A challenge by a secondary school student over the marking scheme for the Leaving Certificate Mandarin Chinese examination has been dismissed by the High Court.
The application was dismissed by Mr Justice Garrett Simons, who rejected claims that the system discriminated against those who answer using traditional Mandarin characters as opposed to simplified characters.
The judge was also critical of the manner of how certain linguistic experts gave their evidence to the court.
In this case, the judge said that several expert witnesses had wrongly "assumed the role of advocate and purported to express views on legal issues" which were matters for the courts.
The student, who cannot be named for legal reasons, claimed that markers of the exam would refuse to accept answers given in traditional Chinese characters by those doing the Mandarin Chinese examination.
The student alleged that the curriculum required that written answers given in the examination must be in simplified Mandarin characters, which are predominantly used in the People's Republic of China, Singapore and Malaysia.
The challenge was brought by a Taiwanese born student, where traditional Mandarin characters are used, claimed the requirement to use simplified characters discriminated against those from a linguistic heritage is from places which use traditional characters.
While he has lived outside of Taiwan for most of his life, the student's Taiwanese mother has taught him Mandarin using traditional characters, which are also used in Hong Kong and Macau.
Suing through his mother, the student also claimed the failure to allow for traditional characters in the marking of the exam contrasted with the treatment given to other languages by the state.
It was also claimed that the Minister had unlawfully consulted with the Chinese Ministry for Education and that the Chinese Embassy is drawing up the curriculum.
It was claimed that the 1998 Education Act allows the Minister to prescribe the curriculum for subjects following consultation with parties including trade unions, teachers, parents' associations, and school patrons.
The Act, it was claimed, does not permit consultation with a foreign government or ministry.
In judicial review proceedings against the Minister for Education, The National Council for Curriculum and Assessment, the State Examinations Commission, Ireland and the Attorney General the student sought various orders and reliefs.
These included an order requiring those marking the Mandarin Chinese exams to consider any answer written in Traditional Mandarin Chinese characters.
He also sought declarations including that the rules governing the exam are unlawful, unreasonable and are contrary to the Constitution, EU law, the 1998 Education Act and the European Convention on Human Rights.
The respondents denied the claims and rejected all the claims and denied the examination was flawed or discriminatory as alleged.
Dismissing the case, the judge said the student “failed to establish that the marking scheme for Mandarin Chinese is in breach of the requirements of the 1998 Act.
Rejecting the equality claim, the judge said all candidates will have an equal opportunity to prepare for the examination and will be assessed objectively by reference to the same syllabus and marking scheme.
“The fact that a non-native speaker may have had to work harder to achieve the same grade as a native speaker does not amount to discrimination,” the judge added.
In his ruling, the judge noted that the use of traditional characters in the exam are not deemed incorrect. The highest band of marks are awarded to candidates who make very few to no substitutes of characters.
In addition, the judge said that the marking scheme only attributes 15 to 20 per cent of the overall marks in the exam to answers written in Mandarin Chinese.
The balance of the marks he said are granted from oral and aural components to answers given in English, the judge added.
In relation to expert evidence given in the action the judge said that "an expert witness should provide independent assistance to the court by way of objective unbiased opinion in relation to matters within his or her expertise."
An expert witness should never assume the role of an advocate, he said.
“Far too frequently, expert witnesses appear to fundamentally misunderstand their role and wrongly regard themselves as advocates for the cause of the party by whom they have been retained”
In the present case, "the extent of evidence led by the applicant, in particular, went far beyond that permitted by the rules in relation to expert evidence." he said.
“Regrettably, a number of the expert witnesses assumed the role of advocate and purported to express views on legal issues" which are matters for the court, he said.
One expert witness stated on a number of occasions that the terms of the marking scheme were discriminatory and exclusionary, he said.
Another expert witness opined that it is “unfair, discriminative and counterproductive” for the Department of Education to refuse to mark as correct answers in traditional characters.
These were matters for the court to consider and it was certainly not a matter in respect of which a witness, whose area of expertise is linguistics, is entitled to adduce opinion evidence.
