Cheung, Eric T. M. "Bilingualism: Where Are We Heading?" In Reform of the Civil Process in Hong Kong. Butterworths Asia, 1999: 241-253.
The Hong Kong Basic Law and a number of ordinances enshrine Hong Kong as a bilingual jurisdiction where both Chinese and English enjoy equal status as its official language. As a result, both Chinese and English versions of promulgated statutes must be treated with equal authenticity. This fundamental doctrine is known as the “Equal Authenticity Principle”. However, difficulties arise when the Chinese and English versions of the same statute convey different meanings. Such discrepancy can become a central issue at trial. Thus, it is important to discern how the Hong Kong Courts deal with such dilemma.
From my research, it appears that there is an absent of a uniform approach to resolution in practice. Various precedents suggest that judges often resolve this dire strait by giving a predestinated priority to the English versions, by holding the Chinese version is as no more than products of ‘translation’. In my view, viewing Chinese texts as a mere subsidiary rather than examining the terms on par with their English counterparts is a trade-off solution that explicitly contravenes the “Equal Authenticity Principle”.
My aim in this essay is to (1) clarify the current state of law in this area of law, and to (2) formulate a proper approach of interpreting a statute when its Chinese and English versions are incompatible with each other. To start with, the paper will discuss cases that embarked on the controversies about the authenticity of Chinese versus English versions of statutes. I have found that most judgments are woven with a fallible line of reasoning that is repugnant to the Equal Authenticity Principle. I then gathered criticisms by legal practitioners against the capability of the Chinese language to be a reliable common law language. I shall then expound with a delicate linguistic analysis that all the oppositions can hardly stand as they are generally based on a misconception of the relationship between languages and law. By using examples from the United Kingdom, Canada and the European Union, I shall illustrate the importance as well as the benefits for Hong Kong to adopt multilingualism, as well as its mother tongue (Chinese) for its legal languages. Finally, I propound that Hong Kong Courts should not prefer the English versions of a statute because it takes effect on an earlier date than their Chinese equivalents. In resolving discrepancies, the Courts should resort to the ‘purposive approach’ without undermining the effect of either versions of the law. Nevertheless, the Hong Kong Courts may also request the Legislative Council to amend the statute in question so as to achieve conformity. The institutional purpose on the principle of equal legal authenticity in both Chinese and English is to strengthen our understanding of the law and to broaden our access to justice. My proposal shall strengthen the original purpose by safeguarding the principle by true authentication.
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