Especially in divided societies, language can be a highly politically sensitive issue as well as a logistical hurdle. Constitutional deliberations require clear communication among those involved. Tensions have arisen when documents as important as drafts of the constitution have been put forward in the dominant language and other members have waited for the documents to be translated into their language, or when the translations are so poor they cannot be understood. Other key challenges involve ensuring inclusive communications with the public. The process should reach all members of society. This takes careful planning and significant resources if more than one and sometimes even dozens of languages are spoken. Finally, communicating with foreign advisers and donors may require another set of translators and interpreters altogether.
Translation for nationals
In some countries there are people with a great deal of experience in translation, Neglect of certain communities in other countries may have been among the causes, or the consequences, of conflict. Linguistic chauvinism in Nepal on the part of the dominant caste groups was entrenched, and an element of the People’s Movement of 2006 was the demand for rights for all, including distinct language groups—symbolized by the members of the constituent assembly being able to take the oath in their own languages (of which there are perhaps a hundred in the country). But in other countries there may still be those whose attitudes are stuck in the past. In Somalia, for example, speakers of the dominant language, Af-Maxaa Tiri, will sometimes insist that Af-Maay (classified in Somalia as a version of Somali) is a dialect of Somali, although the two are largely mutually unintelligible, and the Af-Maay speakers have always felt marginalized, especially because official Somali orthography is based on Af-Maxaa Tiri.
Translation is both time-consuming and expensive, and common sense as well as sensitivity is required. It is not possible to translate materials into many languages, and there may be few literate members of some linguistic communities. While the actual text of a constitution ought to be available in major languages, few will read the text in any language, and leaflets making the main points in some other languages may be enough.Part 2: Tasks in a constitution-making process
All the problems of translation from foreign languages highlighted below may be more acute when there is a need to translate into languages that—along with the communities that speak them—have been somewhat neglected in the past, with the result that constitutional terms have never been developed in those languages. This raises the question of whether it is appropriate to invent new words, or use existing words in a new sense. Though this may be a long-term solution, it hardly helps comprehension in a popular-consultation exercise, which is often the reason for the translation. It may be necessary to insert an explanation rather than an obscure or invented word.
Translation for foreigners—and of foreign material for nationals
Unfortunately, in some processes there is no foreign member of a team who has a command of the constitutional and political terms needed in a given local language, and no local staff member who has that same degree of facility in the foreign language or languages. This means that there is no quality check on translations, which may actually be almost incomprehensible.
All too often the issue of translation is not addressed early enough. And the need to recruit translators quickly may lead to the recruitment of quite unsuitable individuals. Although most people realize that simultaneous interpretation is a highly skilled task, they may not realize that the skills needed for translation of technical documents are equally great, if different. In one process an international organization recruited as a translator a young man whom they met while he was working in a bar. His English was indeed excellent, but his knowledge of constitutional law was nonexistent. In Timor-Leste, the secretariat did not realize it needed interpreters until the constituent assembly held its first session and it became evident that the younger members could not follow debates in Portuguese. Interpreters were found, but some were poorly trained, and communications problems among the members existed throughout the process.
“Convention” has two quite different meanings, one referring (in only a few countries) to an established constitutional practice, and the other (more common) sometimes referring to a constitution-making assembly.
“Proportional representation” usually refers to an electoral system designed to ensure that the votes each party receives are reflected in the number of legislative seats it wins; the phrase is now used in Nepal to refer to the ethnic, religious, community, or caste representativeness of a body.
“Federalism” is a system of government under which power to make and administer laws, collect taxes, and the like is divided between the national government and governments at one or more lower levels—used by some purists to refer only to a country such as the United States, where preexisting units came together to form a new state.
“Penitentiary” means “prison” in the United States, but the word isn’t used in the English of many other jurisdictions, though people there would likely understand it.
Not only is the language of constitutions technical; it is also specific to countries. A camshaft may not vary in its nature from country to country, but legal terms are not necessarily understood in just the same way everywhere, and constitutional terms also have political overtones. While a person who has some knowledge of constitutional concepts in English and some knowledge of French and Latin might be able to translate a constitutional text from Spanish or Portuguese into English with a little help from a dictionary and an online translation program, there will inevitably be significant gaps in his or her understanding of what the terms would mean to a Spanish or Portuguese lawyer. This is a matter of constitutional knowledge as much as of translation; it points to the need to be careful not to make use of terms in any language without knowing what they mean. This serves as another reminder that foreign experts need adequate preparation and briefing. Only a dictionary focused on a particular discipline is likely to include many of the necessary words and phrases. A bilingual dictionary is unlikely to include phrases such as “parliamentary system” or “proportional representation.” This is true particularly because these are concepts, not just labels.
Some concepts have no exact equivalent in some languages. In Nepal the word “democracy” was translated in two ways, each version having political overtones. In Somali, “democracy” seems to be viewed as a foreign term, and there is no clear word for “federalism”; any word for it that does exist is essentially Arabic.
Both local and international actors should focus as soon as possible on whether translation is going to be a problem. Some of the strategies listed below may be helpful. But it must be emphasized that translation is a technical matter; ideally it should no more be carried out by an amateur than technical constitution drafting should be. The first strategy should be to locate the people with the necessary skills and knowledge:
- Recruit a group of good translators and train them in the concepts and the language they will need; this will probably require a short course in constitutions. A well-run course in constitutional and political translation would be a useful contribution to the country’s future development.
- Identify as soon as possible a good bilingual dictionary that focuses on the range of vocabulary likely to be used.
- Prepare a glossary of words in the relevant local languages and the relevant foreign languages; this should not just be a dictionary, but should explain the use of the words, at least in the foreign languages. It is important to address the problem of words with no translation and agree on how to handle them. (This may have its risks; one writer observed that the English phrase “Lord Chancellor” was translated into Turkish as “Lordlar Kamarası Baskanı,” meaning the “head of the House of Lords” (Anthroscape n.d.). The Lord Chancellor still exists, but is no longer the head of the House of Lords!
- Train the translators and interpreters in the use of the glossary, and insist that they use it.
- Emphasize the importance of always using the same words for the same concepts, resisting any temptation to sacrifice accuracy for elegance. Resist also the urge to use “politically correct” terms if these were not used in the original—for example, it is not proper to use the word “gender” when translating into English instead of “sex” just because this is the United Nations’ favored word. This is particularly important when drafting a legal text as opposed to a piece of political analysis.
- Obtain a bilingual version of the existing or most relevant previous constitution, especially if there is what is professionally thought to be a good translation, and insist that translators consult this when translating a new draft.
- Try to persuade translators not to adopt dying usages in other languages; for example, modern drafters in English are moving away from “shall” to indicate obligation (a word that modern nonlawyers would read as a statement of what will happen in the future) and toward using “must” or some other clear word of obligation. However, when translating into the local language, it is perhaps not a good idea for international actors to try to “improve” local usages, though some education about the existence of alternatives might be permissible.
- Establish cooperation among organizations so that only one translation needs to be prepared for each new document.
- Explain the problem to foreign experts and insist that they do not use obscure words in their presentations and written documents—there is no point if the words, when translated, will be nonsensical.
- Ask speakers in a foreign language to discuss their topics with the interpreters in advance, so that the latter can ask for guidance on meaning and be forewarned about possible difficulties.
- Discourage foreign experts from asking for complex writings to be translated, thus taking up the valuable time of translators to produce something that is unlikely to be read.
- Consider using a commercial translation agency; in Iraq it proved possible for documents to be sent to agencies in a different time zone and for translations of fairly short documents to be made overnight. This, however, has the obvious shortcoming that it bypasses local workers and does not contribute to the development of their skills—and quality control may be a problem.