Cross-jurisdiction appropriation of the equal authenticity principle

Abstract

This paper investigates how the equal authenticity principle, commonly adopted by balanced bilingual or multilingual jurisdictions, changes in meaning, value and function as it travels across jurisdictions with different sociopolitical realities. I illustrate how the framing of the concept has subtly shifted in the process of statutory drafting and interpretation when it was appropriated by the Hong Kong judiciary, in contrast with the way the idea was first conceived and applied in Canada and later in international treaties, especially in situations where discrepancies between two language texts are alleged. I argue that the surface similarity between the equal authenticity principle applied in international treaties, Canada and Hong Kong can be misleading, and that subtle shifts in the meaning of equal authenticity can critically affect the outcome of a case. The paper highlights legal bilingualism/multilingualism as an important but often overlooked facet of legal pluralism and draws attention to how the use of linguistic approaches may add to the existing literature in legal pluralism.

Keywords:

• legal bilingualism, equal authenticity, multilingualism, statutory interpretation, comparative law

Acknowledgements

This research (code HKU 747812H) has been generously supported by the RGC General Research Fund. The author would also like to thank Dr Frederick Blumberg for his constructive feedback on an earlier draft of this paper.

Notes

1. Individual bilingualism and societal bilingualism do not always go hand in hand. As observed by Mackey (1967, 11–12), state bilingualism is not created to promote bilingualism in individuals, but to guarantee the maintenance and use of two or more languages in the same nation. Bilingual services provided by state institutions can in fact allow citizens to remain monolingual, and the forces of each monolingual community are needed to prevent domination and assimilation. For an overview of legal bilingualism, see Macdonald (1997).

2. Often ascribed to Bakhtin (see Blommaert 2005, 46).

3. Even after Chinese became an official language in 1974, the laws of Hong Kong were still enacted and published in the English language only, and English was still the major language of the court [Sections 4 and 5 of the Official Languages Ordinance 1974 edition (later amended in 1987)].

4. In non-legal arenas, a form of functional bilingualism is practised. English is used mostly for academic and professional purposes, whilst Cantonese is used predominantly in the social context.

5. The future of Hong Kong was discussed by the Sino-British governments without the participation of Hong Kongers (see e.g. Langer 2007).

6. Chen (1993) has, however, argued that since the Basic Law is based on the Joint Declaration, which is equally authentic in English and Chinese, both the English and the Chinese texts should be consulted with reference to the object and purpose of the law.

7. Decision of the Standing Committee of the National People's Congress on the English Text of the Basic Law of the Hong Kong Social Administrative Region of the People's Republic of China (adopted on 28 June 1990).

8. According to the Department of Justice (Law Drafting Division) (1998), “translation” is a term that should be avoided.

9. Full text of the Chinese original: 「第七屆全國人民代表大會常務委員會第十四次會議決定：全國人民代表大會法律委員會主持審定的《中華人民共和國香港特別行政區基本法》英譯本為正式英文本，和中文本同樣使用；英文本中的用語的含義如果有與中文本有出入的，以中文本為準。」

10. Article 5 of the Basic Law: The socialist system and policies shall not be practised in the Hong Kong Special Administrative Region, and the previous capitalist system and way of life shall remain unchanged for 50 years.

11. Also see the Sino-British Joint Declaration of 1984, Article 3(3).

12. Variety exists in the spoken form. Cantonese is used in Hong Kong, whereas Mandarin is the standard tongue in the mainland.

13. Which gives rise to a monolingual mindset, as suggested by Edwards (2004).

14. A single language variety propagated as a national language through print capitalism is an important precursor of modernity (see Blommaert 2006).

15. I rely heavily on Tabory (1980) in this section, as it was a major piece of reference that the Hong Kong judiciary used in drafting its method for bilingual statutory interpretation.

16. Full text of Section 133: Either the English or the French Language may be used by any Person in the Debates of the Houses of the Parliament of Canada and of the Houses of the Legislature of Quebec; and both those Languages shall be used in the respective Records and Journals of those houses; and either of those Languages may be used by any Person or in any Pleading or Process in or issuing from any Court of Canada established under this Act, and in or from all or any of the Courts of Quebec. The Acts of the Parliament of Canada and of the Legislature of Quebec shall be printed and published in both those languages.

17. (1891), 19 SCR 292; reversed [1892] AC 481 (PC).

18. (1935) SCR 378, at 401–403.

19. (1967) SCR 589.

20. Although, interestingly, many documents in Canada's Constitution (including the Constitution Acts of 1867 and 1982) do not yet have an official French language version.

21. In accordance with the jurisprudence of the International Court of Justice (see Tabory 1980).

22. These other rules of interpretation continue to hold the status of customary law and may still be applied, but their use is discretionary rather than obligatory, depending on the circumstances of the case (see Tabory 1980, 206–208).

23. In cases such as Juster v R.(1974) 2 FC 398 (FCA), Kodellas v Saskatchewan (Human Rights Commission) (1989) 60 DLR (4th) 143 (Sask. CA), R. v Daoust (2004) 1 SCR 217 and Canada (Minister of Citizenship & Immigration) v Bhalrhu 2004 FC 1236, (2006) 1 FCR D-7.

24. Supra note 19.

25. Section 13: Any journal, record, Act of Parliament, instrument, document, rule, order, regulation, treaty, convention, agreement, notice, advertisement or other matter referred to in this Part that is made, enacted, printed, published or tabled in both official languages shall be made, enacted, printed, published or tabled simultaneously in both languages, and both language versions are equally authoritative.

26. The Legislative Instruments Re-enactment Act 2002.

27. Overtly drawing upon other texts (see Fairclough 1992).

28. (1996) MA No. 933.

29. In By-law 35 of the Food Business (Urban Council) By-laws, Cap 132.

30. Fung argues that if one pays attention to the linguistic context (in respect of the premises), “addition” could only mean making big changes – similar to the meaning contained in the Chinese text (supra note 50).

31. (1997) 2 HKC 531. All three judges carry a Chinese surname (Chan, Liu and Wong) and are likely to be native Chinese speakers.

32. Suggesting that construction or building work is involved.

33. Justice Liu carried on saying that “Therefore, unless the pertinent definitions of the Commercial Press, albeit published in 1987, can be demonstrated to be fundamental flaws, it would be quite unnecessary to proceed to consider a whole spectrum of meanings of these two characters”. However, the problem lies not in the way the dictionary is written, but the way it is read and how the judge is picking and choosing senses without paying attention to the frequency of usage, collocation and contextual meaning.

34. In legal writing, agency is often obscured and passive voice tends to be used extensively, as is the case in the rest of the judgement.

35. This emphasis on the human factor has continued in a later part of the judgement: “If the texts are not simultaneously prepared, the language of the text in current use, if still embraced, would most probably impress upon the endeavours of the draftsman to capture the legislative intent in his preparation of the text following. His efforts will be undoubtedly geared to achieving a coherence in language”. As a contrast, the authorship of the English text is never mentioned.

36. Arising from the absence of a simultaneity requirement in the IGCO.

37. It was suggested, when the VCLT was debated, that even the word “version” should be avoided in favour of the word “text”, because “version” suggests divergence (see Tabory supra note 20).

38. (1996) No. MP 4210.

39. Here Justice Cheung emphasizes how overloaded legal draftsmen were during the preparation of the Chinese authentic texts before the handover.

40. MA No. 1395 of 1996.

41. Fung (1997). In this case, the English text (“Provided that the property shall not be chargeable as against a bona fide purchaser thereof for valuable consideration without notice”, Section 18(1)b of the Estate Duty Ordinance) contained a drafting ellipsis (“notice” of what?), and the Chinese text (“但如財產經真誠購買人以有值代價及在不知該財產有押記的情況下購入﹐則不得對該財產施加押記”) has filled the missing object (“押記 (charge)”).

42. According to an informant from the Law Drafting Division, even for bilingually enacted legislation, bilingual drafting is not practised and translation work is still involved.

43. (1980) 59 ILR 495 at 529 and 530.

44. This would include 532 principal ordinances and around 1000 pieces of subsidiary legislation (see Poon 2002; Cheung 2000). Due to the limitation of case law involving ordinances drafted in two languages that are simultaneously enacted, it is not clear yet whether the situation has changed since.

45. “We tend to perceive events in terms of primary frameworks, and the type of framework we employ provides a way of describing the event to which it is applied” (Goffman 1974, 24).

46. The Commissioner of Rating & Valuation v Chan Ho-chin, Colin. LDMR000048A/2000.

47. Same paragraph as cited above.

48. HKSAR v Lau San Ching & Others MA 98 of 2002.

49. Article 79 of the VCLT: 1. Where, after the authentication of the text of a treaty, the signatory States and the contracting States are agreed that it contains an error, the error shall, unless they decide upon some other means of correction, be corrected: (a) by having the appropriate correction made in the text and causing the correction to be initialled by duly authorized representatives; (b) by executing or exchanging an instrument or instruments setting out the correction which it has been agreed to make; or (c) by executing a corrected text of the whole treaty by the same procedure as in the case of the original text. 2. Where the treaty is one for which there is a depositary, the latter shall notify the signatory States and the contracting States of the error and of the proposal to correct it and shall specify an appropriate time-limit within which objection to the proposed correction may be raised. If, on the expiry of the time-limit: (a) no objection has been raised, the depositary shall make and initial the correction in the text and shall execute a procès-verbal of the rectification of the text and communicate a copy of it to the parties and to the States entitled to become parties to the treaty; (b) an objection has been raised, the depositary shall communicate the objection to the signatory States and to the contracting States. 3. The rules in paragraphs 1 and 2 apply also where the text has been authenticated in two or more languages and it appears that there is a lack of concordance which the signatory States and the contracting States agree should be corrected. 4. The corrected text replaces the defective text ab initio, unless the signatory States and the contracting States otherwise decide. 5. The correction of the text of a treaty that has been registered shall be notified to the Secretariat of the United Nations. 6. Where an error is discovered in a certified copy of a treaty, the depositary shall execute a procès-verbal specifying the rectification and communicate a copy of it to the signatory States and to the contracting Slates.

50. Article 48 of the VCLT: 1. A State may invoke an error in a treaty as invalidating its consent to be bound by the treaty if the error relates to a fact or situation which was assumed by that State to exist at the time when the treaty was concluded and formed an essential basis of its consent to be bound by the treaty. 2. Paragraph 1 shall not apply if the State in question contributed by its own conduct to the error or if the circumstances were such as to put that State on notice of a possible error. 3. An error relating only to the wording of the text of a treaty does not affect its validity; article 79 then applies.

51. Section 4B(2): Where a text has been declared to be an authentic text of an Ordinance under subsection (1) and it appears to the Chief Executive in Council that there is any manifest error, omission or inaccuracy in that text, he/she may, by order in the Gazette, correct that error, omission or inaccuracy, and any such correction shall be deemed to have been incorporated in the text at the time when it was declared to be the authentic text.

52. Treaty obligations within a State take effect by domestic legislation.

53. Status of the VCLT retrieved from http://treaties.un.org on 19 July 2011.

54. Although the Basic Law has been described as a mini-constitution, its legal status is debatable, as some have argued that it is no different from a law of the NPC (China's supreme legislature). “Hong Kong's lawmaking competence derives from the NPC and ultimately from Article 31 of the Constitution. References to the Basic Law as a ‘mini-constitution’ are therefore apt to mislead. It is an NPC law which can extend or restrict the application of the Chinese legal system to Hong Kong as the NPC thinks fit.” (Epstein 1989, 56).

55. Implicitly it hints that the Chinese language is predominant, as discussed earlier.

56. Referring to the idea of “One Country, Two Systems”; “(t)here was no precedent for two different economic systems operating within a single sovereign state” (see Langer 2007, 427).

57. As observed by Chen (1985, 26), “(n)o common law system in the world has yet broken away from at least some reliance on the English language”.

58. For a summary of comparisons, see Chen (1985).

59. The continued financial success of Hong Kong, reliant upon a stable legal system, is seen as a major contribution to China, according to the Working Committee member and investment banker David Chu (Fortune Magazine, June 26, 1995).