Access to justice in a bilingual legal system : a case study of unrepresented litigants in Hong Kong

Abstract

This research investigates unrepresented litigants’ (lay people who represent themselves in litigations) access to justice in the common law in Hong Kong. In particular, it examines the potential sources of miscommunication in their contact with the law and legal professionals.

Hong Kong is the only common law jurisdiction that operates in both Chinese and English with equal status. During most of the British colonial days, English was used as the only legal language in the common law. It was not until 1987 when Chinese was made co-official and all legislation was subsequently translated into Chinese just before the handover to China in 1997. The bilingual policy in law potentially extends access to the legal system for the majority of the population whose first language is Chinese. One less obvious impact of legal bilingualism is the growing trend of unrepresented litigants (lay people who represent themselves in litigations) in court.

The judiciary in Hong Kong has noted a considerable increase in unrepresented litigants in civil proceedings in recent years (Judiciary Administration, 2003). Since unrepresented litigants are usually unfamiliar with law and legal procedures, they demand a significant amount of judicial time and resources, posing challenges to the courts (Judiciary Administration, 2003). Existing literature suggests that legal professionals generally regard these lay people as the root of communication problems in trials (Kelly and Cameron 2002; 2003). Yet this view has failed to address the end-users’ perspective on the issue. Thus, this research takes a bottom-up approach to give voice to unrepresented litigants in response to questions that arise from the context: (1) to what extent is the Chinese legal language accessible to lay people, and (2) what are the communication problems lay people face in their litigations?

By employing mixed methods, this research demonstrates that miscommunication may tie to unrepresented litigants’ understanding of legal language, legal procedure and ideology of law. A linguistic and empirical study on official legal materials shows how some features of the Chinese legal language may be difficult for lay people to understand, such as the use of odd collocation, unusual words, and confusing parts of speech. Plain language with language-specific strategies may help improve the comprehensibility of the materials. Courtroom observations suggest that lay people may approach law differently from their legal counterparts. Indeed, an ethnographic study with an informant reveals how the lay strategies (i.e. lexical inferencing, literal interpretation and selective reading of texts) of decoding legal language may be misleading, and that lay people may have difficulties constructing their personal stories as legal problems. The ethnography supplemented by a survey with unrepresented litigants further highlights how legal professionals’ use of language (e.g. jargon and complicated sentence structure) may limit lay people’s understanding of legal discourse. Language accommodation by lawyers and judges may be useful for aiding communication. Based on the findings, this research presents implications for (1) communication by showing how legal-lay communication may be improved, and (2) law by outlining the reality of legal bilingualism in common law jurisdictions.