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Hong Kong: the Journey to a Bilingual Legal System Loyola of Los Angeles International and Comparative Law Review Volume 19 Number 2 Symposium—July 1, 1997: Hong Kong and the Unprecedented Transfer of Article 3 Sovereignty 1-1-1997 Hong Kong: The Journey to a Bilingual Legal System Yuhong Zhao Follow this and additional works at: https://digitalcommons.lmu.edu/ilr Part of the Law Commons Recommended Citation Yuhong Zhao, Hong Kong: The Journey to a Bilingual Legal System, 19 Loy. L.A. Int'l & Comp. L. Rev. 293 (1997). Available at: https://digitalcommons.lmu.edu/ilr/vol19/iss2/3 This Symposium is brought to you for free and open access by the Law Reviews at Digital Commons @ Loyola Marymount University and Loyola Law School. It has been accepted for inclusion in Loyola of Los Angeles International and Comparative Law Review by an authorized administrator of Digital Commons@Loyola Marymount University and Loyola Law School. For more information, please contact [email protected]. Hong Kong: The Journey to a Bilingual Legal System YUHONG ZHAO" I. INTRODUCrION On July 1, 1997, Hong Kong will become a Special Adminis- trative Region of the People's Repulic of China (Hong Kong SAR) and no longer be a British colony. The shift in power will result in many changes, including changes within Hong Kong's le- gal system. Because language facilitates the communication of law, the language of the law is destined to undergo transformation. This Article reviews the development of Hong Kong's lan- guage of the law and analyzes thd possibility of establishing a sound bilingual legal system after 1997. Part II reviews the histori- cal development of the language of the law in Hong Kong from 1842, when Hong Kong became a British colony, until the signing of the Joint Declaration of the Government of the United King- dom of Great Britain and Northern Ireland and the Government of the People's Republic of China on the Question of Hong Kong (Joint Declaration)' in 1984. Part III explains the necessity of es- tablishing a bilingual legal system in Hong Kong, particularly in light of problems with the monolingual English legal system. Part III also discusses the elevation and stabilization of the status of the Chinese language under the Basic Law of the Hong Special Ad- ministrative Region of the People's Republic of China (Basic * Lecturer in Law, City University of Hong Kong. B.A., English Language and Literature, Peking University; LL.B, Peking University; Master of Studies in Law, Ver- mont Law School. 1. Joint Declaration of the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the People's Republic of China on the Question of Hong Kong, Dec. 19, 1984, U.K.-P.R.C., 23 I.L.M. 1371 [hereinafter Joint Declaration]. 293 Loy. L.A. Int'l & Comp. L.J. [Vol. 19:293 Law) 2 and stresses the importance of the English language in en- suring the continuity of law after 1997. Furthermore, Part III dis- cusses the essential role of the English language in making the Hong Kong legal system open and accessible to the outside world. Such access is crucial for Hong Kong as an international center of trade, finance, and commerce. Part IV analyzes the efforts of the Hong Kong Legal and Judiciary Departments, as well as academ- ics, to make the law available in Chinese in preparation for the es- tablishment of a bilingual legal system. Part V discusses the diffi- culties with the transition from a monolingual English legal system to a bilingual legal system. Finally, Part VI concludes that the fu- ture of the Hong Kong SAR requires a sound bilingual legal sys- tem, but that such a system will become a reality, only with the commitment and vision of future generations. II. HISTORICAL DEVELOPMENT OF THE LANGUAGE OF THE LAW IN HONG KONG A. English as the Sole Official Language Pursuant to the unratified Convention of Chuenpi, the British began to formally occupy the island of Hong Kong on January 26, 1841. 3 Hong Kong formally ceded from China through the Treaty of Nanking, which was signed on August 29, 1842 and ratified by the United Kingdom on June 26, 1843.4 A foremost British con- cern was the establishment of a familiar legal system that it could ise to effectively control the indigenous population. This concern led to the Charter of April 5, 1843, which formed Hong Kong's first law-making body: the Governor, who was to act with the ad- vice of the Legislative Council 2. Basic Law of the Hong Kong Special Administrative Region of the People's Re- public of China (1990), reprinted in 29 I.L.M. 1519 (1990) [hereinafter Basic Law]. The Third Session of the Seventh National People's Congress passed the Basic Law on April 4,1990. 3. See Bryan A. Gregory, Envisioning Futures: The Battle over Democracy in Hong Kong, 19 N.C. J. INT'L L. & COM. REG. 175,179 (1993). 4. Treaty Between China and Great Britain, Aug. 29, 1842, P.R.C.-U.K., 93 Consol. T.S. 465. 5. See JAMES WILLIAM NORTON-KYSHE, 1 THE HISTORY OF THE LAWS AND COURTS OF HONG KONG 23-24 (1971). 1997] Journey to a Bilingual Legal System 295 Since that time, the British started to impose English statutory and common law on Hong Kong. These bodies of law were devel- oped in response-to the values, needs, and traditions of the British people who were thousands of miles away from Hong Kong. As for the language of the law, distinguished linguist Sir Randolph Quirk once said, "The English language came to Hong Kong as an imperial instrument: a remote control6 device operated from ten thousand miles away in London.", The colonial government thus transplanted to this small and faraway island a common law legal system and imposed on the Chinese people English as the official language used in govern- ment administration, including the judiciary. Consequently, the use of the Chinese language became virtually non-existent at the government level. B. 1974 Official Languages Ordinance Putting aside the considerations of fairness and justice, the English language-an "imperial instrument"--functioned in Hong Kong without serious problems for over one hundred years.7 Seri- ous disturbances and riots, however, occurred in 1966 and 1967,8 partly as a result of the "language gap" between the government and the people. 9 Following this civil unrest, college students cam- paigned in 1969 and 1970 to promote Chinese as Hong Kong's of- ficial language. ° The campaign gained widespread support from various segments of the community." In response to pressure from the local population, the government passed the Official Lan- guages Ordinance 2 in 1974." As a result, the Chinese language 6. Sir Randolph Quirk, Speculations on the Future Role of English in Hong Kong and the Implications for Educational Policy, Address at the International Seminar on Language Teacher Education: Future Directions (Dec. 16-18, 1985). 7. See Liu Ching-chih, Language Needs in Hong Kong: Bilingualism to Trilingual- ism, LINGUIST, Winter 1987, at 39,39. 8. See id. 9. Tomasz Ujejski, The Future of the English Language in Hong Kong Law, in THE FUTURE OF THE LAW IN HONG KONG 164, 173-74 (Raymond Wacks ed., 1989); see also KOWLOON DISTURBANCES 1966-REPORT OF THE COMMISSION OF INQUIRY (1969). 10. See Liu, supra note 7, at 39. 11. See Albert H.Y. Chen, 1997: The Language of the Law in Hong Kong, 15 H.K. LJ.19,21 (1985). 12. Official Languages Ordinance, LAWS OF HONG KONG ch. 5 (1974). 296 Loy. L.A. Int'l & Comp. L.J. [Vol. 19:293 gained official status for the first time in more than one hundred years of colonial governance. The Official Languages Ordinance declared both English and Chinese-to be Hong Kong's official languages for communication between the government or any public officer and members of the public.14 The Ordinance gave the languages equal status by prbvid- ing for "equality of use."'" As a result, use of the Chinese language in public administration in Hong Kong has steadily'increased. Im- portant governmental announcements, reports, speeches, and pa- pers became available in both English and Chinese. 6 In addition, the government introduced simultaneous interpretation for both Legislative Council. and District Board meetings. 7 Whenever in- consistencies or disputes arose, however, English versions were re- garded as the authority.'8 Ironically, the legislative guarantee of equal status did not prevent the Chinese language's subordination to the English language. Despite its great contributions to elevating the status of the Chinese language, the Official Languages Ordinance evidenced an extremely conservative attitude toward the language of the law. As for the language of legislation, the Ordinance provided that "every Ordinance shall be enacted and published in the English Language."' 9 Thus, the Chinese language plays no role in actual legislation or the legislative process. As for the language. of the judiciary, the Official Languages Ordinance provided that proceedings in the Court of Appeal, the High Court, the District Court, and any other court not specified in the Schedule to the Ordinance must be conducted in the English language.20 The courts specified in the Schedule to the Ordinance have the discretion to conduct proceedings in either English or Chinese.2' Although, on its face, the Ordinance appears to take a 13. See id.; see also Liu, supra note 7, at 43 n.4; Ujejski, supra note 9, at 173. 14. See Official Languages Ordinance, LAWS OF HONG KONG ch. 5, § 3(1). 15. Id § 3(2). 16.
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