Court's Interpretation Research Articles

South African court interpreters’ perceptions of the phenomenon of interpreting

It is difficult to define the complex phenomenon of interpreting as scholars conceptualise it in various ways, leading to different definitions. This may impact negatively on the performance of interpreters because they may understand their role differently, and as a result, interpret differently. This study is based on doctoral research and presents the results of a survey conducted in 2016 among court interpreters in South Africa. The aim was to explore South African court interpreters’ perceptions of the phenomenon of interpreting, with their definitions placed alongside other aspects. A qualitative research method was used to explore the definitions of the phenomenon of interpreting provided by court interpreters. Findings reveal that, in South Africa, there is no common culture of practice in court interpreting because court interpreters understand the phenomenon differently, as individual court interpreters rely on their personal understanding of the phenomenon. This could lead to misrepresentation of the speaker’s utterances with unintended negative results. There is a need for common practice in court interpreting. The study recommends the establishment of a single definition of the phenomenon of interpreting to minimise misinterpretation that can lead to adverse consequences for courtroom participants.

Not Merely Interpretative

In this paper, I argue that the Supreme Court's interpretation of section 25 of the Charter in Dickson v VGFN establishes an important precedent that may encourage the courts to reverse the jurisprudential trend against a proper interpretation of section 28, which is currently at issue in the Bill 21 case. I argue that both provisions — section 25 and section 28 — share key features, in that that although they do not establish freestanding rights, they are nonetheless of substantive import. Both provisions operate to condition, and even negate or block, the application of other sections of the Charter. In this sense, the tendency among commentators to characterize these provisions as either standalone rights guarantees or merely interpretative provisions is a false dichotomy. Indeed, a middle ground between these two options is precisely what the majority of the Court has now determined with respect to section 25, a reality that opens an obvious jurisprudential door to a similar reading of section 28.

Environmental Impact Assessment System: Case Analysis of Existing Legal Disputes

Abstract: Environmental Impact Assessment (EIA) refers to the process of assessing the possible impact of planning activities on the environment. This paper contends that the current international legal framework does not adequately delineate the activation criteria for EIA and overlooks the significance of international collaborative duties that come into play when sovereign states embark on the initiation and execution of EIA processes. Only in relation to the general principles of international law can the nature of the EIAs obligation be comprehended. When dealing with cross-border damage, the requirement for due diligence is complemented by an implicit responsibility to collaborate. This latter obligation arises under identical situations as the due diligence requirement, particularly in response to 'the likelihood of significant environmental damage,' and thus, it needs to be satisfied by the national government under equivalent circumstances. This paper argues that the courts interpretation of environmental impact assessment is incomplete which is reflected in two aspects: (1) the ambiguity in the court's grasp of the EIA threshold's unpredictability. The International Court of Justice fails to clarify the criteria for establishing a 'substantial environmental risk'. (2) The court's oversight in considering the duty to collaborate could result in an overemphasis on the material aspects of EIA-treating it merely as a technical instrument. By reintegrating the cooperation duty, a more balanced perspective on the procedural elements of EIA could be achieved. Delving into strategies to rectify these two deficiencies and obtaining a holistic insight into the International Court of Justice's approach to EIA will yield substantial implications and relevance for future EIA-related endeavors.

Reconstruction of the Position and Authority of the Honorary Council of General Election Organizers (DKPP) as a QuasiEthical Court of Election Organizers

The Honorary Council of Election Organizers (DKPP) is an institution responsible for resolving ethical violations committed by election organizers, established under the law as part of Indonesia’s election system. As a state institution, the DKPP holds the authority to examine, summon, sanction, and adjudicate such violations through a court-like process, which includes witness examination, expert testimony, verification of evidence, and the issuance of rulings. Notably, DKPP decisions are final and materially binding. The quasi-judicial nature of its proceedings, combined with the finality of its decisions, places the DKPP in a unique legal position, often referred to as a "quasi-public court." In the Constitutional Court's interpretation, the DKPP functions as an integral part of the election administration alongside the General Election Commission (KPU) and the Election Supervisory Body (Bawaslu), forming a comprehensive election organizing body. This study explores the legal status and authority of the DKPP, particularly in its role as a quasi-public court. Through normative legal research with a descriptive and prescriptive approach, using legislative, conceptual, historical, and comparative methods, the study concludes that the DKPP, as an independent auxiliary state organ, functions similarly to a general court in enforcing the code of ethics for election organizers. The final and binding nature of its decisions has significant legal implications, reinforcing the DKPP's role in maintaining electoral integrity within Indonesia’s constitutional framework.

A scandalous presence in the courtroom: Indigenous immigrant interpreters and the politics of language ideologies in US courts

AbstractThis article analyzes how the experiences and observations of Indigenous people from Latin America who work as legal interpreters reveal the ways that the position of court interpreter is racialized. The meaning of the norms of the “invisibility” and “neutrality” of the interpreter and the role of the interpreter as erasing barriers become points of contestation in the context of interpreting Indigenous languages of Latin America, revealing the ways that dominant norms and practices governing interpreting privilege a white speaker. Organizations of Indigenous interpreters articulate these experiences as a language rights issue of a transnational movement and point to the way that institutional claims to neutrality are symptomatic of a larger historical pattern of racism.

The Pragmatic Impact of Grammatical Structures in Courtroom Interpretation and Translation

Courtroom interpretation and translation require a nuanced understanding of not only vocabulary but also the pragmatic impact of grammatical structures. This paper examines the pragmatic impact of grammatical structures on interpretations in the Kisii Law Courts. Using data collected from actual proceedings, the paper analyzes how seemingly minor grammatical differences can have significant consequences for the accuracy and fairness of the legal process. By applying Mey's (2001) Pragmatic Act Theory (PAT), we analyze how modal verbs, passive voice and nominalisation function within the context of the courtroom, influencing the interpretation of witness testimonies, judge's instructions, and lawyer's arguments. Specifically, we explore the use of passive voice within the context of PAT, analyzing how these choices interact with the social context and speaker intention. We will also examine the pragmatic effects of passivisation on agency, responsibility, and the focus of witness testimony, examining how they shape the understanding of events and culpability. It is crucial for court interpreters and translators to accurately convey the intended meaning and effects of pragmatic acts in court proceedings. Keywords: Pragmatic Act Theory, court interpretation and translation, passive voice, nominalisation, modal verbs

Tratamiento Procesal de la Autoridad Parental en el contexto migratorio de Nicaragua

This paper aims to analyze the figure of Parental Authority in Nicaragua within the framework of the constitutionalization of family law. This family law is expressed in the enforcement of fundamental rights in family relationships and their regulation in the Nicaraguan Family Code (2014). This code imposes a new approach to facilitate the exercise of duties and rights among family members, including those related to Parental Authority. This situation causes different family resources to be involved in legal proceedings, such as custody disputes, judicial authorization requests for children and adolescents to leave the country, care and upbringing issues, and the increasingly prevalent actions of Suspension or Loss of Parental Authority. These include guardianship to obtain exclusive legal representation of children in the migratory context. The study will analyze the relevant legal provisions, their application, and interpretation in court, as well as comparative law. The conclusion highlights the necessity of delimiting the powers of Parental Authority to delegate them to other family resources. It identifies the main actions that can be pursued, what can or cannot be reconciled, and how these rights should be exercised. Additionally, it provides some judicial criteria from Nicaraguan family authorities related to the topic and offers recommendations.

Rights of Widow under inheritance of Property: An Analytical Study

The link between property rights, legal frameworks, and gender equality is examined in the paper "Rights of Widow under Inheritance of Property: In their analytical paper titled “A Study: Humanize the given sentence. Undoubtedly, the paper gives the juridical knowledge base due to the fact it aims at promoting the gender equality, provides support for widows, increases in scholars' discourses and, of course, raises the awareness on this matter. The research examines court interpretations and legislation, customs and traditions, and women's property and income rights, respectively, in the relations with widows' inheritance. The report reveals the importance of an in-depth perusal and the making changes to the regulatory framework to provide all widows with equal protection. Hindu women have better chance to continue their lives with kids. after their husbands' death comparing to widows of people who are Muslim, Christian and Parsi thanks to Hindus becoming much more sympathetic at present days (after the 2005 revision). The analysis comes with recommendations of reformations which include abolition of discriminatory inheritance restrictions and adoption of gender equality standards as the key baselines of the inheritance regime. Promotion of awareness to the community about their inheritance rights and Experts will be of assistance in providing widows with or enhancing their knowledge of inheritance laws. Besides the relation of legal rights and social norms, future research should be on comparative studies, impact assessments, socio-legal studies, and policy assessment in order to reach a more robust result.

The Making of a Reserve Army of Labor: Paradoxes of American Disability Policy

Since the 1980s, despite much United States legislation to promote the employment of people with disabilities and reduce their reliance on government benefits, employment rates among people with disabilities have fallen while rates of disability benefits receipt have risen. I conducted historical research on two sites of contradiction in the state treatment of disability: (1) antidiscrimination legislation and (2) disability benefits. I show that the goals of antidiscrimination legislation were undercut by court interpretations of this legislation, while cyclical expansion and contraction of disability benefits produced haphazard integration of recipients into the labor force and inhibited cessation of benefits. These findings demonstrate that the legislative push for the labor market inclusion of disabled people, undertaken simultaneous to ongoing labor market exclusion with roots in the very same legislative program, led to the incorporation of disabled people into the labor market on contingent terms. Contradictions in disability employment policy have thus constituted people with disabilities as a labor force suited to the precarious positions characteristic of economic restructuring. This argument develops Marxist theories of disability, conceptualizing disabled people as a reserve army of labor malleable to the needs of capital.

Judicial Precedent in The Justice of The Anglo-American System of Law

Purpose: The article provides a scientific analysis of judicial precedent as a source of law in the Anglo-American legal system. Methods: This study carefully analyzed scholarly works and legal documents of judicial precedent as sources of law in the Anglo-American legal system. The data was obtained from various sources, including academic research, international human rights norms and practices of their application with the help of general philosophical and special methods of cognition. Results and discussion: It is emphasized that the judicial precedent is determined by the traditional attitude towards the court in society, which was formed within a certain legal system. It is noted that law in the understanding of the Anglo-American legal system is primarily judicial practice, and the norms of law are included in the legal system only after their repeated application and presentation by judges. It is concluded that today there are objective trends regarding the convergence of the Romano-Germanic and Anglo-American legal systems. It is noted that in common law countries, the legislative path of law development is becoming more and more important, and in continental law countries - judicial decisions of both domestic and international courts, with the help of which the law is clarified and developed. Implications of the research: This research has significant implications for researchers and practitioners in the field of legal sciences, as it defines a comprehensive vision of the development trend of the Anglo-American legal family, which in the process of its evolution acquired certain features of the Romano-Germanic legal system. Originality/value: The specific conclusions formulated in the study fill a gap in current methodologies and knowledge regarding the use of judicial precedent in the justice of the Anglo-American legal system. Clarifying the specifics of the court's interpretation of the precedent as a source of law in the countries of the Anglo-American legal system will contribute to the enrichment of legal science and the development and modernization of certain approaches to these issues at the national level.

Questioning the coherence of the freedom to conduct a business: Insights from the Court of Justice of the European Union

This article examines the jurisprudential development of Article 16 of the Charter of Fundamental Rights of the European Union in the Court of Justice of the European Union (Court), which safeguards the freedom to conduct a business. The paper argues that the Court has adopted an incoherent approach in interpreting this freedom, leading to legal uncertainty. Through an analysis of the Court's case law, the paper explores the Court's varying interpretations across three policy areas: the Common Agricultural Policy, the information society and labour/social law. The paper posits that the Court's interpretations lack coherence, with some rulings characterizing the freedom to conduct a business as a ‘weak’ freedom, allowing for significant market interventions, while in other decisions the Court adopts a more ‘forceful’ stance, in which it prioritizes businesses freedom over individual social and civil rights. The paper concludes by suggesting that the Court's incoherent application of Article 16 of the Charter has implications for the predictability and reliability of the freedom to conduct business within the EU's constitutional order. It highlights the need for a comprehensive normative framework to guide the Court's balancing act of Article 16 with other fundamental rights recognized in the Charter.

How interpreting influences defendants’ participation: a discursive study of zero renditions and non-renditions in court interpreting

Abstract The inquisitorial feature of Chinese criminal trials requires active participation from defendants in courtroom interaction. To fully participate in the trial proceedings, defendants who cannot speak the language of the court have to rely on the language support offered by interpreters. Court interpreters are expected to facilitate language minorities’ participation and communication in the proceedings, but their mediation changes the dynamics of courtroom interaction. This paper aims to explore how the use of interpreting impacts the participation status of English-speaking defendants in Chinese criminal trials. Adopting participation framework as the primary analytical tool, drawing upon discourse analysis of seven authentic recordings of bilingual trials and fieldwork observations, this study empirically shows that as a result of zero renditions and non-renditions in the triadic communication, the participation role of the defendant changes from being a direct addressee to the position of a non-participant, which results in them a marginalised status. The role alteration, which is associated with the court interpreting practice, including the sole use of consecutive interpreting, puts the defendant at a disadvantage, undermining their participation rights in the trial proceedings. In a way, the defendant becomes a de facto stand-by participant in the interpreter-mediated courtroom interaction.

Punitive damages under the Chinese Civil Code in the context of damages for trade mark infringement: the award that dares to speak its name

Abstract This article discusses the availability of punitive damages in China for trade mark infringement. While the UK has been reluctant to emphasize the ‘punitive’ nature of such damages, China has legitimized punitive damages by codifying them in 2021. The Supreme People’s Court Interpretation on the Application of Punitive Damages in the Trial of Civil Infringement Cases of Intellectual Property Rights (2021) has sought to clarify the requirements that are applicable to punitive damages, in particular with regard to the required ‘intention’ and the ‘serious circumstances’ in which such damages may be awarded. Although punitive damages still appear to be awarded rarely by Chinese courts, their availability and the increasing clarity around the requirements for their award should lead to the progressive strengthening of the trade mark owners’ right in China.

The Integration of Machine Translation Technology in the Realm of Legal Interpretation

This article aims to provide an overview of the application of machine translation technology in the field of legal translation, exploring its potential, challenges, and future directions. Firstly, it reviews the development process of machine translation technology, including rule-based methods, statistical machine translation, and the application of deep learning methods. Secondly, on the basis of in-depth deconstruction of the operating rules of the big language model, it is demonstrated that the highly modeled written legal language is highly consistent with the underlying logic of the big language model because of its standardization, accuracy and de-contextualization, so compared with other styles, machine translation technology will achieve better translation results in the field of legal translation. In addition, multimodal technology can also be applied to court interpretation, which greatly alleviates the shortage of qualified interpreters and maintains judicial justice. Furthermore, it discusses the human-machine collaborative model in legal translation, emphasizing the importance of human proofreading and review in ensuring translation accuracy and reliability. Lastly, it summarizes the prospects and challenges of machine translation technology in the field of legal translation. Through a systematic review and analysis of relevant literature, this article reveals the immense potential of machine translation technology in legal translation. It can significantly enhance the efficiency and quality of legal translation, thereby enhancing the capacity of legal language services.

Analisis Legal Standing dan Konsistensi Putusan Mahkamah Konstitusi dalam Pengujian Materiil UU Nomor 7 Tahun 2017 tentang Pemilihan Umum: Studi Kasus Putusan No.90/PUU-XXI/2023

This research reviews constitutional review at the Constitutional Court (MK), especially in Case No.90/PUU-XXI/2023. The focus is on the applicant's legal standing and the Constitutional Court's considerations in making decisions. Legal standing is a legal right or position that allows a party to file a lawsuit before a court. In the context of material review, the applicant's legal position is the main determinant of the legitimacy of judicial review. Normative legal methods are used in this research to systematically and in-depth analyze the legal framework governing legal standing and the Constitutional Court's interpretation of it in the context of the cases studied. This research discusses the requirements and criteria for legal standing which are regulated in both the law and MK regulations, as well as the MK's interpretation of them in this case. The results show a debate surrounding the consistency, independence, and integrity of the Constitutional Court, especially regarding the controversial decisions received. Criticism emerged regarding the Constitutional Court's approach in assessing legal standing, where there were allegations of inconsistencies, loose assessments, and potentially dubious conflicts of interest. Thus, this research provides in-depth insight into the constitutional review process and the challenges faced by the Constitutional Court in maintaining its authority as an independent and credible constitutional justice institution.

Studi Komparasi Hukum atas Perlindungan Hukum Hak Cipta pada Media Elektronik dalam Common Law dan Civil Law

This article aims to compare the legal protection of copyright in electronic media in common law and civil law. This research adopts normative legal research methods. This method is used to understand, explain, and evaluate normative aspects of the legal system. The research results show that the Common Law system relies on precedents and previous court decisions as the main source of law. Copyright laws may be more general and may evolve through court interpretation. Copyright is automatically granted when a creative work is created without formal registration requirements. Meanwhile, the Civil Law system has more detailed and codified coverage of the law. Copyright law is often regulated in specific and detailed copyright statutes. In some Civil Law systems, copyright registration is an important requirement to obtain legal protection. Copyright may not be granted automatically and requires registration steps. Similarities in Copyright Protection The Common Law and Civil Law legal systems lie in the legal system generally recognizing copyright as the exclusive right of the owner of a work to control the use and distribution of his work. In the context of international protection, both Common Law and Civil Law generally follow international agreements such as the Berne Convention to protect copyright across borders.

Housing and Social Control: Reassessing the Protection Asymmetries of Article 8 of the European Convention on Human Rights

This article explores how the right to respect one's home under Article 8 of the European Convention on Human Rights would apply in the context of housing and social control. After explaining the connections between social control, housing, and human rights, it analyzes the selected case law of the European Court of Human Rights on Article 8 in certain cases concerning housing with a view to understanding the protection asymmetries inherent to the provision, and what that would entail for the employment of social control in the sphere of housing. These protection asymmetries are identified between, first, the homeless/inadequately housed and those with a home, and second, with regard to the latter, between lawful occupiers and unlawful occupiers. The examination is conducted, first, by analyzing the Court's interpretation of the definitional scope of Article 8 and its exclusion, in principle, of the provision of housing therefrom, and second, by looking at the application of Article 8 in public eviction cases.

More New York Convention: U.S. Court Interpretations On Jurisdiction and Venue for Actions and Proceedings

Last month, the author examined U.S. judicial interpretations of primary and secondary jurisdiction considerations under the New York Convention and its U.S. enabling statute, the Federal Arbitration Act's Chapter 2, with respect to awards issued in international arbitrations. In this month's conclusion, the focus is on the effects of the laws on jurisdiction and venue over actions and proceedings falling under the Convention. See “The New York Convention: How Courts Interpret Jurisdiction on Awards—A U.S. Perspective,” 42 Alternatives 9 (January 2024) (available at https://bit.ly/3RXb3tO).

Behind the scenes: women in the Eichmann trial

ABSTRACT The trial of the Nazi criminal Adolf Eichmann (1961), a significant event in the Holocaust commemoration history, was organised and managed by men. The three judges, the prosecutors, and the defence were all men, as were most of the witnesses and the chief court administrators. All the heads and investigators of the Israeli Police special Eichmann unit were men. Yet, a broader look reveals that outside the legal arena, women filled formal duties in all of the trial's aspects. The article focuses on these women whose role in the trial remained in the shadows or was concealed. Among them was the only woman on the Mossad task force that captured Eichmann in Argentina as well as policewomen, court interpreters and stenographers, and the secretary of the defence team. From a gender perspective, their stories reveal that their duties in the trial reflected the division of roles between men and women in a patriarchal society, and their work further confirmed the accepted norms and stereotypes. This division of roles explains their marginalisation in the Eichmann trial and exclusion from its history. It also highlights the need to expose their stories and secure them a centerstage position.

The Role of Court Interpreters Under the Attitude of Appraisal Theory Case Study on Sun Yang’s Public Hearing

The role of interpreters standing as a controversial topic has aroused unquiet debates in academia of interpreting studies. Traditional interpreting studies emphasize faithfulness during interpreting process and treat interpreters as handy tools for translation. However, at courts, the complication of the contents and various demands of parties bring the viewpoint of “translation machine” into question. On the other hand, the subjectivity of interpreters has received an increasing popularity in academic field. Based on the Attitude of Appraisal Theory promoted by James R. Martin, this paper tries to explore the role of court interpreters in the case of Sun Yang’s public hearing which was held by the Court of Arbitration for Sport (CAS) in November, 2019. With the collection of the transcription of cross-examination of four witnesses, this study mainly identified and marked the attitudinal resources in original and interpreted texts by means of qualitative and quantitative research methods. The comparative analysis of the study reveals that there are some differences in attitudinal resources, accompanying with their realizations between the source and interpreted texts. The results indicate that interpreters can play multiple roles with “conduit” as their primary role and “helper” or “communication facilitator” as the secondary role. Besides the analysis of Sun Yang’s public hearing from appraisal perspective, this study is aiming to enhance court interpreters’ identification and emphasize interpreters’ subjectivity, as well as providing some insights for court interpreter training.