Court's Interpretation Research Articles

An Invitation to Mexican Courts to Engage with Transnational Sources of Law

In 2009, Mexican Courts started to engage in a transnational conversation between foreign courts. After Mexico was sentenced by the Inter- American Court of Human Rights (IACHR) in the case of Radilla Pacheco, the Mexican Supreme Court determined, among other things, that all national judges must examine the human rights interpretations issued by the Federal Judiciary and the IACHR, choosing the most favorable and effective interpretation to protect human rights, applying the pro homine principle. Nonetheless, nothing has been said about using case law from foreign courts as persuasive authority to find this “most favorable and effective interpretation of human rights” in Mexico. This article analyses whether Mexican courts should take into account the interpretations of foreign courts as persuasive authority when determining standards and scope of human rights, besides IACHR case law. I evaluate different theories that support the use and citation of foreign precedents, as well as arguments that raise concerns about citing foreign courts to interpret domestic legal frameworks. I conclude that, in order to make use of the most effective principles and standards of human rights, as the pro persona principle suggest, Mexican Courts should consider foreign case law.

Translanguaging in Court Proceedings: How Interpreter Pedagogy Needs to Address Monolingual Ideologies in Court Interpreting That Delegitimize Litigants’ Voices

The majority of court proceedings are based on monolingual ideologies that assume that the court is speaking one, specific, bounded language and the litigant another. Thus, interpreting processes in this context are framed as an L-B to L-A interchange, a bridge between two linguistically and culturally discrete entities. In increasingly superdiverse societies, however, court interpreters are finding that their clients do not always respect these rigid boundaries, often engaging instead in what has become to be known as translanguaging, a form of linguistically fluid, hybrid, and often creative discourse that sources all the client’s (para)linguistic repertoires, acquired throughout their personal and working life experiences. Drawing on preliminary research, this article explores how monolingual biases appear to persist in community or public-service interpreting and suggests that interpreters are little prepared to deal with translanguaging practices. Moreover, findings suggest that such a phenomenon needs to be addressed in interpreter training pedagogy.

Friends of the Earth: ‘Government Policy’, Relevant Considerations and Human Rights

Abstract Litigation involving climate change is on the increase both domestically and internationally and the Supreme Court's judgment in Friends of the Earth Ltd joins that list. While it was not as directly concerned with the implications of climate change as, perhaps, recent case law from the Netherlands or Australia, the case has significant implications including in terms of future litigation involving human rights challenges based on climate change. Three aspects of the judgment in particular warrant consideration. First, the legitimacy of the Court's purposive interpretation of the meaning of ‘Government policy’. Second, the Supreme Court left unanswered the question of whether the Paris Agreement was so ‘obviously material’ to the exercise of the relevant discretion that a failure to have regard to it would be Wednesbury unreasonable. Finally, the Supreme Court rejected the claim that designating the Airports National Policy Statement would interfere with any rights contained in the European Convention of Human Rights. This case analysis examines each of these aspects of the judgment.

Contracts of Inattention

The standard paradigm of contracting assumes that parties will revise subsequent contracts if a court interpretation of a clause does not reflect their intent. This assumption, however, often does not match behavior—particularly, in boilerplate contracts. We examine the aftermath of an (in)famous 2016 case, Wilmington Savings Fund v. Cash America, to unpack possible reasons for this mismatch between theory and practice. We find evidence of a phenomenon in contracts that involves sophisticated parties who are nevertheless not represented by their own lawyers, lack full awareness of the fine print of the contractual terms, and, having devoted little attention to them, may be eclectic as to their meaning when they enter into these contracts. In these contracts, which we call contracts of inattention, a gap between lawyers’ understanding of a provision and the understanding of market participants is prone to emerge. The potential for such gaps has implications for how courts should interpret contracts of inattention and for how market participants will react to court rulings.

The mediated voice

AbstractThis article examines how the voices of trial participants are mediated by court interpreters. The research focuses on closing statements articulated by defendants in Chinese criminal trials, the last chance for their voices to be heard prior to sentencing. Drawing upon the concept of voice and theories of speech acts and pragmatic equivalence, and based on the discourse analysis of seven authentic trial recordings, this study reveals how the discursive performance of the defendant is constructed, altered, and sometimes undermined through interpreting. The findings reveal that speech acts performed by the defendant are often not maintained in the interpreted renditions and that the concept of closing statements is difficult to convey. It is argued that when interpreters fail to convey the pragmatic force of defendants’ utterances, the voice of the defendants is not fully heard, which places them at a disadvantage and impacts upon their right to equality and justice. The article also reveals system-bound constraints on the effective provision of language assistance and the safeguarding of defendants’ legal rights.

Conditional Decisions as Instrument Guarding the Supremacy of the Constitution (Analysis of conditional decisions of Indonesian Constitutional Court in 2003 – 2017)

The function of the Indonesian Constitutional Court as the guardian of the constitution is mainly conducted through the judicial review authority. Since 2003 to April 2021, the Constitutional Court has received and decided 1392 petitions over judicial review. In its dictums, the Constitutional Court often declares conditionally constitutional or conditionally unconstitutional (conditional decision). Conditional decision is a decision of the Court that declare the reviewed norm conditionally constitutional or unconstitutional. The norm is constitutional if interpreted pursuant to the Court interpretation, or the norm is unconstitutional if interpreted in certain ways. This research is aimed to investigate the criteria of judicial review decisions which declares conditionally constitutional and conditionally unconstitutional in accordance with the characteristics of norms of the law reviewed. The analysis was limited to the Court decisions from 2003 to 2017. The research result indicates that distinguishing characters of norms reviewed have no correlation with the option between conditionally constitutional or conditionally unconstitutional. Conditionally Constitutional Decision was used by the court before replaced by Conditionally Unconstitutional Decision due to the weakness of decision implementation. For conditionally unconstitutional decisions are connected to the substance of the decision which create new norm that replace, limit, or elaborate reviewed norm. Conditional decision is still required as a consequence of the following three aspects: enforcement of the supremacy of the constitution, presumption of validity, and strengthening the execution of Constitutional Court decisions.

Language Law and Policy of the Federal Government of Ethiopia: Implications for Fair Trial and the Rights of Non-Amharic Language Speakers Accused

Ethiopia is a multilingual country with a federal form of state structure. The 1995 Constitution of the Federal Democratic Republic of Ethiopia (FDRE Constitution) gave equal recognition for all Ethiopian languages, but has chosen Amharic to become the working language of the Federal Government. In order to accommodate the needs of non-Amharic speakers in the provision of public services, the Constitution and other laws such as the Criminal Procedure Code, require the use of interpreters. Particularly in criminal proceedings, non-Amharic speakers are entitled to be assisted with a ‘qualified’ interpreter to meaningfully participate in the cases. In practice, it is observed that accused people who do not speak the working language of the federal government are unable to effectively understand or get prompt and detailed information regarding the nature and effect of the case brought against them. Even if they know the case, they are not able to effectively explain their defences to the court or associated bodies, and thereby defend their rights. This study reveals that non-Amharic speakers are not effectively served according to the legal standards. This problem subsists mainly due to the absence or limited number of interpreters, as well as the use of untrained interpreters. Despite some efforts to address the problem, the federal government has not yet laid down any formal mechanism by which people with limited and/or no Amharic language proficiency are properly served in criminal proceedings both before and during trial. This study proposes the federal government to establish court interpreter training institutions and to standardise court interpretation by allocating the necessary budget; lay down a formal mechanism such as enacting detailed laws and working manuals for assigning interpreters; providing other local languages the status of working language; consulting interpretation technologies and working in collaboration with different stakeholders.

Stress experienced by Polish sworn translators and interpreters

ABSTRACT Although there is some existing empirical research on job satisfaction and working conditions of court interpreters, little is known about specific stress factors inherent in the profession of a sworn translator and interpreter. The main aim of this study was to investigate psychological stress among sworn translators and interpreters working in the Polish-English language pair in the Republic of Poland by means of a self-designed online questionnaire. Among the main stress factors identified in the study were: the speaker’s delivery rate, translation and interpreting rates, non-cooperative translators and interpreters, sense of responsibility, as well as poor organisation of work. Sworn translators and interpreters were found to experience fatigue, back pain and eye irritation. Task-oriented coping was shown to be a predominant coping style among study respondents. The results of the study may offer a valuable contribution to translation and interpreting studies, stress research, and human factors in court interpreting.

Menimbang Kedudukan Majelis Kehormatan Mahkamah Konstitusi Setelah Terbitnya Undang-Undang Nomor 7 Tahun 2020

This research elaborates the Constitutional Court interpretation within Decision No. 49/PUU-IX/2011 on judicial review of Law No. 8 of 2011 on amendments of Law No. 24 of 2003 on the Constitutional Court which its decision has granted mostly the petitioner’s petitions to change the Honorary Council of the Constitutional Court members composition. There are at least two examined issues in this study, they are: Firstly, does the addition of elements House of Representative, Government and the Supreme Court contradict Article 1 paragraph (3) and Article 24 paragraph (1) and (2) of the 1945 Constitution? And secondly, what is the implication of the decision to repeal Article 27A paragraph (2) letters C, D, and E for check and balance between three branches of state government (executive, legislative and judicial) in Indonesia? This research is normative legal research that uses a conceptual approach, also reviewed with case studies related to material research. The results show; Firstly, based on the study to Indonesian Constitutional Court Decision No. 49/PUU-IX/2011 which accepted most of the petitioner’s petitions on judicial review of Law No. 8 of 2011, the Constitutional Court stated that the addition of elements House of Representative, Government and the Supreme Court as members in the Honorary Council of the Constitutional Court then legislators have endangered the freedom of judicial power as regulated Article 1 paragraph (3) and Article 24 paragraph (1) and (2) the 1945 Constitution. Secondly, this decision has an impact on the members of the Honorary Council of the Constitutional Court which only consists of two elements, namely the constitutional court and the judicial commission. Therefore, the Constitutional Court Decision is considered successful in keeping the principle of check and balance between three branches of state government in the Indonesian constitutional state system.

An analysis of responses of Jordan courts to objections based on language interpreting issues

ABSTRACT Jordan does not have a legal framework specifically designed to regulate legal interpreting at court. This gap results in precluding litigants’ attempts to make convincing appeals before apex courts, which rely on generalised provisions in the Experts Regulations, the Civil Procedure Law and the Criminal Procedure Law as well as their discretion in answering appeals based on interpreting issues. This study aimed to examine the grounds on which litigants invoke interpreting issues in their cases and the courts’ response to such claims. The exploratory study employed a content analysis method to analyse and categorise areas of interest in the Jordanian court judgments on cases involving interpreting issues. The analysis of the cases was matched to the court procedures and decisions made for the cases challenged for interpreting misrepresentation. The findings revealed that in deciding an appeal, Jordanian courts weigh other sorts of evidence than the alleged interpreting issue, and that they would accept such appeals only in the case of proven violations of formalistic procedures of interpreter appointment. The study is significant and holds implication for researchers, stakeholders, lawmakers and interpreters, for the legalisation and professionalisation of court interpreters in Jordan.

Judicial reliance on the executive: tensions, discrepancies and recommendations for court interpreter service delivery models across Australian jurisdictions

ABSTRACT In the past decade, there has been noticeable improvement in judicial attention and attitudes towards court interpreters, reflected in the implementation of various court interpreter protocols and the Recommended National Standards for Interpreters in Courts and Tribunals. However, this article identifies a number of discrepancies and gaps that still exist in the court interpreting framework in Australia. There are discrepancies across jurisdictions in the types of matters for which the court takes responsibility for engaging and paying for interpreters, and significantly different service delivery models for the funding, recruitment, training and coordination of interpreters. This study found a correlation between jurisdictions with centralised interpreting agencies and streamlined funding with courts who are more generous in their provision of interpreters and willingness to engage in innovative approaches such as the Northern Territory duty interpreter system. The article identifies service delivery frameworks which are more likely to enhance consistency and competence in court interpreters, concluding that centralised and government-funded agencies are more appropriate than small private for-profit agencies. The issues identified in relation to service delivery models illustrate judicial reliance on the executive branch of government to ensure a fair trial through the provision of interpreters. There are, however, immediate steps available to the judiciary such as a collection of data and implementation of small-scale duty interpreting, which are likely to precipitate more appropriate executive government policy responses to legal interpreting.

‘That’s not how we speak’: interpreting monolingual ideologies in courtrooms

ABSTRACT The paper examines the operation and impact of monolingual ideologies relating to English in interpreter-mediated courtrooms in Australia. This is an issue relevant to courts in many geographical places, especially in Anglophone nations with common law systems. Using recurrent thematic analyses, the paper draws on interviews with 36 court interpreters working in Australia. From the perspective of legal interpreters, the paper explores three specific language ideologies linked to a ‘monolingual mindset’ [Michael Clyne (2005) Australia's Language Potential, UNSW Press.] of courtrooms: accent as a key marker of Australian English according to standard language ideologies; monolingual assumptions that there is only one version of each language; and negative perceptions of the bilingual abilities of court participants from minority backgrounds. The findings illustrate the ‘us-them’ distinction as both a cause and an outcome of the perpetuation of monolingual ideologies, which, in turn, feed into the conditions for the production and reproduction of existing power structures and ideological uses of language, with ramifications for the fairness and justice of legal processes. The paper concludes by highlighting the pervasiveness of monolingual ideologies in courtrooms, the need for multilingual and multicultural training of legal professionals and the relevance of collaboration between interpreters and legal professionals to addressing monolingualism in Australian courtrooms.

Model Minority (Tres)Passing in the BLM Age: Asian Stereotypes as Subversive Strategy for Combating Anti-Blackness in Yamamoto’s “A Fire in Fontana” and Ty Pak’s “The Court Interpreter”

Refracted through the lens of the current BLM movement and the resultant exposé of the longstanding history of anti-Blackness, this essay reexamines two narratives grounded in the historical junctures of interethnic racial turbulence: Hisaye Yamamoto’s “A Fire in Fontana,” spanning the 1945 racist murder of a Black family by arson to the 1965 Watts uprising, and Ty Pak’s “The Court Interpreter,” a fictional tale closely mirroring the 1991 Latasha Harlin murder case and the ensuing 1992 Los Angeles unrest. This essay foregrounds the trope of passing to imagine Asian model minority stereotype as a kind of (tres)passing that can potentially expose and explode instances of anti-Blackness both within interethnic communities and in the larger dominant culture.

The World's Largest Ecosystem Management Plan: The Northwest Forest Plan After a Quarter-Century

For decades, the public forests of the Pacific Northwest were subject to widespread clearcutting of its old-growth trees as part of a federal policy promoting industrial logging. That era came to end in the early 1990s, due to court injunctions enforcing environmental laws like the National Environmental Policy Act and the National Forest Management Act, a response to diminishing old-growth dependent species like the northern spotted owl. Fulfilling a campaign promise to resolve the contentious issue by protecting both wildlife habitat and a logging industry important to local communities, President Clinton and his administration conducted a remarkable 1993 symposium on the economics and science of preserving rapidly disappearing habitat for ESA-listed species like the northern spotted owl and several salmonids. The result was the 1994 Northwest Forest Plan (NFP), widely recognized as the largest commitment to ecosystem management worldwide. Somewhat surprisingly, the NFP is still in effect over a quarter-century later, despite determined efforts to eviscerate it by the logging industry and its political allies. This article examines the NFP, its antecedents, its provisions, its court interpretations, and its future. In many respects, despite persistent controversy over the legal underpinnings of the NFP, the plan has provided substantial protection for Northwest’s public forests, and – although it did not end all public timber harvests – largely ended harvesting of public old-growth forests. Moreover, the plan’s aquatic protection strategy has proved quite effective and worthy of emulation elsewhere. Although the Bush administration’s repeated efforts to terminate the plan failed, the Obama administration removed about ten percent of the federal forests subject to the plan from its reach, substantially undermining its ecological premises. The courts have so far sustained these removals, casting a pall of uncertainty over efforts to update the NFP to reflect current challenges posed by wildfires and climate change. This article suggests that the goals of a revised NFP should be linked to the role that federal public Pacific Northwest forests can play in the United States’ international obligations to combat climate change. The article also recommends that despite ongoing uncertainty concerning the scope of the plan, revisions of the NFP should end post-fire salvage logging and the logging of mature and old growth forests, while providing a “just transition” for affected rural communities and increased flexibility concerning the boundaries of protective terrestrial reserves in the southern reaches of the plan. We maintain that if it can overcome persistent political challenges, the NFP will continue to provide the signature example of landscape planning worldwide.

Judicial interpretation: features and practical significance

Judicial interpretation: features and practical significance

Sign Language Court Interpreters in Turkey: Professionalization and Impartiality

Interpreters in court settings have a significant role to play. A party in a court who does not speak the language of the country will be dependent on a court interpreter to present their claim accurately, unbiasedly, fairly, and effectively; and therefore, well-trained and professional interpreters are needed. However, worldwide (Witter-Merithew and Johnson 2004; Napier and Haug 2016) and particularly in Turkey (Conker 2017; Gökce 2018), it is reported that there are problems concerning education, language skills, and other professional conditions of sign language court interpreters. This study investigates the professional profile of sign language court interpreters in Turkey. The research was conducted through an online survey which focuses mainly on the components of professionalization (Tseng 1992), professional interpreters’ knowledge and skills (experience, training, accreditation, in-service training), professional working conditions (payment, security), professional association, and professional ethical standards, specifically impartiality (Judicial Council of California 2013). The online survey was administered to 23 Turkish Sign Language court interpreters from 10 different cities in Turkey. Briefly, the results strikingly suggest that none of the interpreters, who are mostly CODA (child of deaf adult) (91%), graduated from translation and interpreting programs of the universities, which is seen as one of the major hindrances among participants in terms of professionalism. Most of the interpreters with more than ten-years-experience are exposed to unstable jobs with low payments and have a profession other than sign language interpreting due to financial concerns. Regarding impartiality, the general tendency of the participants reveals that they serve for both the victim and the defendant parties (52%) and that they are in a conflict of interest such as interpreting for someone they know (74%). The results of the study indicate that it may not be an easy task to be professional and impartial under these circumstances. Finally, the findings of this study have a number of important implications for future practices such as sign language court interpreter training and professionalization.

Vehicle insurance: prospects of judicial dispute resolution

In the Russian Federation, the vehicle insurance sector is gaining more and more prevalence and importance, which is due not only to the annually increasing number of road accidents occurring, but also to the digitalization paradigm of the entire Russian society. Any interested person who has suffered damage has the intention to restore his rights, including property rights, which is not always possible at the pre-trial stage of the development of a vehicle insurance conflict. Despite attempts to legislatively reform the pre-trial procedure for resolving disputes in cases arising from the vehicle insurance contract aimed at increasing guarantees of the rights of consumers of financial services, the judicial procedure for resolving such disputes does not lose its relevance. The judicial protection of the consumer financial services rights reveals the issue of court interpretation of legal texts, in particular, the rules of insurance and the vehicle insurance contract concluded by the consumer of financial services with the insurer. In the texts of such agreements, financial organizations specify the types of insurance events that do not fall under the signs of an insured event, which is the basis for compensation for damage caused. The correctness of the consideration and resolution of the dispute actually depends on the correct interpretation of these legal texts.

Interpretation of law by the court as an element of legislation

The article examines the problem of the essence and content of judicial interpretation, its characteristic features. The goal of a casual court interpretation is the correct understanding of the content of the norms of law, and the task is to individualize legal regulations. Acts of casual court interpretation are «samples» for lower courts, given that they are always guided by the practice of interpretation. The article also deals with the theoretical aspects of the institute of interpretation of law by court, its gist, and legal nature; explores the views of the Ukrainian and foreign scientists on the subject. The article also deals with relevant to modern legal practice issues of judicial interpretation. The peculiarity of the casual interpretation is that it has a person-oriented character and is relevant to specific circumstances. A casual interpretation can not go beyond the boundaries of a particular legal case and apply to similar cases. The difference between the normative interpretation and the casual is that the former may extend to an unspecified range of cases, and the second one to the incident that was the subject of a dispute. Subjects of casual interpretation are the judicial and administrative bodies. Clarification of the content of the law by the judiciary is a judicial interpretation. The official constitutional interpretation of the Constitutional Court of Ukraine is carried out in providing opinions on cases of constitutionality of laws and other legal acts, compliance with the Constitution of Ukraine of international treaties, adherence to the procedure of investigation and consideration of the case of removal of the President of Ukraine from office in the order of impeachment. The supreme court’s interpretation of the case largely influences judicial practice. Courts, in court cases, carry out a casual interpretation of the rules of law and develop case-law on the application of the rules of law. The casual judicial interpretation is the interpretive activity of the court in the process of reviewing and resolving court cases (or in the order of their review by the appellate or cassation instances), the purpose of which is a correct understanding of the content of the legal norm. His task is the individualization of legal requirements, and the result is binding only for a specific court case and parties involved in it. The acts of the casual interpretation of the higher judicial bodies are «samples» for lower courts, given that they are always guided by the practice of interpretation and application of the law by the highest judicial authorities and, as a rule, follow it. Characteristic features of the casual judicial interpretation is that its subjects are judges of all courts, it is directed at the consideration and resolution of a particular court case, the results of such an interpretation are binding only for the parties to a specific court case and are fixed in the motive part of the decision. Keywords: court, casual interpretation, the rule of law, judicial interpretation, rule.

Direct Speech in Japanese-Thai Court Interpreting

Direct Speech in Japanese-Thai Court Interpreting

A norm-based analysis of court interpretation in selected Philippine criminal cases

A norm-based analysis of court interpretation in selected Philippine criminal cases