Chinese Journal of International Law 2010 Tursun 537 63

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The Protection of Minorities

in Court Proceedings: APerspective on BilingualJustice in China

Gulazat Tursun*

Abstract

This paper examines bilingual court proceedings in China, comparingChinas approach on this issue to international standards in major treatiesand agreements. Many of the principles of these international agreementsare already in place and in use in China. China has adopted some practicestranscending international standards such as prohibiting discrimination ongrounds of language, informing the accused of his or her offence in his or

her language, providing an interpreter at court proceedings and allowing aminority language to be used as an official language in minority regions.With the development of Chinas economy and the promotion of freedomof movement in China, the need for bilingual courts has greatly increased,particularly in minority regions. This paper explores bilingual judicial prac-tice 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

Associate Professor at the Xinjiang University School of Law in China (email: [email protected]). This project is supported by the Chinese Ministry of Educations SocialScience Foundation (Grant 09XJC820018) and Xinjiang University Doctoral Fund. I amgrateful to Darius Longarino, Robbie Barnett and Stephen MacArthur for their help inediting my work and providing valuable comments on the paper. I would also like tothank Professor Benjamin L. Liebman of the Columbia University School of Law for his pro-vision of information on the American Court Interpretation Act and to express thanks toProfessor Jerome A. Cohen from the New York University School of Law, who also gave valu-able comments on the paper. Finally, the Arthur W. Diamond Law Library at Columbia LawSchool was an excellent resource in drafting and completing the paper. I am very grateful forthe help and hospitality of the Law School. All errors in the paper are my own. This articlewas completed on 15 May 2010.

1 www.vistawide.com/languages/language_statistics.htm (last visited 11 May 2010).

2 en.wikipedia.org/wiki/Languages_of_Indonesia (last visited 11 May 2010).

# The Author 2010. Published by Oxford University Press. All rights reserved.doi: 10.1093/chinesejil/jmq021; Advance Access publication 14 July 2010.......................................................................................................................................

...................................................................................................................................................................9 Chinese Journal of International Law (2010), 537563

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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 single-

language policy, designating the language of the dominant ethnic group as the offi-

cial language to be used in public discourse, legislation and the operation of the legalsystem. 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 par-

ticularly 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 defen-

dants be able to communicate with the court in order to defend their interests effec-

tively. If an individual who is from a linguistic minority is not adequately competent

in the official language, and language services are not readily available, he or she willbe 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 pol-

itical 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 lin-guistic autonomy to minorities in areas densely populated by speakers of the

minority language. Under such arrangements, both the official 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 under-

stand 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 con-temporary Russia (en.wikipedia.org/wiki/Languages_of_Russia; www.sintaytour.com/articles/customopen.asp?id=131 (last visited 11 May 2010)).

4 Examples include the International Covenant on Civil and Political Rights (ICCPR), theConvention for the Protection of Human Rights and Fundamental Freedoms and the Frame-work Convention for the Protection of National Minorities (FCNM). They are further dis-cussed in Part II of the paper.

5 See, for example, ICCPR art. 14(3)(f ), which entitles every person to have the free assistanceof an interpreter if he cannot understand or speak the language used in court. The OsloRecommendations Regarding the Linguistic Rights of National Minorities also includesseveral articles regarding language use in justice.

6 The European Charter for Regional or Minority Languages, adopted in 1992, is an instru-ment dedicated to promoting minority languages traditionally used in Europe.

538 Chinese JIL (2010)



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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 activitiescarried 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 legis-

lation is an obvious way for governments committed to the recognition of language

minorities to bind their own officials and agencies and to make it difficult for future

governments to reverse course.9Almost 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 theuse 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 ser-

vices 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 definitions in order to accommodate the interests and needs of min-

orities.11 The implementation of bilingual court proceedings accommodates lin-

guistic minority groups within the territory of a State with the intent ofprotecting 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 final verdict going to the higher court in the official 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 Publish-ers, 1996), 183.

8 Bilingual Court Act, Hearings before the Subcommittee on Civil and Constitutional Rightsof the Committee on the Judiciary House of Representatives, Ninety-Fourth Congress, SerialNo. 35 (US Government Printing Office, Washington, DC, 1976).

9 Will Kymlicka and Alan Patten, Language Rights and Political Theory: Context, Issues, andApproaches, 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. SeeMichael J.B. Wood, Drafting Bilingual Legislation in Canada: Examples of BeneficialCross-Pollination between the Two Language Versions, 17 Statute LR (1996), 6667.

11 Gaetano Pentassuglia, Minority Groups and Judicial Discourse in International Law: AComparative Perspective (Martinus Nijhoff Publishers, 2009), 105.

Tursun, Protection of Minorities in Court Proceedings 539



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from different ethnic linguistic groups. Most jurisdictions have adopted the firstcategory, 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 efficiency.This paper will explore Chinese bilingual judicial practice under the context of

international legal regimes. It first will review the international and regional treaties

on bilingual court proceedings. The paper will scrutinize the principal internationalhuman rights and regional treaties by categorizing their approaches to bilingualjustice. 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 proceed-

ings and compare Chinese law and practice with international standards. In thethird part, the paper will turn to the practice of bilingual court proceedings in

China in general and the Xinjiang Uyghur Autonomous Region, the Tibet Auto-

nomous Region and the Inner Mongolian Autonomous Region in particular.Finally, the paper will evaluate the effect of bilingual court proceedings andprovide several suggestions for the consolidation of Chinese bilingual court proceed-

ings. 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 justice5. Language use in the public sphere is a very important issue for minorities, becauseit 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 andthe arguments made. Language plays a crucial role in the whole discourse. The fore-

most international human rights conventions approach language use in the justicesystem 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 min-

ority languages, they require respect for human rights by prohibiting discrimi-nation on the basis of language. Language is, by and large, mentioned on a

par with other non-discrimination grounds and contained in the substantive pro-visions 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




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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 defined the content of discrimination. Dis-

crimination is defined in the General Comment on Non-discrimination of theHuman 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, enjoy-

ment or exercise by all persons, on an equal footing, of all rights and freedoms.15

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 theform of treating a person less favourably than others on account of a consider-

ation 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-discrimi-

nation 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 affirm the moral norm that discrimination is wrong.17

7. Minority-specific provisions and conventions have also emphasized non-

discrimination on the basis of language. A landmark in this aspect is the well-known 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 reaffirms, strength-

ens 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 orother opinion. . . .

14 ICCPR art. 26 states that: All persons are equal before the law and are entitled without anydiscrimination to the equal protection of the law. In this respect, the law shall prohibit anydiscrimination and guarantee to all persons equal and effective protection against discrimi-nation on any ground such as race, color, sex, language, religion, political or otheropinion, national or social origin, property, birth or other status.

15 Human Rights Committee, General Comment 18, Non-Discrimination (Thirty-SeventhSession, 1989), Compilation of General Comments and General RecommendationsAdopted by Human Rights Treaty Bodies, UN Doc. HRI/GEN/1/Rev.1 at 26 (1994),para.7.

16 David Feldman, Civil Liberties and Human Rights in England and Wales (2nd edn., OxfordUniversity Press, Oxford, 2002), 135.

17 Bruce Abramson, A Commentary on the United Nations Convention on the Rights of theChild, Article 2: The Right of Non-Discrimination (Martinus Nijhoff Publishers, 2008), 32.




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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 inpublic 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 Protec-

tion of Human Rights and Fundamental Freedoms, or the European Convention

on Human Rights, provided broad protection by enshrining the principle ofnon-discrimination in Article 14.20 Later, Protocol No. 12 defined 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 pro-

hibit 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 andlanguage. These provisions give general guidelines requiring the use of minority

18 Gudmundur Alfredsson, Minority Rights and Peace: Available Standards, Procedures andInstitutions, in: Snezana Trifunovska (ed.), Minorities in Europe Croatia, Estonia andSlovakia (T.M.C. Asser Press, 1999), 9.

19 The Declaration on the Rights of Persons belonging to National or Ethnic, Religious andLinguistic Minorities. Adopted by GA Res 47/135 of 18 December 1992. Art. 2(1) statesthat persons belonging to national, or ethnic, cultural, religious and linguistic minoritieshave the right to enjoy their own culture, to profess and practice their own religion, andto use their own language, in private and public, freely and without interference, or anyform of discrimination.

20 The enjoyment of the rights and freedoms set forth in this Convention shall be securedwithout discrimination on any ground such as sex, race, color, language, religion, politicalor other opinion, national or social origin, association with a national minority, birth orother status. ECHR, art. 14.

21 Protocol No. 12 to the ECHR. Art. 1 states, the enjoyment of any right set forth by law shallbe 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 recog-

nized herein and to ensure to all persons subject to their jurisdiction the free and full exerciseof 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.




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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 situ-ations who must be treated differently. The Human Rights Committee has consist-

ently emphasized that not every distinction amounts to discrimination in the

meaning of the provision and that objective and reasonable distinctions are per-

mitted.23 For parties whose lower level of proficiency in the official language

blocks their access to State services, the State must provide services in their language

or allow use of that language in official business. This is crucial to avoid discrimi-

natory administration of justice, which would advantage some persons over

others. Any accused person who is not proficient in the court language has theright 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 inter-

national treaties have confirmed 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 suspectdoes not understand or speak the language of the court. By requiring public auth-

ority 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 auth-

ority but also enables him to defend himself effectively. The State is obliged to

provide an interpreter if the accused or the defence witnesses have difficulty under-

standing or expressing themselves in the language of the court. The interpretationmust 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 fit, to

appeal to a court to challenge the lawfulness of the arrest.25 The specific require-

ments 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 Administrationof Justice, in: Marc Weller (ed.), Universal Minority Rights: A Commentary on the Jurispru-dence of International Courts and Treaty Bodies (Oxford University Press, 2007), 416.




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factual allegations on which it is based.26 This rule approaches the problem objec-

tively by treating different situations differently.

11. The slightly modified version of Article 14 appears in the provisions of the

Statute of the International Tribunal for the Former Yugoslavia and the Statuteof 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 notification 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 vio-

lated. 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 investi-

gation.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 five 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, guaran-

teeing 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 languagewhich 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 byResolution 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 RequestingProtective 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 duringan 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., Cam-bridge 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 ofan interpreter if he cannot understand or speak the language used in court. ECHR, art.6(3)(e).




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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. Theinterpreters responsibilities arise whenever a defendant or witness needs the courts

official language to be interpreted into a non-official language. The opposite is

true as well: the interpreter translates testimony from the non-official language into

the official language for the benefit of the judge, attorneys and jury. In criminal

cases, the role of the interpreter is extremely important if the accused does not under-

stand 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 theaccused 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 specifically 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 ofthe 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 sig-

natory nations shall guarantee the right of every person who belongs to a national min-

orityto be informed promptly, in a languagewhichhe or she understands, of the reasons

for his orher arrest, and of the nature and cause of any accusation against him orher, and

to defend himself or herself in this language, if necessary, with the free assistance of an

interpreter. Although the FCNM is not the first instrument concerning the protection

of ethnic minorities developed by the Council of Europe, it is the most comprehensivedocument in the field. It is particularly relevant because it isthe first legally binding mul-

tilateral treaty to address the protection of ethnic minorities in general.38

35 During the proceedings, every person is entitled, with full equality, to the followingminimum guarantees: (a) the right of the accused to be assisted without charge by a translatoror interpreter, if he does not understand or does not speak the language of the tribunal orcourt. ACHR, art. 8(2)(a).

36 Fernand De Varennes, The Linguistic Rights of Minorities in Europe, in: SnezanaTrifunovska (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 EuropeanFramework Convention for the Protection of National Minorities (Oxford UniversityPress, 2005), 3.




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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-official 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 signa-

tories to endeavour to ensure the use of minority language by administrative auth-

orities 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 MinorityLanguages, which entered into force on 1 March 1998 and has been ratified by

24 States.40 It is unique in promoting bilingualism in public services on a terri-

torial 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 crim-

inalcases. 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 andstatutes 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 thenecessity of using the minority language in response to need, with a correspondencebetween geographic and demographic concentration of minorities and provision of govern-ment 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 defines territory inwhich the regional or minority language is used as the geographical area in which the saidlanguage is the mode of expression of a number of people justifying the adoption of thevarious 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 Criti-cal Commentary (Council of Europe Publishing, 2005), 165.




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14. Jurisprudence is developing, strengthening and clarifying the norms pre-

scribed in the international documents. Different legal documents come at the pro-

tection of minority language rights from different angles. The European Charter for

Regional or Minority Languages takes a geographical approach to language use injustice. 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 high-

lights 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 significant level, those

persons shall have the right, wherever possible, to use, in conformity with applicablenational legislation, their own languages in oral and in written form, in their con-

tracts 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 Lin-

guistic Rights of National Minorities44 also advocated conducting court proceed-

ings in a minority language if there are significant numbers of members of an

ethnic minority and if those members of a minority express that desire. The Rec-

ommendationlike other international treatiesnot only covers the universal prin-

ciples 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 min-ority 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 havechosen 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 (officially part

44 The Oslo Recommendations regarding the Linguistic Rights of National Minorities weredrafted by a group of independent experts under the auspices of the High Commissioneron National Minorities of the Organization for Security and Co-operation in Europe. TheRecommendations were made public in February 1998.

45 Oslo Recommendations regarding the Linguistic Rights of National Minorities, February1998, para.21.




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of Denmark), the Province of Quebec in Canada and so forth. Some have adoptedthe 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 wherethe 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 official

use of the minority language in places where persons belonging to the ethnic min-ority group constitute at least 20 per cent of the inhabitants of a given municipalityin 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 linguisticminority, 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 con-flicts caused by differences in languages among ethnic groups.

III. Chinas law regarding bilingual proceedings

16. China is a unified country composed of 56 official ethnic groups. The 55 ethnicminority 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 officially recognized ethnic minority languages. Ninety per cent of thecountrys minority language speakers speak one of 15 languages, including

Uyghur, Tibetan, Zhuang, Mongolian, Yi, Miao, Buyi and Korean.49 They are con-centrated in border areas while some ethnic minorities are dispersed throughout

China. China has protected their language rights in court proceedings by integratingthe three international approaches into the law governing its bilingual judiciary,

writing them into its Constitution, procedural laws, substantive laws and regu-

lations. The Constitution and its substantive laws have outlawed discrimination,while procedural laws have legalized the use of minority languages in judicial pro-

ceedings. 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 bythe 17th Session of the Slovak Parliament on 11 July 1999.

48 Thomas Benedikter, Language Policy and Linguistic Minorities in IndiaAn Appraisal ofthe 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 ChuanliBaozhang Wenti [Issues on Protection of Minority Language Rights in the South and Northof China], in: LI Hongjie and Maria Lundberg (eds.), Shaoshu Minzu Yuyan Shiyong yuWenhua Fazhan: Zhengce He Falu de Guoji Bijiao [Ethnic Minority Language Use and Cul-tural Development: International Comparison of Policy and Law] (Zhongyang Minzu DaxueChubanshe [Minzu University of China Press], 2008), 130.




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system allows for bilingual court proceedings through the Law on Regional Auto-nomy 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 Con-

stitution and the Law on Regional Autonomy while the other ethnic minorities havebeen 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 five autonomous regions may employ their commonlyused languages and systems of writing in all areas of life. The local governmentsof 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. TheChinese legal system has even organized special bilingual courts in order to give full

protection to linguistic minorities in court proceedings. Chinas practices in allow-

ing ethnic minorities to use their own language in all judicial proceedings representthe realization of the promise of a bilingual judiciary in China.

17. Like international treaties, Chinese laws are founded on the basis of non-discrimination and equality. These concepts have been incorporated into all sub-

stantive and procedural laws throughout Chinas legal history. On the eve of the

establishment of the Peoples Republic of China, the government drafted theCommon Program in late September 1949 and declared the equality of all

nationalities or ethnic groups in China.51

Article 53 states specifically thatevery minority group has the freedom to use and develop its language andwriting systems and to maintain or reform its customs and religion. The1982 Constitution enshrined these protections in Article 4, adding a new pro-

vision: The state protects the lawful rights and interests of the minority nation-

alities and upholds and develops the relationship of equality, unity, and mutualassistance among all of Chinas nationalities. Discrimination against and oppres-

sion of any nationality are prohibited.52 The same article specifically focused

on ethnic minority languages and guaranteed all the nationalities of Chinathe right to use and develop their own spoken and written languages. Althoughit does not specify the scope of public use of minority language in detail, it

confirms 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 Countyin Xinjiang, Gannan Tibetan Autonomous Prefecture in Gansu and Yanbian Korean Auton-omous 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 final section of art. 4 states, The people of all nation-alities have the freedom to use and develop their own spoken and written languages, and topreserve or reform their own ways and customs.




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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. Non-

discrimination 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 GeneralPrinciples 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 Lawalso 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 orwhen 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 ofChina](1997), art. 4.

55 Zhonghua Renmin Gongheguo Minfa Tongze [General Principles of the Civil Law of thePeoples Republic of China](1986), art. 3.

56 Zhonghua Renmin Gongheguo Tongyong Yuyan Wenzifa [Law of the National CommonlyUsed Language and Script] (2000), art. 8.




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example, the judicial system of the imperial Qing dynasty in Huijiang57 did not

follow local customs.58 Ethnic Uyghur litigants filed their suits in their native

language, and the court proceedings were conducted in Mandarin Chinese, uti-

lizing 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 protec-

tion to minorities dispersed throughout the area. China gave minority languages

official 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 Govern-

ment handed down a decision on the preservation of equality among ethnic min-

orities.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 Consti-

tution 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 usetheir 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 Con-trolling Frontier Regions] (Renmin Chubanshe [Peoples Press], 2004), 219.

59 WANG Dongping, Qingdai Huijiang Falu Zhidu Yanjiu: 1759 1884 [A Study on the Hui-jiang Legal System of the Qing Dynasty: 1759 1884] (Heilongjiang Education Press, 2003),219.

60 The Government Administrative Council of the Central Peoples Government was thehighest administrative entity within the Chinese government in the first five years followingthe establishment of the Peoples Republic of China (19491954). The GAC later became

the State Council pursuant to the specifications of the first constitution of the PeoplesRepublic of China.

61 Zhongyang Renmin Zhengfu Zhengwuyuan Guanyu Baozhang Yiqie Sanju de ShaoshuMinzu Chengfen Xiangyou Minzu Pingdeng Quanli de Jueding [Decision of the CentralPeoples Government Administrative Council on Protection of Equality Rights of DispersedEthnic Minorities] (Administrative Council, 1952).




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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 rightof 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 unfa-

miliar 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 wherepeople 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 pro-

vision 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 speak-

ing 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 beused simultaneously in judicial proceedings. It is adapted to the demographic

and geographical concentration of minority groups in China. It reflected the struc-

tural 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 theirrights 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 ZHOUMinglang, Minority Language Policy in China: Equality in Theory and Inequality in Prac-tice, in: ZHOU Minglang and SUN Hongkai (eds.), Language Policy in the Peoples Repub-lic of China: Theory and Practice Since 1949 (Kluwer Academic Publishers, 2004), 77.

63 The procuratorate is the term for the prosecutors office 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.




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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 locallanguage as the official language in public affairs. Together with the Constitution

and other national laws, the new Law on Regional Autonomy specifies the

domains where minority languages and Putonghua67 must be used by citizens

and officials.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 five 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 activi-

ties 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 min-

orities 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. Ithas 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 pro-

ceedings 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 official and most widely spoken language of the Peoples Republicof 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.




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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 thefairness of the process by which decisions are made, and may be contrasted with

distributive justice (fairness in the distribution of rights and resources) and cor-

rective justice (fairness in the rectification 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 specified the language rights of a minority in criminal proceedings and

included detailed provisions. Article 6 of the 1979 Criminal Procedure Law

72

stipu-lates 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 pro-

curatorate 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 com-

monly used. Article 6 expanded this requirement beyond the court and the procur-

atorate 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 official 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 trans-

formed the constitutional protection of minority languages into practical protectionin criminal procedure. The 1996 amendment to the Criminal Procedure Law kept

the provision untouched in Article 9.74According to the article, people of minority

71 Marc Weller (ed.), Universal Minority Rights: A Commentary on the Jurisprudence of Inter-national 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 April2010)).

73 Security organs (gongan jiguan) are the primary institutions responsible for investigatingcriminal cases in China. Other laws providing for the protection of minority rights do notdeal with these entities. The Criminal Procedure Law requires security organs to provideinterpreters

Documents

Chinese Journal of International Law 2010 Tursun 537 63