Establishing linguistic rights as legal rights

Md. Nayem Alimul Hyder | Published: August 01, 2018 21:43:09 | Updated: August 01, 2018 21:49:45


Language is a system of spoken, manual, or written symbols by means of which human beings, as members of a social group and participants in its culture, express themselves. The functions of language include communication, the expression of identity, play, imaginative expression, and emotional release. Many definitions of language have been proposed. Henry Sweet, an English phonetician and language scholar, stated: "Language is the expression of ideas by means of speech-sounds combined into words. Words are combined into sentences, this combination answering to that of ideas into thoughts." The American linguists Bernard Bloch and George L. Trager formulated the following definition: "A language is a system of arbitrary vocal symbols by means of which a social group cooperates." Linguistic rights include, among others, the right to one's own language in legal, administrative and judicial acts, language education, and media in a language understood and freely chosen by those concerned. There is no clear agreement as to the recognition of the right to language in international law. This allowed states to have unlimited discretion to adopt and implement an abusive language policy. The linguistic diversity of the world is reflected in the existence of an estimated 6000 - 7000 languages worldwide. However, the global tendency today is towards using only a few languages. Consequently, minority and indigenous languages especially are on the verge of extinction. Only a few languages such as English, Chinese, French and Spanish, among others, are widely spoken and about 70 per cent of the world population speak only eleven languages.

The most basic definition of linguistic rights is the right of individuals to use their language with other members of their linguistic group, regardless of the status of their language. They evolve from general human rights, in particular: non-discrimination, freedom of expression, right to private life, and the right of members of a linguistic minority to use their language with other members of their community. Individual linguistic rights are provided for in the Universal Declaration of Human Rights 1948:

  • Article 2 - all individuals are entitled to the rights declared without discrimination based on language.
  • Article 10 - individuals are entitled to a fair trial, and this is generally recognised to involve the right to an interpreter if an individual does not understand the language used in criminal court proceedings, or in a criminal accusation. The individual has the right to have the interpreter translate the proceedings, including court documents.
  • Article 19 - individuals have the right to freedom of expression, including the right to choose any language as the medium of expression.
  • Article 26 - everyone has the right to education, with relevance to the language of medium of instruction.

The right to language has not yet found clear legal bases to be claimed as any other human rights. The European Court of Human rights ruled in the Belgium Linguistic case in 1968 that there is no right to language and states have an absolute and unqualified discretion to choose language of instruction at public school. However, the International Convention on Civil and political Rights 1966 (ICCPR) has many other fundamental human rights with implicit linguistic content that demands state to comply with. The United Nation Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (UNDM, 1992) is the first international document to expressly deal with the right to language of linguistic minorities (article 4). However, it is submitted from various historical documents that the presence of many other treaties such as the 1516 Treaty of Perpetual Union between the King of France and the Helvetic state which contained a provision identifying those who were to receive certain benefits as the "Swiss who speak no language other than German" in history. various scholars further confirm the presence of a treaty which obliged the Central East European states to promote and protect the language rights of minorities after World War I. Similarly, the International Court of Justice was given a mandate to enforce the treaty bodies and the same court decided a case on the Minority schools in Albania in 1935. The 1998 Oslo Recommendations specifically covers issues related to the use of languages by linguistic minorities in media, private business activities, and public administration, religious ceremony and in judicial proceedings as much as possible. Similarly, the Vienna declaration 1993 stipulates that persons belonging to minorities have the right to enjoy their own culture, to profess and practice their own religion and to use their own language in private and in public, freely and without interference or any form of discrimination. Besides, the International Covenant on Civil and Political Rights (ICCPR) 1966 recognises, in addition to prohibition of discrimination on ground of language, linguistic rights of minorities to use their language and criminally charged person's right to a free conditional interpreter and his right to be informed of the reasons for his arrest in the language that he understands clearly (articles 19, 24, 26, 27).

The Convention on the Rights of the Child 1989 (CRC) has also replicated the provision of ICCPR concerning the rights of children belonging to linguistic minorities. Minorities and indigenous children are therefore entitled to use their own language, among others (article 30). Similarly, the International Convention on the Protection of the Rights of all Migrant Workers and Members of their Families (CPRMMF) 1990 safeguards the rights to free interpretation and be informed in the language they can understand (article 16 and 18). Migrant workers' children and indigenous people to be educated in their mother tongue are clearly recognised under the International Labour Organisation (ILO) Conventions No. 107 and 169. Likewise, the International Convention against Discrimination in Education 1960 upholds conditional rights of minorities to use and teach their own language at the schools which they can establish (article 5). The Geneva Convention III-1949 confirms the questioning of prisoners of war to be carried out in the language they can understand (article 17). The Geneva Convention IV-1949 stresses that inhabitants will not be penalised for a penal provisions enacted by Occupying Power which are not published and brought to their knowledge in their own language (article 65).

It can thus be concluded that language right is expressly guaranteed under different international laws though only to specific groups. However, the  Universal Declaration on Linguistic Rights 1996 is the most prominent document which exclusively deals with universal linguistic rights. Although its binding nature is highly doubtful, its vivid and comprehensive provisions which explicitly recognise the rights to language of individuals, groups and language communities universally create the possibility of having binding laws in this regards (Article 3.1).

Many countries, like india, have made constitutional provisions regarding language. The constitution of India was first drafted on January 26, 1950. It is estimated that there are about 1500 languages in India. Article 343-345 declared that the official languages of India for communication with centre will be Hindi and English. There are 22 official languages identified by constitution. Article 345 states that "the Legislature of a state may by law adopt any one or more of the languages in use in the State or Hindi as the language or languages to be used for all or any of the official purposes of that State: Provided that, until the Legislature of the State otherwise provides by law, the English language shall continue to be used for those official purposes within the State for which it was being used immediately before the commencement of this Constitution".

International Mother Language Day is a worldwide annual observance held on February 21 to promote awareness of linguistic and cultural diversity and promote multilingualism. First announced by the United Nations Educational, Scientific and Cultural Organization (UNESCO) on  November 17, 1999, it was formally recognised by the United Nations General Assembly in a resolution establishing 2008 as the International Year of Languages. International Mother Language Day is observed annually since 2000 to promote peace and multilingualism around the world and to protect all mother languages. It is observed on February 21 in recognition of the 1952 Bengali Language Movement in Bangladesh. Constitution of Bangladesh says that  the state language of the Republic is  Bangla (article 3). However article 153(2) of the Constitution says that, "There shall be an authentic text of this Constitution in Bengali, and an authentic text of an authorised translation in English, both of which shall be certified as such by the Speaker of the Constituent Assembly." Article 153(3) says that "A text certified […] shall be conclusive evidence of the provisions of this Constitution: Provided that in the event of conflict between the Bengali and the English text, the Bengali text shall prevail." While the usage of 'Bangla' is yet to be made compulsory in all the government offices and  courts of Bangladesh including the Supreme Court, many non-Bengali peoples live in the country who are recognised as "tribes, minor races, ethnic sects and communities" and the have their own mother languages.

Linguistic rights have been ensured and recognised by various international legal instruments as well as the Constitution of Bangladesh. But these linguistic rights have not been implemened properly. Legislative, Executive and Judiciary organs of the state should take comprehensive steps to establish linguistic rights in the country on a firm footing.

Dr. Md. Nayem Alimul Hyder is Associate Professor, Department of Law & Justice, North East University Bangladesh.

lawmnahyder@yahoo.com

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