East Barely Meets West in Hong Kong
Difficulty of translating English laws into Chinese may stymie justice
It's quite a challenge. How do you translate the common law, some of the terms incomprehensible even to untrained English speakers, into Chinese, the language of a country with no common-law tradition, not even, some would argue, respect for the rule of law?
For the past 10 years, Tony Yen and his crew of 46 lawyers and translators have been laboring mightily to translate into Chinese the legal accumulation of 150 years of British colonial rule. That amounts to some 550 ordinances, or 21,000 pages of text.
All of the basic translations have been completed, and they are slowly working their way through a complex vetting process that is about two-thirds complete. Mr. Yen is working overtime to see that it is finished by the time the British flag is hauled down in about four months. "Our target is to complete the entire process by July 1," he says.
It hasn't always been easy. Take a typical phrase: the burden of proof. "That's not too hard," Yen says. "There are accepted transliterations of the main words." In literal Chinese it comes out as something like "responsibility for providing evidence."
But other, more arcane legal terms derived from Europe's feudal past have proved almost impossible to translate. "Sometimes we've had to coin entirely new words," he says. The results have sometimes been criticized as being inelegant Chinese (a charge not unknown against legalese in English either.)
A more serious criticism is that disagreements will arise over different meanings between Chinese and English. "The fear held by many is that a wholesale swing toward the use of Chinese throughout our courts will eventually lead to the abandonment of the common-law system," says Christopher Chan, president of the Law Society.
"We anticipated this problem when we began 10 years ago," Yen says. His group studied and adopted some of the solutions of other bilingual jurisdictions, such as Canada and especially the United Nations. He notes that arguments over meanings of words are unavoidable, even in single-language environments.
The work of Yen and his colleagues is critical because under a 1984 Sino-British agreement Hong Kong will remain a common-law jurisdiction, even after China's takeover. The courts, respect for contracts, and the rule of law are considered essential for the territory's continuing prosperity and autonomy from the communist mainland.
Because of the complexities of the common law, the judiciary, now about half expatriate, will likely be staffed with foreigners for many years after the handover. Attorney-General Jeremy Mathews is almost the last British holdout, besides the governor, in the upper reaches of the civil service, now "localized" with ethnic Chinese. Chief Executive-designate Tung Chee Hwa recently named solicitor Elsie Leung to replace him after July 1.
The new Final Court of Appeal, which replaces London's Privy Council as the territory's post-1997 court of final appeal, is comprised of five justices, one of whom may be a foreigner from another common-law jurisdiction. Many liberals would have preferred that there be at least two foreigners to ensure the continuity of the legal system.
All of this means that English will continue to be the primary language of Hong Kong's courts for a long time. In recent years, some lower-level court trials have been conducted in Cantonese, the local dialect. But in the higher courts, English is still the rule. Even Chinese lawyers, many trained in London, may feel more comfortable arguing fine points of law in English. Moreover, many of the precedents would be taken from other common-law jurisdictions, almost invariably in English.
Jury trials are still in English, which raises the question of whether the 98 percent Chinese majority really receives trials by their "peers" since the jury pool is by necessity heavily weighted toward expatriates. Only about 250,000 of the territory's 6.3 million people are fluent enough in English to follow the proceedings and thus be eligible to serve on juries.
"We're not trying to abandon the use of English entirely; we're providing an alternative," says law drafter Yen. "We'll need one or two generations before we become completely bilingual."
There are some who doubt that the rule of law can be preserved in Hong Kong following the handover, just as there are those skeptical of other promises of maintaining civil liberties and local autonomy. In January, for example, a US district court judge in Boston refused to extradite an accused smuggler back to Hong Kong because he would appear in court after July 1.
Judge Joseph Tauro seems to have based his ruling on the technical grounds that the US doesn't have an extradition treaty with China, which is sovereign in Hong Kong after July 1. The US Justice Department, eager that the US not become a future haven for Hong Kong criminals, has appealed the decision.
Such higher issues do not stop Yen and his team as they rush to finish their task. Translating laws into Chinese does not guarantee that the British common law will continue. But if they do their work well, it will make sure that the accused will be tried in their own vernacular, without compromising their basic rights.