Mathieu Devinat/Pascal Pichonnaz, L’égalité des langues officielles devant les cours suprêmes: regards croisés sur le droit canadien et le droit suisse, Zeitschrift für Schweizerisches Recht (ZSR) 2017 I 271-287
Devinat/Pichonnaz – L’égalité des langues officielles
Background
Having multilingual court sections and judicial bodies is of essential importance for the case law as federal law norms are equally binding as set forth in all three language versions. Their meaning can only be fully assessed by understanding all three language versions. Yet it does not suffice merely to have judges involved who speak the different official languages. It is essential that judges well know the other official languages, otherwise adequate communication is not possible. In practice, the section chair assigns, if possible, cases to a court member whose native language is the language of the case to file a petition. In the written or oral discussion of the petition, each department member communicates in his/her respective native language, although Italian-speaking members may occasionally communicate in German or French. As mentioned above, this requires that all members understand all of the official languages.
Comparative legal studies with other multilingual states reveal various approaches to the practical implementation of the principle of multilingualism at the supreme court level, illuminating the particularities of one’s own legal system. Such is the case with the citation below by legal scholars from Switzerland and Canada who studied multilingualism as implemented by the Federal Supreme Court in comparison to the Supreme Court of Canada.
Summary
Canada and Switzerland are both multilingual Federations which uphold the principle of parity of official languages. The paper demonstrates how divergent implementation of multilingualism in practice affects case law and judgements themselves, despite the principles concerned being similar. The nomination of exclusively English-speaking members to the Supreme Court of Canada raised the question as to whether or not a multilingual state needs multilingual judges on its Supreme Court. In both countries, laws are published in the official languages simultaneously, and the different language versions are equally binding. When interpreting the law, the different language versions have to be evaluated on par. The law therefore is seen as existing “between the texts”, so a judge has to be able to understand both language versions to grasp the meaning of the norm. Having Supreme Court justices who are not multilingual creates problems regarding the parity between the official languages. In the case of Canada, the provinces belong to different legal traditions. For example, civil law cases in the province of Quebec are heard within a civil law tradition, while cases in the other provinces are heard within the common law tradition. To understand civil law cases, French-language judicature and literature have to be consulted which are not available in translation, so judges who exclusively speak English have to rely on the linguistic proficiency of their clerks. Thus in a multilingual country, the linguistic ability of judges is an essential legal competence. In written and oral proceedings Swiss Federal Supreme Court justices communicate as a rule in their own (official) language, therefore the other members have to have at least passive command of that language. Both German and French literature has to be consulted. Knowing the other national languages is in line with the tradition and practices of the Federal Supreme Court.
Both supreme courts guarantee access to justice for the parties to proceedings in all official languages. However, it is easier to become informed about rulings in Canada as Supreme Court judgements have to be published in full in both official languages. Under the common law system, rulings of the highest courts are equivalent to laws in force, which is why bi-lingual accessibility to the text of rulings is just as important as accessibility to the text of laws. However, unlike laws, court decisions are not fundamentally of equivalent status in both languages: Judges are free to choose the language in which they wish to record the ruling, and that original version then takes precedence over the translation. Swiss Federal Supreme Court judgements are only recorded and published in the official language in which the proceedings were conducted. Unofficial translations of landmark rulings published in the Official Supreme Court Reporter are however printed in law journals and private collections. Federal court rulings are probably not officially translated due to the fact that Swiss lawyers understand German and French at a minimum. It falls within the lawyer’s duty of care to be familiar with officially published judgements in the other official languages at a minimum. While in Canada only 10% of the English-speaking population speaks French and 40% of the French-speaking population speaks English, in Switzerland, learning at least one other national language is part of a regular education. However, the proficiency in French or German acquired at college and university levels is hardly sufficient for understanding subtleties of the other respective official language, thus the official translation of landmark rulings should also be taken into account in Switzerland.