Federal and NonFederal Responses to Exclusion: The Case of Language

1
Federal and Non-Federal Responses to Exclusion
The Case of Language

• Sujit Choudhry
• Faculty of Law, University of Toronto
• April 2007

2
Constitutional Politics of Exclusion

• Nepali constitutional transition 2
  constitutional agendas simultaneously
  
• lack of democracy ? rules, institutions and
  procedures of liberal democracy
  
• design issues electoral system, bill of rights,
  independent judiciary, separation of powers,
  independent agencies, internal party democracy
  
• exclusion of marginalized communities ? an
  inclusive democracy
  
• non-territorial women, dalits
• territorial Madhesi, Janajati
• under both monarchical democratic rule
• current situation in the Tarai suggests that an
  issue under democratic rule as well return to
  democracy will not necessarily address concerns
  
• design issues much more complex requires more
  than standard liberal democratic package ?
  language as case-study

3
Linguistic Diversity in Nepal

• Nepal has enormous linguistic diversity
• at least 90 languages spoken within Nepal
• Nepali mother tongue for nearly 50
• BUT other widely used languages
• Maithili, Bhojpuri spoken in Madesh
• Tharu, Tamang spoken by indigenous peoples
• Linguistic diversity tightly linked to ethnic
  diversity
  
• Linguistic groups geographically dispersed
• if use ethnicity as a proxy for language ? only
  14 districts in which majority from one group
  
• most districts highly ethnically linguistically
  diverse
  

4
Politics of Language in Nepal I

• Nepal Nepali nation-building in 1990 Interim
  Const
  
• declare Nepali sole official language
• other languages national languages
• official language status Nepali exclusive
  language of legislature, legal system,
  bureaucracy, education
  
• Nepal SC found unconstitutional attempts to
  permit use of local language by local
  governments
  
• freedom to form political party organization
• BUT authorizes state to ban political parties
  which may jeopardize harmonious relations among
  people of various tribes, castes, religion or
  communities (including language region)
• electoral laws do this
• restricts ability of linguistic minorities to
  challenge language policy through electoral
  process and ordinary politics

5
Politics of Language in Nepal II

• official language status conflict in
  multilingual societies
  
• language is different from race, religion,
  ethnicity
  
• state can have no official race, religion, or
  ethnicity neutrality
  
• BUT must have official language(s) must make a
  choice
  
• unequal impact of choice on different linguistic
  groups
  
• official language speakers enjoy advantage over
  native speakers of other languages because major
  institutions of political, economic social life
  operate in native language
• official language status ? major issue in
  Belgium, Canada, Spain, Sri Lanka, India, Eastern
  Central Europe (developed and developing,
  colonial and colonized)
• Nepal would expect language to become an issue
• complex in Nepal because of individual
  multilingualism
  
• compounded by restrictions on ability to mobilize
  politically around language issues
  

6
How Should Nepals New Constitution Address
Language?

• 3 options
• status quo
• federalism respond to linguistic diversity by
  creating provinces with minority language as
  official language ethnic federalism
  
• non-linguistic agenda too issue is
  discrimination vs. members of ethno-linguistic
  minorities (public services, public employment,
  public expenditure), as opposed to demands for
  official language status for minority language
• response empowerment through federalism
  neglected groups given jurisdictional and fiscal
  power for self rule official language status one
  issue, but not the only issue
• BUT non-federal solutions need to be explored
• broader question can Nepal build an inclusive
  state which responds to exclusion of Madhesi,
  janjati, dalits, women through non-federal means
  that emphasize shared rule?
• Canada employs both ? broader lessons for Nepal?

7
Official Language Distinct Spheres

• Internal working language of government
• Language of public employment
• Public Services
• Language of communication between governments and
  citizens maybe different from internal working
  language of government
  
• Courts and legislatures
• Government institutions that work in public
• Choice of language can affect ability to exercise
  rights of democratic participation and right to
  access courts
  
• Language of proceedings legislation/judgments
• Public Education critical to linguistic
  survival
  
• Options unilingual unilingual w transitional
  bilingualism parallel school systems with
  national language taught as 2nd language
  
• 2nd language national language or international
  language?

8
The Canadian Experience

• Why Canada? linguistic diversity
• First European settlement French
• English conquest settlement
• French minority concentrated in Quebec,
  Anglophone majority based in other provinces
  
• Mother tongue 59 English, 23 French
• Knowledge 68 English, 10 French, 18 both
• Language and political conflict 2 phases
• English nation-building mid 19th century
• Francophone response ? create Quebec
• Rise of Quebec nationalism 20th century

9
Canada Federalism Language

• Federalism direct response to linguistic
  diversity
  
• Quebec deliberate French-speaking majority
• Other provinces English-speaking majority
• Implied provincial power to adopt official
  language
  
• English provinces English official language
  across all spheres
  
• exception minority language education where
  numbers warrant
  
• Quebec unique mixture of policies
• Public education, including post-secondary
  French BUT
  
• publicly funded English-language universities
• Internal working language of government French
• Public services French BUT
• statutory accommodation of English language
  speakers
  
• Courts and legislatures bilingual
• Legislative proceedings, statutes in both English
  and French
  
• Courts right to use English in Quebec courts

10
Canada Non-Federal Solutions I

• Federal government 2 official languages
• Constitution statute
• until 1960s English only official bilingualism
  launched in 1960s as response to Quebec
  nationalism
  
• Effect varies across policy areas
• Internal working language of government complex
• Presumption majority language of area of
  country
  
• in Quebec civil servants from Quebec speaking
  French
  
• BUT regions designated bilingual Ottawa,
  Montreal, New Brunswick, parts of Quebec,
  Ontario, right to work in either official
  language
• Nearly 40 public service positions require
  bilingualism ? dramatic increase in proportion of
  French speakers
  
• but individual bilingualism ? institutional
  bilingualism
  
• in bilingual regions in Quebec, French dominant
• in NCR, English dominant
• English link language w/in federal public service

11
Canada Non-Federal Solutions II

• Public services bilingual
• presumption majority language of area of country
  
  
• right to communicate in other official language
  with
  
• central office of federal government
• offices designated bilingual if significant
  demand
  
• Courts and legislatures bilingual (since 1867)
• Legislative proceedings, statutes in both English
  and French
  
• Courts right to use English in courts
• Representation at centre shared rule, not
  self-rule
  
• Supreme Court 1/3 from Quebec
• House of Commons Quebec has always been
  over-represented on representation by population
  basis
  

12
Canada Enforcement (federal)

• Complaints
• Commissioner of Official Languages
• Investigates complaints
• Recommends corrective response
• Courts legally enforceable rights
• Commissioner may intervene in proceeding
• Auditing Commissioner
• Promotion education Commissioner
• Monitoring of proposed policies Commissioner

13
Lessons for Nepal I

• Nepal is not Canada
• Degree of linguistic diversity
• Territorial concentration of linguistic
  communities
  
• disaggregate demand for official language status
• status in one context (e.g. public services) does
  not determine status in others (e.g. internal
  working language of government)
  
• official language status has dual importance
• Practical importance access to services,
  politics
  
• Symbolic importance statement of national
  identity
  
• Lesson 2 self-rule shared-rule options
• Federalism a way but not only way
• Danger leave central state untouched
  undermines political identification of linguistic
  minorities with state

14
Lessons for Nepal II

• Transform unitary state?
• effect of official language status varies by
  policy context
  
• Public services offered in different languages
  in different parts of country Nepali plus
  
• Representation at Centre official language
  declaration, Supreme Court, civil service, Upper
  House strengthen bond b/w minority language
  speakers and state