World Englishes, Vol. 30, No. 4, pp. 481–495, 2011.

0883-2919

Legal discourse across cultures and socio-pragmatic contexts

VIJAY K. BHATIA∗ AND ADITI BHATIA∗∗

ABSTRACT: Much of the work on legal discourse has focused on its construction, interpretation, and
use with particular emphasis on either language or legal content; however, very little attention is paid to
context, both socio-political as well as cross-cultural, although all forms of legal discourse, spoken as well
as written, are applied and interpreted in the context of what Scollon refers to as ‘sites of engagement’.
Drawing on a number of legal contexts, this paper will attempt to illustrate that interpretations of legal
discourse invariably depend on the context of socio-pragmatic realities to which a particular instance of
legal discourse applies, and hence socio-political as well as cross-cultural factors have a crucial role to play
in its interpretation.

OVERVIEW
Legal discourse, especially used in legislative context, is considered notorious for its
complexity, repetitiveness, and tortuous syntax. The intention is always to write clearly,
precisely, unambiguously, and all-inclusively, with detailed specification of the scope of
legislative provisions (Bhatia 1982; 1983; 1993). In spite of this intention, care and crafts-
manship in the construction of legislative expressions, legal discourse often gives rise
to ambiguous, competing, and sometimes contentious interpretations. Whereas under-
specification of intentions in legislative writing creates a serious problem of lack of trans-
parency in the construction and interpretation of legislative intentions, over-specification,
on the other hand, creates problems of accessibility. Specification of scope in legislative
statements also has interesting implications for the socio-pragmatics of legislative inter-
pretation, with particular focus on issues of power and control in different socio-political
and legal systems. In order to give more substance to this view, it is important to consider,
however briefly, the role of culture and context in which legislative interpretations take
effect.

Law and culture

The importance of legal culture in legal discourse can hardly be over-emphasized.
Much of legal interpretation is constructed and interpreted, not entirely on the basis
of its textual meaning, but more importantly, within a much broader socio-pragmatic
space, and understanding of legal culture is a crucial factor in all such constructions
and interpretations. However, it is not easy to define what one may mean by legal culture.
Cotterrell (2006: 83) points out, ‘legal culture appears not as a unitary concept but indicates
an immense, multi-textured overlay of levels and regions of cultures, varying in content,

∗ Vijay K. Bhatia, Department of English, City University of Hong Kong, 83 Tat Chee Avenue, Kowloon, Hong Kong.
Email: enbhatia@cityu.edu.hk
∗∗ Aditi Bhatia, Department of English, City University of Hong Kong, 83 Tat Chee Avenue, Kowloon, Hong Kong.
Email: abhatia@cityu.edu.hk


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482 Vijay K. Bhatia and Aditi Bhatia

scope and influence and in their relation to the institutions, practices and knowledge
of state legal systems’. For Friedman (1997: 34), ‘legal culture refers to ideas, values,
expectations and attitudes towards law and legal institutions, which some public or some
part of the public holds’. It is also important here to distinguish culture in social and
professional contexts, in Bakhtin’s (1968) sense of ‘culture as a way of life’ and culture
as semiotic system to understand social practice, in the sense in which Geertz (1973) uses
it, especially when he points out that culture is not about explaining mental phenomena
or social behaviour, but about understanding social and professional practices in context.
In law it is often the case that what a lay person understands as part of his culture is
significantly different from what a legal professional does. In a court case, for instance,
a lay witness may have one kind of understanding of what is counted as a fact, and the
counsel and the judge may have a very different understanding of it, as indicated in the
following supposedly made-up cross-examination (source unknown) between the witness
(W), counsel (C), and the judge (J).

W: That dirty double-crosser John deceived me.

C: Your honour, I object.
J: Objection sustained. Now try to tell the court exactly what happened.
W: He double-crossed me, the dirty lying rat.
C: Your honour, I object.
J: Objection sustained. Will the witness try to stick to the fact?
W: But I am telling you the fact, your honour. He did double-cross me.

This courtroom encounter clearly demonstrates that the two participants have very
different understanding of what counts as a fact in this setting partly because they come
from two very different worlds, and perhaps work cultures. For the witness, it is a fact that
John double-crossed him, whereas the counsel and court view this as his opinion.

Law and social context

The relationship between law and context is also crucial for our research here because
it makes possible for us to see legal interpretation in all its manifestations. However, like
culture, context is equally difficult to configure. Candlin (2009) referring to Layder (1993)
argues that micro and macro contexts have to be understood in relation to the influence of the
institutions that provide their wider social context. Context, he rightly points out, focuses
on the distribution of power in society; what values, especially ideological, determine
normative behaviour in a social setting; and the nature of the political, religious and
economic setting related to the subject of analysis. Duranti and Goodwin (1992: 31) in
their discussion of the nature and importance of context in the interpretation of discourse,
argue that ‘instead of viewing context as a set of variables that statically surround strips of
talk, context and talk are now argued to stand in a mutually reflexive relationship to each
other, with talk, and the interpretative work it generates, shaping context as much as context
shapes talk’. Duranti (1997: 276 − 7) also claims that if we want to understand what people
mean with, through, and sometimes despite their words, one must look beyond linguistic
means. For him, meanings are located ‘in social values, beliefs, social relationships, and
larger exchange and support systems, including family structure and the social organization
of the community’, which is an important aspect of our discussion in this paper. However,

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 Legal discourse across cultures and socio-pragmatic contexts 483

before we give more substance to this aspect of the paper, we would like to briefly introduce
yet another concept of what Scollon (1998) refers to as ‘sites of engagement’ and discuss
its relevance to the main concern of the paper.

LAW AND SITES OF ENGAGEMENT

In legal discourse therefore the role of cross-cultural pragmatics is extremely crucial
when one looks for a socio-culturally appropriate interpretation of legal meaning, both
in the written as well as spoken forms. Judges, lawyers and legal specialists often have
to work hard to unpack and reveal this socio-culturally appropriate meaning encoded not
only in legislative provisions, but also in the courts of law. Another factor that makes
interpretation of legal discourse more specialised is that the nature of its interpretation
is very much dependent on the context in which it is eventually applied. Legal discourse
is thus most often interpreted in the context of critical moments in specific ‘sites of
engagement’ (Scollon 1998), and the interpretation is often irrespective of the participants
involved. Although every effort is made to ensure consistency of interpretation, if the
material facts of the case are exactly similar, there are always cases in which the material
facts may not be exactly similar but overlapping in parts. This makes the process of
application and interpretation highly complex and contentious. It is also important to note
that legislative writing is drafted to correct specific instances of ‘mischief’ and hence is
invariably interpreted in the context of a relevant description of such a ‘mischief’, often
derived from the material facts of the case to which a specific legislative statement applies.
Oftentimes, it is found that a specific interpretation of legislative statement depends more
on the identification of the critical moment to which it applies, rather than on the semantic
meaning of the legal provision. Courts sometimes seem to interpret specific instances of
legislative provisions in seemingly problematic ways, favouring an interpretation, which
may linguistically be viewed as contentious.

Interpretation in arbitration
To give more substance to this argument, we would like to refer to the case of Lohia
v. Lohia decided in 2002 in the Supreme Court of India (2002 AIR SCW 898: NP Lohia
v. NK Lohia). The case involved two brothers who had a dispute about family business.
They had agreed to resolve their dispute through arbitration instead of litigation in a court
of law. They had also agreed to an arbitration tribunal consisting of two arbitrators. The
two parties then made their claims before the tribunal and both the parties participated in
the proceedings. The tribunal agreed on an award.
However when the award turned out to be against the liking of one of them, he went to
the court to set it aside on the basis that the constitution of the tribunal violated section 10
of The arbitration and conciliation ordinance 1996 ( Government of India 1996), which
states:

Article 10 –

(1) The parties are free to determine the number of arbitrators, provided that such
number shall not be an even number.

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484 Vijay K. Bhatia and Aditi Bhatia

The case went for appeals to higher courts one after the other, and every time one of the
parties appealed against the decision of each of the lower courts. It finally ended up in the
highest court of the country, that is, the Supreme Court of India, where the focus was still
on the interpretation of Article 10 of the arbitration and conciliation ordinance.

The Supreme Court of India argued:

Undoubtedly, Section 10 provides that the number of arbitrators shall not be an even number, however,
in our view the answer to this question would depend on whether, under the said Act, a party has a
right to object to the composition of the arbitral tribunal, if such composition is not in accordance
with the said Act, and if so, at what stage. It must be remembered that arbitration is a creature of an
agreement. There can be no arbitration unless there is an arbitration agreement in writing between the
parties.

The Court further argued:

The two parties, in this case had agreed to arbitration. In the said Act, provisions have been made in
Sections 12, 13 and 16 for challenging the competence, impartiality and jurisdiction of the tribunal. Such
challenges must however be made before the arbitral tribunal itself . . . A party is free not to object within
the prescribed time. If a party chooses not to so object, this will be considered a deemed waiver.

The Court’s contention thus was that arbitration was meant to provide an economic,
expeditious and informal remedy for the settlement of commercial disputes, which is meant
to be an alternative to litigation. Since mutual agreement is a pre-requisite to arbitration,
and there is freedom for the parties to choose procedure for arbitration, all other matters
become secondary after the process has been accepted, and the dispute settled, as in
this case. Although the semantic interpretation of section 10 was contrary to the view
taken by the Court, it is still held valid as it makes sense within a wider socio-pragmatic
space.

SOCIO-POLITICAL CONSIDERATIONS IN LEGAL INTERPRETATION

Let us now extend the scope of socio-pragmatic factors in legal interpretation by con-
sidering another instance, popularly known in Hong Kong as the Right of Abode Case,
focusing on the interpretation of specific sections of the Basic Law (Government of Hong
Kong 1990), which is considered the mini-constitution of Hong Kong Special Administra-
tive Region (HKSAR). The Basic Law allowed right of abode in Hong Kong to all those
persons of Chinese nationality who were born outside of Hong Kong of those residents who
were permanent residents in Hong Kong. However, the Basic Law did not specify whether
it was necessary for any of the parents to have had this status of permanent residence at
the time of the birth of the child. It so happened that a large number of people from Hong
Kong had moved to Mainland China prior to the transfer of power on 1 July 1997. They
had children born in the Mainland who had no right of abode in Hong Kong under the
immigration laws prior to the handover. Many of these children had already entered Hong
Kong illegally and thus presented themselves to immigration authorities and claimed their
right of abode under Article 24(2)(3). The controversy went to the courts and the Court of
Final Appeal (Government of Hong Kong, Court of Final Appeal 1999), the highest court

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 Legal discourse across cultures and socio-pragmatic contexts 485

in HKSAR, decided in its 1999 judgment that according to Article 24 of the Basic Law,
the Chinese nationals may acquire the right of abode in Hong Kong by one of three ways:

(6)

1. if they were born in Hong Kong before or after the transfer of sovereignty (Article
24(2) (1));
2. if they have resided in Hong Kong for a continuous period of not less than seven
years before or after the transfer of sovereignty (Article 24(2)(2)); or
3. if they were born outside Hong Kong to persons covered by the above two categories
(Article 24(2) (3)).
The Court of Final Appeal affirmed some fundamental constitutional principles in
reaching its decision, that is, the Basic Law was a living document, like any other constitu-
tion, and hence should be interpreted broadly. The Court ruled that Article 24(2)(3) of the
Basic Law gives the right of abode to children born of a Hong Kong permanent resident,
‘regardless of whether that parent became a permanent resident before or after the birth of
the child’. It became a landmark decision by the highest court in Hong Kong and became
the battleground for the contested interpretations of Article 24 of the Basic Law on the
part of the judiciary, the government and the legislating authority based in Beijing, which
was responsible for the construction of the Basic Law within the Civil Law system. The
Government estimated that the additional eligible persons in Mainland China who could
obtain the Right of Abode within ten years would reach 1.6 million, and would result
in very severe social and economic problems, which prompted the HKSAR Government
to ask the Standing Committee of the National People’s Congress to reinterpret Articles
22(4) and 24(2)(3) of The Basic Law, which effectively overturned the court decision. This
move prompted large protests and debate over whether or not Hong Kong’s judiciary re-
mained independent from that of the Mainland. The interpretation offered by the Standing
Committee of the National People’s Congress was helpful to the Government in appealing
against the earlier decision of the Court of Final Appeal, which subsequently ruled that
the interpretation of the National People’s Congress of Article 24 of the Basic Law was
constitutional, thereby subsequently denying the right of abode to all those who were given
it in the earlier decision. The government’s action in seeking a reinterpretation of the Basic
Law was thus prompted by the emerging socio-political context rather than the words used
in the construction of the Basic Law. The interpretation seems to confirm Duranti’s (1997:
277) contention that ‘if we want to understand what people mean with, through, and some-
times despite their words, one must look beyond linguistic means . . . meanings are seen as
located not only in language, but in social values, beliefs, social relationships, and larger
exchange and support systems, including family structure and the social organization of the
community’.

INTERPRETATION ACROSS LEGAL JURISDICTIONS

We would now like to take the discussion further towards cross-cultural (in the sense of
cross-jurisdictional), socio-political and ideological factors to see the extent to which these
factors play a significant role in legal interpretation, and to substantiate this claim we would
like to turn, once again, to the interpretation of another section of the Basic Law, which was

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486 Vijay K. Bhatia and Aditi Bhatia

meant to provide the basis for what has been widely known as ‘One Country, Two Systems’.
Before we identify relevant sections for discussion, we would like to mention some of the
important historical facts by way of background. The return of Hong Kong to the People’s
Republic of China, and the creation of Hong Kong as Special Administrative Region
of the Peoples’ Republic of China, (HKSAR), under the ‘One Country, Two Systems’
mechanism highlights the importance of interpreting one set of laws in the context of
the other, raising a number of interesting issues. In this context three languages, two
cultures, and two legal systems are interacting with each other, highlighting a number
of new problems in the interpretation of rules and regulations, and in the translation of
legal intentions from one language to another (Candlin and Bhatia 1998), especially in
the context of two rather different legal cultures and jurisdictions, and socio-political
ideologies. In a span of about ten years, Hong Kong has already witnessed several cases
where sections of the Basic Law have been construed, interpreted and re-interpreted rather
differently, often the concerned parties taking contradictory positions. The underlying
issues in relation to statutory interpretation in many of these cases could either be traced
back to two different drafting cultures, which may include differences in languages in
use (Chinese and English), legal systems, or other socio-cultural as well as political
factors.

Specification of legal scope

As briefly mentioned above, legislative discourse, especially from Common Law coun-
tries, is notorious for its syntactic complexity and detailed specification of scope. As
Bhatia (1982; 1983; 1987; 1993) and Maley (1987; 1994), have pointed out, the attempt
on the part of legal draftsmen to write clearly, precisely, and unambiguously, on the
one hand, and all-inclusively, on the other, is primarily responsible for making legisla-
tive discourse ‘syntactically complex’ and ‘heavy in information loading’, and hence,
largely inaccessible to both legal experts and to lay persons alike. However, the Basic
Law, in spite of a low incidence of ‘syntactic complexity’ and ‘under specification of
legal scope’, has been found to be ‘incomprehensible’ in that it has the potential for
multiple interpretations, some of which have been found rather controversial. One of
the main reasons for this seems to be the involvement of two different legal cultures
grounded in two very different socio-political values, beliefs and ideologies (Bhatia 2000;
2005). Interpretation, therefore, does not seem to be the function of what the writer
has written; it seems to be the function of what the interpreter brings to the discourse,
including his or her attitude towards what s/he reads which may include his or her prej-
udices, assumptions, political beliefs, and a number of other factors. Let us take up one
of the most controversial and more recent incidences of such a problematic section of the
Basic Law.

Hong Kong Basic Law: Article 23

The Hong Kong Special Administrative Region shall enact laws on its own to prohibit any act of treason,
secession, sedition, subversion against the Central People’s Government, or theft of state secrets, to
prohibit foreign political organizations or bodies from conducting political activities in the Region, and
to prohibit political organizations or bodies of the Region from establishing ties with foreign political
organizations or bodies.


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 Legal discourse across cultures and socio-pragmatic contexts 487

Article 23 is the basis of a security law that Hong Kong Government is obliged to enact
on its own to protect national security. On 24 September 2002 the government released
its proposals for such an anti-subversion law, which became the cause of considerable
controversy and division in Hong Kong. There was a massive demonstration on 1 July
2003 and as a consequence the bill was withdrawn.
The controversy began in 2002 when Beijing prompted Hong Kong to pass the security
legislation quickly, at which the government began the process of drafting the proposed leg-
islation. Many people in Hong Kong were rather surprised at the government’s responsive-
ness, which seemed to be in contrast to the government’s general lack of desire to legislate
in other areas. The government, for instance, had been avoiding discrimination legislation
for a long time. Many people believed that the Chief Executive owed a personal debt to the
mainland government for bailing out his family shipping company in the early 1980s. There
was also concern in Hong Kong because of the authoritarian regime in the mainland. The
new anti-subversion law, they believed, was likely to erode freedom of speech and human
rights in Hong Kong. To make matters worse, the government was seen as rushing this legis-
lation through by refusing to issue a White Bill, which further strengthened the concerns of
Hong Kong people, in particular religious groups and the media. The main arguments from
the opponents of the proposed law were based on some of the following perceptions and
interpretations.
• In the proposed enactment, police are allowed to enter residential buildings and
arrest people at any time without court warrants and evidence.
• Any speech deemed as instigative can be regarded as illegal, including oral, written
and electronic forms; people who express or hear such speech and fail to report such
speech are regarded as guilty.
• Permanent residents of Hong Kong are under the power of this law, no mat-
ter where they reside. People who are in Hong Kong are also under the power
of Article 23, regardless of nationality, including people who visit or transit
through Hong Kong. Violations of Article 23 can result in jail time or a life term
in prison.
The Government’s view was echoed by the then Secretary for Security, Regina Ip (2003):

[A]ll countries have laws to protect national security but, in Hong Kong, the Mainland’s national laws
on this subject do not apply. It has been left up to the Hong Kong SAR Government to enact laws ‘on its
own’. . . Five years after Reunification, it is time to move ahead on a matter that is regarded as extremely
important by our sovereign. We have a constitutional and legal obligation, under our Basic Law, to enact
such laws. By doing so, we fulfil our role to implement ‘One Country, Two Systems‘. We also have a
moral duty . . . to protect the security and sovereignty of our country. Why should Hong Kong people
be under any less obligation to do so or indeed feel uncomfortable in doing so, compared to citizens in
other countries?

The Solicitor-General Bob Allcock (2003) also made efforts to allay the fears of Hong
Kong people about the extreme interpretations of the proposed law:

Contrary to what some have alleged, the Bill to implement Article 23 of the Basic Law does not provide
for ‘secret trials’. Any criminal prosecution under the proposed new laws would be subject to normal


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488 Vijay K. Bhatia and Aditi Bhatia

trial procedures. In addition, if anyone were charged with one of the serious offences against national
security, he or she would have the right to trial by jury.

Legal interpretation and wider socio-pragmatic issues

The opponents of the bill argued that the bill was potentially repressive and hence would
be more acceptable in a parliamentary democracy where the potential impact of security
laws can be minimized because there is likely to be a system of checks and balances
if the government were to enforce these laws repressively. People in Hong Kong have a
strong perception that the sovereign in this case is authoritarian, and hence such a law can
be potentially repressive. They argued that such a law could be delayed till Hong Kong
implemented a system of universal suffrage. Their argument against the constitutional
requirement of security law was that the Basic Law did not set up a specific time for
passage of the legislation. It was pointed out that the Basic Law also constitutionally
required the Hong Kong government to work toward a system of universal suffrage. Since
both these goals had no further specification of time frame, there is no reason to implement
Article 23 legislation before universal suffrage.
On 1 July 2003 about half a million people in Hong Kong demonstrated against the
proposal to introduce anti-subversion security law. On 5 July 2003, the Government an-
nounced a modified security law, promising to remove some of the objectionable sections
such as the power given to the police to conduct searches without warrants, and including
a ‘public interest’ defence for publishing state secrets. However, the general perception
continued to be sceptical about such modifications, as some of these terms were not ade-
quately specified. On 6 July 2003 the Government announced that the second reading of
the Law was to be postponed and on 5 September 2003 the Government announced that
Article 23 legislation would be withdrawn, and that it would be reintroduced only after
popular consultations, and that there was no timetable for its reintroduction.

Interpretation across socio-political contexts

In this context, it is interesting to note that almost at the same time the US government
introduced similar repressive measures under what is known as the 2001 Patriot Act
(Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept
and Obstruct Terrorism Act of 2001) (cf. Bhatia 2008). The Department of Justice (2001)
under the Bush Administration had claimed that this repressive Act played ‘a key part − and
often a leading role − in a number of successful operations to protect innocent Americans
from the deadly plans of terrorists dedicated to destroying America and our way of life’.
The Act was introduced to deter and punish terrorist acts in America and around the world,
and in order to ‘enhance law enforcement investigatory tools, and for other purposes’. The
Patriot Act was passed in the US House of Representatives with a nearly unanimous 357 to
66 majority and a 98 to 1 majority in the Senate. The motivation for this overwhelming and
somewhat hasty action on the part of the House of Representatives, perhaps, was two-fold:
First a prompt reaction to the events of 9/11, and second, for them to demonstrate to their
constituents that they were ‘tough on terrorism’. On the other hand, in Hong Kong, which
is not even a democracy, a similar security measure was totally rejected by the people. The
main reason, in our view, was not the content or expression of the security measures, but
the confidence and lack of trust by the people in Hong Kong in the Government.

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 Legal discourse across cultures and socio-pragmatic contexts 489

LAW AND WIDER SOCIAL CONTEXT

This brings us to the next stage of a related section of the Basic Law that is Article 45,
which provides for the possibility of democratic reforms in Hong Kong SAR, where one of
the important issues is election of the Chief Executive by universal suffrage, raising wider
social issues.

Article 45

(1) The Chief Executive of the Hong Kong Special Administrative Region shall be
selected by election or through consultations held locally and be appointed by the
Central People’s Government.
(2) The method for selecting the Chief Executive shall be specified in the light of
the actual situation in the Hong Kong Special Administrative Region and in
accordance with the principle of gradual and orderly progress. The ultimate aim
is the selection of the Chief Executive by universal suffrage upon nomination by
a broadly representative nominating committee in accordance with democratic
procedures.
Although Article 45 clearly states that the Chief Executive shall be ‘selected by election’
or through consultation and be appointed by the Central People’s Government, there is a
vague indication in subsection (2) that ‘keeping in mind the actual situation in Hong Kong’
and in accordance with ‘the principle of gradual and orderly progress’ his or her selection
‘ultimately’ be effected by ‘universal suffrage’. However the real point of contention is the
uncertainties surrounding the interpretations of a number of terms used in Article 45, such
as ‘the actual situation in Hong Kong’, ‘the principle of gradual and orderly progress’,
and ‘ultimately’. The widely contentious interpretations of this Article have polarized
the whole nation with people on both sides going to extremes to bring in even remotely
relevant contextual details that may or may not have been intended to have any effect on
the construction of the Basic Law at the time it was written. The real point of contention is
the time of introducing universal suffrage which requires accurate interpretations of what
is meant by ‘the principle of gradual and orderly progress’ and what is meant by ‘the actual
situation in Hong Kong’.

Issue of universal suffrage in Hong Kong

Article 45 is concerned with Hong Kong’s election system. There are two issues at
stake that interest Hong Kong: universal suffrage, and the direct election of the chief
executive from 2007 onward. The Basic Law establishes that ‘between 1997 and 2007
the chief executive must be re-elected by a committee of representatives’. It also provides
that any election system can be revised provided it is approved by a 2/3 majority in the
LEGCO (Legislative Council, which is equivalent to Hong Kong’s Parliament). Although
at present Hong Kong citizens do not enjoy universal suffrage, pressure has grown among
the Hong Kong population to directly elect their own leaders and under rights of universal
voting power. According to a South China Morning Post survey at least 79.9 per cent
of the population wants to elect their chief executive directly. Since Article 45 is vague
and leaves considerable room for interpretation one way or the other, the government
decided to ask the Chinese parliament’s Standing Committee to ‘interpret’ the Basic Law

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490 Vijay K. Bhatia and Aditi Bhatia

for Hong Kong. This started hectic interpretive activity on both sides. Political leaders and
legal specialists on both sides came up with their own widely divergent interpretations.
It would be interesting to sample some of these here. Supporters of universal suffrage
criticized the government for sacrificing Hong Kong’s autonomy by delegating decisions
to Beijing. Their contention was that the people of Hong Kong should decide democratic
reforms. They feared that the Standing Committee was unlikely to interpret the Basic Law,
but would rather transform it by instituting various amendments, as had been done on
previous occasions, when children of Hong Kong citizens born in China were refused the
right of abode in Hong Kong (Bhatia 2000; 2004). One of the most prominent members
of the Democratic Party who was also involved in the original drafting of the Basic
Law recalled that until 1990 Beijing was in agreement that after 2007 Hong Kong could
establish its own system of elections. Beijing, on the other hand, feared that Hong Kong’s
spirit of democracy would soon spread from Hong Kong to China, thereby sparking social
tension on the mainland where the communist party enjoyed absolute power. Even some
Hong Kong businessmen feared that democracy might damage their deals and financial
opportunities with China.

Beyond socio-pragmatic interpretations

Assumptions, expectations, and prejudices may often have a crucial role in legal inter-
pretation, as demonstration in the case of peoples’ interpretations of Article 45 of the Basic
Law of Hong Kong SAR. As reported in South China Morning Post (SCMP: 11 February
2004), the mainland official Xinhua statement clarified some of the key points seen as
crucial for the interpretation of Hong Kong peoples’ demand for democratic reforms:
• ‘One Country’ is the premise of the ‘Two Systems’.
• ‘Hong Kong people ruling Hong Kong’ means patriots should comprise the main
body that governs Hong Kong.
• ‘A high degree of autonomy for Hong Kong’ means self-governing under the autho-
risation of the central government.
• Hong Kong’s political system should conform to its legal status as a regional admin-
istrative zone directly under the central government.
• The future methods for electing the chief executive and LEGCO (Legislative Coun-
cil) must be consistent with the principle of gradual and orderly progress.
• Hong Kong’s political system is established by the National People’s Congress
through the Basic law. The special administrative region has to listen to the central
government’s opinions when discussing the ways of electing the chief executive and
LEGCO.
Similarly, Shao Tianren, a legal adviser to the Ministry of Foreign Affairs and a main-
land drafter of the Basic Law also criticised some Hong Kong lawmakers for advocating
independence for Taiwan and being members of organisations aimed at overthrowing the
central government. Such perceptions were available in Hong Kong too. Tsang Hin-chi, a
Hong Kong delegate to the standing committee of the National People’s Congress, referring
to democrats in Hong Kong, said, ‘those forces are using the slogan of “returning political
power to the people”, just as the Democratic Progressive Party did in Taiwan’.
In a bid to clarify the context for the interpretation of Article 45, attempts were made
to go back to what Deng Xiaoping laid down as criteria for patriots. In his speech on ‘one

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 Legal discourse across cultures and socio-pragmatic contexts 491

Country, Two Systems’ he said, ‘A patriot is one who respects the Chinese nation, sincerely
supports the motherland’s resumption of sovereignty over Hong Kong, and wishes not to
impair Hong Kong’s prosperity and stability’. These criteria were interpreted variously
as meaning ‘loving China and loving Hong Kong were inseparable’, ‘if socialism with
Chinese characteristics under the leadership of the Chinese Communist Party is changed,
the stability and prosperity of Hong Kong will slip away’ (People’s Daily 20 February
2004). Newspaper stories almost on a daily basis started appearing in local newspapers,
some of which we reproduce here.
• Anson Chan urges reform timetable (SCMP, 1 February 2004)
• Beijing is clearly set on playing hardball (SCMP, 4 February 2004)
• Opinions of legal experts not the official line: Tsang (SCMP, 4 February 2004)
• Turning to Beijing is not the solution (SCMP, 4 February 2004)
• NPC could force Hong Kong to abide by the Basic Law: Government should show
discipline in observing provisions, says local deputy (SCMP, 4 February 2004)
• Democracy seekers accused of trying to ‘topple Basic Law’ (SCMP, 31 January
2004)
• Basic Law compliance review sought: More promotion of mini-constitution needed:
NPC deputy (SCMP, 3 February 2004)
• ‘Patriots should govern Hong Kong’ Beijing spells out its definition of the principles
that must underlie the process of political reform (SCMP, 11 February 2004)
• Patriot games just the beginning of Beijing hard ball: Recent talks on reform have
pushed relations between China and Hong Kong to the brink (SCMP, 18 February
2004)
• Democrats can still be patriots: DAB chief (SCMP, 18 February 2004)
• Hong Kong lacks maturity for direct elections, state officials rule (SCMP, 27 April
2004)
Amidst all these divergent perceptions the government asked the people ‘Tell us how to
ease Beijing fears’: Hong Kong officials want the public’s help to answer seven questions
(SCMP, 12 February 2004). These questions included:

1. How to allay the central government’s fears that developing democracy may lead
to city’s independence.
2. How to ensure the political structure will not mean the city separating from the
mainland.
3. How to ensure a directly elected chief executive will be accountable to Beijing.
4. How to ensure the interests of all sectors are safeguarded.
5. What constitutes the ‘actual situation’ to take into account when considering demo-
cratic change.
6. What ‘orderly and gradual progress’ means: and
7. How a new political system can be conducive to the development of a capitalist
economy.

Finally the Central government interpreted Article 45 refusing to allow universal suffrage
in 2007. The following newspaper report adequately sums up the situation. The Washington
Post (27 April 2004) reported:

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492 Vijay K. Bhatia and Aditi Bhatia

China declared that it would not allow Hong Kong to elect its next chief executive in 2007 or to expand
legislative elections in 2008, rejecting the demands of the territory’s democracy movement in unequivocal
language.

The announcement marked a major shift in strategy by the Chinese Communist Party,
which for months has tried to quash growing calls for democratic reform in Hong Kong
without explicitly ruling out universal suffrage in 2007 and 2008. The decision provoked an
immediate outcry among Hong Kong’s democracy advocates, who vowed a series of large-
scale demonstrations that summer, and prompted criticism from US and British diplomats,
who warned that Beijing was eroding the high degree of autonomy promised the territory
upon its return to Chinese rule in 1997. In the decision, the Chinese government said
‘conditions in Hong Kong . . . were not ripe for universal suffrage. It asserted that Hong
Kong’s residents have not had enough experience with elections and remain divided about
the pace and substance of political reform’. ‘At a time when Hong Kong is undergoing
economic restructuring, when the Hong Kong economy is turning around, we cannot
radically change the institutional arrangement without regard to the consequences,’ said
Qiao Xiaoyang, deputy secretary general of the Standing Committee of the National
People’s Congress. ‘We have to develop democracy in Hong Kong on a step-by-step basis.
Only then will we be able to maintain stability, prosperity and social harmony’.
In a televised address in Hong Kong, Qiao also argued that direct elections could
threaten the territory’s capitalist system because business interests might not be properly
represented. China’s Communist government promised to preserve Hong Kong as a cap-
italist enclave after its handover, and the territory’s business tycoons have been among
Beijing’s strongest supporters.
The quick succession of events in the next few months in Hong Kong and the widely
divergent perceptions of the people and the parties on both sides of the border, were
testimony to the fact that opinions were divided on the issue of democratic reforms in
Hong Kong. This was summed up in a headline in SCMP (29 April 2004):

Stop rocking the boat, say business leaders and Keep up the fight says Anson Chan.

Jurisdictional conflict in legal interpretation

One of the main issues brought into focus in this controversy was the question of who
should have the final authority to interpret the Basic Law: the highest Court of Final
Appeal within the common law system in force in Hong Kong, or the National People’s
Congress (NPC), which operates within a very different civil law system? Although the
Basic Law empowers the NPC as the final interpreter of the mini constitution of Hong
Kong under the ‘One Country, Two Systems’ framework, the real issue at stake is that a
number of such unpleasant controversies and decisions could have been avoided, or at least
minimised, by drafting the Basic Law in a legislative style that did not conflict with the
normal expectations of the legal system within which it was likely to be interpreted and
used. By incorporating, as far as foreseeable, the necessary constraints and qualifications
operating on such provisions, one would have made the law more transparent and less
controversial. Ghai (1997), a prominent specialist on constitutional law, rightly identified
this lack of specificity in drafting as one of the main reasons for contentious interpretations.

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 Legal discourse across cultures and socio-pragmatic contexts 493

The two broad areas on which there was considerable contention were the relations between the Central
Authorities and the HKSAR and the political structure of the HKSAR. China had fought off the British
during the negotiations for the Joint Declaration on these issues, and an appearance of consensus was
purchased at the expense of ambiguity and obfuscation (Ghai 1997: 61).

The other interesting issue the case brings into focus is that social action in the courtroom
often depends not simply on semantically or logically accurate interpretations (Allen 1957),
but also on pragmatically appropriate interpretations, keeping in mind the socio-political,
economical and cultural constraints, which are often preferred by institutions who hold
executive powers. The institutions with executive responsibilities would like to exercise
maximum control and power to implement administrative and social policies, and would
like to have under their control a measure of flexibility in interpretation, which is often
lost through detailed specification in legislative instruments. It is hardly surprising that a
high degree of transparency in legislative intention is often negatively viewed by autocratic
executive organisations and institutions.

LAY AND PROFESSIONAL CULTURE IN THE COURTS

Cultures (both social as well as professional) shape not only the construction and
interpretation of professional and disciplinary texts and the associated social actions, but
also the professional practices in which these are embedded. Therefore, any discussion
of legal discourse must take into account the cultural contexts in which it takes shape,
is interpreted, used and exploited to achieve socio-political ends. Illustrating the two
aspects of culture, namely, social and professional, Heffer (2005: 151) discusses a section
of counsel-lay cross-examination, in which a female defendant had already admitted to
stabbing an 18-year-old friend of hers to death. However, the prosecution wanted to
establish malice in the sense of reckless indifference to human life, and in his cross-
examination of the defendant, he claimed that the defendant humiliated her victim. The
cross-examination, Heffer points out, went on like this:

Q: Why did you pull her leggings down?

A: I didn’t pull her leggings down. They came down when I was dragging her.
Q: What, dragging her this way and that? Is that what you are telling us?
A: Yes.
Q: Quite untrue. You rolled those leggings down, I suggest, did you not?
A: No, I didn’t.
Q: Exposing her buttocks.
A: No.
Q: The final indignity. That is what you did, was it not?
A: No.
(Bold added to highlight specific expressions)

Heffer argues that after using presupposition in the first question, the prosecution,
completely ignoring the answers from the witness, ends the sequence with the blame
structure, ‘this is what you did’. In all this, the prosecution uses declarations, where one
may expect questions. Where, Heffer continues, we expect focus to be on the witness,
we find it on the prosecution’s subjective assertions. In the cross-examination ‘suggest’,

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494 Vijay K. Bhatia and Aditi Bhatia

instead of being used as advice, is used to put the prosecution’s case to the jury. Instead of
cross-examining the witness, the prosecution cleverly makes use of the context to establish
his point of view on the case, all of which is very much part of the legal culture, but clearly
outside the experience of the defendant.

CONCLUSION
In conclusion, we would like to reiterate that although clarity, precision, unambiguity, and
all-inclusiveness are the four key aspects of the construction and interpretation of legislative
intentions, particularly in the context of common law jurisdictions, all-inclusiveness plays
the most significant role in the specification of legal scope, which in turn has implications
for accessibility and transparency in the expression of legislative intentions. However,
since legal discourse is tested when it is applied and interpreted in the context of specific
case descriptions, it is important to realise that context, both broad as well as narrow,
cross-cultural factors (social as well as professional legal, jurisdictional, legislative styles)
and a number of other socio-political forces and ideologies, which may include socio-
political values, beliefs, prejudices, social relationships, and other larger social structures,
organizations and communities play a crucial role in its interpretation and use.
We also made an attempt to demonstrate that transparency, or rather lack of it, is strate-
gically used in different legal systems in different ways to assign power and control to
different institutions, which have different roles in the construction and interpretation of
legislative intentions. Depending on the institutional roles and the privileges available to in-
stitutional players, for instance, the legislature, the judiciary, or the bureaucracy, invariably
show preference or dispreference for greater transparency in legislative expressions.
Finally, we would like to claim that the study extends the scope of world Englishes
to incorporate a much wider interdiscursive pragmatic space, especially in the context of
disciplinary and professional discourses across international and socio-cultural boundaries,
emphasizing the view that studies of linguistic variations need to integrate textual as well
as contextual resources. Language use, after all, cannot in any way be divorced from the
context in which it is constructed, used, interpreted and creatively exploited.

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C 2011 Blackwell Publishing Ltd