April 23, 2018 § 4 Comments
Legal certainty is the foundation of any system of justice administration. Modern society cannot function in an environment where people are afraid to act because they ignore the outcome of their efforts. Human creativity and progress need a certainty that a set of actions will produce a desired outcome, and the peace of mind fostered by an absolute trust in an honest, capable and independent judge who will clarify what is confusing and decide what is contested according to law and equity.
All civilized nations enshrine these principles in their national constitution and create international courts of justice to address controversies that go beyond their own jurisdiction. To work, this system requires of honest, independent, capable, skilled, and knowledgeable professionals who serve as judges, attorneys and other officers of the court, including court interpreters.
No legal system can be fair when some are denied access to justice because of the language they speak, and no access to the administration of justice can be effective unless its services are provided by skilled professionals who have met rigorous standards set by the authority under the principles of equal justice uncompromised by expediency or convenience.
Every day we see how more nations adopt these principles, sometimes because of the realization of the truths above, and sometimes because the change is imposed by the unstoppable waive of globalization. Countries have changed their legal systems to incorporate these values, and as part of these changes, they have adopted legislation requiring court interpreters to be professional, ethical, skilled and knowledgeable. Some have called this process certification, others licensing, concession of patent, accreditation, etcetera.
Countries like the United States have developed a solid and reputable system of certification at both levels of government: federal and state. Because the overwhelming majority of non-English speakers in the U.S. speak Spanish, all states and federal government have developed a certification process (licensing process in Texas) for Spanish language court interpreters. The federal government has issued federal court interpreter certifications in Navajo and Haitian Creole as well. To satisfy their local needs, states have adopted certifications for the most widely spoken languages, other than Spanish, in their jurisdiction; these certifications vary depending on the demographics of each state. Both, the federal and state judiciaries have adopted a system to classify court interpreters of languages without certification program as accredited or qualified.
Court interpreter certifications guarantee litigants and judges those officers of the court who provide interpreting services in a court procedure have demonstrated, through a rigorous scientific testing process, to have the minimum required skills, knowledge, and ethics to practice as professional certified court interpreters. Accredited and qualified court interpreters give litigants and judges an assurance that the federal or state system in charge of language access services was convinced of the skill, moral character and professionalism of these interpreters by alternate means to the certification process non-existent for that language combination. It all boils down to the basic principle of legal certainty.
Many countries have a dual system of administration of justice: There is a judiciary as an independent branch of government that decides controversies between individuals, government entities, and in criminal cases. There is also a sui-generis administrative court system that exists not as a part of the judiciary or as an independent branch of government, but as an independent entity within the executive branch at both: federal and state levels. These administrative courts deal with civil law controversies of the administrative type where individuals dispute certain actions, benefits, entitlements, and rights that must be protected, conferred, or denied by an agency of the executive branch of government. The best known administrative courts in the United States are Immigration, Social Security and Workers’ Compensation.
Because these administrative courts are not part of the judicial branch of government, rules, policies and requirements pervasive in the judiciary do not extend to these so-called Article 1 Courts (because they are created by legislation, not the constitution) as opposed to Article 3 Courts (created by Article 3 of the U.S. Constitution). Rigorous criteria for court interpreter certification, created for legal certainty, are not applied or followed by most administrative courts, leaving the door open to those seeking shortcuts, opportunity, and financial gain with absolute disregard for judicial certainty and the best interests of the parties to a controversy.
A few weeks ago the Immigration Courts in the United States (Executive Office for Immigration Review, or EOIR) publicly announced they were hiring Spanish language interpreters nationwide to work in the immigration courts. Although this would place these interpreters directly under the supervision and control of the court, a big improvement over having people providing interpreting services in immigration court under the supervision of SOSi, the well-known language services provider that earned the contract by bidding lower than the rest, it is still bad policy that will eventually harm those who go to immigration court seeking relief.
EOIR’s announcement requires no reputable universally accepted court interpreter certification (federal or state level). It only requires candidates to pass a test with no scientific validation offered online.
This tendency to retain lesser qualified individuals for matters that could eventually affect someone’s life forever, such as a removal or an asylum case, is echoed by those who also settle for less interpreting quality in exchange for more money and argue that non-certified court interpreters, even if healthcare certified, or those who take cover under the unrecognized so-called “community interpreter” credential, are qualified to interpret depositions!
Depositions are a very delicate legal proceeding because they take place outside the presence of a judge. This means they require of an even more experienced certified court interpreter, not a lesser qualified paraprofessional. The most complex litigation, the ones involving enormous amounts of money, the ones often dealing with conflict of jurisdictions and legal systems, those governed by international conventions, and for those very reasons, the ones where interpreters earn the highest fees, always start with depositions very difficult even for many seasoned court interpreters.
Multi-million dollar lawsuits, intellectual property infringements, trade wars between nations, the livelihood of an injured worker who will never work again, removal proceedings that will keep a person outside the country for the rest of her/his life, asylum hearings, often an applicant’s last hope to protect her/his life, liberty and family unity are not less complicated cases. We cannot leave the administration of justice for those who do not speak the language of the court, judicial or administrative, in the hands of greedy agencies, ignorant unscrupulous authorities, and opportunists and incompetent paraprofessionals. I now invite you to share your thoughts on this topic and the disturbing tendencies we see.