Standardization of Government Sponsored Translations

There are many important Macau SAR’s statutes currently available online at the Government Printing Bureau’s website. Although laudable, these Government efforts in providing English translations of some of the more important pieces of legislation lack in consistency of legal terminology usage.

Decree-Law No. 27/97/M, for instance, was dubbed Macau Insurance Companies Ordinance in its English translation, while Decree-Law No. 32/93/M was given the title of Financial System Act. However, the descriptions of the said statutes both read regime jurídico (legal regime/system/framework) under their Portuguese version and 法律制度 (fǎlǜ zhìdù – which can also be translated as legal system) under their Chinese version. The difference can only come from the fact that in Macau Decree-Law (Decreto-Lei) is translated into 法令 (fǎlìng) in Chinese, which is also the Chinese word used for Ordinances in Hong Kong. The problem here is that Decree-Laws and Ordinances are not equivalent concepts.

According to Black’s Law Dictionary, an Ordinance is “an authoritative law or decree, especially a municipal regulation.” Wikipedia adds that it may also refer to “a law made by a colony, or a municipality or other local authority.” The latter definition might provide us with some insight into the use of Ordinances to refer to legislative acts in some former British colonies. The Charter of the Colony of Hong Kong, proclaimed in 1843, authorized the establishment of the colonial Legislative Council and empowered “the Governor for the time being… with the advice of the said Legislative Council… to make and enact all such Laws and Ordinances as may from time to time be required for the peace, order and good government… of Hong Kong”. The Letters Patent of 1917, which replaced the 1843 Charter, added the significant words “and consent” after the words “with the advice”. Colonial history may therefore help explain the reason why, for instance, statutes governing company law in both Hong Kong and Singapore are called Companies Ordinance while their equivalent in the UK is called Companies Act.

In Macau, however, the Governor had separate legislative powers in the form of the Decree-Law under Article 13 of the Organic Statute of Macau of 1976. His legislative enactments did not require, as was the case in Hong Kong, the consent of or ratification by the legislature to come into force. Furthermore, the expression Decree-Law may not be used interchangeably to signify the enactments of both the executive body and the legislature.

The concept of the executive body with separate legislative powers is probably not very well known in jurisdictions of a common law tradition. It has its origin in the dual system of the German constitutional monarchy, whereby crown and parliament shared the legislative power, and is part of the Portuguese legal system, also in the form of Decree-Laws. There are, perhaps, some similarities with the executive orders of the President of the United States. Executive orders, however, only have the force of law when made in pursuance of certain Acts of Congress. They cannot attempt to make law and must carefully cite which specific laws they are acting under. On the contrary, Decree-Laws are considered primary legislation, albeit subject to the reservation of law and the priority of law, made by the executive branch of government and its authority derives directly from the Constitution, in the case of Portugal, and from the Organic Statute, in the case of Macau before 1999.

Thus while Ordinances are still used nowadays to refer to legislative acts of the Hong Kong legislature, Decree-Laws are not available to the Chief Executive of Macau and refer only to legislative acts of former Governors. There are many more examples of Decree-Laws which have been dubbed as Ordinances in their English translations. This choice of translation fails to reproduce the different importance of Laws, which are enacted by the legislature, and Decree-Laws (a Decree-Law may be repealed by a law but may not repeal one).

Another statute with some translation issues in its title is Decree-Law No. 97/99/M. This statute was, in my view, wrongly translated into English as Industrial Property Code. Once again, the Portuguese and Chinese versions refer only regime jurídico and 法律制度 (fǎlǜ zhìdù) respectively, which I already pointed out to mean legal system or regime. This time examination of the Chinese version of the statute does not provide a clear explanation for this inconsistency as the word Code is translated into Chinese as 法典 (fǎ diǎn). But more important than before here is the fact that Decree-Law No. 97/99/M came to repeal the Industrial Property Code, which had been in force through the application of the Portuguese Decree-Law No. 16/95 to Macau. Therefore, if we were to consider the English versions of both statutes, we would have Decree-Law No. 97/99/M approving the Industrial Property Code and repealing the (old) Industrial Property Code. In Portuguese, as in Chinese, this is not an issue as Decree-Law No. 97/99/M approves the Legal Regime for Industrial Property (Regime Jurídico da Propriedade Industrial) and repeals the Industrial Property Code (Código da Propriedade Industrial).

By correcting some of these small inconsistencies, the Government would be taking a significant step towards the standardisation of Government sponsored translations. A larger but rather much more toilsome step would be conforming and standardising the terminology under the provisions of all existing translations of statutes and implementing legal glossaries that could be used in future translations, both internally and for outsourced assignments. This would certainly make life easier for lawyers, legal practitioners, translators and foreign individuals and companies who need to refer to Macau legislation.

On the other hand, the Government should also decide how they want Macau to be spelt in English. The official website for the Government and some of its bodies spell it Macao while other official bodies spell it Macau (e.g. Macau Government Tourist Office). Many major web portals, such as Amazon.com, also spell it Macau. But this, I’m afraid, is a topic for another discussion.

Semente Limited
Translations and Copywriting in Macau
http://www.sementesolutions.com

Translating the Law: Getting Across Languages, Cultures and Legal Systems

The demand for legal translations in Macau is rapidly on the rise whilst the number of good quality translators seems appallingly insufficient. One of the reasons is that there are simply not enough people in the territory who have the necessary combined level of Portuguese and Chinese proficiency. And those who are fluent in both official languages usually end up embarking upon a legal career. Needless to say, as a bilingual jurisdiction, there is a permanent need for translations between the two official languages. There is also, however, a widespread usage of English in contracts, which comes as no surprise since English is often the only language in common between all the parties and agents involved in legal relations. This results that, in practice, the Macau SAR is a quasi trilingual jurisdiction, which can be attested by the efforts the Government has made in making available English translations of some of the SAR's most important pieces of legislation.

The distinctive quality of the language of the law makes its translation particularly challenging. Legal language is usually classified as an LSP (Language for Specific Purposes), but unlike other subject field specific languages, legal concepts and linguistic structures are often confined to their native jurisdiction. While scientific concepts tend to have a more universal application, leaving the translator free to find the correct terminology equivalents, legal language is etched in codes, statutes and other enactments or in traditions and practices which are native to the jurisdiction and culture which produced them. The law is thus a depository of ancient practices and usages. It is a socio-cultural practice and, as such, translation of the law is necessarily an act of communication which involves a mechanism of cultural transfer. This poses a problem for the translator, who is faced with the prospect of terminology and conceptual voids when moving from the source language (SL) to the target language (TL), especially if the translation involves different source and target legal systems. More than a simple mediator, the translator should be seen as a text producer who creates a new text through the careful application of a chosen translation strategy.

Although this is not the venue for thick academic discourse, it is important to examine herein some of the more significant theoretical aspects that should be considered during the decision-making process of translators. Traditionally, the role of the translator was understood as a passive subject in the communicative process. For advocates of this approach, the translator is charged solely with the reproduction of the form and the substance of the source text in the target text. Translation of legal texts should therefore be as literal as possible, preserving the letter of the law. For some modern translation theorists, however, the translator should satisfy the cultural expectations of target receivers. According to this perspective, translation of legal texts ought to be receiver oriented and translation strategy ultimately determined by the communicative function or purpose of a translation. Under this functional approach, translators should adopt different strategies, choosing to focus more on the SL or the TL, according to whether the target text is to have a performative, normative or informative function. The translation of legislation which is to be vested with the force of law and court evidence should therefore be more literal, while translation of texts with informative purposes, such as judgments and awards, are allowed to be more free.

This general theory is not bullet proof though. Since legal texts are subject to legal rules, legal considerations should prevail. We can consider, for instance, the cases where contracts are drafted in Macau in English language, usually by professionals of a common law background, but whose governing law is Macau SAR's. When translating such contracts for submission as evidence, the translator should not rely on the SL but on the TL instead, because the legal relation is established in Macau and the legal dispute is being adjudicated by Macau Courts.

Whether the chosen approach be a more literal or free one, there should not be, however, any excuse for translators falling in the classic pitfalls of translation. This means that, even if a translator has decided to preserve the letter of the law, false friends, incorrect syntactic structures and unnatural linguistic constructions should by no means be admissible in professional translation. Pescatore, a former Justice of the European Union, even goes further to suggest that target texts should read as if they were drafted in the TL. Naturally, all these implications of legal translations demand that, in addition to being proficient in the language pair being translated, legal translators need to have some legal background or at the very least work in close connection with legal professionals.

However, due to the above mentioned limitations of the human capital in Macau, finding qualified and competent legal translators is not always possible. In-house legal translators are therefore usually overwhelmed with huge workloads. The adopted solutions are also not often the best in what quality translations are concerned. In fact, legal translations often end up being carried out by either translators who are neither native nor proficient in the target language or they are assigned to translators who are proficient but who do not have the necessary legal background to understand the mechanisms of the law.

Faced with these difficulties, some lawyers and law firms taking work from foreign lawyers opt for outsourcing work to translators abroad. This is not a negative solution in itself, as the chances for finding qualified translators with relevant experience and legal background is thus greater. It should be noted, however, that these translators seldom research the legislation of Macau. A possible solution for this problem could lie in employing in-house legal editors instead of translators, who would then be responsible for revising, refining and conforming outsourced translations to the jurisdiction of Macau.


Rui Freitas
Semente Limited
Translations and Copywriting in Macau
http://www.sementesolutions.com