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Giving evidence

Tuesday, 13 December 2011 08:40am

©The Star (Used by permission)
ARTICLES OF LAW By BHAG SINGH

Witnesses who turn up in court are allowed to give evidence in the language in which they are most familiar with.

WE all know that Bahasa Malaysia is the national language. However, if a person is called to court as a witness, must he give evidence using Bahasa Malaysia or can he choose to give evidence in any other language?

This issue bothers many people who are called up as witnesses to give evidence in a court of law. Sometimes the fear of having to use an unfamiliar language makes the witness reluctant to testify.

However, it ought to be noted that what the national language of the country is, and the issue of giving evidence in court, are two entirely different matters. So, too, is the issue of the conduct of proceedings in court. Such proceedings do not consist of giving evidence alone. Giving evidence is only part of the proceedings. In civil cases, it starts with cause papers such as a summons or writ of summons being filed.

Then the matter is called up, counsel addresses the court and the judge, having conduct of the matter, gives directions in relation to the proceedings.

The law with regard to the national language is set out in Article 152 of the Federal Constitution. Here it is provided that the national language shall be the Malay language and shall be in such script as Parliament may by law provide.

However, the same provision also stipulates that no person shall be prohibited or prevented from using language other than Bahasa Malaysia for official purposes or from teaching or learning any other language.

This same Article also provided that for a period of 10 years after Merdeka Day, English language could also be used in Parliament and state legislative assemblies and for all other official purposes, unless otherwise provided by Parliament. However, this period is well past. Of course, there are exceptions to this in the case of Sabah and Sarawak.

Whilst on the subject, one should also be aware that Article 152 of the Federal Constitution is one of the Articles which is considered a sensitive issue in the context of the law of sedition as contained in the Sedition Act 1948.

It is seditious to question the status of the Malay language as the national language. It is also seditious to make statements which have the effect of disallowing the use of other languages as provided for in the Constitution. Any suggestion to say that the Constitution should be amended in this direction it also seditious. These are matters which have come up and have been decided in the courts of the country.

The use of language in the courts is specifically provided for in the National Language Acts 1963/67. Section 8 of the Act provides that all the proceedings in the Federal Court, Court of Appeal, the High Court or any Subordinate Court “shall be in the national language”. However, giving of evidence by a witness is specifically excluded. But more English can be used.

The court is given the discretion, either on the application of either party or on its own initiative, to order the proceedings to be partly in the national language and partly in the English language. This is provided for in the interest of justice being done.

Thus it will be seen that a witness has a constitutional and legal right to give evidence in any language in which he or she is competent and familiar with. Thus there should not be any fear of or need to restrain oneself because of the language issue.

What, however, happens in courts? The legal position has been clearly explained, but when proceedings commence, a witness is sometimes asked whether he understands and can speak Bahasa Malaysia. Sometimes there is a tendency among some witnesses to say “yes”. This is because on a daily basis, they can get by using Bahasa Malaysia in it various forms and dialects, depending on where they come from. But when questions are posed to them, they can be at a loss.

In such circumstances, the interpreter or the judge steps in and repeats the question to the person in his own language if the witness is not a Malay or familiar with English. On other occasions, the witness, out of embarrassment or pressure, says “yes” instead of “no” or vice versa just to get out of the position he has put himself into.

In order for justice to be done, the witness must clearly understand all the questions fully. The solicitor, client and witness should carefully consider well in advance the language in which the witness is going to testify. This must be the language in which the witness is most competent in.

Evidence is today given, relying on earlier prepared witnesses’ statements. The statement will be prepared in English or Malay but if the person is going to testify, for example, in the Chinese language, then the witness’s statement should be formally translated to him by the interpreter before he signs it.

Once a witness has decided that he is going to testify in a particular language, then his reply should be in the language in which he has chosen to testify.

Even though he can understand some of the questions posed to him in the English or Malay language, he should confine himself to giving evidence in the language that he has chosen for the purpose.

Of course, there are occasions when an interpreter may not be available. On such occasions, there may be a need to enlist the help of an outside interpreter. It is important to look into this aspect well in advance so that court proceedings are not delayed.

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