The Irish Wording of the Marriage Referendum

Dr Seán Ó Conaill

Leagan Gaeilge le Fáil Anseo / Irish language version of this piece is available here

Much attention has been paid to the Irish wording of the proposed marriage referendum after a piece appeared in the Irish Times on the subject.

The wording that is proposed to go before the people on 22nd May reads as follows in Irish;

“Féadfaidh beirt, cibé acu is fir nó mná iad, conradh a dhéanamh i leith pósadh de réir dlí.”

A literal translation of this word would read;

“Two persons, whether they be men or women, may contract in relation to marriage in accordance with law”.

whereas the official English wording reads;

“Marriage may be contracted in accordance with law by two persons without distinction as to their sex.”

It must be borne in mind in any debate as to wording that the Irish Constitution is a bilingual document which, when drafted originally was co-drafted to some extent, although the English text would certainly have taken a lead role. The Irish text of the original version however cannot be regarded as a mere translation of the English text.

imagesCAW77Z4FThere are numerous examples within the text of the Constitution which make this clear and demonstrate that the Irish text is much more than a simple translation of the Constitution. My colleague from the Department of Modern Irish Dr Neil Buttimer discusses many of these issues in this video. In some instances the Irish version of the text corrects presumed errors in the English text such as the age at which a person can take the Office of President in Article 12.4.1. The English text, presumably in error, says a person may do so in their 35th year eg when they are 34 years of age whereas the Irish text makes it clear you must actually be at least 35 years of age. In Article 29.3 whereas the English version of the text notes that Ireland accepted the generally recognised principles of international law the Irish text adds the proviso “as a guide”. At time the Irish version of the Constitution is even used to make political or nationalistically loaded statements. The English language for example in the Irish Constitution is not described as “Béarla”, the term normally used for English, but rather “Sacs-Bhéarla”. Although there is no difference in legal meaning to be attribute to this choice of words it is clear that there is a wider point being made about the “Saxon-English” language.

 

Article 25.4.5 tells us that where conflicts between the teThe Four Courts, Dublinxts are found the version in the national language shall prevail. This gives the Irish text a very important legal position in our modern Constitutional order however direct contradictions in interpretation between the English and Irish texts have been rare. The Courts have however been very keen to look to the Irish wording to help them fully interpret the English text and very many of our leading constitutional law cases involving examining the Irish text including case such as the X case, Roche v Roche, Doherty v Ireland etc etc.

The process of drafting amendments to the Constitution is somewhat problematic for the Irish language text. Constitutional amendments by their nature are politically driven and tend to be agreed by cabinet, with input from legal advisers, in English only. The Irish text is then subsequently produced. Although there is some element of consultation with the translators in reality the process is very much English language driven. The translators are then faced with an English text which they cannot modify or amend in any way and must produce an Irish text which reflects the same legal meaning. English and Irish, like any two languages, cannot ever be translated word for word. There are words in both languages which do not have an exact corresponding word in the other language. English does not have masculine and feminine words as languages such as Irish or French have nor does English have the sort of mutations that are common in Celtic languages. Thus when translating a constitutional amendment translators are faced with a very challenging task.

This task is made all the more difficult by the style of language used in the original Irish text of the Constitution. It is important that consistency of language is maintained within the Constitution. On the face of it a literal translation reading along the lines as follows would be closer to the English language version but a number a problems arise;

“Féadfaidh beirt daoine, gan idirdhealú ó thaobh gnéis, conradh a dhéanamh i leith pósadh de réir dlí.”

Whereas as the official translation reads

“Féadfaidh beirt, cibé acu is fir nó mná iad, conradh a dhéanamh i leith pósadh de réir dlí.”

The choice of the phrase “cibé acu is fir nó mná iad” is guided by the desire to be consistent with Article 16.1, in which “Every citizen without distinction of sex” is translated as “Gach saoránach, cibé acu fear nó bean”.  The Irish for sex (gnéas) does not appear in the Constitution nor does it appear in Téarmaí Dlí, the Irish legal terms order. “Beirt” is used to denote two persons (as in Article 28.7.2). The common Irish word for distinction (“idirdhealú”) needs to be avoided because it is already used in Article 44.2.3 as a translation for “discrimination”.

Whilst the translation is not perfect my colleague Dr Conor O’Mahony and I have argued that the well-established rules of interpretation will help to resolve any issues arising. This does not mean that we cannot make serious improvements in Ireland. The translators, at present, are essentially working with one hand tied behind their back. In other bilingual jurisdictions such as Wales and Canada laws are co-drafted by two lawyers in both languages. This gives an opportunity for both languages to have an input from the start of the drafting process and allows laws to be more carefully drafted to ensure ease of translation in both texts. The experience from Canada and Wales has been that co-drafting not only produces a much better translation in the minority language but greatly improves the quality of the English language text too. Co-drafting has also been proven to be cheaper and quicker than subsequent translation.

Dr Seán Ó Conaill

Twitter @soconaill

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