Chinese Journal of International Law 2010 Tursun 537 63

# The Author 2010. Published by Oxford University Press. All rights reserved. doi: 10.
1093/chinesejil/jmq021; Advance Access publication 14 July 2010
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The Protection of Minorities in Court Proceedings: A Perspective on Bilingual Justice in China

Gulazat Tursun*
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Abstract
This paper examines bilingual court proceedings in China, comparing Chinas approach on this issue to international standards in major treaties and agreements. Many of the principles of these international agreements are already in place and in use in China. China has adopted some practices transcending international standards such as prohibiting discrimination on grounds of language, informing the accused of his or her offence in his or her language, providing an interpreter at court proceedings and allowing a minority language to be used as an ofcial language in minority regions. With the development of Chinas economy and the promotion of freedom of movement in China, the need for bilingual courts has greatly increased, particularly in minority regions. This paper explores bilingual judicial practice in China under the auspices of these international treaties.
I. Introduction
1. All countries are composed of several language groups. Of the worlds 6912 languages,1 more than 700 are spoken in Indonesia,2 270 in India, 200 in
1 2
Associate Professor at the Xinjiang University School of Law in China (email: gulazat@ yahoo.com). This project is supported by the Chinese Ministry of Educations Social Science Foundation (Grant 09XJC820018) and Xinjiang University Doctoral Fund. I am grateful to Darius Longarino, Robbie Barnett and Stephen MacArthur for their help in editing my work and providing valuable comments on the paper. I would also like to thank Professor Benjamin L. Liebman of the Columbia University School of Law for his provision of information on the American Court Interpretation Act and to express thanks to Professor Jerome A. Cohen from the New York University School of Law, who also gave valuable comments on the paper. Finally, the Arthur W. Diamond Law Library at Columbia Law School was an excellent resource in drafting and completing the paper. I am very grateful for the help and hospitality of the Law School. All errors in the paper are my own. This article was completed on 15 May 2010. www.vistawide.com/languages/language_statistics.htm (last visited 11 May 2010). en.wikipedia.org/wiki/Languages_of_Indonesia (last visited 11 May 2010).
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Nigeria, 100 in the Russian federation3 and Kazakhstan and 80 in China. Despite tremendous domestic linguistic diversity, many States prefer to adopt a singlelanguage policy, designating the language of the dominant ethnic group as the ofcial language to be used in public discourse, legislation and the operation of the legal system. Single-language policies negatively impact linguistic minority groups, hinder their ability to access government services and deny them their right to use their own language in public life. The negative effects of these policies are particularly pernicious in the legal system. Court decisions can deprive an individual of life, liberty and property, and it is of the utmost importance that litigants and defendants be able to communicate with the court in order to defend their interests effectively. If an individual who is from a linguistic minority is not adequately competent in the ofcial language, and language services are not readily available, he or she will be denied justice. 2. The right to use minority languages not only in the private sphere but also in public life is generally acknowledged at the international level, and can scarcely be disputed in principle. The international community has already recognized this and has enacted several international and regional treaties regarding language use in court proceedings.4 International treaties regarding civil and political rights have provisions that establish the linguistic rights of minorities in court proceedings, calling for the use of ethnic minority languages in the administration of justice.5 Some regional treaties have even advocated giving linguistic autonomy to minorities in areas densely populated by speakers of the minority language. Under such arrangements, both the ofcial and minority languages would be used as working languages in the region inhabited by the minority.6 Most international treaties underscore the right of the accused to be informed of the nature and content of his crime in a language that he understands and to have an interpreter provided to him if he does not understand the language of the court. This international standard has been explained as serving the purposes of equality and non-discrimination on the basis of
3 The Chinese and English versions of Wikipedia state that 80 languages are spoken in contemporary Russia (en.wikipedia.org/wiki/Languages_of_Russia; www.sintaytour.com/ articles/customopen.asp?id=131 (last visited 11 May 2010)). Examples include the International Covenant on Civil and Political Rights (ICCPR), the Convention for the Protection of Human Rights and Fundamental Freedoms and the Framework Convention for the Protection of National Minorities (FCNM). They are further discussed in Part II of the paper. See, for example, ICCPR art. 14(3)(f), which entitles every person to have the free assistance of an interpreter if he cannot understand or speak the language used in court. The Oslo Recommendations Regarding the Linguistic Rights of National Minorities also includes several articles regarding language use in justice. The European Charter for Regional or Minority Languages, adopted in 1992, is an instrument dedicated to promoting minority languages traditionally used in Europe.
Tursun, Protection of Minorities in Court Proceedings 539
language7 and, in some States, it is linked with the principles of fair trial, due process and the right to confront witnesses and to be present at trial.8 It has paved the way for a bilingual judiciary in the international arena. 3. Legislation and adjudication are not private affairs; they are State activities carried out by the apparatus of the State. The State has to establish the public use of minority languages through legislation if it wants to give equal protection to majority and minority language groups. Establishing such rights through legislation is an obvious way for governments committed to the recognition of language minorities to bind their own ofcials and agencies and to make it difcult for future governments to reverse course.9 Almost all jurisdictions in the world support the use of minority languages in judicial activities according to the practical needs of the parties. These States have promulgated special laws and provisions to allow the use of minority languages in court proceedings. Some States have already expanded the use of minority languages in the legislative system as well as the judicial system.10 The core purpose of these regulations was determining how to provide public services to ethnic linguistic groups, in which language to provide those services and how to establish a bilingual judiciary. 4. Judicial discourse is capable of elaborating and expounding upon general human rights denitions in order to accommodate the interests and needs of minorities.11 The implementation of bilingual court proceedings accommodates linguistic minority groups within the territory of a State with the intent of protecting linguistic minorities in judicial activities. It is about conducting court proceedings in two languages according to the practical needs of the parties. The bilingual court proceedings referred to in this paper can be grouped into three different categories: (1) bilingual court proceedings with the help of an interpreter, (2) court proceedings conducted by a judge from the relevant linguistic minority, with the nal verdict going to the higher court in the ofcial national language and (3) a collegiate bench with a judge from the majority and minority language groups for cases that occur in an autonomous region in which the parties are
7 Fernand De Varennes, Language, Minorities and Human Rights (Martinus Nijhoff Publishers, 1996), 183. 8 Bilingual Court Act, Hearings before the Subcommittee on Civil and Constitutional Rights of the Committee on the Judiciary House of Representatives, Ninety-Fourth Congress, Serial No. 35 (US Government Printing Ofce, Washington, DC, 1976). 9 Will Kymlicka and Alan Patten, Language Rights and Political Theory: Context, Issues, and Approaches, in: Will Kymlicka and Alan Patten (eds.), Language Rights and Political Theory (Oxford University Press, 2003), 26. 10 For example, in Canada, bilingual legislation is written in both English and French. See Michael J.B. Wood, Drafting Bilingual Legislation in Canada: Examples of Benecial Cross-Pollination between the Two Language Versions, 17 Statute LR (1996), 6667. 11 Gaetano Pentassuglia, Minority Groups and Judicial Discourse in International Law: A Comparative Perspective (Martinus Nijhoff Publishers, 2009), 105.
from different ethnic linguistic groups. Most jurisdictions have adopted the rst category, while autonomous regions, counties or prefectures practise the second category.12 The third category has appeared with increasing frequency in some countries, such as China, and has been welcomed because of its efciency. This paper will explore Chinese bilingual judicial practice under the context of international legal regimes. It rst will review the international and regional treaties on bilingual court proceedings. The paper will scrutinize the principal international human rights and regional treaties by categorizing their approaches to bilingual justice. Then, the paper will examine the Chinese legal practice in bilingual court proceedings. It will outline the law of China with respect to bilingual court proceedings and compare Chinese law and practice with international standards. In the third part, the paper will turn to the practice of bilingual court proceedings in China in general and the Xinjiang Uyghur Autonomous Region, the Tibet Autonomous Region and the Inner Mongolian Autonomous Region in particular. Finally, the paper will evaluate the effect of bilingual court proceedings and provide several suggestions for the consolidation of Chinese bilingual court proceedings. The author gives a recommendation concerning American court interpretation practices as a reference for Chinese courts with regard to bilingual court proceedings.
II. International regimes on bilingual justice

5. Language use in the public sphere is a very important issue for minorities, because it determines their participation in public life, their access to public services and their ability to represent their vital interests in the legal system. The outcome of court proceedings largely turns on the presentation of the facts of the case and the arguments made. Language plays a crucial role in the whole discourse. The foremost international human rights conventions approach language use in the justice system from several perspectives, which we may categorize as being of three types: (1) the general approach, (2) the objective approach and (3) the structural approach. 6. The general approach broadly prohibits discrimination based on language. Though international treaties do not speak directly to a legal systems use of minority languages, they require respect for human rights by prohibiting discrimination on the basis of language. Language is, by and large, mentioned on a par with other non-discrimination grounds and contained in the substantive provisions of some international treaties. The UN Charter and the Universal Declaration of Human Rights do not contain any provisions on minority languages, but both of them do forbid discrimination on the basis of language.13
12 For example, French in Canada and South Tyrol in Italy and Switzerland. 13 Charter of the United Nations, art. 1(3) states some of the purposes of the United Nations: [T]o achieve international cooperation in solving international problems of an economic, social, cultural or humanitarian character, and in promoting and encouraging respect for
Article 2 of the ICCPR prohibits discrimination on the basis of language. ICCPR Article 26 also lists several prohibited bases of discrimination, including language.14 But the ICCPR has not dened the content of discrimination. Discrimination is dened in the General Comment on Non-discrimination of the Human Rights Committee as any distinction, exclusion, restriction or preference which is based on any ground such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and which has the purpose or effect of nullifying or impairing the recognition, enjoy15 ment or exercise by all persons, on an equal footing, of all rights and freedoms. The reason for prohibiting these grounds of discrimination and not others is that these forms of discrimination have no merit or social value. As Feldman explained, discrimination becomes morally unacceptable when it takes the form of treating a person less favourably than others on account of a consideration which is morally irrelevant.16 Discrimination may restrict rights holders from enjoying their general rights and exclude them from access to State services such as equal administration of justice. The clauses of non-discrimination on the ground of language directly protect human dignity from assault, indirectly protect human dignity by being a trump to discrimination on any ground and afrm the moral norm that discrimination is wrong.17 7. Minority-specic provisions and conventions have also emphasized nondiscrimination on the basis of language. A landmark in this aspect is the wellknown Article 27 of the ICCPR, which recognizes the right of persons belonging to ethnic, religious or linguistic minorities to enjoy their own culture, to profess and practise their own religion and to use their own language. It reafrms, strengthens and adds to the equal enjoyment of rights enumerated in other articles of the
human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion. Art. 2 of the Universal Declaration of Human Rights states as follows: [E]veryone is entitled to all the rights and freedoms set forth in this declaration, without distinction of any kind, such as race, color, sex, language, religion, political or other opinion. . . . ICCPR art. 26 states that: All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Human Rights Committee, General Comment 18, Non-Discrimination (Thirty-Seventh Session, 1989), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc. HRI/GEN/1/Rev.1 at 26 (1994), para.7. David Feldman, Civil Liberties and Human Rights in England and Wales (2nd edn., Oxford University Press, Oxford, 2002), 135. Bruce Abramson, A Commentary on the United Nations Convention on the Rights of the Child, Article 2: The Right of Non-Discrimination (Martinus Nijhoff Publishers, 2008), 32.
14
15
16 17
two Covenants.18 The Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, in 1992, further expanded the scope of the UN protection of minority language rights by asking Member States to respect the right of ethnic and linguistic groups to use their mother tongue in public affairs.19 8. The international standards on non-discrimination were then reinforced by a plethora of instruments at the regional level. In Europe, EU law has provided an ideal vehicle for upholding the principle of non-discrimination. The Treaty of the European Community expressly addressed the question of discrimination by outlawing discrimination on grounds of nationality. The Convention for the Protection of Human Rights and Fundamental Freedoms, or the European Convention on Human Rights, provided broad protection by enshrining the principle of non-discrimination in Article 14.20 Later, Protocol No. 12 dened discrimination in an independent clause.21 Several directives of the European Community and the case law of the European Court of Justice have also directed Member States to prohibit any kind of discrimination. 9. Non-discrimination on the ground of language can also be found in the American Convention on Human Rights (ACHR), which demands respect for human rights without regard to differences in language.22 The African Charter on Human and Peoples Rights, Article 2 states that every individual shall be entitled to the enjoyment of rights and freedoms without distinction of race and language. These provisions give general guidelines requiring the use of minority
18 Gudmundur Alfredsson, Minority Rights and Peace: Available Standards, Procedures and Institutions, in: Snezana Trifunovska (ed.), Minorities in Europe Croatia, Estonia and Slovakia (T.M.C. Asser Press, 1999), 9. 19 The Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities. Adopted by GA Res 47/135 of 18 December 1992. Art. 2(1) states that persons belonging to national, or ethnic, cultural, religious and linguistic minorities have the right to enjoy their own culture, to profess and practice their own religion, and to use their own language, in private and public, freely and without interference, or any form of discrimination. 20 The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, color, language, religion, political or other opinion, national or social origin, association with a national minority, birth or other status. ECHR, art. 14. 21 Protocol No. 12 to the ECHR. Art. 1 states, the enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. 1 April 2005. 22 The States Parties to this Convention undertake to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms, without any discrimination for reasons of race, color, sex, language, religion, political or other opinion, national or social origin, economic status, birth or any other social condition. ACHR, art. 1.
languages without discrimination and imply the required use of minority languages in court proceedings in order to protect parties equally from different language groups. 10. Without distinction means equal treatment, but differential treatment alone is not illegal in any international treaties. There are people in different situations who must be treated differently. The Human Rights Committee has consistently emphasized that not every distinction amounts to discrimination in the meaning of the provision and that objective and reasonable distinctions are permitted.23 For parties whose lower level of prociency in the ofcial language blocks their access to State services, the State must provide services in their language or allow use of that language in ofcial business. This is crucial to avoid discriminatory administration of justice, which would advantage some persons over others. Any accused person who is not procient in the court language has the right to an interpreter in criminal cases and the right to be informed of the nature and content of his offence in a language he understands. A number of international treaties have conrmed this right and have given some indication of its scope. Geneva Convention III, adopted in 1949, which provides for the rights of prisoners of war, entitles the prisoner of war to be informed of charges in a language which he understands and to have access to an interpreter.24 Article 14(3) of the ICCPR requires the State to guarantee the suspect the right to be informed promptly and in detail of the nature and contents of the charge against him in a language he understands, and to provide an interpreter free of cost if the suspect does not understand or speak the language of the court. By requiring public authority to follow procedural rules, this rule ensures proper application of the criminal law for linguistic minorities to promote justice. Informing the accused, promptly and in detail, of the nature and content of the crime committed not only allows him to understand his case and lodge an appeal, if any, with the competent authority but also enables him to defend himself effectively. The State is obliged to provide an interpreter if the accused or the defence witnesses have difculty understanding or expressing themselves in the language of the court. The interpretation must be in simple, non-technical language so that the accused can understand the essential legal and factual grounds for his arrest, allowing him, if he sees t, to appeal to a court to challenge the lawfulness of the arrest.25 The specic requirements of subparagraph 3(a) may be met by communicating the charge either orally or in writing, provided that the charge contains both the law and the
23 Zwaan-de Vries v. Netherlands, Communication No. 182/1984, UN Doc. Supp. No. 40 (A/42/40) at 160 (9 April 1987), para.12. 24 Geneva Convention Relative to the Treatment of Prisoners of War of 12 August 1949, art. 105. 25 Rainer Hofmann and Halida Nasic, Physical Integrity, Due Process and the Administration of Justice, in: Marc Weller (ed.), Universal Minority Rights: A Commentary on the Jurisprudence of International Courts and Treaty Bodies (Oxford University Press, 2007), 416.
factual allegations on which it is based.26 This rule approaches the problem objectively by treating different situations differently. 11. The slightly modied version of Article 14 appears in the provisions of the Statute of the International Tribunal for the Former Yugoslavia and the Statute of the International Criminal Tribunal for Rwanda. The two statutes set the working languages of the tribunals as English and French, but all accused persons have the right to use their native language in court proceedings. Both statutes emphasize the right of the accused to prompt and detailed notication of his offence in a language he understands and the right to free assistance of an interpreter if the accused cannot understand or speak the language used in the international tribunal.27 A clear and informative indictment prevents this right from being violated. In fact, the statutes for these tribunals provide more extensive rights than the ICCPR by extending judicial guarantees to the pre-trial stage of the investigation.28 In the ICTY, for example, defendants speak Bosnian, Croatian or Serbian, Albanian or Macedonian. For that reason, all court proceedings are held in at least threeand sometimes fourlanguages, while the vast majority of its written documents are translated into anywhere from two to ve languages.29 The Rome Statute of the International Criminal Court also expanded upon the right of the suspect during the investigation stage and in court proceedings, guaranteeing the accused the right to have a free interpreter30 and to be informed promptly and in detail of the nature, cause and content of the charge, in a language which the accused fully understands and speaks.31 The right to an interpreter seems axiomatic,32 while the right to be informed of the nature and cause of charge in a language he understands is absolute. 12. Similar provisions are available under regional instruments, such as in Articles 5(2)33 and 6(3)(e)34 of the ECHR and Article 8(2)(a) of the
26 General Comment 13/21 of 12 April 1984, para.8. 27 Statute of the International Tribunal for the Former Yugoslavia, adopted on 25 May 1993 by Resolution 827, as amended on 20 November 2000 by Resolution 1329. Art. 21(4)(a), (f ). Statute of International Criminal Tribunal for Rwanda, art. 20(4)(a), (f ). 28 Prosecutor v. Dusko Tadic A/K/A Dule, Decision on the Prosecutors Motion Requesting Protective Measures for Victims and Witnesses, ICTY (12 November 1996). 29 ICTY website (www.icty.org/sid/165). 30 Rome Statute of the International Criminal Court, art. 55(1)(c). It is a right of person during an investigation. 31 Rome Statute, above n.30, art. 67(1)(a), (f). 32 William A. Schabas, An Introduction to the International Criminal Court (3rd edn., Cambridge University Press, 2007), 289. 33 Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him. ECHR, art. 5(2). 34 Everyone who is charged with a criminal offence has the right to have the free assistance of an interpreter if he cannot understand or speak the language used in court. ECHR, art. 6(3)(e).
ACHR.35 The European Court of Human Rights further elaborated on Article (5)(2) and Article 6(3)(a) in several cases. Article 5(2) of the ECHR requires Member States to inform the arrested suspect of the reason for his arrest and the charges against him in a language he understands, using simple and non-technical terminology. The interpreters responsibilities arise whenever a defendant or witness needs the courts ofcial language to be interpreted into a non-ofcial language. The opposite is true as well: the interpreter translates testimony from the non-ofcial language into the ofcial language for the benet of the judge, attorneys and jury. In criminal cases, the role of the interpreter is extremely important if the accused does not understand the language of the court. The ECHR and ACHR have both established that the accused has a right to an interpreter free of charge and that the court must use its own resources to provide the interpreter. This is an absolute right once it is shown that the accused does not understand the language of the proceedings.36 The ICCPR does not say anything about whether the translation is applicable to both the oral and written language or only to the oral language, nor does it give any statement on whether this applies to witnesses. But the European Court of Human Rights stated that the right to the free assistance of an interpreter applies not only to oral statements made at a trial hearing, but also to documentary material and pre-trial proceedings.37 The ACHR, although it does not specically require that the accused be informed of the reason he is being arrested in a language he understands, does mandate that Member States provide an interpreter to the accused if he does not understand the language of the court. Article 10(3) of the Framework Convention for the Protection of National Minorities (FCNM), which entered into force on 1 February 1998, states that the signatory nations shall guarantee the right of every person who belongs to a national minority to be informed promptly, in a language which he or she understands, of the reasons for his or her arrest, and of the nature and cause of any accusation against him or her, and to defend himself or herself in this language, if necessary, with the free assistance of an interpreter. Although the FCNM is not the rst instrument concerning the protection of ethnic minorities developed by the Council of Europe, it is the most comprehensive document in the eld. It is particularly relevant because it is the rst legally binding multilateral treaty to address the protection of ethnic minorities in general.38
35 During the proceedings, every person is entitled, with full equality, to the following minimum guarantees: (a) the right of the accused to be assisted without charge by a translator or interpreter, if he does not understand or does not speak the language of the tribunal or court. ACHR, art. 8(2)(a). 36 Fernand De Varennes, The Linguistic Rights of Minorities in Europe, in: Snezana Trifunovska (ed.), Minority Rights in Europe: European Minorities and Languages (T.M.S. Asser Press, The Hague, 2001), 24. 37 Kamasinski v. Austria, Judgment of 19 December 1989, European Court of Human Rights. 38 Marc Weller (ed.), The Rights of Minorities in Europe: A Commentary on the European Framework Convention for the Protection of National Minorities (Oxford University Press, 2005), 3.
13. There is a growing acceptance in international treaties that States should provide public services in the minority language in locales where there is a large number of minority language speakers. This is the structural approach, which is based on the demographic and geographic concentration of linguistic groups. Whenever the number of individuals speaking a minority or non-ofcial language in a State is substantial, especially if they are densely concentrated in a certain area, public authorities should provide public services in their language. Article 10(2) of the Council of Europes FCNM has a special provision which requires the signatories to endeavour to ensure the use of minority language by administrative authorities in geographic areas with substantial numbers of speakers of a minority language.39 One of the more detailed treaty provisions that applies the structural approach is Article 9 of the European Charter for Regional or Minority Languages, which entered into force on 1 March 1998 and has been ratied by 24 States.40 It is unique in promoting bilingualism in public services on a territorial basis.41 It goes considerably beyond the provisions of general human rights instruments that only guarantee the accused an interpreter free of charge and notice of the nature of the crime alleged in a language he understands in criminal cases. The charter extends the use of minority language by public bodies from the criminal justice system to civil and administrative proceedings. Another way this instrument enhances justice is recognizing evidence provided in the regional or minority language and requiring the production of legal documents and statutes in the minority language upon request. To ensure that this promise is kept, the statute forbids parties from denying the validity of legal documents drawn up in the regional or minority language.42 It has a dual purpose: facilitating the use of judicial institutions by speakers of regional or minority languages and ensuring a place for those languages in judicial proceedings so as to promote their use.43
39 Art. 10(2) of the FCNM is different from other international treaties. It emphasizes the necessity of using the minority language in response to need, with a correspondence between geographic and demographic concentration of minorities and provision of government services in the minority language. 40 Ratifying States as of 12 February 2009: Armenia, Austria, Croatia, Cyprus, Czech Republic, Denmark, Finland, Germany, Hungary, Liechtenstein, Luxembourg, Montenegro, Netherlands, Norway, Poland, Romania, Serbia, Slovakia, Slovenia, Spain, Sweden, Switzerland, Ukraine and the United Kingdom. 41 Art. 1(b) of the European Charter for Regional or Minority Languages denes territory in which the regional or minority language is used as the geographical area in which the said language is the mode of expression of a number of people justifying the adoption of the various protective and promotional measures provided for in this Charter. 42 European Charter for Regional or Minority Languages, art. 9(2). 43 Jean Marie Woehrling, The European Charter for Regional or Minority Languages: A Critical Commentary (Council of Europe Publishing, 2005), 165.
14. Jurisprudence is developing, strengthening and clarifying the norms prescribed in the international documents. Different legal documents come at the protection of minority language rights from different angles. The European Charter for Regional or Minority Languages takes a geographical approach to language use in justice. The Central European Initiative (CEI) Instrument for the Protection of Minority Rights and the Oslo Recommendation Regarding the Linguistic Rights of National Minorities use demographics. Article 12 of the CEI instrument highlights the use of a minority language in judicial process according to the number of people using the minority language by stating that whenever in an area that number of persons belonging to national minority reaches, according to the latest census or other methods of ascertaining its consistence, a signicant level, those persons shall have the right, wherever possible, to use, in conformity with applicable national legislation, their own languages in oral and in written form, in their contracts with the public authorities of the said area. These authorities shall reply as far as possible, in the same language. The Oslo Recommendations Regarding the Linguistic Rights of National Minorities44 also advocated conducting court proceedings in a minority language if there are signicant numbers of members of an ethnic minority and if those members of a minority express that desire. The Recommendationlike other international treatiesnot only covers the universal principles mentioned above but also calls for authorities to allow detainees to use their minority language both orally and in writing in regions where members of a minority live in large numbers.45 15. International approaches to bilingual justice have provided clear guidelines to nations preparing to implement their own domestic systems. Most States in the world insist on the general approach integrating non-discrimination into their laws and regulations and guaranteeing the rights of the accused to be informed of the content and nature of his crime in a language he understands, and provide an interpreter free of charge if he does not understand the courts language. This is usually required by a States constitution or other laws. Certain States have chosen the structural approach, which designates a minority language as a public language according to demographic concentration of the linguistic minority or by according territorial autonomy to linguistic minorities. Europe offers many examples of successful territorial autonomy, such as the Aaland Islands in Finland ( predominantly inhabited by Swedish people), South Tyrol in Italy (with a predominantly German-speaking population), Greenland (ofcially part
44 The Oslo Recommendations regarding the Linguistic Rights of National Minorities were drafted by a group of independent experts under the auspices of the High Commissioner on National Minorities of the Organization for Security and Co-operation in Europe. The Recommendations were made public in February 1998. 45 Oslo Recommendations regarding the Linguistic Rights of National Minorities, February 1998, para.21.
of Denmark), the Province of Quebec in Canada and so forth. Some have adopted the demographic approach in deciding to use minority languages. For example, within the public administration of the Basque Autonomous Community in Spain, Euskara and Castilian are to be used by administrative units in areas where the percentage of Euskara speakers is 20 per cent of the population.46 In the Slovak Republic, the Law on the Use of Minority Languages requires ofcial use of the minority language in places where persons belonging to the ethnic minority group constitute at least 20 per cent of the inhabitants of a given municipality in the last census.47 In India, Article 347 of the Constitution offers the legal key for a stronger presence of minority languages at the local or district level in places where at least 15 per cent of the population at the municipal level belongs to a linguistic minority, and at least 60 per cent of the population at the district level belongs to a linguistic minority.48 These provisions vividly embody the structural approach adopted by international treaties and have played an important role in resolving conicts caused by differences in languages among ethnic groups.
III. Chinas law regarding bilingual proceedings

16. China is a unied country composed of 56 ofcial ethnic groups. The 55 ethnic minority groups make up 106.43 million people, accounting for 8.41 per cent of the total population of China based on the 2000 national census. There are more than 80 ofcially recognized ethnic minority languages. Ninety per cent of the countrys minority language speakers speak one of 15 languages, including Uyghur, Tibetan, Zhuang, Mongolian, Yi, Miao, Buyi and Korean.49 They are concentrated in border areas while some ethnic minorities are dispersed throughout China. China has protected their language rights in court proceedings by integrating the three international approaches into the law governing its bilingual judiciary, writing them into its Constitution, procedural laws, substantive laws and regulations. The Constitution and its substantive laws have outlawed discrimination, while procedural laws have legalized the use of minority languages in judicial proceedings. Except for constitutional and basic law arrangements, the Chinese legal
46 De Varennes, above n.7, 179. 47 Law on the Use of Minority Languages, art. 2(1), 184/1999 Coll. Laws, passed into law by the 17th Session of the Slovak Parliament on 11 July 1999. 48 Thomas Benedikter, Language Policy and Linguistic Minorities in IndiaAn Appraisal of the Linguistic Rights of Minorities in India (LIT Verlag Dr. W. Hopf Berlin, 2009), 78. 49 MU Shihua, Lun Nanbei Chayi Geju Zhong de Zhongguo Shaoshu Minzu Yuyan Chuanli Baozhang Wenti [Issues on Protection of Minority Language Rights in the South and North of China], in: LI Hongjie and Maria Lundberg (eds.), Shaoshu Minzu Yuyan Shiyong yu Wenhua Fazhan: Zhengce He Falu de Guoji Bijiao [Ethnic Minority Language Use and Cultural Development: International Comparison of Policy and Law] (Zhongyang Minzu Daxue Chubanshe [Minzu University of China Press], 2008), 130.
system allows for bilingual court proceedings through the Law on Regional Autonomy and the Organic Law of the Peoples Courts. Five ethnic minority groups enjoy autonomous rights at the level of the region or province under both the Constitution and the Law on Regional Autonomy while the other ethnic minorities have been allocated autonomous areas at the level of prefectures or counties, organized according to the demographic concentration of nationalities within that region.50 Ethnic minorities in the ve autonomous regions may employ their commonly used languages and systems of writing in all areas of life. The local governments of autonomous regions utilize two languages. China has authorized autonomous regions, autonomous prefectures and even autonomous counties to conduct judicial activities in the language that is commonly spoken in that administrative area. The Chinese legal system has even organized special bilingual courts in order to give full protection to linguistic minorities in court proceedings. Chinas practices in allowing ethnic minorities to use their own language in all judicial proceedings represent the realization of the promise of a bilingual judiciary in China. 17. Like international treaties, Chinese laws are founded on the basis of nondiscrimination and equality. These concepts have been incorporated into all substantive and procedural laws throughout Chinas legal history. On the eve of the establishment of the Peoples Republic of China, the government drafted the Common Program in late September 1949 and declared the equality of all nationalities or ethnic groups in China.51 Article 53 states specically that every minority group has the freedom to use and develop its language and writing systems and to maintain or reform its customs and religion. The 1982 Constitution enshrined these protections in Article 4, adding a new provision: The state protects the lawful rights and interests of the minority nationalities and upholds and develops the relationship of equality, unity, and mutual assistance among all of Chinas nationalities. Discrimination against and oppression of any nationality are prohibited.52 The same article specically focused on ethnic minority languages and guaranteed all the nationalities of China the right to use and develop their own spoken and written languages. Although it does not specify the scope of public use of minority language in detail, it conrms the right of linguistic minorities to use and develop their languages without restriction in social, economic and political life.53 The right of a
50 For example, Sanji Hui Autonomous Prefecture and Tashkorgan Tajik Autonomous County in Xinjiang, Gannan Tibetan Autonomous Prefecture in Gansu and Yanbian Korean Autonomous Prefecture in Jilin. 51 Gongtong Gangling [Common Program] (1949), art. 50. 52 This provision has not been changed in subsequent constitutional amendments. 53 The Constitution of the Peoples Republic of China, as amended in 2004 for the fourth time, preserved the article of equality. The nal section of art. 4 states, The people of all nationalities have the freedom to use and develop their own spoken and written languages, and to preserve or reform their own ways and customs.
minority to use and develop its language, and the positive responsibility of the State to protect ethnic minorities from any discrimination, are fully integrated in this article. The formulation of this principle in the Constitution closely follows the various standards set forth in international treaties. 18. Non-discrimination principles are also integrated into other substantive laws in China, and they play a central role in the implementation of the law. Nondiscrimination is one of the three main principles of Chinese criminal law. The Criminal Law restricts any kind of distinction of persons in criminal proceedings by stating that anyone who commits a crime shall be equal before the law. No one is privileged to be beyond the law.54 This demands not only equality in the correct application of law to the accused but also equality in enjoying rights without regard to language differences in all criminal proceedings. The General Principles of the Civil Law also emphasizes that parties to a civil activity shall have equal status.55 It denies differentiation on the ground of language. Judicial agencies must not favour or disfavour any party because of his linguistic or ethnic origin, and should insist on the principles of fairness, honesty and credibility. Other bodies of statute such as the Labor Law, the Law of the National Commonly Used Language and Script,56 the National Peoples Congress Organization Law, the Law of the National Congress and the Local Peoples Congress, the Rules of Procedure of the National Peoples Congress, the Education Law, the Mandatory Education Law, the Law on Resident Identity Cards and the Accounting Law also prohibit discrimination on the basis of language by authorizing the use of minority language in public services. Each of those laws gives guidelines for the use of minority languages when needed. 19. The objective and structural approaches are also well established in the Chinese legal system. The Chinese Constitution, the Procedural laws and the Law on Regional Autonomy integrate the approaches of the international regimes into one provision and mandate judicial activities to follow the principle in court proceedings in regions where a linguistic minority is concentrated or when a member of a linguistic minority is a party to the case. Chinese laws call for an objective approach to dispersed language groups, while they apply the structural approach to minorities who live in compact concentrations or who live in autonomous regions. Before 1949, the Chinese language was the main language of judicial practice. Judicial activities in minority regions were conducted in Mandarin Chinese with the assistance of interpreters. For
54 Zhonghua Renmin Gongheguo Xingfa [Criminal Law of the Peoples Republic of China](1997), art. 4. 55 Zhonghua Renmin Gongheguo Minfa Tongze [General Principles of the Civil Law of the Peoples Republic of China](1986), art. 3. 56 Zhonghua Renmin Gongheguo Tongyong Yuyan Wenzifa [Law of the National Commonly Used Language and Script] (2000), art. 8.
example, the judicial system of the imperial Qing dynasty in Huijiang57 did not follow local customs.58 Ethnic Uyghur litigants led their suits in their native language, and the court proceedings were conducted in Mandarin Chinese, utilizing interpreters for communication between litigants and judges.59 After 1949, China abolished the practice through legislation and legalized the use of minority languages in autonomous areas (i.e. including autonomous prefectures and autonomous counties as well as autonomous regions) while giving equal protection to minorities dispersed throughout the area. China gave minority languages ofcial legal status in autonomous areas and allowed ethnic minority groups to conduct litigation in their own language. On 22 February 1952, the 125th Session of the Administrative Council ( )60 of the Central Peoples Government handed down a decision on the preservation of equality among ethnic minorities.61 Article 5 stated that all ethnic minorities who do not live in concentrated areas can use their language in court proceedings if they have a language and alphabet [surely it said writing system]. It established the basis of the objective approach for bilingual justice. Article 77 of the 1954 Constitution included this concept, stating that citizens of all nationalities have the right to use the spoken and written languages of their own nationalities in court proceedings. The peoples courts should provide translation for any party if not familiar with the spoken or written languages in common use in the locality. According to it, linguistic minorities are not only entitled to use their own language in court proceedings, they also have the right to use interpreters if they do not understand the court language, and the court should provide an interpreter for them if they need one in the court proceedings. This provision came over 10 years before the ICCPR and more than 30 years before other regional treaties. The 1982 Constitution enshrined
57 During the Qing dynasty, the autonomous region Xinjiang was also called Huijiang. 58 DU Wenzhong, Bianjiang de Falu: Dui Qingdai Zhibian Fazhi de Lishi Kaocha [Law in the Frontier Region: A Historical Exploration of the Use of Law by the Qing Dynasty in Controlling Frontier Regions] (Renmin Chubanshe [Peoples Press], 2004), 219. 59 WANG Dongping, Qingdai Huijiang Falu Zhidu Yanjiu: 17591884 [A Study on the Huijiang Legal System of the Qing Dynasty: 17591884] (Heilongjiang Education Press, 2003), 219. 60 The Government Administrative Council of the Central Peoples Government was the highest administrative entity within the Chinese government in the rst ve years following the establishment of the Peoples Republic of China (1949 1954). The GAC later became the State Council pursuant to the specications of the rst constitution of the Peoples Republic of China. 61 Zhongyang Renmin Zhengfu Zhengwuyuan Guanyu Baozhang Yiqie Sanju de Shaoshu Minzu Chengfen Xiangyou Minzu Pingdeng Quanli de Jueding [Decision of the Central Peoples Government Administrative Council on Protection of Equality Rights of Dispersed Ethnic Minorities] (Administrative Council, 1952).
the principle again62 with more detailed terms requiring procuratorates63 to use the common language or provide an interpreter to initiate suit, issue decisions and make announcements.64 The obligation to provide an interpreter is extended from the court to the procuratorate through this provision. It converted the right of minorities to use their language in justice into a positive obligation laid upon the court and public prosecutors. This service is not to be restricted to minority regions but is also to be implemented in other parts of China for parties unfamiliar with the languages of the court. 20. Chinese law, although it does not adopt numerical standards in specifying certain regions as bilingual districts, authorizes the use of the local language in places where ethnic minorities are concentrated. The Chinese Constitution addresses the problem with a detailed constitutional provision: In an area where people of a minority nationality live in a compact community or where a number of nationalities live together, the hearing should be conducted in the language or languages in common use in the locality; indictments, judgments, notices, and other documents should be written according to actual needs, in the language or languages in common use in the locality.65 It can be seen that this provision does not specify whether the services are required only for criminal cases or for all cases. Neither does it specify that a given proportion of the population speaking the local language is required in order to designate that area as a bilingual area; nor does it state whether Mandarin Chinese and local minority languages can be used simultaneously in judicial proceedings. It is adapted to the demographic and geographical concentration of minority groups in China. It reected the structural approach of the Constitution to bilingual court proceedings in places where linguistic minorities are concentrated. 21. States are free to pass legislation tailored to the situation of their ethnic and linguistic minorities. When they decide to pass legislation, factors such as the size of the minority group, their ethnic, linguistic, religious and cultural characteristics, their history, the political and economic capacity of the State to provide for their rights and meet their needs and the variety of claims that minorities might have should be taken into consideration.66 States may choose to put these conditions in place by authorizing regional autonomy and allowing the people of the
62 Art. 77 of the 1954 Constitution was deleted in the 1975 amendment. See ZHOU Minglang, Minority Language Policy in China: Equality in Theory and Inequality in Practice, in: ZHOU Minglang and SUN Hongkai (eds.), Language Policy in the Peoples Republic of China: Theory and Practice Since 1949 (Kluwer Academic Publishers, 2004), 77. 63 The procuratorate is the term for the prosecutors ofce in China. 64 Constitution of the Peoples Republic of China (1982 Amendment), art. 134. 65 Ibid. 66 Snezana Trifunovska (ed.), Minority Rights in Europe: European Minorities and Languages (T.M.S. Asser Press, The Hague, 2001), 341.
autonomous area to manage the territory in their local language. This is usually done through the promulgation of Autonomous Laws. China enacted its Law on Regional National Autonomy (Law on Regional Autonomy, or the Law on Regional Ethnic Autonomy) in 1984 and authorized autonomous areas to use the local language as the ofcial language in public affairs. Together with the Constitution and other national laws, the new Law on Regional Autonomy species the domains where minority languages and Putonghua67 must be used by citizens and ofcials.68 Autonomous areas, as integral parts of China, must obey all the laws of China, but they may make proper accommodations to their particular needs within a certain scope. Minority areas, especially the ve autonomous regions, have special linguistic needs due to the large portion of their population that speaks a minority language. By allowing those regions to conduct judicial activities in their local language, justice can be materialized further. Article 47 of Law on Regional Autonomy elaborates Article 134 of the Constitution by demanding that judicial systems in autonomous areas use the local language in prosecution and trial, and provide translation for a party who does not understand court proceedings. It underscores the role of the peoples court and peoples procuratorate in autonomous areas in protecting the right of all nationalities to use the spoken and written languages of their own nationalities in court proceedings.69 This kind of territorial approach mandated judicial organs in autonomous areas to use the local language in all judicial discourse. But, autonomous areas are not mono-ethnic group regions, and they have other ethnic groups who speak different languages and all ethnic minorities group live together with Han Chinese in these autonomous areas. So, these areas are bilingual, using both Mandarin Chinese and a local language. The 2002 amendment to the Law on Regional Autonomy took consideration of this situation and demanded that the peoples courts and peoples procuratorates in autonomous areas must have staff who are familiar with the spoken and written minority languages of the locality.70 This was laid down in order to accommodate the increased demand for bilingual courts and procuratorate staff in minority areas. It has established the basis for bilingual collegiate benches in autonomous areas. 22. Procedural laws are the other constructive arrangement for the establishment of bilingual court proceedings. Procedural laws aim to guarantee the rights of parties by curbing abuses of judicial power and promoting fair court proceedings. Chinese procedural laws guaranteed the rights of different linguistic parities in court proceedings by consolidating bilingual court proceedings further with special clauses.
67 Often referred to in English as Mandarin or Mandarin Chinese, Putonghua (lit. common speech) is the ofcial and most widely spoken language of the Peoples Republic of China. 68 See Zhou, above n.62, 78. 69 The Law of the Peoples Republic of China on Regional National Autonomy, art. 47. 70 Ibid.
Chinas three procedural Lawsthe Criminal Procedure Law, the Civil Procedure Law (CPL) and the Administrative Procedure Law (APL)call for the State to provide interpreters and use minority languages in court proceedings in regions with high concentrations of ethnic minorities. Procedural justice concerns the fairness of the process by which decisions are made, and may be contrasted with distributive justice (fairness in the distribution of rights and resources) and corrective justice (fairness in the rectication of wrongdoings).71 Fairness of the process directly impacts the right of parties in court proceedings. It is especially true in criminal proceedings due to the fact that failure to follow procedural fairness leads to the accused being deprived of his legal rights. Chinas Criminal Procedure Law specied the language rights of a minority in criminal proceedings and included detailed provisions. Article 6 of the 1979 Criminal Procedure Law72 stipulates that citizens of any nationality shall have the right to use their respective native spoken and written language in proceedings. The peoples court, the peoples procuratorate or the public security organ shall provide translation for any party in the proceedings who is not familiar with the local spoken or written language commonly used. Article 6 expanded this requirement beyond the court and the procuratorate to include security organs.73 It mandates that security organs use a language the accused understands in doing their investigations. The inability of the accused person to use the ofcial language not only produces misunderstandings between the accused and the police, but also may cause injustice in the court proceedings. When police make an arrest, they must inform the accused of the nature and content of his crime in a language he understands. Police should provide interpreters while interrogating suspects if they do not understand Mandarin. This is necessary because of the dispersion of ethnic minorities throughout China (as opposed to their concentration in certain areas). This provision further elaborated the use of minority languages in court proceedings in areas where there is a high concentration of minorities. Its demographic approach to bilingual criminal proceedings has transformed the constitutional protection of minority languages into practical protection in criminal procedure. The 1996 amendment to the Criminal Procedure Law kept the provision untouched in Article 9.74 According to the article, people of minority
71 Marc Weller (ed.), Universal Minority Rights: A Commentary on the Jurisprudence of International Courts and Treaty Bodies (Oxford University Press, 2007), 392. 72 Criminal Procedure Law of the Peoples Republic of China (1979) (www.lawinfochina.com/ law/display.asp?db=1&id=4&keyword=criminal%20procedure%20law (last visited 23 April 2010)). 73 Security organs (gongan jiguan) are the primary institutions responsible for investigating criminal cases in China. Other laws providing for the protection of minority rights do not deal with these entities. The Criminal Procedure Law requires security organs to provide interpreters in cases involving minorities. 74 The 1996 amendment to the Criminal Procedure Law renumbered art. 6 as art. 9. It states that in a place where people of a minority nationality live in a concentrated community or
nationality who live in a concentrated community or people of minority areas may conduct their judicial activities in the local language and must provide interpretation for persons who do not understand the courts language. An accused person who speaks a designated language has a right not only to understand the court proceedings and the charges against him, but also has the right to le his case in his own language, hear the judges instructions in his language and have court transcripts recorded in his language. Moreover, these rights are not conditional on the inability of the accused person to understand the language of the court. This article elaborated Article 134 of the Constitution and Article 47 of the Law on Regional Autonomy. It played a dual function in protecting linguistic minorities who live in concentrated groups and in protecting the right of people of autonomous areas to use their local language in court proceedings. 23. Chinese procedural laws provide a wider range of guarantees than international treaties by extending bilingualism to civil and administrative procedures. The APL and the CPL of China have not only entitled citizens of all nationalities to use their native spoken and written languages in all court proceedings,75 but also allow them to use their language in other parts of China where Mandarin Chinese is the ofcial court language. The scattered members of an ethnic minority group may also use their own language not only within autonomous areas, but in other parts of China as well if they are not procient in Putonghua. APL and CPL also were concerned with the language rights of concentrated minority groups in court proceedings. Although their regulations in that respect are not different from Article 134 of the Constitution, and Article 9 of the Criminal Procedure Law, they underscored the principle of using the local language in autonomous areas and minority compacted areas once again. Compared with the Criminal Procedure Law, however, CPL and APL listed the right to an interpreter in the last section of their respective provisions.76 This may be due to the fact that the cost of interpretation in civil cases is covered by the plaintiff and that government organs in Chinas autonomous areas are composed of judges from different linguistic groups who are responsible for trying the case in the litigants language if needed. The Organic Law of the Peoples Courts77 reiterated the provisions by requiring the Chinese courts to
where a number of nationalities co-inhabit, hearings shall be conducted in the spoken language commonly used in that place, and judgments, notices, and other documents shall be issued in the written language commonly used in those places. 75 APL of the Peoples Republic of China, art. 8 and CPL of Peoples Republic of China, art. 11. 76 Ibid. 77 Organic law is the fundamental law forming the foundation of a court. The Organic Law of the Peoples Courts of the Peoples Republic of China (1983) (www.lawinfochina.com/law/ display.asp?db=1&id=5622&keyword=organic%20law%20of%20the%20peoples% 20courts (last visited 23 April 2010)) sets up the judicial system, gives the source of its authority and so on.
observe the regulations in their judicial activities. It, with the above-mentioned procedural and basic laws, strengthened the role of the court in bilingual proceedings and established the basis for bilingual court practice in China.
IV. Bilingual practice in Chinas judiciary

24. Minority language rights are not special or collective rights, but are the actual implementation of widely recognized individual human rights.78 They should not merely exist on paper but should be exercised in practice. If need be, the branches of the judiciary and the security organs should use minority languages in investigation, prosecution and adjudication. Some ethnic minorities are scattered throughout China, while the Uyghur, Tibetan, Mongol and Zhuang peoples are concentrated in four autonomous regions. In regions where minorities are scattered, judicial and security ofcers use interpreters in cases in which the accused is a member of a linguistic minority and possesses a lower degree of competence in Mandarin Chinese. In several district courts, district procuratorate ofces and police ofces in Beijing and Shanghai that the author visited, almost all cases involving minority languages used an interpreter despite the fact that the accused had some level of prociency in the Mandarin Chinese language. The author personally served as an interpreter for the police, prosecutor and a judge in Beijing on drug-related cases. In the process, she found that the court ofcers paid special attention to the role of interpreters in all proceedings. In the investigation of 100 drug-related cases in the Haidian District Court of Beijing involving ethnic minority defendants in 2004, the author found that from the start of the police investigation to the preparation of the prosecutions case, and from that point to the trial itself, the interpreter was constantly needed.79 Some security organs in big cities employ ethnic minority staff if the city has a substantial migrant ethnic minority population. These staff members help the police to investigate the case when a minority language is involved. Since all death penalty cases must be ratied by the Supreme Peoples Court, the Chinese Supreme Peoples Court also has employed court staff from minority ethnic groups. 25. The four ethnic minority regions which are named according to the name of their main resident nationality conduct their work bilingually, using both their main minority languages and Mandarin Chinese. Some minority populations of China are more dispersed. Tibetans live in Sichuan, Yunnan, Gansu and Qinghai in addition to the Tibet Autonomous Region. Mongolians are concentrated in Inner Mongolia, but many live in the Bortala Mongol Autonomous Oblast and the Bayingolin Mongol Autonomous Oblast located in the Xinjiang Uyghur Autonomous Region as well as other areas. The
78 De Varennes, above n.36, 30. 79 In October 2004, the author visited a detention centre with the police, prosecutor and judge of Beijings Haidian District several times, serving as an interpreter.
Uyghurs are concentrated in Xinjiang. The Kazaks, Kyrgyz and Tajiks also live in Xinjiang and have district-level autonomy in the places where they are concentrated. They perform their administrative functions in the main minority languages and Mandarin Chinese also. In these areas, courts, procuratorates and security organs are composed of Han Chinese and ethnic minority staff, and court activities, of course, are conducted in both languages. At the same time, these regions have developed special bilingual collegiate benches to which they appoint Han Chinese and ethnic minority judges who adjudicate cases in two languages. We may describe the current bilingual court proceedings in minority regions of China with the following table.
Language options in court proceedings in minority regions

Parties
Han Chinese (main party), ethnic minorities whose predominant language is Mandarin Chinese Ethnic minority litigant whose predominant language is the minority language and ethnic minority litigant whose native language is Mandarin Chinese In a minority region with multiple language groups, litigants are (1) Han Chinese and (2) ethnic minorities whose predominant language is Mandarin Chinese Accused belongs to one language group, victim to another
Languages
Bilingual Collegiate Bench Bilingual Collegiate Bench Bilingual proceedings (especially in civil cases) Bilingual proceedings in defendants language with an interpreter provided for other participants
26. These are not the only options for court proceedings in minority regions in China. There are situations in which participants may choose one language because they feel comfortable using that language. But bilingual court proceedings have greater attraction for different linguistic groups. This is especially salient in the minority regions. In Xinjiang, for example, the number of civil cases involving two or three languages has rapidly increased. The Saybagh Local Court in Urumqi handles more than 1000 bilingual cases each year, accounting for 50 per cent of the cases received by the court. In 2008, the Saybagh court accepted 475 bilingual cases, concluding 460 of them. Seventy-one per cent of the cases were closed by mediation and withdrawal.80 The Tianshan Peoples Court accepted 312 bilingual civil cases in 2004, 368 in 2005, 497 in 2006 and 205 from January to July 2007.81 From 2003 to 2008, the Yingi Xahar (New City) local court accepted a total of 1517
80 WANG Shulin and DENG Xiaowei, Shayibake: Shuangyu Tiaojie Guanchuan Susong Quan Guocheng [Saybagh Court: Bilingual Mediation Enters the Litigation Process], Renmin Fayuan Bao [Peoples Court Daily] (26 February 2009), 3. 81 Tian Shanqu Renmin Fayuan Shenli Minshangshi Shuangyu Anjian Diaocha Baogao [Report of the Tian Shan Peoples Court on Bilingual Civil Cases] (23 October 2007) (http://www.urumqicourt.org/view.asp?id=869 (last visited 20 March 2010)).
bilingual cases.82 They adjudicated or mediated the cases bilingually and achieved a high degree of satisfaction from litigants. 27. The Peoples Courts of Tibet and Inner Mongolia also handle many bilingual cases every year. According to a eld research report by Professor WANG Jie, Director of the China Research Centre for Legal Linguistics at the China University of Political Science and Law, bilingual court proceedings in the Shigatse Prefectural Peoples Court in the Tibet Autonomous Region in 2003 reached a total of 7076 cases in Shigatse, concluding 6218 of them. Among those cases, 5100 cases (82 per cent of the total) were adjudicated in Tibetan, and 1200 cases (19 per cent) were adjudicated in bilingual TibetanChinese proceedings.83 Inner Mongolian peoples courts are also handling more bilingual cases than before. Professor LIU Guiqin conducted a comparative study of bilingual court proceedings in three local courts and one intermediate court in the eastern and western parts of Inner Mongolia from 2004 to 2006. Mongolian and Mandarin Chinese bilingual cases in the A local court accounted for 15 per cent, 18 per cent and 13 per cent of all cases accepted by the court each year in that period. In the B and C local courts, bilingual cases comprised 3 per cent of the total. In the D intermediate court, bilingual cases accounted for 9 per cent of all cases accepted by the courts.84 As these examples demonstrate, bilingual proceedings are becoming more common in autonomous regions. 28. Conducting bilingual proceedings is relatively easy in civil cases, since both parties are frequently willing to submit their case to a bilingual court. For this reason, the rate of bilingual civil cases is higher than that of criminal cases. Most of the civil cases adjudicated in both Mandarin Chinese and the ethnic minority language were resolved quickly with the highest degree of satisfaction. Criminal cases, however, are very different from civil cases in substantive and procedural content. They require clear presentation of all evidence and the explanation of legal procedures in an understandable language. Furthermore, legal language is often characterized as a technical language or technolect, meaning a language
82 WANG Shulin and WANG Gang, Ahat, Jinli Zuo Hao Tiaojie, Cujin Minzu Tuanjie: Wulumuqi Shuangyu Susong Zhong Tiaojie, [Promote Mediation, Foster Ethnic Unity: Urumqi Bilingual Litigation Emphasizes Mediation], Renmin Fayuan Bao [Peoples Court Daily] (6 January 2009), 1. 83 WANG Jie, Investigation on Bilingual Situation of Court Language in Rikaze, Tibet Autonomous Region; English version, WANG Jie, SU Jinzhi and Joseph G. Turi (eds.), Law, Language and Linguistic Diversity: Proceedings of the Ninth International Conference of the Linguistic Law (Falu Chubanshe [Law Press China], 2006), 388. 84 LIU Guiqin and LIU Rongjun, Lun Meng-Han Shuangyu Susong de Chengxuxing Baozhang: Yi Neimenggu Jiceng Sifa Shijian wei Shijiao [On the Procedural Safeguard of Mongol-Chinese Bilingual LitigationFocusing on the Basic-Level Judicial Practice of Inner Mongolia], 40 Neimenggu Daxue Xuebao [Journal of Inner Mongolia University (Philosophy and Social Sciences)] (2008), 95.
used by a specialist profession.85 The language of judges, prosecutors and lawyers often includes technical words which are unfamiliar to common people. Law is a kind of language use.86 Failure of the defendant to understand legal words and inability to communicate with legal professionals in court proceedings may take away the freedom, and even the life, of the defendant in criminal proceedings. So, minority regions consider three factors generally when determining the use of bilingual proceedings in a criminal case: (1) the seriousness of the case, (2) the linguistic abilities of the accused and (3) the level of involvement of the accused in the case. All of these factors inuence the language choice in criminal court proceedings. In general, if the parties do not understand each others language, the court proceedings are conducted in the language of the accused, and the court will provide an interpreter for other parties. But if the case is very serious and the crime very harmful to society, it may be tried bilingually, with translations made of all court activities. This may happen even if the accused speaks an ethnic minority language and ethnic minority judges try the case. The language ability of the accused also inuences the choice of language in criminal cases. Sometimes Han Chinese in ethnic minority regions become speakers of the minority language, and sometimes ethnic minorities become speakers of Mandarin Chinese. The latter is more likely, since learning Mandarin is very attractive to ethnic minorities. This shift can occur through education in the alternative language. Often, an individual who has learnt another language cannot effectively communicate in his native language, especially when using legal terminology. Some people in minority regions lack mastery of both their native language and Mandarin Chinese and would prefer not to take the risk of misunderstanding court proceedings because of linguistic limitations. Such an individual would prefer to have bilingual judges who can handle the case in both languages. Other individuals may wish to use the ofcial language exclusively, even if it is not their native tongue. When accused of an offence, they may choose to have bilingual proceedings in order to ensure that they receive a fair trial. The language options available in criminal proceedings will be affected by factors such as the role of the defendant in the crime committed (as accomplice or main actor). Some crimes are commonly committed jointly by members of different linguistic groupsfor example, drug crimes. In these situations, some defendants insist on the use of their native language despite their prociency in the court language and will ask to be tried in their native language by a judge from their linguistic group. But considering the role of different defendants in the crime and the convenience of court proceedings, judges generally choose the
85 Heikki E.S. Mattila, Comparative Legal Linguistics (translated by Christopher Goddard, Ashgate Publishing Company, 2004), 5. 86 Jose Lambert, The Status and Position of Legal Translation: A Chapter in the Discursive Construction of Societies, in: Frances Olsen, Alexander Lorz and Dieter Stein (eds.), Translation Issues in Language and Law (Palgrave Macmillan, 2009), 76.
languages of the main defendants or the language that is most suitable to carrying out fair and effective proceedings, providing an interpreter for the defendants who cannot understand the court language. In this respect, the autonomous regions bilingual justice system is not that different from practices in other regions except that a judge from the same ethno-linguistic group can try the case. 29. Rights are demanded by language and expressed in language. Legal guarantees of tolerance through law can build mutual trust.87 The implementation of statutory regulations governing the use of language in the legal system and the development of bilingual court proceedings through substantive and procedural guarantees changed abstract and static legal guarantees into dynamic and workable procedural protections. Despite the lack of any regulation that renders the verdict invalid when procedural rights to language are violated, the system has worked well in China, particularly in autonomous regions, giving every defendant access to justice without discrimination on the ground of language. It not only protects the rights of each party but also fulls the requirements of fairness and due process. Bilingual court proceedings have also promoted judicial efciency and the stability of minority regions by strengthening mutual trust among different ethnic groups.
V. Evaluations and suggestions

30. Multilingual societies are subject to a high degree of instability arising from intergroup conict. Legislative implementation of bilingualism in minority regions is intended to preserve social stability in minority regions by guaranteeing the right of minorities to equal treatment. Bilingual courts can help avoid or at least mitigate conict by promoting understanding among different linguistic groups and facilitating relationship-building among members of society. By means of its bilingual judiciary, China has gained economic prosperity, its litigants have enjoyed equal protection and its society has become relatively stable with reduced ethnic conict. 31. But problems such as the shortage of bilingual court staff, lack of qualied interpreters and arbitrary use of legal words in bilingual cases become obstacles to the development of a bilingual judicial system. Judges and litigants frequently use legal language arbitrarily, and judgment documents are usually inconsistent. This problem has detracted from the quality of court proceedings. Xinjiang Saybag District Court attempted to solve the problem by issuing the Temporary Regulation on Standardizing Bilingual Judgments, which regulates the power of the judge to use a given language in court proceedings and guarantees the language rights of litigants
87 Jens Woelk, Francesco Palermo and Joseph Marko (eds.), Tolerance through Law: SelfGovernance and Group Rights in South Tyrol (Martinus Nijhoff Publishers, 2007), 1.
in court proceedings.88 But other district courts in autonomous regions have not promulgated any regulations in that respect. 32. Shortage of judicial staff competent in both languages is degrading the quality of bilingual proceedings also. Training bilingual staff has become an urgent need for minority regions. In Qinghai, for example, where 46 per cent of the population are members of a minority, local courts have had to handle large numbers of bilingual cases. However, the number of judges, experts in the law, who possess both Tibetan and Mandarin Chinese language capability at the level allowing them to translate and draft legal documents in both languages is fewer than ten among all Tibetan courts in Qinghai.89 This problem has been raised in several annual meetings of the National Peoples Congress. Delegates called for attention to bilingual justice and have demanded that the State provide funds for the training of bilingual court staff in autonomous areas. At the second session of the 11th National Peoples Congress, which commenced in March 2009, the Tibetan delegate NORDE suggested that the State focuses more on the training of bilingual judicial staff in minority areas.90 Delegate ROZI Ismailthe president of the Higher Peoples Court of the Xinjiang Uyghur Autonomous Region also emphasized the importance of training bilingual judicial staff.91 In the 2010 session, several delegates also brought up the need to train bilingual judicial staff. DONG Kaijunthe President of the Qinghai Higher Court emphasized the importance of training bilingual court staff in Qinghai and introduced measures such as translating important laws into Tibetan and creating a bilingual legal dictionary.92 The other National Peoples Congress delegate
88 WANG Shulin and YU Xiaoya, Baozhang Shaoshu Minzu Dangshiren Yong Minzu Yuyan Jinxing Susong: Shayibake Renmin Fayuan Guifan Shiyong Shuangyu Banan [Guaranteeing the Language Rights of Minorities in Litigation: The Saybagh Courts Standard Use of Bilingual Court Proceedings]. The Saybagh Peoples Court released the Guifan Shuangyu Anjian Shenpan Zuzhi Zanxing Guiding [Temporary Regulation on Standardizing Bilingual Judgments] in order to regulate language use in court proceedings. Renmin Fayuan Bao [Peoples Court Daily] (19 June 2004), 4. 89 Xuqiu yu Gongji: Guanyu Shuangyu Faguan [Demand and Supply: On Bilingual Judges], Renmin Fayuan Bao [Peoples Court Daily] (16 March 2010), 5. 90 Luosang Cairang, Wubin: Norde Daibiao Jianyi Guojia ying Zhongshi Zangqu Shuangyu Faguan Duiwu de Peiyang [Delegate Norde Suggests Training Bilingual Judicial Staff in Tibet], Qinghai Ribao [Qinghai Daily] (13 March 2009), 1. 91 SUI Yunyan, Faguan Daibiao Xitan Xinjiang Fayuan Xin Mianmao, Pan Fayuan Gongzuo Neng Huo Geng Duo Zhichi [Delegate Judge Talks about Changes in Xinjiang Court and Expects the Courts Work to Receive More Support], Xinjiang Fazhibao [Xinjiang Legal Daily] (12 March 2009), 1. 92 Dong Kaijun Zuoke Zhongguo Fayuan wang yu Wangyou Zaixian Jiaoliu [Dong Kaijun Becomes a Guest in China Court Net and Talks with Netizens]; Peiyang Shuangyu Faguan, Bufu Renmin Zhongtuo [Training Bilingual Court Staff and Fulll the Hope of the People], Renmin Fayuan Bao [China Court Daily] (5 March 2010), 3.
from Qinghai suggested establishing a bilingual court staff training base in Qinghai.93 33. Law is necessarily bound to language (especially in matters of legal interpretation), and in that sense, legal language has existed as long as the law has. In certain contexts, the language aspects of law dominate: legal translation, legal lexicography and legal rhetoric.94 Legal language is very important in court interpretation and in the translation of court documents. It requires expert interpreters who have the requisite knowledge, skill, experience, training and education. In the main cities of China, it is impossible to nd skilled translators. In Beijing, police often employ students from the Minzu University of China95 as interpreters. Prosecutors and judges employ translators from the Center of Translation. In autonomous areas, regular court staff act as interpreters. However, there is no specic test or minimum standard of expertise that these temporary interpreters must meet. This has also damaged the quality of court proceedings, since most translators are insufciently versed in the legal concepts necessary for all proceedings.96 Facing an increasing demand for bilingual court staff, the Chinese Supreme Peoples Court has listed this on its main agenda in the Peoples Courts Third Five Year Reform Program (20092013), announced in 2009. The Plan aims to train bilingual court staff in minority areas in the next several years, especially Uyghurs, Tibetans and Mongolians.97 If the programme is conducted as planned, bilingual court proceedings in China will see new progress and legal provision in minority areas will be able to achieve a relatively high quality. 34. In order to consolidate bilingual court proceedings, besides training bilingual court staff, the standardized interpretation of law in court proceedings and bilingual legal education at universities are a must. The author recommends a close examination of the American experience. The United States addressed the language problem by enacting the Court Interpreters Act in October 1978. Under the Act, the Supreme Court is responsible for issuing language interpretation certicates. The director of the Administrative Ofce of the United States Courts facilitates the use of interpreters in judicial proceedings by prescribing rules, evaluating applicants and certifying qualied candidates as interpreters. Certied interpreters provide interpretation in all criminal and civil cases initiated by the federal
93 Discussions during the Session of Peoples National Congress on 2010, Jiancha Ribao [Procuratorate Daily] (7 March 2010) (news.jcrb.com/jxsw/201003/t20100307_329217.html (last visited 11 May 2010)). 94 Mattila, above n.85, 6. 95 The Minzu University of China is known as the Central University for Nationalities. 96 A student interpreter in a court in Xinjiang translated the Chinese phrase civil litigation into Uyghur language as peoples affair litigation, a phrase that is totally different from the original meaning and that caused confusion among litigants. 97 Renmin Fayuan Di San Ge Wunian Gaige Gangyao (2009 2013) [The Peoples Courts Third Five-Year Reform Programme (2009 2013)], para.15 (news.xinhuanet.com/legal/ 2009-03/26/content_11074127.htm (last visited 10 May 2010)).
government in federal courts. However, many States have taken their own measures to ensure equal justice for non-English speakers in State courts. New York, for example, tests interpreters for their translation ability and requires interpreters to take strict interpretation examinations every four years. The New York Supreme Court employs full-time Chinese and Spanish translators. The Ofce of Court Interpreting Services also provides translation in over 100 languages upon request. The author believes that the US experience can be instructive. China should standardize bilingual court proceedings and regulate court interpretation by setting tests and standards, and the court should employ certied interpreters in all judicial activities. Also, legal terms should be standardized, with each term in a minority language having an established Mandarin Chinese counterpart. 35. The training of bilingual court staff should not be separated from bilingual legal education at the university level. Minority regions should strengthen bilingual education and train law students who know both the local language and Mandarin Chinese. But, regrettably, legal education in minority regions currently emphasizes Mandarin and neglects the local language. Some students cannot even write a legal document in the local language. Local courts have said that they cannot use interns because they are in the middle of both languages and cannot use either sufciently well. In order to solve these problems, the author thinks it is important to teach legal language for law students before they take law classes, or to teach legal courses in both languages.
VI. Conclusion
36. Conducting a trial is a State activity. An individual cannot assert that the State has no power to interfere in his private choice of language expression, because the trial is not a private forum for an individual to express his point of view. Rather, it is a public activity conducted under the auspices of the States power to act for the public good,98 and the State must determine the appropriate scope and method of public use of a language to bring about that end. Chinas substantive and procedural regulations on bilingual court proceedings are based on a balancing of competing interests. It has not only integrated the approaches of international treaties in bilingual court proceedings into the Chinese legal system and developed them further in China, but also has established special bilingual collegiate benches in minority regions that t with the character and conditions of China and meet the demands of linguistic minorities. The central government and local governments in China are committed to the promotion of bilingual courts, and this is expected to lead to further development and improvement of the provisions for such courts in the future.
98 De Varennes, above n.7, 44.

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# The Author 2010. Published by Oxford University Press. All rights reserved. doi: 10.

1093/chinesejil/jmq021; Advance Access publication 14 July 2010

The Protection of Minorities in Court Proceedings: A Perspective on Bilingual Justice in China

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IV. Bilingual practice in Chinas judiciary

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Language options in court proceedings in minority regions

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V. Evaluations and suggestions

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