THE LANGUAGE OF JUSTICE IN MALAYSIAN COURTS: THE LAW AND THE REALITY

Abstract

Perhaps one of the most unique and peculiar aspects of Malaysia’s judicial and legal system is the setting up of two High Courts of co-ordinate jurisdiction and status when Malaysia was formed: one in West Malaysia, which is known as the High Court in Malaya; and one in East Malaysia, which is known as the High Court in Sabah and Sarawak. The two High Courts in Malaysia have remained in place until now. Simultaneously with the formation of Malaysia, Part XIIA was inserted into the Federal Constitution to provide for additional protection for the States of Sabah and Sarawak. These included, among others, Article 161 which provided for the continued use of English in court proceedings in East Malaysia. This is different from Article 152 of the Federal Constitution read together with the National Language Acts 1963/67 which provide that Malay is the official language in court proceedings in West Malaysia. Hence, a lasting anomaly in the Malaysian legal system: to all intents and purposes, Malay is the language of the courts in West Malaysia; whereas English is the language of the courts in East Malaysia. This has led to various legal issues in Malaysian jurisprudence. This article seeks to analyse the differences in the use of language in the courts in West and East Malaysia, with a view to answering the question as to whether there can be uniformity of the use of language throughout the courts in Malaysia, bearing in mind the special interests, protection and safeguards afforded to Sabah and Sarawak when Malaysia was formed. For the purpose of this research, a qualitative research method is adopted. The data collection method is document analysis consisting of both primary and secondary sources such as the Federal Constitution, Federal Acts of Parliament, textbooks, journal articles, published law reports, online articles, media reports, and case law. The research found that it is entirely possible for Malay to be made the official language in all courts across Malaysia. However, the liberal use of English in courts should continue to be allowed, as this is the reality that is taking place in courts across Malaysia today.