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Saturday, Sep 24, 2022

Why are most of the top court’s judgments still only available in English?

Why are most of the top court’s judgments still only available in English?

Many Court of Final Appeal judgments – including those of great relevance to everyone in Hong Kong – are not officially translated into Chinese, depriving the majority of reading the decisions in their own language.

Hong Kong was characterised during the colonial period by what linguists call diglossia – the presence of two different languages, demarcated by function. Cantonese was the “low” language – the language of the street, of family, of everyday life. English was the “high”’ language – the language of the government, of law, of power.

It was not until the adoption of the Official Languages Ordinance in 1974 that Chinese was declared an official language alongside English, and that the two were to be considered equal for a range of official uses.

Yet, in the decades that followed, there remained a stark bias towards English within the legal system. Ordinances were published only in English until the late 1980s, and it was not until 1995 that Chinese was allowed to be used as a procedural language in the courtroom.

Things have improved in the era of the special administrative region. The Basic Law constitutionally ensures the status of Chinese as an official language, even hinting at primacy by stating that alongside it, “English may also be used”. The Department of Justice and the Judiciary Administration are both committed to the concept of legal bilingualism, with the former describing it as a “fundamental feature” of Hong Kong’s legal system.

The use of Chinese as a procedural language is now widespread across the lower levels of the court hierarchy, and thus an increasing number of judgments in those courts are published in Chinese.

However, the higher up the court hierarchy one travels, the more English remains dominant. At the apex, as a matter of course, the Court of Final Appeal hears matters and writes its decisions in English. Monolingual Chinese speakers are thus dependent on timely and accurate translation of those decisions if they wish to read the top court’s output in the official language of their choice.

This is not a small number of people. Research from the University of Hong Kong suggests that about one-quarter of the population has a relatively high level of English literacy. Given the complexity of the typical court judgment, this implies that about three-quarters of the population would be unable to meaningfully understand one without translation.

My research shows that, since 1997, roughly 25 per cent of the top court’s substantive judgments answering final appeals have been translated by the Judiciary Administration into Chinese. But if we narrow the time frame to the past 10 years, that drops to about 10 per cent. This means that, over the past decade, three-quarters of the population has been unable to read for themselves the overwhelming majority of the output of the highest court.

The Judiciary Administration has argued that, given limited resources, priority for translation is given to judgments of jurisprudential value. They do not, however, provide any explanation of how that value is determined or provide any route to dispute the choices made.

In the past 10 years, there has been no official translation of judgments related to the rights of same-sex couples married overseas, the anti-mask law, sentencing principles to be applied to demonstrators claiming they were engaged in civil disobedience, the constitutionality of the small-house policy, and more.

These are cases relevant not only to legal professionals, but to everyone in Hong Kong. Reading the top court’s reasoning teaches us not only how they understand the Basic Law but what they perceive their institutional role to be. A key aspect of the rule of law is access to that law. The government constantly reminds us of the importance of the rule of law, yet the current system effectively denies the majority access to a critical element.

The Judiciary Administration has suggested that simple translated summaries ought to be considered good enough for the public. But this misses the point. Linguistic equality is not simply about providing brief explainers to the public or media. It is not even about ensuring that self-represented monolingual litigants are not disadvantaged in their preparations for court (though this surely matters too).

It is about ensuring that, regardless of linguistic ability, Hongkongers see themselves reflected in the legal system. Particularly in the postcolonial context, the symbolic messaging of a legal system that continues to treat English as the “high” language cannot be ignored.

At its core, the cause of the low rate of translation appears to be a lack of sufficient resources. In response to an access to information request I made, the Judiciary Administration stated that the overall budget for interpretation and translation across the court system in 2022 was HK$108 million, but said they maintained no records of how much of that went to the translation of judgments.

Because courtroom interpretation is mandated by law, whereas judgment translation is not, it is reasonable to assume that the bulk of the budget goes to the former.

Whatever the specific proportion, what this number tells us is that this is a solvable issue, given sufficient political will. A relatively small budgetary increase (and a legislative requirement that the Court of Final Appeal publish all its decisions bilingually) could go a long way to further decolonising this aspect of the legal system. Who among the patriots now administering Hong Kong would oppose it?

None of this is to say that English should disappear from Hong Kong’s legal system. Our common law heritage and claim to status as an international financial centre effectively ensures that English will continue to play a vital role. But that should not prevent the majority of Hong Kong people from being able to read decisions of the top court in their own language. The continued legitimacy of the court as an institution depends in part on it.

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