In wake of Maui case, clarity sought on use of Hawaiian in court

WAILUKU, MAUI (HawaiiNewsNow) - Should anyone be able to speak Hawaiian in court?

That's the question a case on Maui has sparked — and the answer isn't clear.

Earlier this week, Judge Blaine Kobayashi issued an arrest warrant for Maui professor Samuel Kaleikoa Kaeo after he addressed the judge in Hawaiian.

While Kaeo while standing in front of the judge, Kobayashi declared him not present for the hearing because he didn't identify himself in English.

That arrest warrant was subsequently rescinded, and the state Judiciary said it would review its policies.

But the core question remains: If Hawaiian is one of the state's official languages, should someone be able to speak it in court?

To Kaeo, the answer is clear.

"What better way to understand your fellow brother or sister in this community but to allow them to express themselves the best that they can in the way they want to express themselves?" he said. "There's this whole idea of us being invisible as a people in our homeland is something you can witness and be part of right in that moment. So I think that's why it caused a lot of anger in the community because I think many Hawaiians feel invisible."

Kaeo, a University of Hawaii professor and activist, says he has been involved with numerous cases where he defend himself in Hawaiian through the use of a court-appointed interpreter.

But in this case, prosecutors said seeking an interpreter was a waste of taxpayer money.

Kaeo was in court to face charges stemming from an August 2017 protest over the construction of a new telescope atop Haleakala.

Hawaii News Now sought additional clarification from the state on Hawaiian language in the courtroom Thursday, but requests for an explanation went unanswered.

In a statement, the state Judiciary said: "There is no legal requirement to provide Hawaiian language interpreters to court participants who speak English but prefer to speak in Hawaiian. In those cases, judges have the discretion to gr ant, or deny, a request for an interpreter."

Retired Hawaii State Supreme Court Justice Steven Levinson thinks the bench warrant was issued to establish Kaeo was in fact who he said he was.

"When a person is proficient in English, generally court proceedings are conducted in English. There is no specific law that entitles a person to testify in the language of their choice," he said.

Levison thinks the arrest warrant may have been recalled because the judge may have realized there was a better way to solve this problem.

"Judges don't have the discretion to deprive a criminal defendant of an interpreter when the defendant has limited English proficiency, but here we have a situation where the language being requested is a function of the preference of the defendant," he said.

"The fact that it's the Hawaiian language makes it a slightly different problem than if it were German or Russian because it is an official state language. But the Constitution also says that the use of Hawaiian is only required for public transactions -- and I suppose you could consider a court proceeding is a public transaction."

Sherry Broder helped write the 1978 Constitutional Amendment that made Olelo Hawaii an official state language. She says it was one of the least controversial provisions considered at the time and it was so widely accepted that it passed with almost no debate at all.

"The reason was two-fold. One was to honor our host culture and to recognize the gift that has been given to all of us through Hawaiian culture and of course, the language expresses the culture, and the second reason was because of insults in the past when the Hawaiian language wasn't allowed in public schools and the overall suppression of the language," said Broder, who was the first woman president of the Hawaii State Bar Association and is president of the Federal Bar Association for the District of Hawaii.

"I'm not at all surprised that people want to use it (the Hawaiian language) to conduct official state business. After all, what the amendment did was to make Hawaiian one of the two official languages of the state. So if it's an official language why wouldn't it be used in official state business?"

It's a question and a concern that has been echoed by other legal experts.

"I am glad that the bench warrant that was issued has been rescinded since, but I do feel that the judicial system has a role to play in clarifying the rights of 'Olelo Hawaii as an official language of Hawaii," said Ka'ano'i Walk, a Hawaiian language immersion school graduate who earned his law degree at Manoa.

"Although this may be couched as a Native Hawaiian issue, it should be an issue for all of Hawaii to consider that in the courtroom on Maui a few days ago, only one of our official languages were recognized,"

State Rep. Kaniela Ing wants to amend current state law to ensure anyone who wants to conduct official state business in Hawaiian can do so, regardless of their proficiency in English.

"To think that in 2018 people are still being criminalized for speaking the Hawaiian language in Hawaii is sad," Ing said.

Court cases are primarily conducted in English, with interpreters provided at taxpayers' expense for those who speak other languages.

Depending on their performance on written and oral exams, court interpreters are paid $25 to $55 per hour with a two-hour minimum.

Critics have described Kaeo's insistence to speak in Hawaiian in court as a distraction.

Many have asked if he's able to speak and understand English, then why doesn't he?

"This gentleman is clearly and unequivocally, remarkably proficient in the English language and what he's using this for is to follow up in the type of protest that he had on Haleakala," said Peter Carlisle, former Honolulu mayor and city prosecutor.

"When you go into a courtroom, you have to be able to administer the law and administer the proceedings in the courtroom as well. So I agree completely with what the judge did," Carlisle said.

Levinson says it's unclear if the state Supreme Court will take up this issue.

"If the judge allows the defendant a Hawaiian interpreter so that the defendant can testify in Hawaiian, then who is harmed?" he said.

"But if the judge says 'No. You're a professor and obviously you speak English. I think you're trying to make a political and cultural point and I respect that, but I don't have to allow it.' If the court were to do that, then the defendant would have standing to appeal and presumably ultimately the state Supreme Court would decide the question."

A hearing over Kaeo's request for a Hawaiian language interpreter has now been scheduled for February.

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