Do our courts speak our language?
Md. Rizwanul Islam
In terms of language, Bangladesh is one of the world's most homogeneous countries where an overwhelming majority of the population speaks in Bengali. Indeed, the genesis of its statehood and the very name of the state owe to its primary language. Article 3 of the Constitution of the Republic reaffirms the standing of Bengali as the state language. It is natural that Bengali would be the working language of the courts- higher or lower. However, this natural course of events does not take effect in our higher courts where except in rare cases Bengali is not embraced as its language. Government's enactment of Bangla Bhasha Procolon Ain (Bengali Language Implementation Act), 1987 could not ensure the use of Bengali in our higher courts.
A number of contentions are raised in defence of usage of English in higher courts. The first argument often aired is that there is not an adequate amount of quality texts written in Bengali which can be used in undergraduate studies in law. Therefore, the lawyers and judges who are basically trained through English cannot practice law in Bengali. It is undeniable that there is a shortfall in quality legal texts in Bengali. However, if Bengali is widely used in higher courts, that could be an incentive for quality text book writing in Bengali. Again, irrespective of the curriculum and texts used in Bangladeshi universities, it is hard to imagine any student having studied law in Bangladesh to be incapable of practicing law in Bengali. If Bengali can be effectively used in lower courts, it is hard to understand why that cannot be done in higher courts too. If students of Bangladeshi origin, having studied law in an English speaking country cannot practice law effectively in Bengali, it should be their concern, not the concern of our legal system. Let's put it straight: if a person cannot practice law in Bengali, she/he should not be allowed to have the right to practice law in Bangladesh.
Another contention in favour of English usage is that we are not self-reliant (no state in today's world can be so) and need to know English for facilitating our international competitiveness in attracting foreign investment and trade. Therefore, we should continue to use English in our higher courts. This too is only partially true and overemphasizes the role of language of higher courts in business decision making. Any foreign entity considering a business decision may take the language of the population at large into account, but the language of higher courts would play a very minor role, if at all any. Even in this case, to accommodate the needs of these entities, the Ministry of Commerce can take up the responsibility of translating trade and investment related laws and regulations in English. But in any case a blanket use of English for the benefit of a very small segment is a disregard for the rights and interests of the masses.
It is also argued that English should be the language of our higher courts so that the judgments of our courts can be cited as persuasive precedents in higher courts of other countries in the Indian Sub-Continent and vice versa. This argument also bears some truth but is not sufficient to persuade the rationality of usage of English in higher courts. More than the language of a judgment, the quality and strength of its analysis of law make it persuasive. A judgment that is powerful in its legal analysis would be referred to irrespective of its language. Whatever it is, the argument along this line too is not cogent enough to justify the use of English in our higher courts.
The rationality of the above arguments can be defied on the sole ground that courts do not exist for lawyers or judges; but for the litigants whose causes are settled by courts. Language of courts should follow the language of the populace; the populace should not be required to follow the language of its courts. Unless the greater population of Bangladesh embraces English as their primary language or an officially recognised second language, there can be no moral ground for it to be used as the working language of its higher courts. If Bengali is used in higher courts that would be a right step in the direction of improving people's access to and understanding of the functioning of higher courts.
Colonial masters have left us but we have not been able to leave their language in the affair of our courts. In a globalised world where English is the primary language of communication, it is not being suggested here that we abandon English in our education system. Far from that, we should strive to improve our proficiency in English. However, unless and until we can make our mass population proficient in English, it is grossly unfair to conduct the affairs of our higher courts in English. It is difficult to comprehend whose interests are being served by the usage of English in higher courts, but very clearly not that of the majority of the population of Bangladesh.
The writer is PhD Scholar, Division of Law, Macquarie University, Sydney, Australia