The role of language in access to administrative justice
Welcome to a new episode of this research podcast, in which we will be looking into the role of language, linguistic diversity, and briefly also literacy in the context of accessing public services and administrative justice. This topic emerged as relevant in all case studies so far. But the matter seems to be widely overlooked or ignored by service providers and justice institutions. Even when research is concerned, language and access to justice have and are being studied mostly in the context of courts or with a focus on interpreting; the issue of language in accessing public service is still less prominent in the scientific literature.
However, understanding a certain language is fundamental not only to accessing information and understanding one’s rights, but ultimately to accessing justice; the matter is thus all the more pressing – and more challenging for public and legal institutions - in countries or regions such as the case studies in NWT, Canada, or South Africa, which have 11 and 12 official languages respectively. Before sharing with you a number of quotes on this topic from the different case studies let me just highlight some key aspects for the studied countries and regions:
In South Africa, only 9.6% of the population speak English as a first language, with Zulu and Xhosa being the most spoken first languages. Nonetheless, English is the language to be used in the administration and courts. In the two Caribbean islands Curacao and Sint Maarten, Papiamentu and English are the most common spoken languages respectively. Still, 14 years after becoming autonomous from the Netherlands, Dutch is the language of the Joint Court of Justice. Regarding the two cases in Canada, in the NWT where half of the population is Indigenous, residents don’t have the possibility to use one of the nine Indigenous languages when addressing state authorities, instead they must use English or French, while only 3% of the population use French as their first language. In Quebec, a new law was introduced in 2023, forcing the population to speak French when addressing administrative offices, with some exceptions. This short overview might give you a first impression on the power relations and the inequality that language policies can reproduce and reinforce, not only but also when trying to use public services and get administrative justice. The following quotes from interviews will give you a little more detail.
A lawyer in Sint Maarten explains,
“I think the justice system has a lot of colonial aspects in it. What do I mean? When I look at the rest of the Caribbean most of the judges come from the Caribbean. Even not from the same island, one of the Caribbean islands. When we look at our system almost all the judges I would say 98% are European judges. And I always believe that people should be judged by their peers, meaning people who know your culture, […] because the cultures […], we are different. I have a great respect for a judge […] he was from Holland, but he lived in the Caribbean and he has integrated. He spoke Papiamento fluently and also English. What I want to see and he started it but other judges are free to do that. He came to the Caribbean, he learned the language. He believed that the people should be judged in their language, the language that they speak. So, he learned Papiamento. So, whenever somebody came to the court, he was able to come across, not all Curaçaoans speak Dutch or a lot of people speak Dutch, but not at that level of comprehension. They were able to understand their language better and […] he will give the verdict in Papiamentu and when he comes to Sint Maarten, he has a command of the English language, right? He would speak English to the people and whenever he gave his word. That says a lot. People have more confidence, you know, how can you be giving me a verdict in a language that I don't know? Right, and they say the constitution says that the two major languages in Curaçao are Dutch and Papiamento […]. But the judges never speak properly. And the official languages in Sint Maarten are Dutch and English. But he was the only one who did it. The others say, hey, this is a Dutch country, so because they don't want to. So, until we eradicate, so right there you feel inferior. Because they're talking over your head. And even those who pretend they know their language when you're talking about at that level, legal jargon. I think, that the justice system has to become more balanced.”
In the NWT, Canada, an expert reports,
“There's a lot of government employees who speak their Indigenous language. But they're not being compensated and they're not being utilized in their workplace. So, I could tell you the francophones are set up that any person who can speak the French language, that comes to work for the government is assessed and they're paid their bilingual [bonus]. Any Indigenous person who comes and doesn't even know there's a bilingual bonus available. And they're not assessed. I believe they're working towards that. I bet the government doesn't even know who is fluent in their own language, in their organization for Indigenous languages. They could tell you for the francophone, but they cannot tell you for the other languages. And that's where the disparity is, I want to say. […] So, someone answering the phone could be fully fluent in their additional language, but nobody's working with them to say you know what, you should be here and you should be paid for, and you should be offering service in there, but they're not doing that. They're not even working with their own employees.”
In the city of Montreal, a politically active woman shares her experience,
“In Montreal, there is a historic Anglophone community which is disadvantaged. And so the welfare rights committee is one of the only organizations I know of that is really there to serve poor people who don't speak French and help them communicate with the government, which, with current governmental policies, which I'm sure you're aware of, is getting harder and harder to do, because you essentially have to prove that you need to speak English. […] You know, there are government website pages in French that don't give the same information in English. […] And so it gets harder to, if you already don't have a lot of local connections, if you're already isolated due to language, due to disability, due to low income, due to any combination of those factors, it can be really difficult to find the support that you need.”
You mentioned that it can be quite difficult if you don't speak French. Now with the new policy it's even getting more difficult, is that right?
“It's that way on purpose, that the provincial government wants to ensure that newcomers are speaking French when they deal with public services. […] When I first moved here, and it's funny because when I first moved here, I was so determined to improve my French and do everything in French, and I remember, I was on hold so long with Hydro Québec [a service provider] that I ended up like I was pressing 9 for English and I got someone. […] But, you know, there's a little message that says, like, access to English language services is governed by, you know, the Charter of the French Language. They don't stop you from accessing the website in English, but there's this little reminder that like, you're not supposed to be. […] It's this kind of like needlessly punitive identity politics that's just meant to make people feel less welcome. And I think It's not going to change anything fundamentally, because with the rise of telework jobs, there's, I think, anecdotally, I hear a lot more English around than I did a couple years ago […]. And things like the new legislation […], that's not going to change that. That's just going to make life harder for the people who still need public services and the idea that newcomers, including refugees, need to be able to speak fluent enough French to deal with French classes in six months is ridiculous. Like, it makes absolutely no sense. […] Yeah, I mean, I think it's one thing to speak French in a way that you can have some kind of conversation, but to use public services, you need, like, really good language skills. Yes, and for me, it's very unlikely. If the people are not coming from francophone countries already, then you're not going to have that vocabulary, you're not going to have that knowledge. And even, especially when it comes to accessing health, or accessing justice, like, this is already very… these are words that you might not know very well in your own language, you know.”
In the city of Quebec, a citizen also refers the public service telephone hotlines in her account,
“It's obvious that when you're talking to someone, I have to talk to someone. But then, because I have an accent, they don't understand. And if it's a machine, that's it. There, it's zero right away, because the machine doesn't recognize my accent. […] Sometimes when I call, I ask for service in English because that's fine. That's true. […] When I call the public services in Quebec, I'll take service in English, because we know that there's a good chance that there are more English-speaking agents than French-speaking ones, because they're less busy [resulting in less waiting time].”
Another aspect that is relevant with regard to language is literacy, a topic that I already briefly touched upon in the third episode of this podcast.
In South Africa, for instance, illiteracy is a problem. In 2020, 10 percent of the population aged 20 and above were illiterate, which amounts to around 3.7 million people not being able to read and write. I asked an ombud staff member, whether she believes that digitalization will allow to facilitate access to public services and institutions such as the ombuds. This is what she replied,
“It will be a long time before we reach that stage because of illiteracy rates in our rural areas. Because even with writing a letter and faxing or emailing to us, it's not possible with some of the people; they don't have access while the post offices are closing down, or before we even go to that one, they can't write, at all. They can't read or write. So, when we get there [with outreach events], we write for them what the issue is. And then they will appoint a friend or family member that they trust, who will be reading for them correspondence from us. So, it's gonna be a long way to reach that far because with the illiteracy rate, not only the old people, even young ones, as young as myself or younger.”
In the NWT, a former judge tells me,
“Now some of the older people, the more remote communities, have difficulty in English or French. But not the young ones very much. I did notice […] in court that among the population, there's a lot of people that couldn't read very well. Particularly, […] young males. […] I remember when I was a practicing lawyer in Ontario, that the older farmers would come in with their wives and say, ‘Oh, I forgot my glasses.’ But they really couldn't read or write, but their wives could. […] I used to go to court and I'd say, ‘Well, here is the disclosure in question of your offense.’ And they couldn't read it, you know. I mean, they could read signs and things, but I did notice that. So, those kinds of people would need someone to talk to more than, you know, sending them a written document is probably not going to be very successful. The smaller the community, that's a bigger problem.”
Also, as I mentioned in an earlier episode, a study shows that in Quebec, according to a study by the Fondation pour l’alphabétisation, almost 50% of Quebecers are functionally illiterate, which means that they can read and write but are unable to process more complex texts. And, to the disadvantage of many, administrative and legal texts tend to be rather complex.
Whereas many people thus rely on others to help them with any administrative or legal procedure, it also seems that service providers and courts need to be more innovative in bringing their services and their messages to the different parts of society. Producing plain language information material in at least all the official languages is only one of the possibilities, providing for face-to-face interaction with linguistically competent staff may be another very useful approach, even in the digital age. Government websites are sometimes already offered in a number of languages, like in Sint Maarten, for instance, the government website can be accessed in all languages provided by Google Translate through an embedded drop-down menu, including, for example, different South African languages. A digitalization expert employed at the Public Protector, which is the South African national ombuds institution, however is skeptic. He thinks that it will take a lot of effort and training of AI to make services available in all official languages, and he doesn’t think that this will happen soon.
I hope to have provided you with some food for thought concerning the importance of language in accessing public services and administrative justice. I think it has become quite clear that if public institutions want to ensure equal access to services and justice for everyone, they have to be accessible in the language that people living in that country are actually speaking, both digitally and in person.
Thanks again for listening and stay tuned!
