LANGUAGE BARRIERS IN COURTS
THE PROBLEMS POSED BY ENGLISH AND THE JUDICIAL SYSTEM OF PAKISTAN
Perhaps if you have been hungry for success in Pakistan especially in the professional or public sectors and can smile at your success today then, you would have probably visited a top class private school, hardly read any Urdu literature, would probably have never visited a local college or University albeit as a guest speaker at a seminar trying to tell the students there how lucky you have been, and perhaps like yourself, your father’s connections and influence will easily surpass those of the common man.
You probably also cannot deny that at some stage in your illustrious career, you would have outwitted your opponent simply by virtue of your fine table manners and your unsurpassed linguistic acumen. With linguistic acumen, I only intend to refer to English to the exclusion of all others.
Commercial and social success is all good but should the exploitation of this linguistic and social ability be allowed to impede the road to justice. Our courts still follow most of the pre-partition era albeit there have been some amendments and new laws have also been made and adopted. However, every alteration or addition has been made by virtue of individuals who are apt representatives of the pre partition, “English is the key” era. Hence, even after six decades of turmoil, “English is the key” but to no avail for the ends of justice.
All proceedings in the courts are still supposedly conducted in English. The funny part is, even here, in the so called educated part of our earning population, especially in the lower judiciary, hardly any lawyers or judges are comfortable with “pure white words”. Yet everything is done in English. If you are on a roll and you attack the opponents case with argument after argument backed by authority after authority, it will be only later that you will find out that apart from your foreign bred accent, none of your legal points were appreciated either by the judge or the opposing counsel yet you get a decision in your favour albeit for other reasons. Some lawyers resort to MINGLISH, which I believe is the best way to adopt for the structure we work in, for others its Urdu and when forced to cite authorities, some broken impure version of the language of our colonial masters, which by the way is quite capable of depriving you of any appreciation that is owed to you.
If you visit the High Courts now, most people here do understand and even speak quite proper English even if it is spoken in an accent not very pleasing to the ears yet they speak well.
But most of the lawyers would agree that the main interaction of the lay man, especially those engulfed in our criminal system and those desperate for basic civil remedies, is with the lower courts that essentially conduct the major share of original cases. Here, as stated earlier, no body understands English albeit some exceptions.
The lawyers get used to playing around with the law in broken and heart breaking Minglish but justice is seriously prejudiced when it comes to the matters of the litigant. The first and foremost consideration in deciding matters is that of the evidence that is produced in court and that evidence which is collected in front of the court. Whether a claim is true and just should ideally turn upon the verification of the claims and complaints made and that of the solid evidence produced. This is the process that we lawyers normally refer to as the cross examination. It is at this stage that many tables are seen to be turned and false witness testimonies shattered to allow the light of the truth illuminate the matter.
Now it is the central case of justice that no one should be condemned unheard. In our system, we also epitomize the said maxim. The witness is called to the court, his statement is recorded in the court file (normally a stereotyped set of allegations and adjusted facts written by the lawyer), he is asked questions by the opposing lawyer in Urdu normally as that is the only language the litigant can understand, then this interaction of opposing counsel and litigant is recorded by the judge personally. It is in this process of recording where grave injustice lies and in a way the litigant goes home unheard, while His Highness passes his sound judgement based on the recorded solid facts and figures several months after this evidence is recorded.
While the delay is in itself bad, the fact that the evidence is produced in Urdu while it is translated on the spot by the judge and verified by the lawyer of the witness means that the main evidence is adulterated and translated by two people who have little or no command on the language that they are translating the evidence into.
In other jurisdictions, the method of such recording is that the court records the exact question of posed by the lawyer and then the exact answer given by the witness. Here however, due to the multitasking that the poor judge has to perform, an amalgamated mix of question and answer is recorded as interpreted there and then.
The worst part is that the person whose alleged words are being taken down does not understand a thing as to what is being attributed to him. Could there be a more desperate example of being condemned unheard?
Cross examinations, the main weapon in the hands of the opponent normally gives the judge a strong feeling towards either side in the case, he is able to tell the truth amidst all legal jargon but our method simply means that another pile of legal paper is added to the court file. Now when the judge after several months opens the file to deliver judgement, it is highly unlikely that he remembers the feel of the cross examination. Now that the documents also fail to tell the truth means that there simply cannot be true justice.
Hence, in my humble opinion, at least the evidence should be recorded in the language that is not alien to any one and in its true and full form. If any person like myself have a problem in understanding what lies on the paper in front of us, then the remedy could be to get that document translated at our own expense by a official translator who should be made duty bound to provide a word to word translation minimizing his own interpretation. This will have a far reaching impact. First, the judge will be able to participate more fully in the trial by posing his own questions rather than acting as a mere recorder. Secondly, the true picture of what happened in the fateful cross examination will be present at all stages of the trial from the first order to the last appeal. This, I believe will also instil confidence in our local lawyer who spends his entire career in awe of better speakers, not better lawyers. He will start striving towards learning more of the law rather than more of the language of our masters.
These measures, I am quite certain, have been recommended before but have been sidelined by lawyers like myself who rise to fame too soon by virtue of their association with the idea of backgrounds, education, mannerisms and a monopoly over a language still daunting to the common man. I would request all to think on this vital aspect of justice. “This prayer is made in the interests of justice.”
