http:// www3.aichi-gakuin.ac.jp / ~jeffreyb / LangPolicy / actbks.html
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Title/Abstract
Introduction
Text
The Chinese Bookkeeping Act
Judicial decisions are under more restrictions than those of legislative or administrative bodies. Within the federal system, Congress has the greatest amount of freedom in making laws, being restricted only by the framework of the Constitution. The President has to stay within the statutory framework created by the legislature as well as the Constitution. Judicial decisions have to stay within all three frameworks of the legal code: the Constitution, statutes, and regulations, unless there are internal contradictions. Any judicial interpretation must be justified by reference to specific provisions in the law. While judges may be able to expand (or contract) legal rights through the interpretations they give legislative acts, they are not empowered to create new rights from scratch. They must have some legal foundation on which to build.
Legislatures establish those foundations, but they, too, are somewhat limited in exercising their legislative powers. Congressional powers are derived from Article I, Section 8 of the U.S. Constitution (1789) and limited by the Tenth Amendment (1791). Article I gives Congress the power to make laws in 17 specific, yet broadly defined, areas and to carry out other powers, but only those which are vested in the federal government by the Constitution. Hence the Constitution prescribes the legitimate scope of federal statutes; all else is proscribed. As if to emphasize the point, Amendment X reserves "powers not delegated to the United States by the Constitution ... to the States respectively, or to the people."
The case of Yu Cong Eng v. Trinidad (1925) sheds some light on this point. It also exemplifies the legal importance of defining legislative terms explicitly and with precision.
In 1921, while the Philippines was a territory of the United States, the Philippine Legislature enacted a law that made it a crime for anyone engaged in business to keep account books in any language other than the territory's official languages--English and Spanish--or a local dialect. The act, which established a maximum penalty of two years imprisonment and a fine of ten thousand pesos, went into effect on the first day of 1923. This did not sit well with the 12 thousand Chinese merchants, who accounted for 60 percent of the business activity in the Philippines. Yu Cong Eng, a lumber merchant in Manila, was arrested and his books seized. Before trial, he and another Chinese merchant who did not read, write, or understand any of the languages that the law mandated filed suit requesting that the law be declared unconstitutional and that the charges against them be dismissed.
Early in the judicial proceedings it became apparent that the act had been too broadly constructed. It prohibited individuals and businesses from keeping their "account books" in Chinese and other languages, but did not specify precisely what that term was to include. The Philippine Supreme Court suggested three possible constructions: (a) all account books, including any duplicate sets, whether necessary for tax purposes or not, (b) a single set of all account books kept, or (c) a single set of only such books as would be needed to determine tax liability. In order to make the law conform to the territorial constitution, the judges imposed the last, and narrowest, definition. They then declared the reconstructed law to be legally valid and allowed the charges against Eng to stand.
Yu Cong Eng and Co Liam appealed the Philippine Territorial Supreme Court's decision to the U.S. Supreme Court for a final review as to whether the Chinese Bookkeeping Act violated the due process and
equal protection clauses of the Territorial Constitution of the Philippines. It should be noted here that Filipino territorial laws at that time, like state laws, were American laws subject to review by the federal court system, because the Philippines were a part of the United States. Furthermore, there were no substantial differences between the provisions in the Filipino Territorial Constitution and the U.S. Constitution. They were legally equivalent, so that any interpretation of one would apply equally to the other. Lawyers representing the territorial government argued for separate criteria. The argument, however, failed, and the principles expounded in Yu Cong Eng v. Trinidad (1925) have been cited in dozens of subsequent federal court cases (Sheperd's Federal Court Citations, 1994).
While the Taft Supreme Court found the constitutional provisions indistinguishable, it found a very clear distinction between the territorial court's interpretation of the act and the law that its legislature had passed. The legislative act had been a blanket prohibition against keeping any and all account books, including duplicates, in languages, like Chinese, that had not been specified. The judicial interpretation had transformed the prohibition into a mandate requiring the use of certain languages for narrowly defined regulatory purposes. The territorial court had, in effect, usurped the legislative function of government and created a new law. The U.S. Supreme Court reinterpreted the law in the broad terms it deemed the legislature had originally intended, declared the law unconstitutional and void, and dismissed the charges that had been pending against Yu Cong Eng.
This case illustrates the more extensive legal restrictions that the U.S. Constitution places on judicial, as opposed to legislative, bodies. The judiciary is only supposed to interpret laws, not create them. Thus courts are legally prohibited from creating policy. They have to find it in the Constitution, the statutes passed by legislatures, and the
regulations issued by an executive administration. Sometimes judges have to look very hard to find anything they can point to as an expression of legislative or executive policy, and then the line between creation and discovery can become extremely fuzzy. With very few exceptions, the formulation of a language policy has not been considered a necessary or proper government activity. This has left the courts little policy on which to base their interpretations. The line is indeed fuzzy, but it still exists. The decision in Yu Cong Eng v. Trinidad (1925), where the law needed a minor, but substantive, revision in order to make it conform to the territorial and United States constitutions, illustrates the point most clearly. The justices refused to cross the line and make a substantive change in the guise of judicial interpretation. Instead, they used the only legitimate judicial remedy at their disposal, they struck the law down.
The Yu Cong Eng case also demonstrates the constitutional limits placed even on legislative language policy. Lawmakers must confine themselves to the exercise of those powers specified in the Constitution, such as the power to tax. The power to tax, in turn, implies the power to inspect certain business records and to mandate that they be in a form, which might include linguistic form, that will facilitate the process of inspection. Because the Constitution lacks any provisions that would give Congress a specific power to regulate language use, however, any linguistic restrictions must be justified by tying them to some explicitly designated powers. Straying beyond the scope of such regulatory responsibilities, leaves an act vulnerable to judicial invalidation.
Lurking in the background of these rather delicate legal points is the demographic evidence concerning language use that was presented to the court. It showed two things about the local Chinese community: (a) an overwhelmingly high rate of monolingualism and (b) the extent of its economic power. Both factors seem to have favored the petitioners. The message was that the Chinese community could not switch linguistic codes without incurring a great burden. Even the government, after all, pleaded inability to procure enough bilingual investigators, so how could small, private businesses be expected to find and support an army of bilingual bookkeepers? Placing such an unbearable burden on the Chinese business community would likely have dire consequences for the Philippine economy and society as a whole.
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