CHAPTER FIVE
DISCUSSION AND RECOMMENDATIONS
This chapter examines what can be applied from the Californian experience and
also discusses how to address needs particular to the Taiwan context. The criteria
discussed below include laws, reliable data, funding, human resources, institutional
framework and procedures, and implementation of improvement measures. These
criteria, which were chosen based on the literature review, are deemed particularly
essential to improving court interpreting in Taiwan.
5.1 What can Taiwan learn from the Californian Experience?
California was selected because it already has a comprehensive legal and
institutional framework in place with regards to court interpreters. Courts and relevant
authorities have been collecting data on the use of court interpreters for more than
twenty-five years. Despite current challenges the California courts are still facing in
this issue, much of its experience can be reflected upon when considering measures to
improve court interpreting in Taiwan.
5.1.1 Legal Framework
Both the United States and Taiwan have laws protecting the right to due process
for anyone suspected of having committed an illegal offense. The laws of both
countries require the defendant understand any and all charges brought against him or
her, enabling the accused to participate in the legal system. This means the defendant
has a right to understand all legal proceedings beginning when the charges are made
up until the charges are dropped, a settlement is reached (civil court), or the court
reaches a verdict. The main sources of a person’s right to due process in the United
States are the Fifth and Sixth Amendments of the US Constitution. In Taiwan, the
right to due process is based on Article 8 of the Constitution of the Republic of China
along with relevant civil and criminal laws.
The United States, the state of California, and Taiwan all have laws regarding the
right to an interpreter if a party involved in legal proceedings is unable to understand
the language of the court. In the US, federal courts guarantee the right to an
interpreter in both civil and criminal court. Article 1, Section 14 of the California
Constitution guarantees the right to an interpreter for a person unable to understand
English. The state of California guarantees an interpreter for criminal court cases but
only provides one in limited instances for civil cases. In Taiwan, Article 99 of the
Code of Criminal Procedure writes “If an accused is deaf or dumb, or not conversant
with the language, an interpreter may be used.” This means the judge determines
whether an interpreter may be used. Article 207 of the Code of Civil Procedure writes
“The court shall appoint an interpreter where a person who participates in the
argument does not understand the language used in the R.O.C.” This law makes the
use of an interpreter in civil proceedings mandatory.
Regarding laws guaranteeing the rights to a court interpreter for limited-English
and limited-Mandarin-proficiency persons in California and Taiwan, the situations are
opposite. In California, court interpreters are guaranteed in criminal court but not
always in civil court. In Taiwan, interpreters must be provided for civil court but not
always in criminal court. As written in Chapter Two, the Language Barriers report
published by the California Commission on Access to Justice is arguing that the state
should amend existing law to guarantee court interpreters in all civil court
proceedings and not only in criminal court and some civil proceedings. NGOs like the
Judicial Reform Foundation as well as the paper published by Cheng and Dai (See
Chapter Two) argue that Taiwan law should be amended to guarantee a court
interpreter in both criminal and civil court and not merely in civil court.
The legal system in Taiwan is traditionally institutionalist, in the past having
given judges the power to conduct investigations of their own (often together with
prosecutors) to find “the truth”. Article 163 of the Code of Criminal Procedure
originally required judges to conduct separate investigations in the event prosecutors
were unable to provide adequate evidence. Taiwan has recently amended Article 31 of
the Code of Criminal Procedure to ensure judges remain impartial and place the
burden of proof solely on prosecutors. As Cheng & Dai (2004) show however, these
reforms have yet to fully take effect.
Implications:
Unequal access to justice can result if an interpreter is not guaranteed in civil or
criminal court. According to Article 99 of the Code of Criminal Procedure in Taiwan,
the LMP person is not guaranteed the right to an interpreter in criminal proceedings;
the decision whether to use an interpreter resides with the judge. Although Subject D
interviewed in this study reports that the court always waits until an interpreter is
appointed for an LMP person in a criminal case, there is still a potential loophole in
existing law. Besides, denying an interpreter in a criminal case would be contradictory
to Code of Criminal Procedure Article 96, which guarantees a person accused of a
crime to provide testimony in his or her favor. If an LMP person cannot speak or
understand Mandarin it could be a violation of the limited Mandarin proficiency
defendant’s fundamental right to understand charges brought against him or her. One
may assume that existing case law guarantees the right to an interpreter for an LMP
person, but Articles 96 and 99 are still self-contradictory.
Recommendations:
An interpreter should be guaranteed for criminal court cases in Taiwan because
without one the LMP person cannot communicate effectively with the court. A similar
argument is made in the Language Barriers (2005) report for the situation in
California. For people whose civil rights have been violated and want to pursue
litigation, they would have no means to do so if unable to afford an interpreter.
According to the laws of the US, California, and Taiwan, LEP residents in the US and
LMP residents in Taiwan should have equal access to justice regardless of language
barriers.
Further research may be needed to determine legislative needs specific to the
Taiwan legal context. Such studies should be carried out by legal and academic
institutions and should preferably involve legislators, judges, court staff, legal
practitioners, law professors, experienced conference interpreters, researchers with
experience in translation and interpretation studies, as well as governmental and
non-governmental organizations offering legal assistance to limited Mandarin
proficiency residents in Taiwan.
5.1.2 Government Funding
Both California and Taiwan are experiencing funding shortages for programs
related to court interpreting. California has allocated funding for such programs for
more than twenty-five years but is still experiencing problems linked to inadequate
funding. Taiwan can learn from these problems and draft measures aimed at avoiding
one of California’s trouble spots.
California:
The California experience shows that funding is essential to making progress in
terms of gathering data and assessing present and future demand. In 1978, law A.B.
2400 was enacted to establish a program for training and testing court interpreters. It
mandated that California courts and relevant authorities collect reliable data on the
use of court interpreters, develop exams, publish a list of qualified court interpreters
in each county so courts can call upon them where necessary, conduct annual testing
and certification for court interpreters, and collect, analyze and publish statistics on
the use of court interpreters. In 1992, California Senate Bill 1304 mandated the
Judicial Council to conduct a study of language and interpreter use and need in court
proceedings, and to report all findings to the Governor and Legislature every five
years. These pieces of legislation provided the basis for which funding should be
allocated.
In February 2007, the Judicial Council of California published a study entitled
“Trial Court Interpreters Program for Expenditure Report for Fiscal Year 2005-2006.”
The report concluded that although the budget was insufficient, it was offset by an
additional allocation to the Judicial Council. Sufficient funding for future years was
not guaranteed, as costs are expected to rise. Demand for court interpreters continues
to rise. Staff interpreters are now eligible for labor negotiations and contract
interpreters are seeking an increase in the daily rate. Future program costs are also
anticipated because the Judicial Council is working with the Governor and Legislature
to expand the right of court-interpreted services to encompass all civil court
proceedings. The Language Barriers report (2005) writes, although California laws
require that interpreters be appointed wherever evidence or testimony cannot be
presented due to a language barrier, payment or the source of payment for interpreters
is not specifically provided by the judicial administration except in the limited range
of civil proceedings for which state law makes such provisions. Also, funding is
inadequate to cover the cost of interpreters for civil proceedings (p. 13).
Another funding-related issue California now faces is the shrinking pool of
certified and registered interpreters. The Language Barriers report (2005) and a
meeting held in January 2007 by the Subcommittee on Payment Policies for Contract
Court Interpreters of “CEAC”, or the California Court Executives Advisory
Committee, all point out that more and more qualified contract court interpreters
prefer to earn more money by taking freelance conference interpreting cases or
pursuing other careers.
Taiwan:
Relevant data could not be obtained in this study to discuss whether sufficient
government funding was being allocated for conducting studies and maintaining a
pool of competent court interpreters. This study did not have access to fiscal reports
that specifically addressed the costs of the Taiwan High Court’s contract court
interpreter list initiative. Subjects A, B, and D feel that there is insufficient
government funding for the establishment of a court interpreters program. They said
that the Judicial Yuan currently has other priorities, referring to ongoing legal and
institutional reforms.
Implications:
If sufficient funding is not allocated, it may not be possible for relevant
authorities to gather reliable data on language barrier issues in the Taiwan justice
system, including court interpreter demand and usage. The courts will be unable to
establish, maintain and monitor a testing and certification system for court interpreters.
Talent will not be attracted to court interpreting if incentives are lower than what they
could make elsewhere. How much money do the Judicial Yuan and the courts spend
on contract court interpreters every year? Is there enough funding? Is money being
put into the training courses the contract court interpreter list announcement said it
would require contract court interpreters to attend? As the California experience has
shown, problems can and will arise if the issue of funding remains unaddressed.
Funding is essential to improving access to justice for LMP persons.
Recommendations:
The California Commission on Access to Justice admits in its Language Barriers
report (2005) that “Although data collection is expensive, research goals should be
made a priority” (p. 38.) California must secure additional funding to conduct further
studies and prepare for the likelihood that interpreters may soon be guaranteed for all
civil proceedings. This study could not determine whether funding was being
allocated specifically for contract court interpreters in Taiwan. If it has not already
done so, the Taiwan courts must assess how much money is needed to maintain its
current contract court interpreter pool. Excess funding should be prioritized to
conduct comprehensive studies for gathering data on current court interpreter usage
and demand. Where funding is inadequate, the government should allocate more as
soon as possible. The main purpose of funding studies to assess current usage and
demand for interpreters is to know exactly how much more funding is needed. Once
reliable data are gathered, relevant authorities can further prioritize funding.
In terms of funding, Taiwan’s priorities should be: (1) Find out how much
funding is currently available. (2) Use whatever funding is available to gather reliable
data (e.g. interpreter usage) and become familiar with court interpreting issues (e.g.
case studies.) If funding is insufficient, get more. In the meanwhile, encourage
academic institutions and non-governmental organizations who work with LMP
persons with legal issues to conduct research and bring court interpreting issues to the
attention of the Judicial Yuan and the courts. (3) Once more funding is allocated,
begin exploring how to establish, maintain, and monitor a certification and testing
system for court interpreters. These steps are discussed in more detail below.
California’s current problem is a decline in the number of qualified interpreters
compounded by increasing demand. This was mainly caused by a lack of funding and
research (“Language Barriers,” 2005). Increased funding must be obtained in Taiwan
so that compensation levels can attract people to pursue careers as court interpreters,
as well as provide adequate training and retain the current pool of contract court
interpreters. The goal for Taiwan should be to draft long-term funding measures
designed at avoiding California’s current predicament.
5.1.3 Reliable Data and Research Findings
Courts in both Taiwan and California have the same ultimate goal: to ensure
parties that do not speak the language of the court have equal access to justice. In
essence, the hiring of court interpreters is a human resources problem. How much of a
certain service is in demand and the training costs involved must be assessed before
devising ways to meet that demand. Hire and train too few people the courts will be
understaffed; hire and train too many people the courts will be wasting resources. In
order for the Taiwan and California courts to efficiently utilize resources, they first
have to know how many cases require court interpreters and for which languages.
How great or small a demand is there? What do the courts need to know in order to
implement an effective court interpreters program?
California
California has been compiling data on court interpreting since 1978 when law
A.B. 2400 was enacted to establish a program for training and testing court
interpreters. It mandated that California courts and relevant authorities collect reliable
data on the use of court interpreters, develop exams, publish a list of qualified court
interpreters in each county so courts can call upon them where necessary, conduct
annual testing and certification for court interpreters, and collect, analyze and publish
statistics on the use of court interpreters. In 1993, the Judicial Council of California
(the policy making body of the California courts which currently maintains the Court
Interpreters Program, see Chapter Two) became responsible for ensuring an available,
competent pool of qualified interpreters in accordance with California Senate Bill
1304 (California Senate Bill 1304; Stats. 1992, ch. 770). According to a March 2007
publication by the Administrative of the Courts entitled the “Fact Sheet,” Senate Bill
1304 mandated the Judicial Council to conduct a study of language and interpreter use
and need in court proceedings, and to report all findings to the Governor and
Legislature every five years (FACT SHEET, 2007).
In the most recent report by the Judicial Council titled 2005 Language Need and
Interpreter Use Study: Report to the Legislature published in February 2006, a total of
185,118 court interpreter service days were provided to California courts for the
twelve designated spoken languages (not including American Sign Language) during
fiscal year 2004-2005. Spanish accounted for over 86 percent of these service days
followed by Vietnamese at 4.6 percent. Other languages accounted for 2 percent or
less, which in falling order were Korean, Eastern and Western Armenian, Mandarin,
Cantonese, Russian, Tagalog, Arabic, Japanese, and Portuguese.
The abovementioned complementary data along with information presented in
Chapter Two regarding the status of court interpreting in California indicate that the
state courts are actively tracking court interpreter demand and whether the courts can
meet that demand. The data will be of invaluable help to future planning and
implementation of measures aimed at improving equal access to justice for California
residents with limited English proficiency.
Taiwan
Compared to California, Taiwan had no available information on court
interpreter usage and demand at the time this study was conducted. This is despite
claims of a great need for court interpreters made by the Judicial Yuan, Taiwan-based
NGOs, and the courts. Subject B and Subject D both said the languages needed the
most were those spoken by foreign workers from Southeast Asia. (See Chapters two
and three) The Taiwan High Court compiled a list of persons who may be called upon
to serve as contract court interpreters, a move indicative of a need for court
interpreters. The announcement calling for interpreter applications was issued on 21
April 2006. However, as far as this study has found via inquiries to the district and
high courts as well as the Judicial Yuan, the courts are not gathering data.
Implications:
The abovementioned facts and the interview findings in Chapter Four indicate a
couple of possibilities. One, the Taiwan judicial system might have been unaware of a
demand for court interpreters. Two, the courts lack enough will to address existing
language barriers to justice for LMP persons living in Taiwan. Three, the courts are
aware of the situation but they lack the funding for research necessary to devise and
implement solutions. The Taiwan High Court has already publicized announcements,
compiled a list of people willing to serve as court interpreters, and promised training
courses. The courts and judiciary need hard facts on demand for court interpreters and
specific needs of interpreters (e.g. training, pay) so that requests for a sufficient
budget can be legitimized. Knowing the needs of the Taiwan justice system must be
obtained in order to effectively implement training courses. The needs of LMP
persons can be accurately by conducting research. This will prove beneficial to
establishing an effective court interpreters program. Successful long-term solutions
will not be possible unless studies are conducted and data gathered.
Recommendations:
Taiwan courts need to accurately assess the demand for court interpreters, as well
as obtain findings on various aspects of interpreted proceedings. The courts might
consider adopting methods employed by the Judicial Council of California in
determining how many cases are interpreted for every year and the frequencies of
different languages spoken. Mandarin proficiency can be one of the criteria the next
time a census is conducted in Taiwan, as was done in the 2000 US Census. What level
of proficiency would preclude meaningful participation in the Taiwan justice system?
Studies must not only determine what sort of legislative reform is needed for the
Taiwan legal context; they must also accurately assess existing language barriers to
justice which includes the demand for court interpreters. Comprehensive studies like
Language Barriers report (2005) should be reproduced to fit the Taiwan context.
Surveys should be conducted with LMP residents to learn what language barriers to
justice exist so that effective solutions can be devised.
5.1.4 Ensuring Access to Competent Interpreters
Despite the California courts’ comprehensive system for interpreter testing and
certification, the state continues to see demand for qualified court interpreters increase
while their numbers steadily decrease. According to past studies and the interview
findings presented in Chapter Four, Taiwan has also encountered problems related to
ensuring LMP persons access to competent interpreters.
California:
Besides ongoing efforts to keep track of court interpreting needs in the state,
California possesses a comprehensive system for training, testing, and certifying court
interpreters. Government Code section 68561 and Rule 984.2 of the California Rules
of Court require an interpreter in a judicial proceeding to be certified or registered
(where available.) Non-certified interpreters may only be used following a thorough
search for available certified interpreters among state and federally certified court
interpreters, administrative hearing-certified interpreters, and interpreter agencies
(“Language Barriers,” pp. 19-20). U.S. citizenship is not required to work in the
courts, but a court interpreter must be able to prove that he or she can work legally in
the United States. The Administrative Office of the Courts does not provide
sponsorship for a green card, H-1 B visa, or permanent residency. Therefore a
foreigner can serve as a court interpreter in California but must already have a green
card, H-1 B visa, or permanent residency. Interpreters can be certified in 13 languages,
including 12 spoken languages and American Sign Language. To become a certified
or registered court interpreter, applicants must pass both written and oral components
of the examination. Candidates are tested in the following areas:
Written vocabulary, grammar, and reading comprehension in English for
non-designated languages; and in both English and the second language for
the designated languages; and
Sight translation, simultaneous and consecutive interpreting (“Language
Barriers,” 2005, p. 20).
According to the Language Barriers report, pass rates for the exam are lower
than 15 percent (and in some years less than 3.9 percent) regardless of the language
involved. These pass rates are comparable to those of other states and the federal
system, in which pass rates are between 3.6 and 12.5 percent (p. 20) Persons
interested in becoming court interpreters can download the Court Interpreters
Information Packet published by the Judicial Council of California, Administrative
Office of the Courts, 1998, and revised in March 2007. The information packet and
other materials available for download on the California Court Interpreters Program
website provide lists of interpreter training programs in California and other states.
Professional interpreter organizations such as the California Court Interpreters
Association (CCIA) and the American Translators Association and the National
Association of Judiciary Interpreters & Translators (NAJIT) serve to further the
interests of the profession. Through these organizations, persons interested in
becoming a court interpreter in California may obtain information on how to prepare
for the exam and where training programs are offered.
Despite having a comprehensive system for the testing and certification of court
interpreters in 12 spoken languages as well as access to government recognized
training programs, demand for qualified court interpreters increases while their
numbers steadily decrease. This is putting immense strain on California courts which
are now being forced to turn to unqualified interpreters. Between 1995 and 2005,
there has been a sharp decline in the number of certified Spanish interpreters
(Language Barriers, 2005, p. 21). The Judicial Council published a study in 2000
revealing that Mandarin interpreter usage rose by 91 percent, but registered
interpreters of Mandarin were only used in 15 percent of cases (ibid, pp. 21-22). In
January 2007, the Subcommittee on Payment Policies for Contract Court Interpreters
of the California Court Executives Advisory Committee, held a meeting to discuss
how qualified contract court interpreters are now taking fewer court assignments to
earn more from freelance interpreting cases or pursue other careers. Pay raises have
been given to judges and jury members since 2000, but contract court interpreters
have had no increase in pay. More job security, pay, and benefits are enjoyed by
full-time staff interpreters than contract court interpreters (Court Interpreters
Information Packet, Judicial Council of California, 2007; “Language Barriers”, 2005,
p. 26).
Taiwan:
On 21 April 2006, the Taiwan High Court posted an announcement on its official
website that it would be establishing a list of contract court interpreters in an effort to
improve the quality of court interpretation and guarantee the rights of
non-Mandarin-speaking persons. This study was unable to determine whether training
and ethics courses have been implemented through interviews as well as inquiries
placed with the Judicial Yuan, the Taiwan High Court, and the Taipei District Court.
No training materials or a code of ethics were available. It was only through
interviews conducted with Subjects L, M and N that it could be confirmed a three-day
workshop was held in July 2006 for contract court interpreters. However, they said the
workshop was of little or no help because it did not teach how to interpret; they said it
was just a general introduction to R.O.C. laws and legal procedures.
Compared to California, current qualifications and requirements for who can
become a contract court interpreter in Taiwan are far less likely to ensure access to
competent court interpreters. There is currently no system for the testing, certification,
and monitoring of court interpreters. The courts do not require contract court
interpreters to pass an interpreting examination or possess any interpreting experience.
It could not be determined whether the minimum requirement of “intermediate”
language skills is sufficient for interpreting because this study could not ascertain
whether the Judicial Yuan had disclosed a list of government recognized testing
institutes and certificates at the time of writing. Language skills are prerequisites
anyway, because court interpreting requires multi-tasking skills, cultural knowledge,
and an understanding of court interpreter ethics and the law. Moreover, the
requirement that the R.O.C. citizen applicant must offer proof of at least five years
consecutive residency in the country where the foreign language is spoken for when a
language proficiency certificate cannot be provided is unsound. In no way does this
requirement ensure that an applicant will possess adequate Mandarin and foreign
language skills suitable for the demanding task of court interpreting.
Taiwan has neither a professional conference interpreter association nor a court
interpreter association. Without such platforms, it will be difficult to facilitate the
exchange of experiences and ideas that could be used to determine what needs to be
done and further the interests of court interpreters.
There is also unequal access to trained or experienced interpreters. Interview
findings discussed in Chapter Four indicate that a freelance conference interpreter can
be privately hired by one or both parties for court proceedings, provided that both
parties and the judge(s) agree to the use of that interpreter. Conversely, it also means
that while some parties with limited Mandarin proficiency can afford to privately hire
trained or experienced interpreters, others might not have enough money and fall
victim to less competent interpreters, reports of which are mentioned in Chapters Two
and Three. There is no guarantee experienced, trained conference interpreters will
perform adequately in court-interpreted proceedings, because they may be unfamiliar
with the differences between liaison and conference interpreting as well as lack court
interpreter training. But there is a greater likelihood that interpreters with training or
experience will perform better than bilinguals who possess no training or experience.
And the fact of the matter is that trained, experienced conference interpreters in
Taiwan are paid much higher rates than court appointed contract interpreters. One
reason why Taiwan courts are having trouble attracting talent may be because contract
court interpreter pay is much lower than that of freelance conference interpreters.
Implications:
Undoubtedly the most important point is that the current requirements deem
someone qualified to serve merely based on whether they are bilingual and not on
whether he or she can interpret. The literature review in Chapter Two has clearly
shown that bilingualism does not equate with the ability to interpret; a strong
command of two languages are only prerequisites. Furthermore, the current
requirements do not require contract court interpreters to pass an interpreting
examination or possess any interpreting experience. Although the contract court
interpreter announcement of April 21, 2006 writes that training courses will be
required, this study could only determine that a three-day workshop on basic R.O.C.
laws and legal procedures were covered but no curriculum specific to interpreting had
been designed and implemented at the time of writing. Lacking in professional
interpreter organizations and training programs, compounded by low and irregular
contract court interpreter pay, are also non-conducive to ensuring LMP persons access
to competent court interpreters. This might imply that relevant authorities are
unfamiliar how difficult a task court interpreting is, how much time and energy one
must spend to acquire interpreting skills, and how much more freelance conference
interpreters make in the market.
Providing access to competent court interpreters is a very serious issue. The
performance of the interpreter can have direct consequences on the rights and welfare
of LMP persons, the image of Taiwan’s legal system, and Taiwan’s human rights
record. Law, equity, and human rights are all at stake regarding equal access to justice
for persons with limited Mandarin proficiency in Taiwan.
Recommendations:
Relevant authorities in the Judicial Yuan or the Taiwan court system need to first
possess a firm grasp of everything that court interpreting involves. Then, authorities
will have the knowledge with which to develop and maintain an effective testing and
certification program for court interpreters. Prerequisites for this would probably
include legal reform, obtaining adequate funding, and regularly conducting research.
Case studies of interpreted proceedings like that of Dunnigan & Downing (1995) and
those on role like Hsieh (2006) should be done. To get ideas about how to establish
and run its own court interpreters program, Taiwan can refer to the how the US
Federal Court Interpreter Program and the California Court Interpreters Program were
created and operate. Berk-Seligson reports that the director of the Administrative
Office of the US courts commissions the construction of a federal court interpreter
exam to a team of persons comprising court interpreters, international conference
interpreters, bilingual federal court judges, language specialists, and specialists in test
construction (Berk-Seligson 1990, 2002).
The US Federal Court Interpreter Certification Exam only certifies for Spanish,
Navajo, and Haitian-Creole, so Taiwan may want to obtain more information about
testing and certification by referring to exams offered by the California Court
Interpreters Program. According to the contract court interpreter announcement
released by the Taiwan High Court on April 21, 2006 and persons interviewed in this
study, there is a demand for Taiwan court interpreters skilled in some of the languages
California currently offers certification for. These include Japanese, Korean,
Mandarin (language of the court in Taiwan), Portuguese, Spanish, Tagalog, and
Vietnamese. Taiwan authorities could save precious time by adapting these exams to
the Taiwan context. However, more research is needed to determine the feasibility of
this recommendation. Priorities should be placed on languages highest in demand by
Taiwan courts, provided that adequate funding and research results have been
obtained.
As Chapter Two of this study has shown, Taiwan has access to a large body of
information for establishing a system of testing and certification for court interpreters.
Taiwan can have relevant studies translated into Chinese so that access to this
information will not be restricted to persons with a high level of English literacy.
However, what Taiwan does lack are professional interpreter training programs
adequate for meeting the demand for court interpreters. Programs could be established
with conference interpreter training programs offered in Taiwan to design curricula
for aspiring court interpreters. Together, Taiwan authorities and interpretation
instructors could examine how court interpreting programs in other countries are run.
Law schools, legal libraries, and foreign language institutes and departments around
Taiwan can assist in compiling legal glossaries for different languages so that aspiring
court interpreters can prepare for the exam.
A Taiwan court interpreters association should be established in order to advance
the standards of court interpreting and further the interests of the profession. The
Taiwan High Court has already compiled a list of contract court interpreters. After
accumulating experience and knowledge of court interpreting issues in Taiwan, these
contract court interpreters can work together to pinpoint problems in the Taiwan legal
context with regards to court interpreting.
Another issue is the practice of legal parties privately hiring an interpreter. This
creates unequal access to competent, experienced conference interpreters. Less
wealthy parties or those unaware of how to go about hiring one may end up with an
interpreter that cannot interpret. This is different from being assigned a public
defender and not being able to afford a high-priced defense lawyer. A public defender
must pass an exam and be licensed according to R.O.C. law, but not a court interpreter.
Continuing to allow parties to privately hire freelance interpreters should be
temporary until the courts can secure adequate funding and ensure the interpreter is
appointed only by the court. Allowing interpreters to be privately hired not only
complicates unequal access for LMP persons to competent interpreters; an interpreter
who is found by or who receives payment from a single party constitutes a conflict of
interest, regardless of whether the other party or the court agrees to the use of that
interpreter. A temporary solution to mitigate the risks of asymmetric information,
moral hazard, and conflict of interest this might be to require the other party or the
courts to produce a check interpreter. However, the feasibility of this recommendation
is debatable because the other party may object or be unable to cover additional costs.
Also, the courts might not have a sufficient budget.
Finally, Taiwan courts should take into account what incentives are needed to
form and retain a pool of qualified court interpreters over the long term. Preliminary
findings of interpreter pay in this study should catch the attention of those conducting
further research. The interview findings in this study found that professional
conference interpreters are paid much higher than contract court interpreters, who
seem to be paid irregularly. Taiwan courts must realize that interpreting is a skill
acquired through a long period of intensive training and practice. The rigorous
standards imposed by the California courts in testing and certifying court interpreters
are daunting because of how much time one must spend before acquiring the
knowledge and interpreting skills necessary to pass both the written and oral parts of
the exam. But in accordance with law, these standards cannot be changed lest the
rights of persons with limited English proficiency be compromised. California’s main
problem in attracting and retaining qualified interpreters has resulted from inadequate
funding. Therefore, the Judicial Yuan and the Taiwan courts must secure sufficient
funding so that as more skilled interpreters become available through future training
programs they can be retained; otherwise they will likely be tempted by other more
profitable careers and the rights of persons with limited Mandarin proficiency will
have been compromised.
5.1.5 Institutional Framework and Court Procedures
California possesses a comprehensive set of ethics and procedures regarding
interpreted court procedures. The contract court interpreter announcement released by
the Taiwan High Court wrote that all contract interpreters must attend courses that
cover court procedures and ethics. However, as far as this study could determine,
Taiwan had none at the time of writing. Available information and the interview
findings illustrate how a lack of court procedures and ethics specific to interpreted
court proceedings can affect the outcome of a case. Knowledge can be obtained from
the Californian experience and used to improve existing courtroom practices in
Taiwan. The goal is to ensure fair trials for all persons with limited Mandarin
proficiency.
California:
“Professional Ethics and the Role of the Court Interpreter, 3d Edition” (1999) is
a booklet detailing all the duties of the California court interpreter, how he or she
should interpret, and rules for interpreted court proceedings. It goes into extensive
detail about Accuracy, which covers additions, register, ambiguities, errors,
clarification of unfamiliar terms, and culturally bound terms; Impartiality, which
covers conflicts of interest, gifts and gratuities, and interpreter neutrality;
Confidentiality, which covers attorney-client privilege, and prosecutor-witness
interviews; Giving Legal Advice, which covers questions by defendants, witnesses,
and family members; Professional Relationships, which covers interpreter as officer
of the court, unobtrusiveness, interpreter fatigue, and instructions not to interpret; and
finally Continuing Education and Duty to the Profession, which covers familiarity
with the case, technical terminology, disqualification, relations with colleagues, and
professional organizations.
Professional Ethics also contains attachments for reference, including the
California Rules of Court, Rule 984.4 Professional Conduct for Interpreters;
California Standards of Judicial Administration, Section 18 “Procedures for
determining the need for an interpreter and preappearance interview” and Section 18.1
“Interpreted proceedings—instructing participants in procedure”; Code of
Professional Responsibility of the Official Interpreters of the United States Courts
(González et al., 1991); Code of Professional Conduct for Court Interpreters of the
Trial Court (taken from the Code of Professional Conduct for Court Interpreters of
the Trial Court, Office of Chief Administrative Justice, Massachusetts Trial Court.
Court Interpreter Services, Boston, Massachusetts, 1988); and the Code of Ethics
from the Los Angeles Superior Court Interpreters Manual (taken from Los Angeles
Superior Court Interpreters Manual, 1977).
These references and past studies on court interpreting discussed in Chapter Two
are rich sources of information about how to interpret and explain why relevant court
procedures must be adhered to.
Taiwan:
This study could not ascertain whether Taiwan courts have a set of standard court
procedures for cases that use court interpreters. The interpreters interviewed in this
study, both full-time and contract, said they were not required to abide by a code of
interpreter ethics. It has also been established that the title of “Interpreter” for staff
interpreters is unrepresentative of their function and role because they rarely or never
interpret. Instead, “Interpreters” perform duties similar to that of a court clerk.
As interview findings in Chapter Four show, none of the interpreters interviewed
in this study were briefed on courtroom procedures prior to a case. Only Subject J had
a chance to observe court proceedings before interpreting. Subject D interviewed in
this study said that most interpreters know virtually nothing when the hearing or trial
begins and have to learn the details of the case while they interpret. Subjects L, M and
N confirmed this phenomenon.
In addition, none of the interpreters interviewed were asked to introduce
themselves to the court and explain their roles and responsibilities. Some cases began
without first ensuring all parties knew the roles and duties of the interpreter. In other
cases, the judge clarified the interpreter’s roles and duties to all parties. Accounts were
given of a disregard for turn-taking between speakers and interpreters. There were
conflicts of interest in cases described by Subjects H, I and M because they were
allowed to perform interpretation services for the court when they were privately
hired by one party. Subject H had taken over the position of court interpreter without
having to sign an affidavit as court practice regularly dictates. Subject H only swore
an oath attesting he would interpret to the best of his ability.
These facts could be attributed to the traditionally institutionalist practices of the
Taiwan courts. Judges and prosecutors tend to “team up” against the defendant
according to Subject D, and the judge is normally centered on finding “the truth” even
if it means diverging from standard court procedures and regulations according to
Cheng & Dai (2004).
Implications:
As long as staff interpreters keep their misleading title “Interpreter”, they and
their duties may be easily confused with that of contract court interpreters. At the time
this paper was written, the courts were not able to provide data on how many cases
require contract court interpreters per year. If the courts wish to begin gathering and
providing data on “real” court interpreter usage, it may prove confusing if the
“Interpreter” title is alongside “Contract Court Interpreter” on official court records.
Documented instances of inadequate court interpreting in Taiwan and those
found via interviews conducted in this study are partly caused by a lack of standard
court procedures and a code of interpreter ethics. Not having procedures and ethics to
adhere to significantly decreases the likelihood that interpreted court proceedings will
as fair for an LMP person as for a native speaker of Mandarin. There is much less of a
guarantee that the LMP person will understand all that is audibly spoken while court
is in session. Subject I and Subject G both gave accounts of disregards for turn-taking.
Subject I said that the English-speaking defendants in the party she was privately
hired by would not have understood everything if Subject I were not there. This is
because the judge and lawyers had conversations without waiting for the
interpretation. This may imply that some judges and court staff are unfamiliar with the
nature of court interpreting and how it should be carried out. Conversely, Subject G
gave an account where a conversation between a contract court interpreter and a
witness was not interpreted. What if the conversation could have proven a party was
guilty of having committed an offense? Everything audibly said in court proceedings
must be interpreted in order to serve justice.
Another issue here is the court interpreter having access to relevant documents
such as police reports and transcripts (or court clerk summaries and audio recordings
for the Taiwan context) prior to a case. Although these may not always be available,
the Taiwan courts, according to interviews done in this study, do not provide an
interpreter access to information pertinent to a case. Preparation is as important for a
conference interpreter as it is for a court interpreter. Knowing what a case is about
will help to better ensure interpretation accuracy. Subjects L and N, not having
received professional interpreter training, felt that having access to relevant
documents before a case would be of great help in ensuring better overall
performances. The interpreter can prepare technical terminology, clarify ambiguous
terms, and become familiar with a witness’ speech (e.g. speed and tone.) Even
Subjects H and M, who have received professional conference interpreter training,
admitted that preparation can invariably affect the performance of the interpreter.
Past studies on liaison and court interpreting show that it is important for an
interpreter to remain impartial and stay as unobtrusive as possible. At the same time,
liaison interpreters are known to manage their roles, occasionally resorting to direct
participation, in order to effectively facilitate communication (Dubslaff & Martinsen,
2005, p. 232; Nicholson & Martinsen, 1995, p. 267; Hsieh, 2006, p. 728). Not
requiring an interpreter to inform what roles and duties the interpreter has and
limitations thereof to the court and the LMP witness can increase the likelihood of
miscommunication between parties in interpreted court proceedings. If uninformed,
judges, prosecutors, defense attorneys, and LMP persons will have different views and
expectations of the interpreter. To complicate matters, without a standard set of
procedures and a code of ethics, court interpreters themselves may be unsure of their
reason for being there, not know who they are performing interpretation services for,
and tend to prefer one “client” over another.
Recommendations:
Staff “interpreters” do not interpret as established in Chapters Two and Three,
and so should be given a different title more representative of their courtroom duties
and be rid of their misleading title. Because a staff “interpreter” is present in every
courtroom case in Taiwan, it will be necessary for the courts to make a clear
distinction between what a staff “interpreter” does and what a “real court interpreter”
(contract court interpreter) does. The former carries out duties similar to a court clerk,
while the latter provides interpretation services in a courtroom context. As long as
court records clearly distinguish between the two, it will be possible to compile a
database and search how many cases use an interpreter along with the languages used
and other relevant data.
One option would be to reorganize how court proceedings take place. The courts
could gradually phase out the “Interpreter” position altogether and have court clerks
perform all relevant duties such as recording, filing etc. The courts may have to take
into account that clerks would be taking on additional duties and might therefore
deserve a salary increase. Current “Interpreters” could receive training to fill in court
clerk or other courthouse positions as they become available, or perform other tasks
they are deemed fit for. Current “Interpreters” are civil servants and their job security
should be protected.
It is essential that judges, prosecutors, legal practitioners, and courthouse staff
first become more aware of court interpreting issues. Judges and court staff must also
learn how to determine whether an interpreter is needed, as some non-native speakers
of Mandarin have some proficiency but not at a level enabling them to understand
court proceedings as well as native speakers would. More importantly, they must also
adhere to recent legal reforms and place emphasis on the protection of defendant’s
rights instead of clinging onto the institution-centered practices of the past which give
judges and prosecutors greater powers than in most case-law countries. In addition to
existing works already written in Chinese, there is an abundance of information from
studies on conference interpreting, liaison interpreting, and court interpreting in other
languages that should be translated into Chinese. Knowledge of court interpreting
issues will enable relevant authorities to establish a set of procedures for interpreted
court proceedings and a code of ethics for court interpreters. Information on
procedures and ethics can be readily obtained from references used in this paper,
particularly “Professional Ethics and the Role of the Court Interpreter, 3d Edition”
written for the Californian court interpreter.
A set of court procedures and ethics would not only protect the rights of the LMP
person to understand everything that is said to the same extent a native speaker of
Mandarin would; court procedures and ethics would also ensure that the court
understands everything that is said as well. Therefore a set of procedures and
interpreter ethics would be in the interest of all: to the interpreter for the purposes of
professionalization and remaining impartial; to the LMP person so that his or her
rights are protected; and to the court so that a fair ruling can be delivered in
accordance with the law. Over the long term, the courts will have strengthened their
institutional integrity. LMP persons will have greater confidence in the Taiwan legal
system, which in turn will create a better name for Taiwan in the international
community as being respectful of the rule of law and human rights.
One way to accomplish this is to design court interpreting workshops for judges,
prosecutors, legal practitioners, and courthouse staff to attend. This can be started by
arranging observations and discussions of interpreted court proceedings. Assistance
can be sought from local conference interpreting programs in the designing of classes
and finding suitable lecturers. Relevant authorities should refer to past studies,
research how interpreted court proceedings are carried out in the legal systems of
other countries, reproduce past studies for the Taiwan context, and conduct new
studies specific to the Taiwan context. Another option would be to have judges,
prosecutors, legal practitioners, and courthouse staff to attend relevant workshops or
training programs in California or other places that have established court interpreting
practices and systems. As suggested in Chapter Four, more research on Taiwan court
procedures should be conducted to determine whether court interpreting-related
problems exist due to unfamiliarity with interpreting or if these problems exist
because Taiwan courts need to strengthen adherence to standard procedures.
Another helpful measure to improving the institutional framework is creating a
platform for information exchange conducive to the establishment of standard court
procedures for interpreted court cases. One such way to do this is to establish a
Taiwan court interpreters association dedicated to advancing the standards of court
interpreting and furthering the interests of the profession. The Taiwan High Court has
already compiled a list of contract court interpreters. After accumulating experience
and knowledge of court interpreting issues in Taiwan, these contract court interpreters
can work together with relevant authorities to pinpoint problems in the Taiwan legal
context with regards to interpreting. Setting standards for interpreted court
proceedings and writing a code of interpreter ethics are very important steps in
improving the status of court interpreting in Taiwan and should be addressed
immediately. As long as these standards remain nonexistent, outcomes of court cases
with LMP persons will continue to remain less certain than if there were standards the
courts adhered to.
5.2 An Implementation Checklist for Taiwan
Court interpreting is still in its nascent phases in Taiwan. The Judicial Yuan and
the Taiwan courts have the opportunity to avoid past pitfalls by learning from the
mistakes of other judicial systems in countries around the world. The large body of
information available on court interpreting in California and the US are an excellent
resource for Taiwan. A list of recommendations for further studies is provided in
Chapter Six.
While Taiwan has put things in motion by compiling a contract court interpreters
list, much more awaits to be done. This will be a multi-year process that will require
long-term commitment and funding from government, academia, and
non-governmental organizations. Based on the findings of this study and the current
status of court interpreting in Taiwan, below is an implementation checklist for
Taiwan authorities to refer to. This list has been organized according to what has been
deemed most urgent in this study.
1. Push for an amendment of Code of Criminal Procedure Article 99 so that it
is not contradictory to Article 96.
2. Propose legislation similar to the US Court Interpreters Act of 1978. A
Taiwan court interpreters act could serve as a legal basis for funding. As the
California experience has shown, nothing will materialize or be adequately
maintained without funding.
3. Assess court interpreter demand and which languages are needed most.
Comprehensive studies like the Language Barriers report on California
should be reproduced for the Taiwan context. Case studies of interpreted
proceedings like that of Dunnigan & Downing (1995) should be done.
Surveys should be conducted with limited Mandarin proficiency residents to
learn what language barriers to justice exist and devise effective methods to
solve them. Taiwan courts must facilitate further research by arranging
observations of interpreted court proceedings for researchers. Data must be
gathered and statistics published for relevant authorities and researchers
alike to refer to.
4. Relevant authorities in the Taiwan court system need to possess a firm grasp
of what court interpreting involves. A Taiwan court interpreters association
should be established, dedicated to advancing the standards of court
interpreting and furthering the interests of the profession. Platforms for
information exchange will be conducive to educating all involved in
interpreted court proceedings. Past studies should be translated into Chinese,
further studies conducted specific to the Taiwan context, and results
published and disseminated throughout the legal system to raise awareness.
5. Setting standards for interpreted court proceedings and writing a code of
interpreter ethics are very important steps in improving the status of court
interpreting in Taiwan and should be addressed once relevant authorities
become familiar with court interpreting issues. As long as these standards
remain nonexistent, outcomes of court cases with LMP persons will
continue to remain less certain than if there were standards the courts
adhered to. Judges and prosecutors must let go of the institutionalist past
and begin recognizing a need to protect defendant rights.
6. Programs could be established with conference interpreter training
programs offered in Taiwan to design curricula for aspiring court
interpreters. Together, Taiwan authorities and interpretation instructors
could examine how court interpreting programs in other countries are run.
Meanwhile, law schools, legal libraries, and foreign language institutes and
departments around Taiwan can assist in compiling standardized legal
glossaries for different languages. Once a court interpreter exam is finally
offered, aspiring court interpreters will have access to training programs and
materials to prepare.
7. Following the example of the US Federal Court Interpreter Program, the
Judicial Yuan or relevant authorities can commission the construction of a
federal court interpreter exam to a team of persons comprising court
interpreters, conference interpreters, bilingual judges, language specialists,
and specialists in test construction. Taiwan can refer to the how the US
Federal Court Interpreter Program and the California Court Interpreters
Program were created and operate.
8. There is a demand for Taiwan court interpreters skilled in some of the
languages California currently offers certification for. These include
Japanese, Korean, Mandarin (language of the court in Taiwan), Portuguese,
Spanish, Tagalog, and Vietnamese. Taiwan authorities could explore how
feasible it might be to adapt these exams to the Taiwan legal system and
save precious time. Priorities should be placed on languages highest in
demand by Taiwan courts.
5.3 Long-term Planning and Goals
Constant monitoring and updating information via research and data gathering
will prove as crucial for Taiwan as it has been for California. Taiwan is currently
struggling to provide short-term solutions for its court interpreting needs. However,
long-term solutions should be the ultimate goal. California’s ultimate goal is not just
to guarantee access to competent court interpreters but to implement a comprehensive
language access policy for the entire court system. Obtaining information pertinent to
court interpreting on a regular basis and disseminating information among Taiwan
policy-makers will be essential in predicting future demand, securing government
funding, devising long-term solutions, and most importantly, implementing these
solutions. Taiwan should strive to see as far ahead as possible with regards to ensuring
LMP persons access to competent court interpreters while at the same time remaining
flexible to meet changing needs.
