Official Language Designation Constitution-Building Primer 20 Official Language Designation International IDEA Constitution-Building Primer 20 Sujit Choudhry and Erin C. Houlihan © 2021 International Institute for Democracy and Electoral Assistance International IDEA publications are independent of specific national or political interests. Views expressed in this publication do not necessarily represent the views of International IDEA, its Board or its Council members. The electronic version of this publication is available under a Creative Commons Attribution- NonCommercial-ShareAlike 3.0 (CC BY-NC-SA 3.0) licence. You are free to copy, distribute and transmit the publication as well as to remix and adapt it, provided it is only for non-commercial purposes, that you appropriately attribute the publication, and that you distribute it under an identical licence. For more information visit the Creative Commons website: <http://creativecommons.org/licenses/by-nc-sa/3.0/>. Cover illustration: © 123RF, <http://123rf.com> Design and layout: International IDEA DOI: <https://doi.org/10.31752/idea.2021.40> ISBN: 978-91-7671-412-6 (PDF) Created with Booktype: <https://www.booktype.pro> Contents 1. Introduction ............................................................................................................ 6 Defining ‘official’ and ‘national’ languages .............................................................. 6 Advantages and risks ............................................................................................... 7 Where is language a constitutional issue? ................................................................. 7 2. What is the issue? .................................................................................................. 8 3. Understanding language in context ................................................................... 10 Why official languages? Causes and consequences and historical legacies ............... 10 Language status and rights: claims of different linguistic minorities ....................... 12 Language and power, opportunity and identity ..................................................... 15 4. Design alternatives .............................................................................................. 18 Designating an official language or languages ........................................................ 18 Multi-level governance and official languages ........................................................ 21 Language and public services provision ................................................................. 25 The judiciary ......................................................................................................... 28 The legislature ....................................................................................................... 30 5. Additional design considerations ...................................................................... 33 Rights of indigenous peoples and corresponding state duties ................................. 33 Interaction with non-discrimination provisions ..................................................... 33 Private language use .............................................................................................. 34 6. The (limited) role of international law ............................................................... 36 7. Decision-making questions ................................................................................ 37 8. Examples .............................................................................................................. 39 References ................................................................................................................ 44 Annex ......................................................................................................................... 46 About the authors ................................................................................................. 46 About International IDEA .................................................................................... 47 About this series .................................................................................................... 48 Official Language Designation 1. Introduction Modern constitutions typically contain a variety of provisions on language. They may designate one or more official languages, each with a different kind of legal status. Constitutions may also create language rights, usually held by minority- language speakers, granting groups and individuals the right to communicate with, and receive services from, the government in their native tongue. Constitutions may determine the language of legislative and judicial proceedings. In systems of multi-level governance, constitutions may vest the authority to designate official language(s) for each order of government. This Primer addresses the role of language in constitutional design, and the key considerations, implications and potential challenges that arise in multilingual states. It discusses the range of claims around language as a constitutional issue, and the potential consequences of successfully addressing these claims—or failing to do so. It also addresses some of the key questions in relation to language that are likely to arise in constitution-building processes: In what language(s) will the civil service provide public services? What language(s) will public schools use for teaching? What are the language(s) of legislative debates and legislation? In what language(s) should judicial proceedings be conducted and judgments rendered? How should language or linguistic rights be framed to ensure equal treatment, and to effectively protect and accommodate individuals, minority groups and indigenous peoples? Defining ‘official’ and ‘national’ languages For the purposes of this Primer, an ‘official’ language is defined as the language (or languages) used by the government to conduct official, day-to-day business. By contrast, in this Primer, a ‘national’ language is defined as the language shared in common among the people(s) of the state, and does not imply anything 6 1. Introduction regarding its legal status. While some constitutions use the term ‘national language’ to refer to an official language, the terms do not always overlap. For the purposes of this Primer, we focus on substance, not formal labels—and so will refer exclusively to official languages. It is possible that a language may be a national language and have official status, but official and national languages may also differ. In linguistically diverse states, a number of national languages may be spoken by certain groups or peoples within the state, whether that is territorially concentrated or dispersed. A multilingual state may designate more than one official language. Moreover, official language status can vary across territories within a state—in both unitary states and federal states. The legal status of official languages may also differ (more on this in Section 4) depending on the institution, function and jurisdiction. Advantages and risks A state can only function through the use of a language or set of languages in which to conduct the day-to-day business of government and deliver services. Constitutionalizing one or more official languages can also help to define the character of the state and the cultural identity of the people within it, and may contribute to building a common sense of community among diverse peoples. However, constitutionalizing an official language or languages may place a particular group of people in a position of power within the state, and may exclude those whose languages are not recognized or whose rights to use the language of their choosing—for example, when receiving services, engaging with the justice system, or conducting private business—are not sufficiently protected. Moreover, the choice of an official language or languages has deep symbolic implications for the state’s cultural identity. This can give rise to unrest or even violent conflict. These issues may lead to arguments against constitutionalizing official languages, or to arguments in favour of disaggregating the question of official language choice across space (geography) and function and combining it with language rights for minorities. Where is language a constitutional issue? Language is a constitutional issue in any country with heterogenous linguistic demographics, in particular where language cleavages map onto political divides and pre-existing conflicts. 7 Official Language Designation 2. What is the issue? A state must operate in a language or set of languages for its day-to-day business. Constitutional designers, therefore, must consider how—or if—the language or languages of the state should be constitutionalized for official use. This consideration is distinct from, but related to, the issue of how to recognize, protect and accommodate speakers of minority languages. A handful of constitutions do not designate an official language—this tends to be particularly true of states with older constitutions (e.g. Australia, the United States), where the language spoken by the constitution-makers was assumed to be de facto the official language. However, contemporary constitutions invariably address the question of official language, for reasons of transparency and clarity, and because of the implications that official language policy has for questions of economic opportunity, political power and cultural identity. For