Interpretation and construction of bilingual laws: a canadian lamp to light the way?

• Author: Dáithí Mac Cárthaigh
• Position: B.A., M.A., LL.B., B.L.
• Pages: 211-228

2007] Interpretation of Bilingual Laws 211

INTERPRETATION AND CONSTRUCTION OF

BILINGUAL LAWS: A CANADIAN LAMP TO

LIGHT THE WAY?

DÁITHÍ MAC CÁRTHAIGH∗

I. BILINGUALISM IN IRISH CONSTITUTIONAL LAW

AND LEGISLATION

The Taoiseach is empowered, pursuant to Article 25.5 of

Bunreacht na hÉireann, to cause to be enrolled in the office of the

Registrar of the Supreme Court a text of the Constitution in both

official languages signed by the President, the Chief Justice and

the Taoiseach as conclusive evidence of the provisions of the

Constitution as amended. Article 25.5.4˚ provides that in case of

conflict between the texts of any copy of the Constitution so

enrolled, the text in the national language shall prevail.

Similarly, the remaining sections of Article 25 (25.1-25.4)

provide for the issuing of legislation bilingually. The Constitution

envisages that bills may be presented and passed by the

Oireachtas and then signed by the President either unilingually

(either Irish only or English only) or bilingually and that, where a

bill is passed and signed unilingually, that an official translation

be issued in the other official language.1

In Ó Beoláin v. Fahy2 the Supreme Court granted a

declaration that under Article 25.4.4˚ the State has a constitutional

duty to issue this official translation when the President signs the

text of a unilingual bill.

This is a continuation of the simultaneous procedure as set

out under Article 42 of the Irish Free State Constitution which

provided as follows:

As soon as may be after any law has received the King’s

assent, the clerk, or such officer as Dáil Éireann may

appoint for the purpose, shall cause two fair copies of

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∗ B.A., M.A., LL.B., B.L.

1 Article 25.4.4˚.

2 [2001] 2 I.R. 279 (S.C.).

Judicial Studies Institute Journal [2007:2

212

such law to be made, one being in the Irish language and

the other in the English language (one of which copies

shall be signed by the Representative of the Crown to be

enrolled for record in the office of such officer of the

Supreme Court as Dáil Éireann may determine), and

such copies shall be conclusive evidence as to the

provisions of every such law, and in case of conflict

between the two copies so deposited, that signed by the

Representative of the Crown shall prevail.

In the case of bills passed and signed in the bilingual format,

Article 25.4.6˚ provides that in case of conflict between the texts,

the text in the national language shall prevail. In the case of

unilingual bills, the Constitution only requires that the text which

was passed by the Oireachtas and signed by the President be

enrolled in the Office of the Registrar of the Supreme Court as

conclusive evidence of its provisions (Article 25.4.5˚). It is

curious that the 1937 Constitution, in contrast with the Irish Free

State Constitution, is silent in relation to the enrolment or

deposition of the unsigned text, although the procedures of the

Houses of the Oireachtas themselves and the Translation Section

in particular enable the verification of the authenticity of the

unsigned text.

It is clear from Irish jurisprudence in this area that the

raison d’être of such translations is to facilitate their use and the

use of both official languages, in particular in the course of

litigation. As stated by O’Hanlon J. in Delap v. Minister for

Justice3 in relation to the Irish translation of the Rules of the

Superior Courts:

[The applicant] has the right under the Constitution to

conduct his side of the proceedings entirely in the Irish

language if he desires to choose the first official

language. I am of the opinion that there is a great obstacle

in his path if he desires to use the Irish language but if at

the same time there is no official version available of the

law found in the rules concerning the regulation of such

proceedings or of the forms which accompany them and

that he is not being accorded equal treatment in that case

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3 (1980-1998) I.R.S.R. 116.