. 17) and deleted in “translation was [not] being outsourced” (p. 93). On p. 28 “Halleybury College” should read “Haileybury College”. Powell’s habit of writing small numbers as numerals, e.g. “1 year later” (p. 110), is stylistically bothersome.

And Powell shares a habit common to many modern academics, of unnecessary and confusing use of acronyms. There are many references to “BN” and “BM”. The former stands for ‘Barisan Nasional’, “National Front”, the coalition which governed Malaysia continuously from independence up to 2018, and this abbreviation is perhaps convenient (though Americans do not seem to feel a need to reduce the – longer – names of their political parties to “RP, DP”). But “BM” is ‘Bahasa Melayu’ or ‘Bahasa Malaysia’, i.e. Malay (language) – in other passages Powell calls it “Malay”, which is clear to every reader and only three characters longer. These particular acronyms are at least included in a list at the front of the book, but some are not. I recognized “the SAR” in context as meaning the “Special Administrative Region [of Hong Kong]”; I could find no explanation of what “NGO ISMA” on p. 259 stood for.

These, though, are superficial faults. (And I should really blame the “Shah Alam” misunderstanding on myself, for continuing to use the world atlas I invested in as an undergraduate.) Powell has produced an admirable analysis of an issue with considerable significance for a major profession and for a populous country.

REFERENCES

Gil, D. 2009. “How much grammar does it take to sail a boat?” In G. Sampson, D. Gil, and P. Trudgill, eds, Language Complexity as an Evolving Variable, pp. 19–33. Oxford University Press.

Lewis, M.B. 1947. Teach Yourself Malay. English Universities Press.
 
ABOUT THE REVIEWER:
Geoffrey Sampson graduated in Chinese Studies from Cambridge University, and his academic career was spent partly in Linguistics and partly in Informatics, with intervals in industrial research. After retiring as professor emeritus from Sussex University in 2009, he spent several years as Research Fellow at the University of South Africa. He has published contributions to most areas of Linguistics, as well as to other subjects. His latest book is ''The Linguistics Delusion'' (2017).