Legal translation and legal transparency

Nearly three years ago the problems of bilingual law were discussed on

www.english-in-asia.blogspot.com (2016.5.26). In general, lawyers and judges prefer to deal with cases in one language, even if they themselves speak several, as they fear that ambiguities may arise when different languages are used. So most legal systems work monolingually, with translation and interpreting to produce official records in the official language. Asia, however, has several legal systems where more than one language is used.

Bilingual legal systems often result from the introduction of a local language in countries where the law was previously administered in a colonial language. Hence Bangladesh, Hong Kong, Malaysia, Sri Lanka and many Indian States allow the use of Bangla, Chinese, Malay, Sinhala or Tamil, or various Indian State languages in court alongside English. Macao and Timor Leste allow Chinese and Tetun respectively to be used alongside Portuguese.

Why didn't these countries simply replace the colonial language with a local one, instead of going bilingual? The answer is complex, but one reason is that it is difficult, time-consuming and costly to translate all the documents used in a legal system. In addition to constitutions, statutes and ordinances lawyers may refer to thousands of judgments from previous cases. Another reason is that lawyers understand how the meaning of just one word can influence a legal decision. Even if translations are accurate - and this is impossible to guarantee - it is likely that some words will have slightly different meanings in different languages. Sometimes that difference can be important. A recent example of this comes from Malaysia and revolves around a relatively simple word:  "parent".

The components of the Malaysian federation - Malaya, Sarawak and Sabah - used to be administered by the British and the Federation's main legal system is based on English Common Law. In Sarawak and Sabah the law is still conducted mostly in English, even though this is a second or third language for most people there.  In Malaya, Malay has been an official language of the courts since the 1960s, but English has always been permitted 'in the interests of justice'. Even now it is used more frequently than Malay in the higher courts and in commercial law. From the 1960s the government started to translate existing laws into Malay, but this was a huge task. So it was decided that for laws before 1967 the English version would be the authorised one if anyone found a difference in meaning. After 1967 all new laws were written in both English and Malay, but the Malay version was to be the authorised one.

The case in question involves Article 12 of the Malaysian Constitution, which states: "...the religion of a person under the age of eighteen shall be decided by his parent or guardian".  As the constitution was written before 1967, the English version is generally considered to be the authorised one. But there has been debate for many years about the meaning of "parent". The ordinary English meaning suggests that it could refer to either the father or mother. But there is a principle in English law that a singular noun includes the plural, and so '"parent" means one parent if there is only one, but both parents if there are two.  (Similarly, the Article uses the word "his", but English law takes this to include "her" and covers girls as well as boys.)

Why is it important to know whether the law covers both parents or only one? Because there have been many cases where a Malaysian parent - usually the father - has changed religion and then tried to change the religion of the children. If "parent" can mean only one parent then it could be possible for them to do this without the other parent's agreement.

The Malay version of Article 12 used to say "ibubapa", which literally means 'mother-father'. Like many Asian languages, Malay does not normally specify whether a noun is singular or plural, but ibubapa is generally thought to cover both parents. Thus both versions of the law appear to prevent one parent alone changing their children's religion. But a few years ago it was retranslated by a government department as "ibu atau bapa" - mother or father. So some people believe one parent can indeed change a child's religion.

Although the difference between the two versions parallels differences between the two languages, it also highlights cultural differences. Many Malaysians are Muslims, and they have their own Syariah Courts for dealing with family matters. There have been many cases of a father changing his religion to Islam and then registering his children as Muslim without the mother's permission, and some people believe these disputes should be decided by the Syariah courts as the Common Law courts are not supposed to get involved in Muslim matters.

Last month the country's highest court finally ruled that if there are two parents, "parent" means both of them. So if parents disagree, the choice of religion will be left to the children themselves when they become 18.

Discussion about the meaning of a simple word can be long and complex when different communities have different ideas about justice, especially where religion is involved. But there have also been Asian cases unconnected to religion where the translation of a simple word has been controversial.

Twenty years ago a Hong Kong fishmonger was fined for obstructing the pavement outside her shop. She had broken a local ordinance against using public space for 'additions' to shops by putting out racks to display her fish. It seemed a simple enough case. But this was just at the time when Hong Kong was allowing Chinese to be used in court. The woman decided to appeal, and this time she chose to have the case heard in Chinese. And she was found not guilty! This was because the Chinese translation of 'addition', 增建工程, was considered to mean something much larger than a few metal racks.

Linguistically and legally it was not a difficult case, and in the end future disputes were avoided by changing the wording of the English and Chinese texts so that they covered the same thing. However, at that time many people were not happy about making Hong Kong's traditionally 'English' legal system more 'Chinese'. The newspapers called it a case of someone being guilty in one language and not guilty in another. Some people used it as an example of the danger of having laws in different languages.

Bilingual law has many benefits, as well as difficulties, and these kinds of cases are not enough to conclude that law should be administered in only one language. Language can never be completely unambiguous, and there are often different interpretations of the same word even in monolingual legal systems. But what such cases show is that language can be used as a tool to promote and dispute legal rights. The disputes will be longer and more complex if societies are divided.  And language wars end up becoming culture wars.