JT: Justice seen hamstrung as experts warn court interpreters should be licensed

The Japan Times

/

Justice seen hamstrung as experts warn court interpreters should be licensed

BY

STAFF WRITER

Courts are supposed to be bastions of justice. But equal justice may be thwarted for some defendants owing to language barriers.

Despite all the various training seminars and guide books preparing newly registered court interpreters for the job, the current pool of interpreters are not sufficiently skilled to speak for defendants and may introduce miscommunications during trials, according to veterans in the field.

Of 59,462 defendants who received verdicts from district courts or summary courts in 2015, 2,694 were foreign nationals from 73 different countries who required translators to speak on their behalf during trials, the Supreme Court figures show. The law requires courts to hire and prepare translators for defendants who are not fluent in Japanese, at no cost to the accused.

As of April 2016, close to 3,840 available court interpreters were registered nationwide at courts, providing translations in 61 languages to and from Japanese.

Haeok Chung, an Osaka-based court interpreter with more than 20 years of experience, known for her book “Hotei Tsuyakunin” (“Court Interpreter”) published in 2015, claims that translators are insufficiently compensated given the high-level skills required for the job. As a result, there is little incentive for court interpreters to undergo professional development to improve their existing skills.

“If they are not able to make a living, it’s unavoidable” that they take on other jobs, said Chung. Courts do not disclose how much court-appointed interpreters are paid.

To supplement her income, Chung also teaches Korean as a high school teacher.

Chung stressed that while becoming a court interpreter is not hard, performing at a high level on the job is no easy task. On top of requisite legal knowledge and language skills, interpreters also need mental discipline to be able to maintain a neutral stand, she said.

While there are many who are fluent in multiple languages, “you have to have a specific personality to work properly as a court interpreter,” Chung said. “If you are too sympathetic toward other people,” you should rethink accepting the job, she added.

In 2016, several misinterpretations were found during the trial at the Tokyo District Court of Japanese Red Army member Tsutomu Shirosaki, then 68, who was later found guilty of launching a mortar attack against the Japanese Embassy in Jakarta in May 1986.

According to an Asahi Shimbun report, during the trial, the court summoned 11 Indonesians who testified as witnesses using two interpreters. Since there were discrepancies in the lengths when comparing the two translations, the court had doubts about their accuracy and brought on a third interpreter to weigh in. The third-party evaluation found close to 200 errors and omissions in the translated testimonies of three Indonesians given on Sept. 29 and 30.

Chung said the problems flagged by the court are only the tip of the iceberg.

“It has been debated for a long time that a public license is necessary and that there have been many misinterpretations,” said Chung.

The Japan Law Interpreter Association, a nonprofit organization launched in 2009, stresses the need for a public or private licensing system for legal translators, including court interpreters.

The organization annually conducts its own examinations to assess the skills of the law interpreters, whose language abilities span various levels. About 70 applicants take the exam every year.

“It’s true that skills vary among each interpreter. Not all interpreters are unskilled, but there is a problem in the system that operates them,” said Roman Amami, who was the former head of the association and has translated Chinese to and from Japanese in court since 1993.

“There is no guarantee for the amount of work the interpreters get and how much they will be rewarded,” she said.

Amami said that because of such a system, many skilled translators would rather pursue stints in nonjudicial fields, and most interpreters who are less skilled take up legal work on the side.

“That’s why, whether it’s a public license or a private license, we’d like to see that it’s made mandatory to have a license for interpreters to work in courts,” said Amami, explaining that public licenses are required to work as legal interpreters in the United States as well as in some European countries.

The organization is accepting applications for its next exam to be held in October, and also conducts training courses with help from lawyers from Kanae International Law Office and others that have expertise in international cases.

On top of issuing licenses and conducting professional training, JLIA also thinks ethics should be taught to legal interpreters.

“It would require some time to make licenses a requirement. But first of all, ethics should be instilled” in law interpreters, said Hiroaki Sugiyama, a lawyer at Kanae International Law Office.

“It’s questionable whether all law interpreters are providing fair translations. If everyone followed an ethics code, there wouldn’t be a problem, but some of them give inappropriate translations while knowing they lack ability,” said Sugiyama.

Sugiyama said some interpreters, like in the trial of Tsutomu Shirosaki, intentionally provide translations that would benefit prosecutors, putting their thumbs on the scale so the prosecution can win more cases in court.

“To develop ethics, we must research the situations in other countries, and present the results as an example” to the government, said Masanari Aoto, a lawyer also involved in JLIA, which will soon launch a study group on legal ethics.

“(Ethics) would include how one must prepare to become a law interpreter, and things they should avoid. They must be developed for interpreters to give fair translations,” he said.

Source:  “Justice seen hamstrung as experts warn court interpreters should be licensed”, The Japan Times, 2 June 2017 

JT: ‘Second-Best Justice: The Virtues of Japanese Private Law’: Championing mediocrity in the courts

Although it comes as no surprise, this short book review speaks volumes about the inept approach of Japanese courts to civil matters:

The Japan Times

‘Second-Best Justice: The Virtues of Japanese Private Law’: Championing mediocrity in the courts

BY

SPECIAL TO THE JAPAN TIMES

Ignore the irony of a tenured Harvard professor railing against the pursuit of excellence and employment security and J. Mark Ramseyer’s book is fun and enlightening.
Second-Best Justice: The Virtues of Japanese Private Law, by J. Mark Ramseyer.
352 pages

THE UNIVERSITY OF CHICAGO PRESS, Nonfiction.

By essentially settling for mediocrity, he argues, Japan’s civil justice system works better than America’s which, in seeking to offer excellent individualized justice to every plaintiff, actually delivers dismal results for most litigants and is easily hijacked by unscrupulous tort lawyers and frivolous class actions. Unlike American juries, Japanese judges decide predictably enough that lawyers (and insurers) know where to settle.

Even when judges get it wrong — Ramseyer cites overprotection of tenants and employees as examples — they do so predictably, meaning employers and landlords can plan accordingly. Some conclusions surprise: Japan has few medical malpractice trials because the public health insurance system is also mediocre, giving most doctors incentives to perform well-established routine procedures rather than try new treatments, a source of much U.S. medical malpractice litigation. At times his assumptions — seemingly based on the “law and economics” orthodoxy that informs much of his work — can distract: whether doctors are “good” is a function of how much income tax they pay, for example. That aside, it’s a useful overview of some key features of Japan’s legal system.

Read archived reviews of Japanese classics at jtimes.jp/essential.

Source:  “‘Second best justice:  the virtues of Japanese private law’:  championing mediocrity in the courts”, Colin P A Jones, The Japan Times, 22 April 2017 

London event: Taking Flight – Domestic Violence and Child Abduction

An international child abduction lecture is taking place next month at the London College where I undertook my LLM degree; the speaker is Baroness Hale of Richmond.  Lady Hale, who I have (successfully) conducted Supreme Court litigation before (albeit not in this context), is a former family law academic (Professor at the University of Manchester, before joining the Law Commission prior to her appointment to the High Court) who now sits as the Deputy President of the UK’s Supreme Court.  With the current President, Lord Neuberger, due to retire later this year, Lady Hale is widely tipped to replace him. I disagree with much of what she has written – more so as an academic than a judge – but, despite this, her views on the many issues thrown into play in this day and age, and as summarised below, by international parental child abduction will be well worth listening to.

Details and booking link below:

UCL Faculty of Laws logo.jpg

Taking Flight – Domestic Violence and Child Abduction

Thursday 16 March 2017, 18:00 – 19:00

Gustave Tuck Lecture Theatre, Wilkins Building, Gower Street, London WC1E 6BT

Speaker: The Rt. Hon. The Baroness Hale of Richmond DBE (The Supreme Court)
Chair: Lady Justice Black

(Head of International Family Justice)
Admission: Free
Accreditation: This event is accredited with 1 CPD hour with the SRA and BSB
Series: Current Legal Problems 2016-17

About the lecture:

Increasing concerns that victims of domestic violence, who flee the country with their children, are effectively being forced, under the 1980 Hague Convention on the Civil Aspects of International Child Abduction, to return to face their abusers, led to calls for a Protocol to the Convention which would make special provision for such cases. Instead, however, the Hague Conference on Private International Law has established a Working Group with the aim of developing a Guide to Good Practice in relation to article 13(1)(b) of the Convention. This provides an exception to the automatic return of children to their country of habitual residence required by article 12, where there is a grave risk that their return would expose them to physical or psychological harm or otherwise place them in an intolerable situation.

The Working Group has not found this an easy task. It raises so many difficult questions of principle. Should concern for the victims of domestic violence ever override the concern for the welfare of children which the Convention aims to protect? When is a risk of harm to a parent also a risk of harm to a child? How is a court in the receiving country to resolve disputes about who did what to whom? How effective are protective measures in the home country? What can the receiving country do both to assist the home country and to provide protection in the meantime? How does the interface with the 1996 Hague Convention on the Protection of Children work? Is Europe a special case? And what about the human rights of the children and both of their parents? Perhaps above all, is there a risk that, in its anxiety to preserve the integrity of the 1980 Convention, the Working Group will lose sight of the reasons why it was set up?

About the speaker:

Brenda Hale is the most senior woman judge in the United Kingdom. She became a High Court Judge in 1994, after a varied career teaching law at the University of Manchester and reforming the law as a member of the Law Commission. She was promoted to the Court of Appeal in 1999 and to the House of Lords in 2004. In 2009, the ‘Law Lords’ became the Supreme Court of the United Kingdom, where she has been Deputy President since 2013. Her principal interests are in family, social welfare and equality law.

About Current Legal Problems:

The Current Legal Problems annual lecture series was established over sixty years ago. The lectures are public, delivered on a weekly basis and chaired by members of the judiciary.

The Current Legal Problems (CLP) annual volume is published on behalf of UCL Laws by Oxford University Press, and features scholarly articles that offer a critical analysis of important current legal issues.

It covers all areas of legal sponsorship and features a wide range of methodological approaches to law. With its emphasis on contemporary developments, CLP is a major point of reference for legal scholarship.

Find out more about CLP on the Oxford University Press website

To book:  “Taking Flight – Domestic Violence and Child Abduction”, UCL Faculty of Laws Events Page

Better court interpreters needed

The Japan Times 

Better court interpreters needed

 

Errors committed by a court interpreter found in the recent trial of a former member of the Japanese Red Army extremist group underlines the importance of ensuring the accuracy of translations in trials involving foreign defendants or witnesses. Such errors impinge on the ability of a trial to mete out justice and undermines public trust in the judiciary. People and organizations concerned should consider introduction of some form of uniform qualification for people who serve as court interpreters.

The errors took place during the trial at the Tokyo District Court of Tsutomu Shirosaki, 68, who was eventually found guilty of launching a mortar attack against the Japanese Embassy in Jakarta in May 1986. Around the same time that the embassy was attacked, the U.S. Embassy in the Indonesian capital was also targeted by a mortar attack.

For Shirosaki’s trial, the court summoned 11 Indonesians as witnesses and chose two persons as interpreters. Since some translations by one of the interpreters were extremely short, the court came to doubt their accuracy and had a third interpreter evaluate them. The evaluation found some 200 errors and omissions regarding the testimony of three Indonesians given on Sept. 29 and 30.

For example, the year 1983 mentioned by an Indonesian police officer was found to have been translated as 1985. Another statement by the officer, that “I did not give heed to it,” was found to have been changed into “I do not remember it.” A hotel employee from Jakarta who was asked to describe the conditions of a room at the hotel replied there was usually both an electric pot and a refrigerator in the room, but the statement was translated as “there was a pot for drinking water.” The presiding judge concluded that the interpreter failed to correctly grasp the meaning of some statements and used rough translations that lacked accuracy.

Apparently the translation problems were not serious enough to change the outcome of the trial. The court in late November found Shirosaki guilty of launching two home-made mortar shells at the Japanese Embassy, rejecting his argument that he was in Lebanon at the time of the attack and giving him 12 years in prison. Shirosaki was one of six Japanese Red Army members released by the Japanese government in 1977 in exchange for the lives of passengers of a Japan Airlines plane hijacked and forced to land in Dhaka by the extremist group. He was captured in 1996 in Nepal and given a 30-year prison sentence in the United States for the 1986 mortar attack against the U.S. Embassy. He was released last year and was transferred to Japan, where he was arrested upon his arrival.

The court’s decision to appoint a new interpreter to check the quality of the translation was appropriate. Otherwise, the trustworthiness of the trial could have been questioned. Although the translation errors did not change the course of this particular case, judges, prosecutors, lawyers and the public should keep in mind that bad translations can distort decisions by judges on facts at issue and influence their assessment of the case before them, possibly leading them to hand down a false judgment. Even if a translation is technically correct, the choice of words by an interpreter can affect the impression of the defendant held by lay judges who, unlike professional judges, may not be accustomed to looking at facts alone and could be influenced by the nuance of words. Shirosaki had a lay judge trial.

As of April, 3,840 people covering 61 languages were registered as court interpreters in Japan. It is standard practice for courts to select interpreters after interviewing them. While there are many interpreters of major languages such as English, there is an acute shortage of interpreters in languages of Southeast Asia, the Middle East and Africa.

About 30 years ago, the Supreme Court created handbooks for interpreting at trials covering major languages. It is also holding workshops for court interpreters specializing in minor languages. The Japan Law Foundation, established in 1998 by the Japan Federation of Bar Associations, the Japanese Institute of Certified Public Accountants and several other organizations, held workshops for court interpreters ahead of the introduction the lay judge system in 2009. The Japan Law Interpreter Association, a private organization, began giving a qualification test for court interpreters in 2010.

But currently there is no state examination for court interpreters. Neither is there a standard for the language ability of such people. Some countries have specific laws concerning qualifications for court translators, including the requirement of passing a state exam.

Given the complexity of trial procedures and the diverse nationalities of foreigners living in or visiting Japan, holding workshops isn’t enough to ensure sufficient quality of court interpreters. The Supreme Court, the JFBA, the government and the Diet should discuss introducing a system to publicly certify court interpreters through state examinations or other means. If a false conviction occurs as a result of an incorrect translation, the damage will be irreparable.

Source:  “Better court interpreters needed”, The Japan Times (editorial), 24 December 2016

New international child relocation rankings reveal that Belgian courts are the least likely to grant a relocation order

The first ever international child relocation rankings, compiled by the Penningtons Manches family law team, reveal that Belgium is the jurisdiction least likely to allow a parent to relocate with a child internationally. The courts in New Zealand, Denmark and Scotland are also particularly reluctant to allow one parent to take a child out of the country permanently without the agreement of the other parent.

At the top of the rankings, the five countries most likely to allow international relocation – particularly for mothers – are Greece, Japan, Ukraine, Israel and Turkey.

Penningtons Manches’ second international family law report, entitled Can we go or must we stay? The International Child Relocation Rankings, reviewed comparative data from 22 countries in Thomson Reuters’ International Relocation of Children, A Global Guide from Practical Law 2016. This comprises Q&A guides on international child relocation law and practice in 31 key jurisdictions.

Relocation cases are increasingly common in many jurisdictions – including England and Wales which came fourteenth in the rankings – and the legal position is continually evolving to reflect the realities of international family life. Unsurprisingly, countries with a large international workforce see the most international relocation cases but this does not mean that they share the same approach when considering a case.

The current position in England and Wales

If there is a child arrangements order (CAO) in place, a parent must not remove a child from the UK without the written consent of all parental responsibility holders or leave of the court.

The overriding principle remains that the welfare of the child is paramount. The court will also have regard to what is known as the ‘welfare checklist’ which includes factors such as the ascertainable wishes and feelings of the child, the likely effect on them of any change in their circumstances, and any harm which the child is suffering or is at risk of suffering.

Although that central principle made clear by the case of K v K [2011] EWCA Civ 793 remains, relocation law is continually evolving. There is a clear and continuing trend towards recognising the importance of greater paternal involvement. Judges in England and Wales do not automatically assume that the mother will be the primary carer and we are seeing more parents sharing the care of children equally.

The English courts are also reluctant to permit temporary leave to remove a child to countries such as the United Arab Emirates which are not signatories to the Hague Child Abduction Convention.

The international relocation rankings – some country observations

  • The most surprising result is Belgium, a country with a reputation as an international hub and the home of the European Parliament. Relocation orders are considered to be very difficult to obtain even though the majority of cases seek to relocate to another European country.
  • At 14 in the rankings, England and Wales do not rank highly as an easy location from which to relocate a child but its position reflects the discretionary, nuanced approach to each case which results in a careful analysis of the impact which a proposed moved would have on the child.
  • The United Arab Emirates has a highly international population where the majority of residents are foreign nationals and there are many relocation cases. But the legal system has not caught up with the population’s desire to relocate and a father has a far greater ability to prevent relocation than the mother.
  • Jersey has a similarly international populace to the UAE but has adopted a pragmatic attitude to relocation. Only 35% of Jersey’s population were born in Jersey. If no residence order is in force, permission is not required to remove a child from Jersey.
  • New Zealand’s isolated geographic location means that relocation cases are always subject to particularly intense scrutiny and cases are difficult to win for the parent wishing to relocate.
  • The European states vary widely in their approach to relocation law despite the free movement between the member states. While Greece and Ireland are likely to allow relocation, France and Spain adopt a careful and balanced approach to the merits of each case and both parents must agree.
  • The individual states within the USA also have different approaches. While Pennsylvania is one of the most likely to allow relocation, Florida takes a more cautious view and the decision is heavily dependent on the individual judge.

Commenting on the findings of the report, international relocation partner Anna Worwood, said:

‘While we have been surprised by the varying approaches to relocation across the jurisdictions – particularly for international hubs such as Belgium – we are encouraged by two strongly emerging trends across the majority of the 22 countries we reviewed.
The most welcome trend is the growing recognition of the courts that the voice of the child is the one that must be heard above all others when considering relocation cases. As the impact of moving a child away from one parent can be devastating for the family, the decision must be based on the interests of the child.
While some jurisdictions still tend to allow more mothers than fathers to relocate with a child, the growing significance of greater paternal involvement in the upbringing of a child means that it can be more difficult for mothers to win their cases without the father’s permission.
The second trend is the strengthening of the laws to protect children by preventing one parent from relocating with a child without the permission of either the other parent or the courts. In many jurisdictions, the removal of a child without consent constitutes the crime of abduction and the parent will face criminal charges.’

A copy Penningtons Manches’ International Family Law Report: Can we go or must we stay? The International Child Relocation Rankings is available to download here.

Source:  “New international child relocation rankings reveal that Belgian courts are the least likely to grant a relocation order”, http://www.familylaw.co.uk/,  29 November 2016