31.2424, Review: Discourse Analysis; Sociolinguistics: Powell (2020)

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LINGUIST List: Vol-31-2424. Wed Jul 29 2020. ISSN: 1069 - 4875.

Subject: 31.2424, Review: Discourse Analysis; Sociolinguistics: Powell (2020)

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Date: Wed, 29 Jul 2020 22:50:32
From: Geoffrey Sampson [sampson at cantab.net]
Subject: Language Choice in Postcolonial Law

 
Discuss this message:
http://linguistlist.org/pubs/reviews/get-review.cfm?subid=36624837


Book announced at http://linguistlist.org/issues/31/31-928.html

AUTHOR: Richard  Powell
TITLE: Language Choice in Postcolonial Law
SUBTITLE: Lessons from Malaysia’s Bilingual Legal System
SERIES TITLE: Language Policy
PUBLISHER: Springer
YEAR: 2020

REVIEWER: Geoffrey Sampson, University of Sussex

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).





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