Unbalanced bilingualism, diglossia and class division in postcolonial law

1 Aims, scope and methods

Taking a macro-oriented perspective that focuses on language planning in postcolonial legal domains, and following a genre-theory approach that links lexical choices in specific oral and written tasks to institutionalised preferences in professional practice, this study explores the implications of bilingualism for current and prospective legal practitioners in jurisdictions that have striven to reduce dependence on languages inherited from colonial administrations.

We will begin by considering the motivations behind language reforms and the extent to which greater legal accessibility has been envisaged. There follows a summary of the role of corpus planning in innovating the legal lexicon and developing legal texts in postcolonial administrative languages. We will then look at evidence for the mixed reception of language planning within the legal profession before turning to the ways in which language choice affects legal education and how bilingual education influences career paths.

The primary data for the study comes from documentary analysis, interviews and observations conducted in Malaysia, whose dominant legal system is based on English common law and administered in both English and Malay. A range of enactments, including the 1957 Constitution, the 1967 Language Act and the 1976 Legal Profession Act, alongside judgments, rules of court and legal directions, were analysed for evidence of official language-in-law policies and set against the surrounding sociopolitical contexts represented in contemporary media reports and professional commentaries. For data on actual practice, interviews were conducted with 50 legal practitioners, 24 law lecturers and a dozen legal administrators and law students, and over 16 hours of law lectures were observed. This was supplemented by questionnaires from 500 law students and reports written by 100 students during their attachment to legal firms throughout the country.

Less extensive data has been collected in the common law jurisdiction of Bangladesh, the mixed jurisdictions of Philippines and Sri Lanka and the civil law administration of Timor Leste, all of which admit two or more languages to some extent. These include documentary analysis, interviews with legal practitioners (Bangladesh: 8, Philippines: 4, Sri Lanka: 8 and Timor Leste: 2) and law lecturers (Bangladesh: 8, Sri Lanka: 2, Timor Leste: 2); court observations (Bangladesh: 8 hours, Philippines: 16 hours, Sri Lanka: 20 hours, Timor Leste: 6 hours); and law class observations (Bangladesh: 4 hours). Some reference is also made to data collected in Tonga and to research literature on Hong Kong and Myanmar. While the bulk of data and framing of questions are therefore very much shaped by Malaysia’s experience, ongoing research elsewhere suggests a number of patterns common to postcolonial law in multilingual societies, while little that has emerged so far from the other polities calls the findings on Malaysia into question.

The provisional conclusion from this ongoing investigation is that despite the empowering agendas behind much of the language planning that has occurred, the relationship between languages cohabiting in postcolonial legal domains remains unequal, both at the level of textual production and the level of career paths. Some aspects of the legal domain differ from education, administration and the other domains most commonly subjected to language planning, including professional resistance to change and the influence of international practices, but language-in-law policy resembles others kinds of language planning in facing the dilemma of how to promote newer languages in the service of nationalism or social equity without restricting traditional languages to the point where the integrity and efficacy are jeopardised. There are growing signs of the emergence of two-tier professions, whereby lawyers working mainly in local languages are confined to less prestigious and less lucrative work. There appear to be three possible ways of avoiding diglossic practices and a divided profession: more comprehensive language planning in order to move from bilingual law to thoroughly vernacular law; reemphasis of the traditional colonial medium to minimise language disadvantage for those entering the profession from vernacular education streams; or a concerted effort to develop balanced bilingualism so that documents are equally valid and useful and legal tasks at all levels can be conducted with equal efficiency, regardless of language.

2 Motivations for language reform in postcolonial legal systems

For legal domains dominated by a minority language it is reasonable to assume that communicative and justice concerns are the primary motives for introducing other languages. Yet the evidence for this is mixed. At independence (1946 for the Philippines, 1948/1971 for Bangladesh, 1948 for Sri Lanka, 1957/1963 for Malaya/Malaysia) the legal professions of former Anglo-American colonies were monopolised by elites educated in English, many of whom, according to senior practitioners interviewed for this study, were monolingual. Other languages were largely confined to oral discussions off the court record and some documentary translations. Despite decades of languages planning, English remains arguably the most important medium of law in Bangladesh, Sri Lanka and Malaysia and unquestionably so in the Philippines, where language-in-law policy rarely goes beyond rhetoric. The retention of English would be more defensible were it the main language of wider communication, but this is not the case in any of the above.

23.8 % of Sri Lankans claim to speak English compared with 86.9 % claiming to speak Sinhala and 28.8 % speaking Tamil (Department of Census and Statistics 2012). Google’s Director of South Asian Emerging Markets (Sami Kizilbash, in Mustafizur Rahman Khan 2015.5.11) estimates that no more than 20 % of Bangladeshis can read English web pages, whereas as many as 98 % speak Bangla (Mohammed Anwarul Iqbal 2008), with literacy rates around 60 % (UNICEF 2016). In Malaysia and the Philippines the percentage of English speakers is certainly much higher, but with 15 % fewer passes in English than in Malay in Malaysia’s school-leaving exam it remains a minority language, ^[1] while in the Philippines the 85 % claiming proficiency in Filipino (Martin 2012: 2) outnumber those saying they understand (76 %) or speak (46 %) English (Social Weather Stations 2008). Looking beyond English, Portuguese was reinstated as the main language of law in Timor Leste at secession from Indonesia despite being spoken by no more than 10 % (Leach 2006: 231). The Direcçãon Naçional De Estatistica reports a rise to 36 % (Taylor-Leech 2011: 106) but acknowledges that Tetun, with co-official status but a much smaller role, is understood by 86 % (ibid). Indonesian, used by some 90 % 16 years ago (Leach 2006: 231), is still understood by 59 % (Taylor-Leech 2011: 106) but has been reduced to a working language alongside English. ^[2]

In other words, even where bilingual law is practised, minority languages may persist, or even reappear, as the main medium. The technical challenges of generating terms and texts play their role and will be considered below, but from the outset we have to consider the intentions of language planners. Oratory may allude to justice, but the practical needs of individual participants often take a back seat to the politically positioned rights of the nation.

The introduction of Malay as an official medium of legal discourse came in a series of statutory and regulatory measures and a handful of judicial decisions, few of them in direct response to communicative problems in legal offices or courtrooms. A 1967 constitutional amendment (the National Language Act) declaring Malay the “sole official language” in West Malaysia and admissible, alongside English, in court, was announced by the country’s first prime minister with the rhetoric of unity and loyalty (The Straits Times 1967.3.03), with references to upholding justice or professional integrity employed behind the retention of English, deemed necessary if the bar were to be able to do their work. The primacy of symbolic and cultural concerns is also evident in judicial circulars in the early 1980s urging the use of Malay for Department of Justice correspondence (Dewan Rakyat 1986.11.26) and for speeches at official legal functions (New Straits Times 1981.10.21). Criticism of the retention of English focuses on the improper denial of constitutional supremacy (Norlizah Abas 2009.12.09) and by extension of national aspirations (Mohd Yusmadi 2006.4.05) rather than the difficulties of litigants.

Press coverage in the 1980s typically describes lawyers’ ability to muddle through, or make a muddle, but there is little mention of Malay hearings being easier for participants or the public to follow. Pragmatism continues to be invoked more on the side of English, which was allowed for urgent applications even after a 1990 amendment of the rules of court required documentary submissions be in Malay. The Straits Times, increasingly a government mouthpiece and thus decreasingly likely to favour English, reported that the language was still widely used as many lawyers and judges felt Malay proceedings would “subvert the course of justice” (1991.12.05).

Rulings in cases that tested the language policy also focus on nationalism or the sovereignty of law rather than on communicative needs. In Zainun Dahan (1997), Nik Hashim J ruled that motions filed in English contravened not only High Court Rules but also the National Language Act. In Anwar Ibrahim (2010) Abdul Malik Ishak J did refer to injustice – as committed against the respondent by an appellant filing a memorandum in English – but he highlighted the supremacy of the Language Act rather than the justice at issue. It is interesting that he wrote his the ruling in English.

The sense that the rights of the postcolonial nation take priority over the communicative needs of legal participants is also apparent in Sri Lanka, where the main language planning measures, the 1956 Official Language Act, 1961 Language of the Courts Act, 1966 Tamil Language (Special Provisions) Regulation and the 1978 Constitution, were closely linked to Sinhala nationalism and subsequent attempts to diffuse the communal conflict this provoked by introducing a role for Tamil and retaining English in the higher courts and as a link language. Here again the voice of pragmatism has been raised in support of English as often as on behalf of the national language, with the prime mover of Sinhalese nationalism himself, S.W.R.D Bandaranaike, telling parliament that translations were not to be “thrust down the throats of everybody for every purpose” (in Coperahewa 2011: 208). In Bangladesh, a nation born out of a separation from Pakistan that prioritised language over religion (Uddin 2006: 4), Bangla is routinely upheld as an entity invested with rights. Ferdousi (2015.2.24), for example, concedes some necessity for English “but never at the sacrifice of the Mother tongue”. In Hong Kong, the courts functioned in English alone for a century and a half, necessitating translation for the large majority of the population. That the translation of laws and introduction of Chinese in court began in the 1990s evinces the political needs surrounding the 1997 handover of sovereignty to China, rather than heightened understanding of communicative needs.

The politicised nature of language planning does not exclude legal transparency as a plausible motive for reform. Indeed nationalist arguments are periodically augmented by references to the inability of the public to follow proceedings or read documents. Twenty years before Malay was used with any regularity in court, a The Straits Times reader (1962.11.02) commented that even if calls to remove English were political, it was hardly in the interests of justice to leave capital defendants at the mercy of inadequate interpreters. A barrister writing in the Malaysian Bar’s professional magazine (Balakrishnan 1990) called for more Malay as a defence against incompetent and corrupt practices. In support of Bangla, Ferdousi (op cit) goes beyond nationalism in citing the plight of defendants unable to understand verdicts. Moreover, those opposed to the expansion of local languages are not immune to cultural posturing, with calls for compulsory English in Sri Lankan law schools invoking the “dignity of the profession” (Senaratne 2008.3.30).

On the balance of evidence, however, language-in-law policy has been drive by politics and culture more than by linguistic or legal issues, with few attempts to ascertain what litigants, defendants, witnesses, advocates or clients need. This may help explain limits to the expansion of local languages in many bilingual systems, or how linguistic nationalism evaporates in rhetoric and political posturing in polities such as the Philippines (Martin 2012), where the national language, admissible in evidence and used for proceedings for a few courts in Bulacan between 2007 and 2014, remains a very junior partner to English. The preeminence of political rather than judicial or technical issues also sheds light on the displacement of majority languages with minority ones, as has happened in Timor Leste.

Wherever a new language has been introduced alongside an older one in postcolonial law we find lopsided bilingualism. Newcomers readily make progress in subordinate courts, with their emphasis on oral testimony and lower use of precedents and legal arguments, and may even become the main medium of proceedings at this level, but progress up into the higher courts is slow, and in the realms of jurisprudence it may grind to a halt. The division rarely amounts to clear-cut diglossia. In Malaysia both Malay and English are admissible at all court levels (even though the only apex judgment partly in the former has been the highly controversial case of Lina Joy). In the Court of Appeal in Dhaka Bangla is being heard more. Despite a language-based division between the Sinhala & Tamil subordinate courts (which encompass the High Court) and English above, code-switching blurs the demarcation, especially in the lower courts where English is common among lawyers and when documents are cited. But without more comprehensive efforts to use newer languages for more complex legal tasks and across a wider range of written registers, diglossia remains a more likely outlook than balanced bilingualism, with potential consequences for legal professionals.

The following sections consider how efforts have been made to give new legal languages the lexical and textual resources of older ones and how such initiatives have been received.

3 The role and practice of corpus planning

Changing a language’s status to make it admissible (or obligatory) in legal practice will have little effect on its use unless it is equipped for legal discourse. This entails innovation in its legal lexicon and may involve generation of a large number of terms in the case of languages hitherto unused in modern law. Whereas status planners may dispense with input from linguists, lexicalisation requires both linguistic and legal experts, preferably in close collaboration, and wherever introduced languages have gone beyond the level of the oral examination of ordinary witnesses, as in the supplanting of English by Hebrew in Israel and by Burmese in Myanmar, it can be assumed that such collaboration has been deliberate and concerted. One possible exception is where language shift has been a long and evolutionary process, as in the expansion of English and contraction of Latin and Law French that occurred in England over six centuries (Mellinkoff 1963; Tiersma 1999).

Even if adequate terms are developed, it is another matter to persuade legal practitioners to use them: code-mixing involving the embedding of lexis from the older legal language in a matrix of the new is found wherever legal discourse is bilingual, including Bangladesh (Ferdousi 2009); Botswana (Thekiso 2001); Malaysia (David 1993, Powell 2008); and also in Hong Kong (Leung 2013) and Sri Lanka (Powell 2012) where such hybridity is frowned on officially. Deciding whether code-mixes are motivated by deficiencies in a language’s legal lexicon, gaps in an individual user’s lexicon, or institutionalised attitudes attached to a language’s cultural prestige and perlocutionary force is fraught with difficulty. Following Bhatia’s (1993) indexing of Bakhtinian intertextuality to connect task-specific choices to surrounding professional cultural, this study proceeds from the assumption that there is a dynamic relationship between in-the-moment acts and habituated practices. Although an instance of code-mixing or even extended code-switching may be unconscious, preference for a particular language may reveal underlying stances going beyond the speaker and speech act at hand.

In addition to lexis, texts must be generated in order to develop newer legal languages syntactically and discursively and work out semantic and pragmatic issues. Legal corpora encompass a range of writing in diverse registers, including statutes, ordinances, directives, judgments and academic studies and need to be discursively persuasive as well as legally effective. If a corpus is bilingual it may be necessary to specify which language constitutes the authoritative text. For current legislation in Malaysia and Sri Lanka this is Malay and Sinhala respectively. In Kenya the version signed by the President has authority (2010 Constitution, s.120 (20)), which in practice always means English. In Canada and Hong Kong, on the other hand, discrepancies between texts in different languages are resolved by rules of statutory interpretation and if irreconcilable may result in the rewriting of laws, as in Tam Yuk-ha in the latter, where an ordinance was revised after a defendant was convicted under the English version but acquitted on appeal under the Chinese.

This section continues with a review of solutions to lexical deficiencies that have been applied by corpus planners in Malaysia and other Asian jurisdictions and concludes with issues surrounding the generation of legal texts. In the following section we will then go on to consider attitudes toward corpus innovation.

4 Attitudes to corpus innovation

From a linguistic standpoint much of the lexical innovation in Malaysia and elsewhere has been logical and systematic. There are many examples where a clarity absent in the source has been achieved. ^[7] ‘Charge’, for example, has five Malay equivalents in the Istilah: (payment); caj (price); gadaian (mortgage); pertuduhan (indictment) and tanggunan (lien or encumbrance). ‘Authority’ is autoriti for a ruling, kuasa for competency and pihak berkuasa for governing institution. Hong Kong’s Chinese terminology distinguishes three meanings of ‘common law’: bu cheng wen fa (不成文法) for unwritten law, xi guan fa (習慣法) for customary law and pu tong fa (普通法) for ‘ordinary’ law. Yet English code-mixes (often triggering code-switching at speech-act level) remain common in Malay, Chinese, Sinhala and Bangla court proceedings.

Possible reasons for the persistent reliance on English lexis have been explored in numerous interviews with legal practitioners, law lecturers and law students. While there has been insufficient sampling to lay any claim to representativeness, at least in the case of Malaysia an attempt has been made to reflect the professional, geographical and gender composition of the profession and to seek out diverse opinions. On the subject of lexis there was considerable consensus.

When asked about any difficulties in using the national language in the legal system, most informants brought up lexis before anything else, with the most common complaint by far being the lack of terms. Malaysian students doubted there were enough terms to allow classes and tutorials to do without English. There were also frequent comments about the dearth of reference materials in Malay, except for certain subjects such as family and Islamic law. Lecturers generally agreed, singling out areas such as jurisprudence and financial law as particularly unprepared for Malay. One insurance expert had resorted to devising her own terminology.

A perennial point of contention is whether it is the extent of the Malay legal lexicon or the extent of individual proficiency that inhibits use. Justice Ministers and Chief Justices in the early days of corpus planning consistently cited lack of Malay terms as a reason for retaining English, but practitioners and academics have added an attitudinal dimension to technical factors. L.A. Sheridan, founder of Malaya’s first law faculty, feared greater use of Malay would politicise law (The Straits Times 1963.2.01). On the pro-Malay side, national laureate Muhammad Salleh ascribed lawyers’ continued use of English to entrenched hostility in the profession as much as the shortcomings of the lexicon (Yusof Ghani 2002.8.12). One notably pro-Malay judge (Faiza 1993: 105–106) argued that the legal loophole permitting English in the interests of justice was designed to cover gaps in the Malay legal lexicon, not in the Malay of individual advocates, let alone their reluctance to plug them.

Among informants for this study, those seeking more Malay and those content with English alike brought cultural and institutional stances into arguments going beyond the management of discrete legal tasks. Neologisms that appeared to be mere window-dressing were disliked across the board (injunksi being the target of choice). A pair of intellectual property lawyers questioned the need for hak intelektual alongside ‘intellectual property’ – particularly since practitioners using either language continued to use ‘IP’.

Lack of terms was invariably the first point raised by practitioners elsewhere when asked about local languages in law. It was the focus of discussion at Tonga’s Attorney-General’s Office and among law lecturers at Dhaka University, one of whom questioned how financial and property law could be taught in a language lacking basic lexis such as ‘holding over’ and ‘passing out’. However, Ferdousi (2009) has pointed out that ‘law’, ‘justice’, ‘court’ and other English words continue to frequent discourse in Dhaka’s lower courts even though adequate equivalents (āina, n'yāẏabicāra and ādalāta) have long existed.

Malaysian lawyers appearing in the lower courts, particularly younger ones, nevertheless seemed generally content with the preponderance of Malay used in witness examinations and routine applications at that level. As there is very little Malay at law school many initially struggle to acquire sufficient lexis but the majority managed it within a few months of regular appearances, helped by the tolerance of most magistrates for a certain degree of code-mixing. On the other hand a former magistrate recalled difficulties in writing judgments in Malay because of lack of terms. This suggests that introduced languages are faring much better in routine legal tasks than technical ones, or those requiring research and argument. It will be argued below that this indicates a pragmatic compromise on the part planners and practitioners but nonetheless runs the risk of bifurcating the legal profession. The potential for institutionalised division starts with lexical choice at the speech act level and works its way through to career choices, with individual words rarely detachable from surrounding discourses and cultural outlooks, even when uttered spontaneously. With verdicts and reputations at stake, legal practitioners are understandably wary of the semantic and pragmatic implications of neologisms. When it comes to the extended task of writing arguments and decisions, language choice, professional aims and cultural outlooks are even more intertwined. Ferdousi (2009) and other informants in Bangladesh speculate that the use of English for lower court judgments reveals junior judges’ preference for impressing gatekeepers over the needs of defendants and litigants.

In comparison with a perceived lack of terms, discontent with their quality or accuracy was voiced rather less often. This is telling given that fear of legal error is one of the most powerful arguments against language shift. While much was made of the Tam Yuk-ha case in Hong Kong (op cit), particular by anglophiles, it was adequately dealt with by redrafting of the sentence in question. Malaysian students had a tendency to question terms such as penghakiman ingkar (judgment in default – which unpacks as ‘insubordinate judgment’) that arguably get to the crux of the matter more directly than ‘bad debt’, ‘sleeping partner’ or many of the other idioms littering English legalese for centuries. There were nonetheless more serious concerns, with two advocates independently questioning the use in statutes of keluarkan for ‘produce’ (a term absent in the Istilah) as it implies the showing of evidence rather than its formal submission.

On occasions, individual terms can have far-reaching consequences. In 2001 an amendment to the Malaysian constitution permitted any Malay text, including a translation, to be declared authoritative and in the following year the Malay translation of “parent” in a constitutional Article about rights to change the religion of minor children was altered from ibubapa (‘parents’) to ibu atau bapa (‘either parent’), potentially allowing for conversion by one parent in the face of objections from the other. A constitutional lawyer interviewed for this study also drew attention to the critical ambiguity of Negara Islam in the constitution and statutes since it can mean both ‘Muslim country’ and ‘Islamic state’. Kurzon (2013: 135) reminds us that when borrowing a word, powerful discourses associated with it may be borrowed, and this also applies when retaining the tools of a colonial medium or developing neologisms in a postcolonial medium.

Beyond Malaysia, a Sri Lankan informant recalled how he had advised a client against basing a case on a discrepancy between the English and Sinhala texts of the Companies Act: even though the latter was almost certainly a mistranslation of the original English, if pressed the courts would be forced to go with it as the authoritative text. In Tetun, detensau has been borrowed from Portuguese detenção but extended to cover imprisonment, not merely temporary detention. An example of a culturally inappropriate rather than legally perilous term in Hong Kong Chinese is da lü shi for barrister, which means ‘big lawyer’ and reinforces the popular idea that barrister have more authority than solicitors. Cultural stances may be as significant as semantic shifts. The discomfort several Malaysian informants expressed about Malay legalese amounted largely to a perceived lack of gravitas and hence pragmatic impact.

5 Use of local languages in legal education

The imbalance between incumbent and newer languages is more striking in education than any other legal domain. In Hong Kong (as in the whole of sub-Saharan Africa apart from the few remaining Afrikaans law schools of South Africa) all courses leading to legal qualification continue to be conducted exclusively in English. Myanmar’s law schools examine in English despite the overwhelming use of Burmese in court – although heavy use of code-switching is reported to enable students to get by (Myint Zan 2004, 2008). For Tongans and Bruneians legal education is available neither in the national language nor in domestic institutions. In this section we will focus on a small number of jurisdictions that offer a degree of bilingual legal education, and consider whether this meets the needs of lawyers entering bilingual professions or serves to sow division.

In the common law world, Bangladesh, India, Pakistan and Sri Lanka offer the possibility of studying law in local languages (i. e. Bangla, Indian state languages, Urdu, Sinhala and Tamil), while some Malaysian institutions teach and exam partly in Malay. For examples from civil and mixed law jurisdictions we have Timor Leste, where Portuguese, Indonesian and to some extent Tetun are used, and Mauritius, where some required courses are taught in French and others in English (University of Mauritius 2013).

In Bangladesh eight national universities currently teach and examine LLB courses bilingually, but the burgeoning number of private universities generally use English only, including colleges offering bridging courses for those holding a non-law degree (Ferdousi, p.c. 2016.9³), and it can be assumed that the growing number of institutions offering twinning programmes in collaboration with overseas schools also use English. Dhaka International University teaches in English, although lecturers there confessed to a high level of code-switching in class and allowing students to answer exams in Bangla in order to salvage pass rates. There was wide agreement among informants (advocates and lecturers) that those educated in Bangla are seen as second-class advocates with few chances to work in superior courts. Indeed while exams for subordinate court advocates and magistrates may be sat in either language, those for the High Court are in English. Steeper Bar fees for superior court advocates reinforce class division.

At the other end of South Asia, Sri Lanka Law College teaches all required courses in English and requires a school pass in it at credit level for college entry, but many classes are also available in Sinhala and Tamil. One Tamil native speaker said he had opted for English courses as Tamil would limit him geographically and Sinhala restrict him to the subordinate courts. Despite periodic efforts to make English obligatory for exams (The Island 2008.3.30), students still have the option to take them in Sinhala, and some told me they do so partly because it is the medium of the lecture notes they borrow from seniors. English was the preference of all the informants in this study who worked, or aimed to work, in corporate law or the higher courts. But lawyers were also encountered in small local practices who had difficulty conducting simple conversations in the language. Similar stories of the possibility of qualifying for and practising law in local languages were heard in India and Pakistan, and professional regulations confirm this: the All-India Bar Exam can be answered in eleven languages (Bar Council of India 2014); requirements for English in Pakistan have been abolished (Pakistan Bar Council 2014). However, an administrator at a law college in Lahore, as well as several legal practitioners, concurred that employment prospects for Urdu-trained lawyers were very limited.

In Malaysia, the only specific language requirement for bar admission is for Malay: those unable to show proficiency in the language through the school-leaving certificate or other means are required to take an exam administered by the Legal and Professional Qualification Board (1976 Legal Profession Act). In practice this means the great majority of lawyers need show no ability in legal Malay, only general Malay. The Qualification Board’s exam consists mainly of oral questions in Malay about general topics and about English legal texts. Typical candidates appear to be those educated in the private sector or overseas who aim to work in corporate and commercial fields where they are unlikely to use the national language much. The Certificate of Legal Practice, which is for those who studied law in an institution not recognised for direct bar admission (including most overseas schools but not the English and Irish Inns of Court), may be taken in English or Malay, but those opting for the latter are in a small minority (LPQB 2013).

As for the law schools, the overwhelming requirement is for English. Although a pass in English is not obligatory to get through the school-leaving exam, most university departments set some requirement for English, and for law, alongside more competitive departments like medicine and engineering, this is usually higher than average. Currently only two institutions teach any of their compulsory curriculum in Malay: the University of Malaya (UM), where the principle of Malay for lectures and English for tutorials is gradually giving way to all-English; and University Kebangsaan Malaysia (UKM), where at least one paper in any set of exams must be written in Malay and at least one in English. While all other schools teach and examine in English, Multimedia University (MMU) requires half of its students to moot in Malay (through a draft system), and endemic code-switching was observed during lectures there, and also at UniSZA, where students are generally weaker in English than Malay but pushed to use the former as, according to a lecturer there, it is “what the market wants”. UIA (the International Islamic University) and UiTM both introduce legal Malay courses in the fourth, or ‘professional’, year, but students from these institutions described them as devoted to learning lists of Malay lexis. In its own professional year UM teaches a number of tasks in English, including drafting, that will almost certainly be done in Malay once graduates go into practice.

Interviews and questionnaire data across several institutions revealed a general preference for studying law in English (see Table 1 for a comparison of three of them).

There was a wide range of shorter- and longer-term motivations behind language choice for study. Topping the list for most Malaysian students were the perceived preference of lecturers and examiners (one UM student viewed the language choice as hollow as “we know the school prefers English”) and the availability of academic and legal materials, which are overwhelmingly in English. Perceived deficiencies in English proficiency (after four decades of pro-Malay policies in school it tends to be the weaker) could result in a wish for more legal education in Malay but was more likely to reinforce students’ desire to study harder in English.

When it came to longer-term goals, those aiming for the government sector, family and criminal law, or work in provincial areas expected a greater likelihood of using Malay while those looking for commercial and corporate work in the large cities expected to use more English. A UiTM student claimed that those headed for lucrative sectors distinguished themselves from the first year of school by their ability in and preference for English. At UM and MMU, where the majority are likely to be aiming for the better remunerated private sector, a balance between the two languages was anticipated by a small majority or large minority respectively (Table 2). At UniSZA, whose students tend to be weaker in English and whose LLB has only recently be recognised for direct bar admission, those aniticpating a balance greatly outnumbered those anticipating either English or Malay. Hence there is a general perception of legal work as bilingual.

This does not mean the kind of work done in each language is thought to be equal, however. UM students who had completed attachment programmes ^[8] at a range of public and private practices around the country co-constructed a picture of more Malay for routine tasks and lower court proceedings and more English for legal research, higher court proceedings and non-contentious law. Their findings thus support the view of many educators that English should be emphasised at law school because the tasks performed in it are more complex.

While the extent and preponderance of case law and the unlikelihood of translating it are almost certainly major factors behind the retention of English in common law systems in general and in jurisprudence in particular, in Timor Leste’s civil law system, we also find evidence of the prestige and economic resources of a former colonial language positioning it above others more widely spoken.

While Tetun, the most important lingua franca, was installed as co-official language by Article 16 of the 2002 constitution, in the legal system it plays no more than a supporting role to Portuguese, a language never spoken by more than 10 % before this century (Leach 2006: 231). Indonesian and English, instated as working languages for administration under Article 159, arguably carry more weight than Tetun in law. Law can be studied at a number of local institutions, including the National University (UNTL); Universidade la Paz (UNPAZ); Universidade de Dili (UNDIL); and Universidade Continental (UNITAL). Only the first of these is Portuguese-medium but it is the most prestigious. Law graduates seeking to qualify as public prosecutors must undergo training courses conducted in a combination of Portuguese and Tetun, while those aiming to become magistrates sit exams in either of the two. Although this balance appears to reflect the position of the two official languages, interviews conducted in 2010 found that teaching materials, legal terminology, and even a basic corpus of legal enactments in Tetun are lacking. The courts were still relying heavily on judges and prosecutors from Portugal and other lusophone countries and in proceedings Tetun was mainly confined to witness examination, with Indonesian occasionally used for the reading of charges. According to officers of the Centro de Formação Juridico the development of legal Tetun is slow and heavily dependent on Portuguese loans and even syntax, and a register is emerging that is hardly recognisable to most Tetun speakers. UNPAZ and UNDIL nevertheless set exams in Tetun and Indonesian, and UNITAL in Indonesian only. While the latter no longer has the official status attached to Portuguese it still retains practical importance, not only because of the generation of lawyers educated in it before independence from Jakarta but also those students who continue to go to Indonesia to study law, and may be sufficient for private practice if court appearances are not required. Non-Portuguese-speaking lawyers were also observed managing to piece their way through Portuguese codes because of their structural similarity to equivalent Indonesian codes, a practice with no equivalent in common law.

While many of the sociolegal circumstances differ from common law jurisdictions, then, we also see a segmentation of the legal profession, with the languages known by the largest numbers not equating to those carrying the most professional weight.

6 Toward bilingualism or bifurcation?

If the findings above are representative then the potential of bilingual law to bring postcolonial citizens closer to the justice conducted in their name may be being subverted into two-tier law. Bilingualism has undoubtedly allowed the use of local languages in legal domains without the necessity of wholesale legal reconstruction or transplant, with all the implications for instability these hold. Moreover the use of Bangla, Malay, Sinhala and other languages in lower courts is pragmatic inasmuch as these handle the cases that rely most heavily on the oral testimony of non-expert witnesses, and it is democratising inasmuch as they host the proceedings most likely to be seen and heard by the public. If Ng’s (2009) investigation into Hong Kong is anything to go by the use of the majority language may even reduce the elitism of legal culture. Nevertheless, everywhere except Myanmar former colonial languages retain most of their prestige and authority as the preference for higher courts, legal writing and jurisprudence, and continue to dominate the more lucrative sectors of private practice. More could certainly be done to generate terminology, but generation does not equate to acceptance.

We should also consider the greater influence wielded by ‘repeat players’ in comparison to ‘one-shotters’ in the courts (Galanter 1974). Petty criminals, traffic offenders and dissatisfied consumers may make up the bulk of legal participants, but large corporate litigants, and the large firms who represent them, have a larger stake because of their frequent appearances, and they tend to favour elite languages. If we add in the position of a language such as English in global business and politics to its weight, out of all proportion to the number of speakers, in the domestic affairs of postcolonial polities, the prospects of balanced legal bilingualism look dim.

Several ways out of class division appear plausible, but they may not be compatible with each other. One possibility might be comprehensive linguistic nationalisation of the law to shift out colonial media, as in the case of Myanmar, but this could cause disruption in the administration of justice (total language shift is normally associated with polities such as Indonesia that have experienced severe sociopolitical shifts) and could enervate the international dimensions of jurisprudence. In contrast, some practitioners advocate a greater emphasis on the traditional legal language. One Sri Lankan informant, for example, insisted that his preference for the reinstatement of compulsory exams in English there was not elitist but aimed at giving all new lawyers an equal access all sectors of the profession. A third possibility might be more comprehensively bilingual legal education. Even where law is taught in more than one language there is usually a separation between classes, subjects or institutions that is artificial when compared with the constant switching and pragmatic translation that goes on in courtrooms and law offices. Perhaps an emphasis upon outcomes rather than media at law classes would help, whereby remedies-based courses focus on legal problems to be solved through a variety of legal tasks (research, written arguments, oral presentations etc.) with no rules about the language to be used at any stage as long as choices produce effective results. Closer and more natural cohabitation between languages right from the start of legal education might in turn break down the divisive cultural and discursive connotations currently attached to them from the lexical to institutional level.