Bilingualism and law in Hong Kong: Translatophobia and Translatophilia

ABSTRACT

Although translation may be considered the sine qua non of bilingual legislation, the perceived authenticity and equivalence of different language versions of the same law are contingent on the disavowal of translation. Yet precisely because of such disavowal, translated versions of law are paradoxically valorized as equal in meaning and status to their originals, notwithstanding possible infelicities in the translation, so as not to compromise the precepts of legal bilingualism. This paper theorizes such a situation in relation to Hong Kong’s bilingual jurisdiction. On the basis of relevant legislation, official guidelines on statutory interpretation, and court cases in Hong Kong, the paper proposes the terms Translatophobia and Translatophilia to highlight the double bind that entraps translation in institutional discourses on legal bilingualism. More specifically, it reveals the language ideology generating anxieties over translation, and observes how such anxieties may be channelled into a fetishization of translation.

KEYWORDS:

• Legal bilingualism
• translation
• Translatophobia
• Translatophilia
• language ideology
• Hong Kong

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 The current formulation of the provision is a 1995 amended version that added ‘for court proceedings’ as one of the purposes of the government’s bilingual policy.

2 S.4(1) IGCO (Cap. 1) states that ‘All Ordinances shall be enacted and published in both official languages’. The first piece of bilingual legislation was the Securities and Futures Commission Ordinance (Cap. 24), enacted in April 1989.

3 Even in the case of so-called parallel drafting of bilingual legislation, elements of translation are involved, not least as an invisible process in the cognition of the bilingual drafter.

4 For a comprehensive and authoritative account of the linguistic canons of statutory interpretation, see Bennion (2008, 1155–1270).

5 Grammatically the phrase genggai huo zengjian gongcheng should be analyzed as genggai gongcheng huo zengjian gongcheng (‘alteration work or addition work’); the issue of whether the ‘work’ in question needs to be structural in nature pertains to both alteration and addition. Yeung J somehow focuses only on the second phrase zengjian gongcheng; cf. Liu JA’s approach in the appellate court below.

6 The LDD paper came about shortly after R v Tam Yuk Ha and Chan Fung Lan v Lai Wai Chuen (and cited both cases); indeed the paper can be seen as a response to the position of those two cases on the question of translation, and a clarification of the official position on the issue, especially in light of the decision in HKSAR v Tam Yuk Ha (discussed below).

7 The same point was reiterated by another judge in the court, Wong J: ‘In so far as the Chinese language text could be resorted to in aid of interpretation, one should first apply a meaning of the two characters ‘工程’ consistent with the English language text. If the two texts could be explained in harmony, there would be no reason to override the statutory presumption that they carry the same meaning’ (HKSAR v Tam Yuk Ha 1997, 538). Interestingly, the suggestion here that one should apply a meaning of the Chinese word gongcheng consistent with the English version is tantamount to using a highest common meaning to reconcile the two language texts – an approach explicitly rejected by the LDD; see LDD (1998, para 5.4.5 and 5.4.6).

Additional information

Notes on contributors

Tong King Lee

Tong King Lee is an Associate Professor of Translation at the University of Hong Kong.