Arif Khan is an Advocate at the Supreme Court of Bangladesh. He studied law from the University of Dhaka. He is one of the co-founders of Reading Club, a Dhaka University based platform for enthusiastic readers and young scholars. For the last four years, he has been editing a legal magazine named Legal Issue. In 2013, he co-edited an anthology titled “Use of Bangla in the Higher Courts: Necessity and Limitations”, published by Bangladesh Law Association. On the eve of International Mother Language Day 2019, Psymhe Wadud and Emraan Azad from Law Desk talks to him on the following issues:
Law Desk (LD): In 1987, our parliament enacted “Bangla Bhasha Procholon Ain” (Bengali Language Implementation Act) for ensuring the use of Bangla in all public offices. Do you think the legislative intent has been translated into actions in the truest sense?
Arif Khan (AK): The law enacted in 1987 was a revolutionary step taken by the State. Other than certain amendments brought to the laws originally enacted in English, all the laws by parliament and all Ordinances promulgated by the President are being enacted in Bangla in pursuance of the law. The benefit of having a law enacted in Bangla is that all the rules, regulations, notifications made under the law are also issued in Bangla. Therefore, it can be said that all that comes within the purview of the definition of law as appears in the Constitution today come in Bangla and it has become possible because of that revolutionary piece of legislation.
LD: In the context of 1987 Act, would you say that Bangla as a language has become a common medium of communication in our courts too?
AK: The official activities in courts have not undergone any major change by dint of the law. I can say from my experience that maximum official activities in courts are being conducted in Bangla. There are two aspects of judicial activities. One is the administrative aspect and the other one is the functional aspect. The judgments as well as decisions rendered by the court come within the ambit of administrative aspect while the functional aspect includes the activities of the court in its day to day life. It is noted that in the subordinate courts, Bangla is the medium of communication both for speaking and writing (judgments and petitions). In the higher tier of judiciary, many of the submissions given by the lawyers are given in Bangla. Even the lawyers being bilingual and proficient in English also speak in Bangla and the judges also pose questions and communicate with the lawyers in Bangla. However, the judgments in most of all cases are given in English. Therefore, to put it like this, in the higher tier of the judiciary, the administrative aspect is linguistically governed by English whereas the functional area is predominantly steered by Bangla.
LD: If this is the situation in the judiciary, why do we often make demand of making Bangla as the medium of communication in the higher tier of judiciary?
AK: To me, this demand itself is something which is not a well-thought out urge and it gives a wrong message. Because this urge goes on to give an impression as if Bangla were not at all used in the higher tier of the judiciary. This however is not the case. At the Supreme Court level, now only the judgments and orders are overwhelmingly written in English; other than that, all other official activities in courts are conducted in Bangla. Now emphasis should be given on how to make sure that all judgments and orders can also be written in Bangla. And then a new yet formidable challenge will surface in respect of linguistic quality of judgments written by the higher court judges since we are yet to develop and institutionalise strong technical features of Bangla writing.
LD: Isn't it a challenging task to ensure that all the judicial decisions are rendered in linguistically standard Bangla?
AK: Yes, it is. More often than not we forget that legal study in its present form is a foreign discipline and a very technical subject. Complete internalisation of a foreign discipline through local and indigenous language requires a long period of time. And certainly, even a period of fifty years is not sufficient. For our nation, the urge for using Bangla in all spheres started from 1972. However, that urge was not translated into laws very soon. For more than a decade, there was this mixed use of language(s). Till late 90s, the dominant language for studying law was English. In fact the very culture of using Bangla and studying different disciplines in Bangla started at the end of the 1990s. Keeping all these nuances in mind, it will not be out of place to say that without a long standing culture of using Bangla, if the judges are directed to write judgments in Bangla overnight, it will be a very short-sighted decision.
LD: Do you think that since we don't practice bangla predominantly in our legal education, we are facing the subsequent consequences in both bar and bench?
AK: I don't really agree. The life of a university student, his education and learning as well as scope of both the two, are far different from those of a practitioner. When a student gets done with his education and enters in his early-life career in law, it is an entirely different world for him. At the university, he/she studies the subject from an evolutionary or historical point of view. However, the practitioner only wants to understand the practical implementation and use of the provisions of the text in question. Therefore, the idea or the assumption that only if a university student could be made adept in Bangla while studying law, he/she could properly translate the same into his practising life as a lawyer or a judge is not too well connected with reality.
LD: How do you see and evaluate the academic research pursued in Bangla by young legal researchers?
AK: The numbers of academic research in Bangla are very few. Even at university level, we do not find much works done in Bangla. The reason is understandable. The textbooks that are taught in universities are written in English, the students prefer to study in English and 'access to justice' as a concept is something that we cannot apply to universities. The higher education for the last forty years has not undergone any substantial change. The entire university education is overwhelmingly in English. For teachers to start researching in Bangla, a very significant period of time has to go by. All the universities including University of Dhaka followed and adapted themselves to the British legal education system.
LD: What is then needed to do?
AK: I think the change has to come in a reverse order. When courts and legal practice become entirely Bangla-based, legal education too will undergo changes. It should have been the other way round. But since we have the colonial legacy, it has to come in reverse order for us. Furthermore, I strongly believe that creating an indigenous legal corpus in Bangla is more of a sine qua non than implementing the mere demand of changing the court language. Until we have all major narratives of legal discipline hence jurisprudence translated into Bangla, it will be counterproductive, to some extent futile and chaotic, to change the medium of court language and academic studies.
LD: Thanks for your time.
AK: You are welcome.