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Statutory interpretation in multilingualjurisdictions: typology and trendsJanny Leung aa School of English , The University of Hong Kong , Hong Kong ,SAR , ChinaPublished online: 23 Apr 2012.
To cite this article: Janny Leung (2012) Statutory interpretation in multilingual jurisdictions:typology and trends, Journal of Multilingual and Multicultural Development, 33:5, 481-495, DOI:10.1080/01434632.2012.680462
To link to this article: http://dx.doi.org/10.1080/01434632.2012.680462
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Statutory interpretation in multilingual jurisdictions: typologyand trends
Janny Leung*
School of English, The University of Hong Kong, Hong Kong, SAR, China
(Received 25 February 2012; final version received 25 March 2012)
A contemporary phenomenon � multiplicity of authentic sources of law indifferent languages � complicates the process of statutory interpretation.In multilingual jurisdictions, problems arise when a literal interpretation ofauthentic versions of the law leads to inconsistent outcomes. Jurisdictions resolvesuch inconsistency in different ways. This article identifies converging trends anddiverging practices in multilingual interpretation by comparing various jurisdic-tions and explains the phenomena by placing the jurisdictions in their social,historical and political contexts. I will then attempt to sketch a typology of legalmultilingualism and analyse its significance to interpretation theories. I concludethat legal multilingualism has caused a shift in interpretation dynamics andfuelled a conceptualisation of the law that is distant from the text that formulatesit, forcing one to rethink the relationship between language and the law.
Keywords: legal multilingualism; language policy; language and law; statutoryinterpretation
Introduction
Legal systems become multilingual for various reasons. Some jurisdictions adopt a
multilingual legal policy as an effort to recognise the language rights of its
multilingual citizens; some postcolonial territories have not only retained the use
of the ex-coloniser’s language to preserve stability but also elevated the status of the
local tongue to reflect the new political reality and strengthen the cultural dignity.
One shared purpose of all multilingual policies seems to be the removal of linguistic
barrier to justice for the benefit of citizens speaking any of the official languages.
Apart from providing speakers of different official languages a right to use their
mother tongue in the legal context, a multilingual legal system also allows its laws to
be represented in different official languages. The way such texts are interpreted and
weighted against one another reveals the ideologies behind the language policy of a
jurisdiction.
This article aims to identify converging trends and diverging practices in
multilingual interpretation by comparing various jurisdictions, supplemented by an
attempt to explain the phenomena by placing the jurisdictions in their social,
historical and political contexts. This contextualisation leads to a rudimentary
typology of legal multilingualism. I shall argue that some multilingual jurisdictions
show preference to one official language over another, just as multilingual
*Email: [email protected]
Journal of Multilingual and Multicultural Development
Vol. 33, No. 5, August 2012, 481�495
ISSN 0143-4632 print/ISSN 1747-7557 online
# 2012 Taylor & Francis
http://dx.doi.org/10.1080/01434632.2012.680462
http://www.tandfonline.com
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individuals do not always have equal proficiency in their languages (known as
‘unbalanced bilingualism’ in the field of language acquisition). This preference may
be explicit � as indicated by a limited multilingualism policy � or implicit � as
potentially reflected in the process of statutory interpretation � amidst claims of
linguistic equality.
Major rules of statutory interpretation embed the assumption that there is only
one official text to be interpreted. Some of them are ill-prepared to deal with
complexities introduced by the multiplicity of official texts in multilingual jurisdic-tions, which begs for a shift in interpretative dynamics. I shall describe such a shift
and examine how it may feed back into mainstream interpretation theories.
Several terms need to be defined to facilitate the discussion. I shall use
‘multilingualism’ as a catch-all term for ‘bilingualism’, ‘trilingualism’, etc., referring
to the use of two or more languages by an individual speaker or a community of
speakers, as contrasted with ‘monolingualism’. Becoming legally multilingual
involves a lot more than translating the law into other languages. For example, the
whole legislation drafting process might need to be changed (as in jurisdictions thatpractice simultaneous drafting); legal practitioners, government officials and
administrators have to acquire linguistic mastery of all official languages; approaches
to statutory interpretation have to be adjusted; and discrepancies between versions of
a legislation have to be dealt with. Legal multilingualism needs to be distinguished
from mixed jurisdictions, the latter referring to legal systems made of two or more
legal traditions, such as the co-existence of common law and civil law in the
Canadian legal system. As in the Canadian example, a legal system may be both
bilingual and bijural at the same time. Languages used in multilingual jurisdictionsmay have the status of an ‘official’, ‘authentic’ or ‘national’ language. The legal
implications of these statuses vary from jurisdiction to jurisdiction. Some ‘official’
languages are not used in ‘authentic’ versions of the law, while the use of the term
‘national language’ is more often politically rather than legally motivated.
Equal authenticity and degree of multilingualism
Next, I shall delineate the scope of our discussion by differentiating between limitedand full legal multilingualism. Jurisdictions that claim or aim to be fully multilingual
often have a language policy that ensures equal treatment of each official language.
The essence of this interpretative strategy in multilingual treaties and statutes is
captured by the equal authenticity rule, which stipulates that all official texts carry
the same meaning and authority. Variants of the equal authenticity rule are adopted
at the national level in jurisdictions such as Canada and Hong Kong and in
supranational bodies such as the European Union (EU) or the World Trade
Organisation (WTO).Whilst some multilingual jurisdictions grant equal authority to two or more
languages, some practice a more limited form of legal multilingualism. New Zealand,
for instance, legislates mostly in English, with only a small number of Acts published
in Maori despite its status as an official language. Some jurisdictions prefer one
language version to another where there are conflicts between the two. This is the
case in Quebec, where although legislation is published in both English and French,
as required by Section 133 of the Constitution Act 1867, French is the only official
language and prevails in case of any discrepancy. In Belgium, although German isone of the three official languages, only legislative texts published in French and
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Dutch are considered authentic. The German version of the law is therefore
published only for informative purposes. Similar practices may be found in Malta,
where Maltese shall prevail in case of conflict between the Maltese and the English
texts of the law; in Ireland, the Irish text prevails over the English language text.
Malaysia allows conditional use of English, but Malay is given higher status in courts
and in statutory interpretation. In Louisiana, where bilingualism is no longer
officially practiced, the French version of some older laws still has a lingering effect
in statutory interpretation and in practice prevails over the English text even thoughthe latter is the only authoritative language today (Bermann 2006).
Most countries do not have enough political, social and cultural motivation for
becoming a fully multilingual jurisdiction. In some places it may be difficult to justify
spending enormous public resources on multilingual practices, because the number
of speakers of a minority language remains relatively small (according to the official
statistics of 2010 retrieved from www.stats.govt.nz, around 15% of the population in
New Zealand are Maori, but virtually all of them speak English; the German-
speaking population accounts for less than 1% of the Belgium population).In Quebec, on the other hand, although around 10% of the population in Quebec
are Anglophones (according to www.gouv.qc.ca), the pre-eminence of French is seen
as being culturally important and any attempts to challenge its status as the sole
official language would be met with resistance.
Where one official language is designated to have more authority than other
languages in case of divergence, statutory interpretation is akin to that in
monolingual jurisdictions. Greater complexities in interpretation arise when suppo-
sedly equally authentic texts show discrepancies, which are only expected given thattranslation is rarely perfect, and that different languages often express ideas
differently. Nevertheless, the assumption that authentic language versions contain
the same meaning seems to be a necessary legal fiction in this context (Cao 2010).
As this article is primarily concerned with multilingual interpretation, I shall
from this point onwards focus on jurisdictions where two or more legislative
languages are declared as equally authentic, with no single language designated as
having a higher reference value in case of divergence.
Approaches to interpreting multilingual legislation
The most vibrant discussion and the most sophisticated practice of multilingualism
take place within the EU, which currently has 23 official languages, a dedicated
Commissioner for Multilingualism and 3400 members of staff (approximately 15% of
the Brussels executive’s workforce) working in the areas of translation, interpreta-
tion, publication and language policy (according to a news article published on
news.scotsman.com on 1 November 2006). Multilingualism in the EU has beendescribed as being fundamentally distinctive, because the notion prominently
symbolises Europe’s historical, political and cultural diversity, a legal imperative,
a political necessity, a democratic accountability and representation tool and a
guarantee of public access to Community documents (Athanassiou 2006). It is a
‘necessary corollary’ to the principle of direct effect and the doctrine of supremacy of
Community law. Such an explanation is given for the EU’s strong commitment to
avoid linguistic discrimination and to ensure uniformity in interpretation. Articles
21, 290 and 314 of the Treaty establishing the European Community and RegulationNo. 1/58 (as amended by successive Acts of Accession) provide a legal basis for
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multilingualism in the EU. According to Article 314, ‘Community law provisions
must be interpreted and applied in the light of the versions established in the other
Community languages’.
EU courts have extensive experience dealing with discrepancies in language
versions during statutory interpretation. It is a common practice to compare
different authentic versions of the law as a means of accessing legislative intent
(see Case C-1/97 Birden v. Stadtgemeinde Bremen [1998] ECR I-7747; Case C-236/97
Codan [1998] ECR I-8679; Joined Cases T-22/02 and T-23/02 Sumitomo Chemical
[2005] ECR II-04065). This was established clearly in CILFIT, a leading authority on
the scope of the obligation imposed by the third paragraph of Article 177 of the EEC
Treaty, whose purpose is to ensure that Community law is interpreted and applied in
a uniform manner in all the Member States. In the judgment, the Court of Justice
stated that since community legislation is drafted in more than one authentic
language, ‘an interpretation of a provision of Community law thus involves a
comparison of the different language versions’.
Driven by the need for a uniform interpretation of EU regulations, the purpose
and general scheme of the law is an overriding consideration, even if it means that
sometimes the ordinary meaning of one or more texts has to be disregarded. For
the same reason, the common denominator is not always the best solution in
resolving discrepancies, and the clear meaning in one language version does not
necessarily replace the ambiguous meaning contained in another version. In
Fonden Marselisborg Lystbadehavn v. Skatteministeriet, French, English, Italian,
Spanish, Portuguese, German and Finnish versions of Article 13B(b) of the Sixth
Council Directive have used a term for ‘vehicles’ that covers general means of
transport, whilst the Swedish, Dutch, Greek and Danish equivalents have a more
limited meaning, covering only land-based transport. Although the Danish word
‘kjøretøjer’ clearly refers to land-based transport on wheels, the court held that
‘vehicles’ used in that provision must be interpreted as covering all means of
transport, by reference to the purpose and general scheme of the rules of which it
forms a part � that Value Added Tax (VAT) should be charged on all taxable
transactions except in the case of derogations expressly provided for, and thus the
scope of derogations should be interpreted strictly (for further discussion of this
case, see Cao 2007).
In fact, EU courts sometimes even insist that one version of a text should never
be considered in isolation, in order to ensure uniform application of EU law in all the
Member States. This was stated in Erich Stauder v. City of Ulm. In this case, it was
found that unlike the French and Italian texts of an EC decision (Official Journal
1969 L 52/9), the German and Dutch texts imply that the sale of butter at a reduced
price under certain welfare schemes is conditional on revealing to retailers the
name of the beneficiary. Although the original decision was based on the French
version, the court did not automatically give preference to it. Instead the court
argued that:
When a single decision is addressed to all the Member States the necessity for uniformapplication and accordingly for uniform interpretation makes it impossible to considerone version of the text in isolation but requires that it be interpreted on the basis of boththe real intention of its author and the aim he seeks to achieve, and in the light inparticular of the versions in all four languages.
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Taking a liberal interpretation of all the four texts, the court held that the provision
in question ‘must be interpreted as not requiring � although it does not prohibit � the
identification of beneficiaries by name’. A similar point was reiterated in Milk
Marketing Board v. Cricket St Thomas Estate, where the English version of the law
appears to depart from other language versions, particularly the French and German
versions:
In any event, the English version of Article 25(1)(a) of Regulation No 804/68 cannotserve as the sole basis for the interpretation of that provision, or be made to override theother language versions in this regard. Such an approach would be incompatible withthe requirement for the uniform application of Community law.
Therefore, an EU lawyer who does not examine the different authentic versions of
the law may be accused of negligence (Gambaro 2007).
Although comparison across texts is often made, EU courts are extremely careful
not to give the impression that one language is favoured over another, even if the
final outcome of interpretation coincides with the meaning contained in one or more
language versions. For instance, in Regina v. Pierre Bouchereau and Commission v.
United Kingdom, the court drew no legal consequences from the terminology used in
language versions due to their discrepancies, and based interpretation on the purpose
and general scheme of the law (Cao 2010).
Interpretation of the WTO Agreements, which are equally authentic in English,
French and Spanish, is governed by Article 33 of the Vienna Convention on the Law
of Treaties (VCLT). VCLT 33 does not require the comparison of authentic texts on a
routine basis; comparison is only expected when the presumption that the texts
contain the same meaning is rebutted (Tabory 1980). The Appellate Body
occasionally compares texts without any of the parties raising arguments based on
a comparison of the texts (see Condon 2010 for six of such cases). The French and
Spanish texts have been used to confirm its interpretation of the English text; for
example, in US � Oil Country Tubular Goods Sunset Reviews, the Appellate Body
confirmed via the French and Spanish versions of an anti-dumping agreement that
the ‘definition’ and ‘determination’ of injury cannot be equated. It has been argued
that ‘routine comparison of authentic texts would be a good practice’ (Condon 2010,
191). Leading jurisprudence scholar Rosenne (1966, 209) also suggests that a ‘good
practitioner would almost automatically compare the different language versions
before commencing any process of interpretation’.
At the national level, Canada may be considered a leader in legal bilingualism.
The canons of bilingual interpretation adopted in Canada are the same as those laid
down in VCLT 33 (McEvoy 1986). Official Languages Act 1969 provides that in
construing an enactment, both its versions in the official languages (i.e. English and
French) are equally authentic. The overriding principle is that the meaning of a
statute should be construed according to the true spirit, intent and meaning of an
enactment, and in a way that best ensures the attainment of its objects. Although in
Reference Re Education Act the Ontario Court of Appeal gave effect to the highest
common meaning contained in the English and French version of the statute, in Dore
v. Verdun (discussed in Bastarache 2008) the Supreme Court refused to be bound by
the meaning shared by both language versions of the law and adopted an
interpretation consistent with legislature’s intention and supported by parliamentary
history. Importantly, although when the case was under appeal, Boudouin J. A.
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rejected the shared meaning principle partly on the basis that the English version of
the Civil Code was ‘merely a translation’ (1327), the Supreme Court carefully
dismissed this line of reasoning by referring to the equal authority principle.
It is becoming increasingly common that Canadian courts consult both authentic
texts in English and French in construing the purpose of the law and to ensure that the
like effect is given to an enactment in every part of Canada. In Canada (Minister of
Citizenship & Immigration) v. Bhalrhu, the Federal Court made reference to the French
version of the Immigration and Refugee Protection Act to ascertain legislative intent:
At the hearing, both parties focused on the English version of s. 196 [of the Immigrationand Refugee Protection Act, S.C. 2001, c. 27] when they argued the meaning to be givento this provision but the Court must consider the French text as well for it is equallyauthentic.
The French version of the law contains a nuance that is not evident in English. In
construing the scheme of the Act and the intention of the legislator, the court relied
on the French version as an important element of context. Similarly, Canadian
courts considered the French text to aid interpretation in Juster v. R. and Kodellas v.
Saskatchewan (Human Rights Commission). In the latter case, the Saskatchewan
Court of Appeal stated that ‘(t)o refer to only one language version may result in
failure to properly ascertain the true meaning of the Constitution’ and successfully
used a reading of the French text (containing the word ‘juste’ and ‘convenable’,
which convey the senses of fairness and appropriateness, respectively) to clarify any
ambiguity that existed in the interpretation of the English text (whether the words
‘appropriate’ and ‘just’ denote one concept or two). The court further reiterated the
bilingual nature of the Canadian Constitution and argued that:
The proper approach, it is suggested, is to refer to both language versions of theprovisions in issue, resolve any discrepancies of meaning and then apply the truemeaning so ascertained from both versions. Absent a finding of equivalency betweenversions, it would seem improper to apply one language version of a provision indisregard of the other and would open up the possibility of variant results where adiscrepancy between versions exists.
This is in line with Beaupre’s (1986) position in his landmark work in bilingual
interpretation:
. . . the only reliable approach to the construction of bilingual Canadian legislationentails, as an initial step, a comparative reading of both official versions of thelegislation. (153�154)
Although the interpretation of bilingual legislation in Hong Kong is modelled on the
same principle laid down in VCLT 33, as expressed in Interpretation and General
Clauses Ordinance 10(B), Hong Kong courts have not gone as far as in upholding the
equal authenticity principle. For our discussion, it would be useful to note that earlier
laws (including 532 principal ordinances and around 1000 pieces of subsidiary
legislation; Poon 2002) in Hong Kong were enacted first in English and later
translated into Chinese; after the Official Language (Amendment) Ordinance came
into operation in 1989, local laws have been enacted simultaneously in English and
Chinese.
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In cases involving earlier laws, Hong Kong courts give more importance to the
English text given its original status, as in HKSAR v. Law San Ching and Others,
where the meaning of the Chinese and English texts of Section 4(28) of the Hong
Kong Summary Ordinance was found to differ:
. . . if the Ordinance was initially enacted in English, the English text was the originalofficial text from which the Chinese text was subsequently prepared and declaredauthentic. In ascertaining the ordinance’s legal meaning, the English text should betaken as more accurately reflecting the legislature’s intent at the time it was originallyenacted. In this case, the meaning borne by the original official English text, which wasalready in existence as early as 1932, should take precedence over the Chinese authentictext.
The argument was made immediately after holding that the difference between the
Chinese and the English text was not reconcilable, without at this point invoking a
consideration of the object and purposes of the specific ordinance involved.
Similarly, in Chan Fung Lan v. Lai Wai Chuen, where the difference between the
Chinese and the English texts was found to be irreconcilable, the court also bolstered
the idea that the authenticated Chinese text had a humble start as a translation
(see also Cao 2010):
One must bear in mind that the authenticated Chinese text started life simply as atranslation of the original legislation and if there are errors in the translation, which arebound to arise in such a mammoth undertaking, such errors should not be given effectsimply because under Section 10(B) of the Interpretation Ordinance the two texts aresaid to be equally authentic.
The same idea was relied upon in a later Lands Tribunal case The Commissioner of
Rating and Valuation v. Chan Ho-Chin Colin to undermine the Chinese version of the
law.
By resorting to s 4B of the Official Languages Ordinance, which empowers
the Governor-in-Council to correct manifest error or inaccuracy in a text which has
been declared authentic under that section, the court effectively wrote off the
meaning contained in the Chinese text. Similarly the Court of Appeal derogated the
reference value of the Chinese text, which is alleged to be different from the English
legislation in HKSAR v. Tam Yuk Ha:
The Chinese language text could not have been intended to be remedial of the Englishlanguage text. Any rectification would have to be effected by an amendment, not by theother language text.
Whilst the presumption that meaning contained in each authentic text is the same is
not irrefutable, the thin line between a ‘discrepancy’ and an ‘error’ reflects the
underlying perceptions of the status of the authentic texts. If the original text is taken
to prevail, any discrepancy with another authentic text becomes a translation error. It
is perfectly logical to examine history in search for legislative intent, but to state that
one authentic text should always take precedence because it was original would be to
render the authority of the other authentic text virtually bankrupt. In fact, even in
jurisdictions where multilingual texts are simultaneously enacted, translation is very
common in the drafting process. The Hong Kong approach seems to contrast with the
kind of caution exercised by EU and Canadian courts in not giving preference to any
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one of the authentic texts and not privileging any version of the law as ‘original’ (Solan
2009). In fact, in the Young Loan Arbitration case (discussed in Condon 2010), which
concerned discrepancies between the English, French and German versions of the
London Debt Agreement, the Arbitral Tribunal gave no importance to the fact that
the clause had been drafted in English and confirmed that the earlier international
practice of referring to the original text as an aid to interpretation is incompatible with
the equal authenticity principle in VCLT 33. Their position is in line with the
Canadian Supreme Court, which states, in the case that developed the equal
authenticity principle, CPR v. Robinson, that ‘I take it that whether the article was
first written in French or in English is immaterial’, clearly placing the principle above
the consideration of order of drafting. Sullivan (1994) has also argued that ‘[i]t is
inconsistent with the equal authenticity rule to resolve discrepancies between two
language versions by giving automatic preference to one’ (218).
Such an interpretational practice in Hong Kong does not seem to be practically
different from jurisdictions practicing a limited form of bilingualism, where in case of
divergence, one text prevails. There exists a whole spectrum of bilingual statutory
interpretation policies in decolonising territories: in Malaysia, English prevails in
legislations enacted before 1967, and now the national language Malay prevails in
legislations enacted afterwards (Powell 2008); in Hong Kong, English and Chinese
assume equal authority; in the Philippines, there is no commitment as to whether the
English original legislation or the official translations in Filipino would prevail in
case of doubt (Gonzalez 1996). Perhaps Hong Kong is not substantially different
from Malaysia, in that for earlier laws English in practice still prevails, save the
false expectations and policy redundancy brought up by the equal authenticity
assumption.
Apart from showing an almost automatic preference for the ‘original’ English
text, there is also little evidence in Hong Kong cases for routine comparison between
the two authentic texts, a trend emerging in other balanced multilingual jurisdictions.
Such comparison only takes place if an alleged discrepancy is brought up; in fact, the
Chinese texts of bilingual legislation have received close to no attention during their
first decade of existence (Fung 1997). English is used predominantly in higher courts,
and the Chinese authenticated text is hardly ever brought up when the proceedings
take place in English, except where litigants attempt to rely on the Chinese version of
the law. Underlying such dynamics is the fact that the court sees no reason to believe
that the newer authentic text could illuminate the interpretation of the ‘original’ text
and have to still take bilingualism to the heart of their legislative system.
Missions of multilingualism
If one were to attempt to explain the aforementioned divergence in interpretative
practices, one has to place the multilingual jurisdictions in context. As a rudimentary
attempt to sketch a typology of legal multilingualism, one finds multilingual
jurisdictions motivated by:
� International cooperation and negotiations (as in treaties and trade unions)
� Integration (e.g. the EU)� Colonisation and decolonisation (e.g. Hong Kong, the Philippines and
Malaysia)
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� Improving legal access for minority communities (e.g. the German-speaking
community in Belgium, and in many other jurisdictions that practice a limited
form of multilingualism)
Admittedly the categories overlap, and the complicated legal history of many
jurisdictions makes them resistant to any simple categorisation. In Finland, although
Swedish is now only spoken by a minority of the population, the Finnish legal system
originated during Swedish rule. The significance of Swedish in the Finnish legal
system is thus beyond the notion of a minority language. Similarly, the Canadian
legal system is complex in that it is not only bilingual but also bijural, inheriting both
the common law system from the United Kingdom and some civil law tradition in
private law from France.The differences between the interpretation approaches discussed � whether
comparison of authentic texts are made on a routine basis and whether preference is
given to one authentic text over another based on the origin of the texts � may
impact directly on the outcome of the cases and reflect the different sociopolitical
reality of different jurisdictions.
In supranational bodies, these practices are adhered to most seriously because of
the political sensitivity involved in upholding equal authority among sovereign
nations. The dominant multilingual interpretation trend exemplified previously,
which encompasses the equal authenticity principle and a purposive approach to
interpretation, is necessitated by the political environment of international agree-
ments and the search for uniformity in integrating Europe. Legal multilingualism
seems vital to the convergence of the results of statutory interpretation, which in turn
ensures the effectiveness of policies applied across nations. Solan (2009) has even
argued that the proliferation of languages actually assists the European Court of
Justice in its interpretation of statutes by making it easier to discover the intended
meaning of the law, quoting Augustine’s words, ‘The great remedy for ignorance of
proper signs is knowledge of languages’ (290).At the national level, jurisdictions that see legal bilingualism as a long-term
policy show a similar commitment to the principle of equality, and thus Canada has
moved towards the same direction. The commitment is especially important for
Canada, given that the construction of an ideology of bilingualism is sometimes
deployed to affirm the legitimacy of the country (Heller 1999).
In some decolonising territories, legal multilingualism satisfies the need to elevate
the status of the local tongue while preserving stability by retaining the existing legal
language during a transitional stage of decolonisation. Although there is likely to be
political pressure for more legal recognition of the status of the local tongue
(especially given that in territories like Hong Kong, Malaysia and the Philippines, it
is still the elites who tend to have good mastery of the former coloniser’s language),
the courts are not necessarily concerned about equal authority of the official
languages, except for the reason of clarity of the law. Therefore, as we have seen, the
equal authenticity principle is an optional policy in statutory interpretation in these
territories.
The unequal authority of the authentic languages in decolonising territoriesmight be characteristic of a transitional stage of legal dualism towards a fuller form
of legal bilingualism or, ultimately, monolingualism (i.e. with the ultimate goal of
removing the former coloniser’s language and giving pre-eminence to the local
language). The difference between legal dualism and legal bilingualism is that,
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according to Macdonald (1997), legal dualism is the two solitudes model and the
latter is the cooperative model. In the former model, one pretends that the law can be
understood by reference to just one of the official texts. In Hong Kong, Malaysia and
the Philippines, there is a common perception that the local languages � Cantonese,
Malay and Filipino � are not ready as a legal language, despite the fact that these are
the languages most understood by the respective population. It has been stated that
the legal register of Filipino ‘has not yet been built up’ (Gonzalez 1996, 233); that
Bahasa Melayu does not have ‘enough words to express legal concepts or complexarguments’ (Fahri 2001, cited in Powell 2004, 3); that Cantonese does not have ‘a
well-established legal register’ (Ng 2009, 258). In addition to ensuring stability and
access to the increasingly globalised world (Evans 2010), retaining the former
coloniser’s language buys time for the development of the local language into an
effectively functioning legal language. In this transitional stage, there is doubt and
hesitation as to how much importance the local language should receive. The
dynamics of interpretation might well shift, as the local language develops, for
example in the case of Hong Kong where legislative debates now take place inChinese. To facilitate the transition into a genuinely bilingual system, it has been
suggested that all monolingually enacted laws in Hong Kong be repealed and re-
enacted bilingually (Cheung 2000). However, based on the Louisiana experience, it
seems that even if a version of the law is repealed, its effects might linger as the court
searches for the original legislative intent. Moreover, re-enactment of the laws is only
cosmetic; as shown in the example of the EU and Canada, if a jurisdiction gives true
priority to equal authenticity, dates of authentication or origin of texts do not have to
be a hindrance. If one considers legal bilingualism as a transitional policy, it is thennot surprising that the commitment to legal bilingualism or equal authority in the
decolonising territories discussed is relatively limited when compared with the case of
Canada, where legal bilingualism is regarded as a long-term goal.
If the aim of legal multilingualism is to improve access to the law for communities
speaking different official languages, a conflicting outcome may result. To any one
language community, legal multilingualism may be both liberating and limiting.
Legal multilingualism is not just about arriving at a correct interpretation of the law.
Multilingual legal policies allow language communities to have a basic grasp of thelaw and to potentially participate in a trial conducted in their own language. As each
language version of the law is supposed to be authentic, one would expect that
citizens could rely on a version they understand to regulate their conduct. However,
the previous discussion makes clear that multilingual jurisdictions often see the need
to compare and combine the meaning of all authentic texts in interpreting a statute.
If this becomes a regular practice, it will take not just legal knowledge, but also
mastery of all official languages, to comprehend the law. Expert consultation will
become necessary. The need to read all versions together has been described as ‘aninherent vice of legal bilingualism’ (Cheung 2000, 251). The irony is that making the
law linguistically available to more language communities may only improve
accessibility to the law to a limited extent.
Convergence and theoretical significance
Drawing from the experience of the various multilingual jurisdictions discussed
previously, one obvious observation is that the same interpretational approach(codified in only slightly different ways) could be applied differently, depending on
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how legislative object and purpose are determined, and how much weighting other
general rules of statutory interpretation are given.
Despite the differences highlighted, there is one strong converging trend among
multilingual jurisdictions towards purposive interpretation. Monolingual jurisdic-
tions tend to favour plain meaning (a basic rule of statutory construction in English
courts), and alternative interpretation methods are only explored when the plain
meaning of the legislation is not clear or if it leads to an absurd result. In multilingual
jurisdictions, by contrast, the very notion of the existence of a single textual meaning
is abandoned. Plain meaning is at most a starting point of interpretation.
Jurisdictions adopting the equal authenticity rule often start by considering the
combined meaning of all the authentic texts, and by doing so, effectively ignore some
of the individual texts in the process of harmonisation. The literal meaning of one or
more authentic texts may not have any regulatory value. Legal meaning needs to be
constructed from a mega text made up of all the authentic texts, in a process of
harmonisation during which a part of the text dissolves and disappears. In a way,
that each text is authentic essentially means that no text is authentic.Few would dispute that interpretive weight should be given to the purpose and
object of the law. However, judicial discretion widens as incongruent language
versions of the law open up more candidates for a correct interpretation by adding
interlingual uncertainties on top of intralingual uncertainties, and when there is no
restriction as to which purpose of a statute should be given more importance, as the
interpreter navigates the sea of legislative history and debates. Therefore, even if one is
competent in all the official languages, they could not reliably predict which purpose
of the ordinance the court will give more weight to in the interpretation process. Lord
Oliver in Black-Clawson has said that ‘Ingenuity can sometimes suggest ambiguity or
obscurity where none exists’, and by doing so one may create room for discretionary
considerations to avoid injustice. In multilingual jurisdictions, the amount of
ingenuity for the task will be reduced, for two language versions of a text are almost
bound to contain differences, even in the absence of blatant translation errors.
Although occasionally multilingual texts might also help resolve intralingual
uncertainties such as those arising from vagueness and ambiguity (Cao 2007), the
multiplicity of languages appears to increase legal indeterminacy by widening the
judicial discretion and diminishing the certainty of the law. Interestingly, Solan (2009)
argues that multiplicity of languages actually gives courts more room to achieve
fidelity to the intention of the legislation, but cautions that if the languages are too
different, the amount of discretion available to a court might become too broad.
Furthermore, multiplicity of legal languages forces us to rethink the relationship
between language and the law, and to re-assess the capacities and limitations of
human language. As mentioned earlier, courts in multilingual jurisdictions do not
confine themselves to ‘any or even all of the texts’ (Klimas and Vaiciukaite 2005), but
search for the true legislative intent of the given provision. The law may be
considered the ‘infrastructure’, upon which the ‘superstructure’ of the various official
languages builds (Klimas and Vaiciukaite, 6). The interpreter needs to penetrate
through the superstructure to reach the core of the law. Viewed from a different
perspective, one may say that ‘legal knowledge transcends language’ (MacDonald
1997, 140), or that language does not fully capture the law. As one of the pioneering
scholars of legal bilingualism Macdonald has observed:
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Between the illusion of homogeneous, neutral, determinate legal language and theillusion of contingent, arbitrary, indeterminate legal language lies the insight of legalbilingualism. Legal bilingualism (or more radically, legal multilingualism) takes as giventhat the complete normative content of law cannot be expressed by a particular set ofwords in one or any number of languages; but it also takes as given that language is aprivileged communicative symbolism for apprehending law’s normativity. All law, giventhis insight, is multilingual. (1997, 126)
It seems that strict adherence to the equal authenticity principle, comparison of
authentic texts on a routine basis, avoidance of giving preference to any single
authentic text and a purposive approach to interpretation are all necessary
ingredients for cultivating one single legal culture in a multilingual jurisdiction,
which is seen as one ultimate goal of legal bilingualism (MacDonald 1997).
At the theoretical level, the foundations of multilingual statutory interpretation
seem to be compatible with both classical intentionalism, which treats meaning as
what the speaker intends to convey, and the purposive theory, which upholds the
importance of the purposive behind the legislation. On the other hand, textualists
believe that ‘judges must seek and abide by the public meaning of the enacted text,
understood in context’ (Manning 2005). It is therefore not difficult to see that legal
multilingualism poses a new challenge to textualism and legal realism by making it
more defensible to depart from the text of the law. Textualists consider it a myth that
multi-member legislatives have a shared but unexpressed intent, and dismiss efforts
to trace legislative intent in legislative history. Scalia (1997, 32) has argued that,
‘[W]ith respect to 99.99 percent of the issues of construction reaching the courts,
there is no legislative intent, so that any clues provided by the legislative history are
bound to be false’. Easterbrook (1992), Chief Judge of the United States Court of
Appeals for the Seventh Circuit, has put it this way:
(T)he concept of ‘an’ intent for a person is fictive and for an institution hilarious. A huntfor this snipe liberates the interpreter, who can attribute to the drafters whatever ‘intent’serves purposes derived by other means.
For them, the text is the law and the most reliable way of reading legislative intent,
because only the enacted text, usually a compromise reached by competing interest
groups (especially in international diplomacy), survives the complex legislative
process. In the multilingual context, multiple texts � including those that originated
as a translation � have survived the legislative process, and multiple texts together
form the law. Multiplicity of authentic language texts makes it increasingly likely that
internal conflicts within legislation arise, which a textualist approach to interpreta-
tion does not seem capable of resolving.
Conclusion
It is of interest to note that most multilingual jurisdictions still see themselves as
developing towards legal multilingualism, and few consider themselves to have
attained full multilingualism. Hong Kong is a relatively young bilingual jurisdiction,
but after over a century of experience and with a rather firm commitment to thepolicy, legal bilingualism in Canada is still under development. This is similar to how
many second-language learners never acquire native speaker competence; some
experience ‘fossilisation’ � when learners reach a plateau in their language attainment
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and find it difficult to progress further. Some major hurdles to full legal
multilingualism include the training and recruitment of fully multilingual legal
practitioners (including not only lawyers and judges but also drafters, educators,
administrators and civil servants), and attaining true equality in the drafting process
and statutory interpretation. As shown in the interpretation process alone, becoming
multilingual seems to destabilise a legal system by changing the rules of the game,
and most multilingual jurisdictions have yet to reach equilibrium.
This article has highlighted some converging and diverging practices in statutory
interpretation in multilingual legal systems, situated them in their respective context,
assessed how well they serve different missions based on a rudimentary typology of
legal multilingualism and analysed their relevance to dominant interpretation
theories. Equal authenticity of each official language seems to be part and parcel
of a balanced multilingual legal system and is particularly emphasised when a
multilingual jurisdiction is primarily concerned with uniformity and universality.
However, a comparison of various balanced multilingual jurisdictions reveals that
even though they are guided by very similar interpretation principles, there is room
for divergent interpretation practices due to differential weighting assigned to other
canons of interpretation. Such divergence is often sociopolitically motivated.
Multiplicity of equally authentic texts renders it difficult to take a literal
approach to statutory interpretation, and a purposive approach means that none of
the official texts may itself be sufficient to represent the true legal meaning. Where
textual discrepancies arise, resolution often requires a reconciliation of the meaning
of all texts, and if failed, a search for legislative intention that overrides the meaning
of the texts. This means that to arrive at the legal meaning, one needs to be
acquainted with not just one but all of the legal languages, on top of having a
sufficient amount of legal expertise, and yet there is still the uncertainty as to which
legislative purpose the court will give weight to, as judicial discretion widens. To the
extent that multilingualism is supposed to improve accessibility to justice, legal
multilingualism seems to defeat its purpose. Despite these limitations, there does not
seem to be any alternative model of multilingual statutory interpretation, and
textualists have to still tackle how their approach might deal with inter-lingual
uncertainty within a multilingual legal system. Legal multilingualism has fuelled a
conceptualisation of the law that is distant from the text that formulates it, forcing
one to rethink the relationship between language and the law.
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