ChinSight
Author: Charles Qin

It can happen to anyone and risk lives and livelihoods, yet the importance of good interpreting in justice appears to be lost in the wilderness.

On 15 November 2019, the Court of Arbitration for Sports (CAS) in Montreux, Switzerland held a public hearing of the appeal filed by the World Anti-Doping Agency (WADA) against Chinese swimmer Sun Yang.

According to the media release, all parties (World Anti-Doping Agency, Sun Yang and FINA) requested the hearing to be made public and attracted extensive attention from the international community (and for the wrong reasons).

The FINA Doping Panel believed that the sampling process was not in conformity with the regulations, so the samples were invalid and therefore the athlete had not violated FINA’s anti-doping rules. The World Anti-Doping Organization (WADA) appealed the decision, saying that Sun Yang refused to provide a sample and demanded a 2-8 year ban on him.

Many prominent figures attended the hearing.  For example, famous Italian judge Franco Frattini, some WADA notables and famous professors from London.

Sun Yang, dressed in a black suit, looked very serious.  Before the hearing commenced, Judge Frattini asked whether the translation equipment (simultaneous interpreters with equipment) was operating normally so that the hearing could proceed smoothly.  After all, miscommunication could be disastrous. Although the working language of the hearing was English, the vast majority of communication with Sun Yang relied on translation.

However, during the hearing, Sun Yang’s simultaneous interpreters dropped the ball and many translation errors became obvious, greatly affecting the progress of the case.  The interpreters were unable to convey Sun Yang’s meaning, and many times they failed to interpret the questions clearly, which frustrated Sun Yang. He listened to the translation but was puzzled and could not understand what they meant.

Many of Sun Yang’s confident and well-spoken remarks turned insipid and feeble when spoken by the interpreters.  Often, after Sun Yang had finished putting his point of view, the interpreter had only just started.  Several times they interrupted and disrupted his flow and rhythm.

During this period, Sun Yang’s lawyer pointed out: “If the court wants Sun Yang to answer the question, the translation should be correct.”

One example is when WADA’s counsel was asking a question, the interpreter translated “200 times” into “200 millilitres of blood”.

There were many examples of serious mistakes:

Sun Yang: “there is no such a thing called ‘assumption’”

Interpreter: There is no consumption.

Matthieu Reeb, Secretary-General of the Court, said the interpreters had been provided by the participants and admitted the interpreting problems made the hearing more complex. The interpreters were changed for the afternoon session.

I listened to the whole fiasco – assessing interpreting is one of my roles in Australia – it was unbearable and here are a few examples:

Sun: Sorry, what was that?

Sun: Sorry, can you interpret it again?

Sun: Interpret it again, interpret it again.

Sun: Ah?  What?

Sun: Please speak more clearly. You are intermittent. I don’t understand you.

Sun: Sorry, please interpret it again. I didn’t catch it.

Sun: Something wrong with this Interpretation.

Sun: Interpret more clearly, I don’t understand.

Sun: Excuse me, can the interpreters speak in full sentences?  I don’t understand you.

Sun: Sorry, what did you say?

Sun (softly): The interpretation is so bad. The interpretation is so bad!

Officials: The translation was so bad.

Officials: there was a problem with the translation.

President: we apologise for the poor quality of the interpretation.

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Australia has been watching this case.  Australian swimmer Mack Horton called Sun Yang a “drug cheat.”  Sun Yang’s coach, Denis Cottrell, an Australian, was the coach of the Australian national swimming team for more than 30 years. He has always insisted that Sun Yang is innocent.

A lawyer said that he did not know whether Sun Yang was evasive or whether the interpreting was just too poor.

Sun Yang has taken this case seriously. He engaged Beijing Lanpeng Law Firm and Geneva-based Bonnard Lawson Law Firm and British barrister Ian Meakin.  Clearly, Sun Yang was well prepared. He knew the consequences. If found guilty, he might be banned for 8 years and his career might be over.

The results of the hearing will not be available until early next year.

On the morning of the 16th, Sun Yang made his final statement about the hearing through his Weibo.

(Thank you for your attention to the hearing and your concern for me. This was my final statement to the Court. I believe the Court will make a fair ruling and clear my name.  Thank you all!)

What lessons can we learn from this case and why has interpreting become the weakest link in the entire matter?

In the court, both parties have lawyers. When one lawyer speaks, the other lawyer and the judge will listen carefully, and will ask questions, clarify or challenge.  When another language is required, the court needs to rely on interpreters, and almost no one in the court understands the other language except the interpreters.  No one supervises whether an interpreter has accurately interpreted.  Unless the interpreting is really bad (as in the Sun Yang case); all parties in the court cannot know whether the interpreting is good or bad, or what might have been wrong. From time to time it is reported that a case is lost due to mistranslation.

Here’s how to choose an interpreter to avoid poor interpreting in a legal case:

  1. Interpreting modes – simultaneous, consecutive or translation machine?

A lawyer should contact the interpreter to understand the advantages and disadvantages of simultaneous and consecutive interpreting.  Using simultaneous mode, interpreting is instantaneous, but some contents may be missed. No one can hear the two languages at the same time and therefore no one knows whether the interpreting is accurate or what might have been missed or rendered incorrectly.

For consecutive mode, the delivery time is slower but relatively accurate, and bilingual people can hear clearly and know whether the interpreting is accurate as remarks are interpreted paragraph by paragraph or utterance by utterance.

Translation machines might be used sometimes in tourism, for example, but on important occasions such as in court, no one has used a machine (AI) due to lack of accuracy.

  1. Interpreter Credentials: In Australia, the National Accreditation Authority for Translators and Interpreters (NAATI) certifies and approves the qualification of interpreters. On occasions such as international law, there is the Association Internationale des Interpretes de Conference (AIIC).  Interpreters should have received specialised training. NAATI and AIIC interpreters have at least passed a qualification test.  Therefore, it is necessary to ensure that NAATI or AIIC qualified interpreters are selected. It is even better to have interpreters who are trained in a legal setting.
  2. Interpreter Experience: When choosing an interpreter, one must look at the resume and understand the interpreter’s experience. One cannot simply listen to a friend’s introduction that someone can speak English (or a foreign language) before engaging them. When perusing the resume, look at whether the interpreter has handled court hearings and other legal interpreting work, how many times, in what jurisdiction, at what level, and what types of cases. Interpreting is far more complex than being able to speak another language.
  3. Interpreter specialty: Understand what fields interpreters are skilled in. Interpreters, like lawyers, accountants and doctors, all have their own areas of expertise. Identifying interpreters in professional areas will get a better result.
  4. Pre-preparation: the lawyer should contact the interpreter in advance to explain the trial process, the case, cross-examination strategy and special vocabulary. The interpreter should also take the initiative to request background information, trial information, statements and evidence.
  5. Mock hearing: For important cases, lawyers usually ask their client and witnesses to participate, and sometimes invite experienced lawyers or judges to serve as trial judges. Lawyers will ask all possible questions. Like court hearings, interpreters should participate in the whole process.
  6. Interviewing interpreters: for major cases, interpreters must be interviewed in order to have an in-depth understanding of their quality and capability.
  7. Interpreter Participation: After interpreters are identified, the lawyer and interpreters should communicate in depth and form a team. The interpreter reads the materials carefully and asks questions.
  8. Communication during trial: in order to ensure the quality of interpreting, sometimes the parties can hire professional interpreters to check the court trial interpreting; the lawyer will inform the court in advance and if problems are found, the checking interpreter will inform the lawyer and correct immediately.
  9. Post-trial summary: after trial each day or after each session, the interpreter summarises the problems, terminology and difficulties encountered on that day to prepare for the next session.
  10. Interpreter fee: professional interpreters, like lawyers, are professionals and should charge professional fees, including preparation time. That is a warning sign: you get what you pay for!
  11. Code of Conduct: In addition to the above guidelines, the Australian Institute of Interpreters and Translators (AUSIT) and AIIC stipulate that interpreters must not work beyond their competence and ability. As an old Chinese saying goes: Don’t try to mend porcelain unless you’ve got a diamond cutter – don’t bite off more than you can chew.

So, if a case like this and the Court of Arbitration can make such a fundamental mistake with interpreting, it can happen anywhere and does on a daily basis. Justice can not be seen to be done if one of the parties is disadvantaged by poor interpreting.

Also check the Chinese version of this article here.

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