Common law – common language?

It is sometimes claimed that English law is the last bastion of British colonialism and of the English language. Long after their countries gained formal independence, lawyers throughout the Commonwealth continue to study laws that evolved centuries ago in England. Many of them still complete their training in London. And all of them require a high level of proficiency in the English language. Because of this, lawyers often have a reputation for trying to preserve ancient privileges and outdated practices. But if we look at the situation of the law in several Asian countries we can see that there are often good reasons for the conservatism of the legal profession. Moreover, it is no easy task to change the language of the law from English to an Asian language.

Most of the Asian countries that inherited English law continue to rely on the English language to administer the law. A great deal of Singapore’s legislation dates from the colonial era; new laws are drafted in English and court proceedings are conducted only in that language, with a centralised system of courtroom interpretation for witnesses and litigants who prefer to use Chinese, Malay, Tamil or other languages. Law in Brunei, which was once a British protectorate, also operates in English, and some of the judges come from Britain.

In the Philippines, a mixture of Spanish and common law is used since the country was a Spanish colony before being occupied by the US more than 100 years ago. But hardly any lawyers use Spanish now. Nor do they use Tagalog, the national language. Almost everything is in English.




However, there are some countries that have tried to introduce another language into the courtrooms. Nearly all cases in Myanmar are now heard in Burmese. In Pakistan, Urdu is commonly spoken in the lower courts (but English remains the language of the constitution, statutes and higher court proceedings). Several state-level courts in India permit Hindi or official regional languages in court. All laws in Hong Kong are written in both English and Chinese, and trials may be in either language. Malaysia started using Malay in its courts in the 1980s, and it is now the main language in the lower courts and in criminal cases. However, English is still used extensively in the higher courts and in civil cases, and even cases conducted in Malay often use a lot of English words.

Since trials are public events, it makes sense for courtrooms to use the language that most people understand best. But changing the language of a legal system is easier said than done. A Hong Kong lawyer who trained in English may not be comfortable speaking Cantonese in court, even if she uses it at home every day. In Malaysia, many laws are yet to be translated into Malay, and so many lawyers feel it is natural to speak English when referring to them. The thousands of previous cases, or precedents, which lawyers base their arguments on all over the Commonwealth and in America may never be translated – there are simply too many of them, and some have been in use for hundreds of years. An attempt to use Tagalog in some courts in the Philippines has had limited success. Not all Filipinos speak Tagalog, and many court clerks and recorders were trained in English and do not have time to retrain.

Some lawyers also worry that by changing the language of the law the meaning of the law will somehow change. After all, even changing the language of old English laws into more modern and simple English is not easy.

Many Asian legal systems have adopted a compromise, adopting both English and a local language. Sri Lanka has a trilingual system of law. In the lower courts, Sinhala or Tamil is used, depending on where the case is held; English is used for the higher courts.

While some common law countries are starting to use more Asian languages, alongside English, one or two countries that never used English in their legal systems are stressing its importance. The Thai government, for example, is encouraging judges to study in English-speaking countries so that they can deal directly with business documents without having to wait for a translation. In Macao, the legal system operates bilingually in Portuguese and Cantonese, but nearly all lawyers are fluent in English. If they weren’t, they could not collaborate with law firms in neighbouring Hong Kong, which is much bigger and richer.