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Aspects Of Translating Legal Documents From English To Indonesian And Vice Versa By Inge Santoso
In this article I would like to discuss my experience in translating legal documents from English to Indonesian and vice versa. I have worked as a legal translator for over 10 years and I have practiced law in the US as well as in Indonesia. I am an Indonesian citizen who was educated formally in the US where I have lived for 25 years. Generally speaking, there are two basic aspects that need to be considered in translating legal documents from English to Indonesian and vice versa. First, the different cultures between the East and the West as reflected in the practice of law and specifically in legal translation. Second, the different legal systems in the English speaking countries and in Indonesia as well as having the knowledge or familiarity with the specific legal field involved.
So, basically the requirement to be a good legal translator involving the English and Indonesian languages is first to study the second language and the mother tongue language with more awareness; thus bringing into light the deeper aspects of the mother tongue language for better understanding. For example, the mother tongue language has words and concepts that are unknown in the other language and vice versa; and this is especially true in regard to legal terminologies and concepts in the practice of law. A language evolves throughout time as influenced by history, social and political structures, religious and spiritual life of a nation as it progresses. A language is therefore a mirror of the culture and the soul of a nation reflecting the deeper philosophical thinking of its people. It is often the case that the everyday use of a language, more so the legal concepts and terminologies, would make no sense when literally translated. Therefore, by and large, familiarity with the culture of a language is a requirement that is quite indispensable in translations so that the translation flows more naturally and nothing or very little is lost in that translation.
It is preferable if the translator has the experience of living in that country of the target language, thereby absorbing the everyday culture, as well as in the subculture of the professional practice. This is particularly true in translation involving English and Indonesian, since there are various cultural aspects that are different between the East and the West. Furthermore, there is the question whether in translating legal documents, the translator needs to have a legal background considering the different legal systems and the expertise involved when dealing with a specific subject of law in the document that is being translated. It is often said that translation should be left to the experts. Every translation institution would agree on this point, it is more assuring to hand legal translation to translators with legal training or at least to translators who are familiar with the different legal systems involved. This is so because there are legal terminologies and concepts that cannot be translated literally. Such concepts must be understood in substance then explained into another legal language since the concepts are not in existence in one legal system or another.
Examples of documents that are usually classified as legal documents subject to translation are agreements involving various specific fields of law such as loan agreements, sale and purchase agreements, technical assistance agreements, leasing agreements, etc.; Articles of Association and the by-laws of companies, various government codes, regulations and treaties. Different cultures between the East and the West as reflected in the practice of law and in legal translation.
Aside from studying the languages systematically and conscientiously, the translator also needs to have knowledge of the culture to become familiar with the philosophical way of thinking of its people. There is a vast difference between the Eastern and the Western cultures, particularly the Indonesian and the English speaking cultures, as reflected in the common practices of business, law and writing styles. In general, the Indonesians pay special attention to being polite while the English speaking people prefer being straight forward and practical with each sentence having a straight logical inference to another. This is especially true in regard to business and legal writings.
For example, this can be observed by how the Indonesians write the closing sentences which often have the message of asking for understanding, is apologetic in order to avoid being offensive, this would not make sense if translated literally into a flowery English version which usually closes a letter with simply “Thank you for your attention”. Often, there is reference to Muslim terms such as “Wassalam” used in place of “Best Regards.” “Thank you” in Indonesian is “Terima kasih” which means receiving and giving. It reflects the view of life based on the philosophy in the law of gratitude; “to be grateful” for all that is received from the Universe. The response is “kembali” which means “I return the same.” This is just a common example of how a phrase cannot be translated literally depending upon the philosophical thinking.
A translator’s job is therefore to translate phrases into the target language in a way that is customary to the norms of the culture in business and legal practice. Particularly, in regard to legal translation, there are specific phrases and vocabularies that need to be applied such as grantee, grantor, trustee, beneficiary, receivership, covenant, hold harmless, lien, ratification, etc. (depending on the subject). It is advisable to study as many examples as possible of similar documents being translated in both languages. In my research, the legal writing customary in the English speaking cultures predominantly use a persuasive tone characterized by active sentences. I found that this is less so in the Indonesian legal writing which still retains the politeness and graciousness of its people and this extends into its legal writing, which probably makes such a writing style appears more secular to the Westerners. I was amazed to come across a poetic phrase such as “A garland of flowers” in an Indonesian legal journal describing a set of legal regulations.
Another example of how a culture influences social conduct in business is apparent when I served as a legal interpreter before the Courts in San Francisco. One of the rules given to me by the agency is to avoid speaking to the clients before the proceedings in order to avoid the perception of bias. While this makes sense in guarding impartiality, it is quite awkward and rigid when it is applied to the Indonesian way of social conduct which makes sense if an interpreter builds a rapport with the clients before the proceedings, in order to create the Asian way of doing business in a congenial atmosphere. Different Legal Systems In Indonesia And In English Speaking Countries
It is important to note that the system of law in Indonesia is different from the systems of law in the English speaking countries, such as the US, England, and Australia. Indonesian law is derived from the civil law system in the Netherlands which places its importance in codification, while the system in the US and Australia originated from the common law system of England emphasizing on case precedence. Due to this difference, there are legal terminologies and concepts that cannot be safely translated literally without explanation, since such terminologies or concepts do not exist in one legal system or another. For example the concept of ‘trust law’ in the common law system does not exist in the Indonesian law. The definition of the Indonesian law concerning ownership rights is so absolute that it precludes the formulation of trust law concept such as that exists in the Common Law system. In such a case, the translator needs to have knowledge of the substance and it is safer to provide a footnote explaining the literal translation.
Furthermore, within English speaking countries, the common law system has also evolved somewhat differently depending on the history, structure and culture of the society in each country. For example, English law remains more oriented towards the traditional aristocratic structure and views as compared to the development of the law in the US which has evolved more progressively. My law professor in England had the opinion that the US law abhors the common law system. Contract law in England, for example, still adheres to the common law principles while in the US much of the common law contracts have been replaced by a set of reformative law called the Universal Commercial Code.
Similarly, real property law in England is still rooted in the distribution of land according to the aristocratic structure when the King or Queen bestows land to His/Her subordinates, as compared to the real property law in the US which does not have such structure. Also, in the US, the notion of ‘barrister’ and ‘solicitor’ do not exist as in England. Legal practitioners are being commonly referred to as ‘lawyer’ or ‘attorney at law’ although the term ‘esquire or esq.’ based on the English medieval ranking system for an English gentry, is still being used. So, in general there are less archaic terms in US law compared to English law.
The difference in the systems is also reflected, for example, in the difference of the structure of the court system. In translating legal documents from Indonesian to English, we need to know to which particular legal system the document is relevant to because the reference to the different levels of courts is again different. For example, what is referred to as the ‘District Court’ in Australia is the ‘State Court’ in the US. Furthermore, it should be noted that the subject of the document translated is often about a specific field of law, such as mining and oil, banking and finance, intellectual property or corporation. In such scenarios, the translator needs to be truly well versed in those specific fields as much as possible.
For example in a document involving banking and finance, there are accounting, finance and taxation terms the translator needs to be familiar with according to the standard practice and terminology in that country. If the terms are not sufficiently explained in specialist dictionaries such as the Black’s Law dictionary, such terms can now be researched on the Internet. In today’s Internet Age, it is most helpful to know how to work with the Net. I would recommend a translator consult an expert in the specific law involved, if he or she is not so familiar with the Net. In Indonesia, because translations of legal documents has legal implications which can result in a dispute if not translated correctly, a sworn legal translator needs to be certified by the Governor of Jakarta. The sworn translator guarantees the accuracy and the completeness of the content of the translation.
As languages continue to evolve, it is important that a translator continues to update his/her language skills by keeping up with reading of current materials in the field. I found this to be true with my Indonesian after living in the US for 25 years. There are new words that I have absolutely no clue with. Another example that has become a trend in Indonesian legal documents is the use of abbreviations that even a native Indonesian translator has problems with.
Conclusion As it is the case with translation involving other specialized fields, such as medical practice and engineering, it is advisable and preferable for a legal translator to be legally trained. For those who lack legal familiarity, it is recommended to consult the experts. Furthermore, familiarity and knowledge of the culture as well as the business and legal practice of the country of the target language is necessary, since a translator’s job is to translate into the target language applying phrases and terms commonly and naturally used there.
The author can be contacted at inge_kunarsih@yahoo.com; www.qualityindonesiantranslation.com