Why Freedom from Language Discrimination in the Charter of Fundamental Rights and Freedoms?

The following is part one of a series that opens up the on-going debate on the issue of whether people who do not speak English experience discrimination in Jamaica, and if so, what should the law and constitution do about it.

Hubert Devonish

The Case for Banning Language Discrimination in the Charter

The Charter of Fundamental Rights and Freedoms (Constitutional Amendment) Act 2011, was passed by the Senate of Jamaica on 1st April, 2011. This Charter is about to become law without any specific provision for freedom from discrimination on the ground of languge. This is against the background of a society which in which two languages are used, English and Jamaican (Creole, Patwa, etc.). The former is the official language, but one in which all, except the educated minority, have limited competence in. The latter is the native language of the vast majority of the population and is used with facility by all sectors of the population. The official language, English, is the only language the institutions of government and state are required to use in the provision of services to the Jamaican public. We have a clear case of discrimination on the ground of language so why was the freedom from language discrimination not included in the Charter?

The Joint Parliamentary Committee in 2001, when confronted with arguments such as these, made the following decision: ‘…. the establishment of an agency of the type mentioned by Professor Devonish [now set us as the Jamaican Language Unit at UWI] would be a pre-requisite to any constitutional guarantee of protection from discrimination on the ground of language and that that agency should be set up. Such an institution would assist in educating and enlightening people on the issue of discrimination on the ground of language so that, eventually, a guarantee of protection from such discrimination would find its place in the Constitution. The Committee is, therefore, strongly of the view that Parliament should encourage the Department of Language, Linguistics and Philosophy of the University of the West Indies to pursue the work mentioned by Professor Devonish and to report appropriately as it progresses’ (Report of Joint Select Committee 2002, p. 29). 

Human Rights, Yes. But Language Rights?

Is discrimination on the ground of language a violation of individual rights? And does it rank with other grounds for discrimination such as race, gender or religious belief? The many international treaties and charters which the Jamaican Government has signed, give a clear answer. For example, the United Nations Charter, Chapter 1, Article 1.4, states that one of the goals of that organisation is "To achieve international co-operation in ... promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction to race, sex, language or religion". Equality irrespective of the language one speaks is here ranked alongside one’s gender, race and religion.

The Charter of Rights and Freedoms which took over 20 years to make its way through Parliament and which was passed by the Senate of Jamaica on 1st April, 2011. This is intended to replace Chapter III of the Jamaican Constitution, The draft states in 13)2 that "Parliament shall pass no law and no public authority or any essential entity shall take any action which abrogates, abridges or infringes -- (j) the right to freedom from discrimination on the ground of - (i) being male or female;; (ii) race, place of origin, social class, colour, religion or political opinions". It goes on to say in 24.(3), "In this section the expression "discriminatory" means affording different treatment to different persons attributable wholly or mainly to their respective descriptions by race, place of origin, political opinions, colour or creed whereby persons of one such description are subjected to disabilities or restrictions to which persons of another such description are not made subject or are accorded privileges or advantages which are not accorded to persons of another such description."

The Charter protects the citizen from being discriminated against by public authorities and essential entities on grounds of gender, race, place of origin, social class, colour, religion and political opinions. The protections, however, makes no reference to language. Why? This reflects a general attitude across the entire society that everybody in Jamaica in fact understands English even if they cannot speak it well. Even those who are most negatively affected often accept their discrimination meekly, as an act of God punishing them for speaking ‘badly’.

Are there Jamaicans who do not Understand English?

Some years ago, a student at UWI, Denise Smalling, decided to research the extent to which Jamaicans indeed understood English. She ran a test in which she played four news items from a regular news broadcast to 30 beginning students in a literacy class run by JAMAL. At the end of each news item, each informant was asked, orally, questions which tested understanding of the news item. The item was played over again any time an informant was unsure or felt the need for clarification. The questions tested understanding in areas affected by knowledge of the meanings of words and syntax. The JAMAL informants, on average, answered accurately only 50.2 per cent of the time. This would show a shortfall in understanding of 49.8 per cent. This figure had to be adjusted to take account of the weaknesses in the test itself, identified through the responses of a control group who had a good command of English. Even so, the final figure shows a shortfall in understanding of 43 per cent amongst her JAMAL informants. 

These results, though based on language use in radio news, can be applied to the use of spoken English in any of the public services provided by Government agencies. Is it fair that some citizens should end up being able to benefit from 43 per cent less of the services provided by Government because of their poor command of English? Isn't this a clear case of discrimination and violation of individual rights? In this context, is freedom from discrimination by state bodies on the ground of language not a relevant right, one worthy of protection in the Charter of Rights in the Jamaican constitution? 

Why not Make Sure Everybody can Speak English?

Freedom from discrimination on the ground of language would not affect the role of English as the official language of Jamaica. There is, in addition, clear national consensus that English is important for contact with the outside world and for access to international sources of knowledge, information, science and technology. Everyone in Jamaica should learn English. The public is rightly concerned to ensure that English is learnt. This leads to the periodic outbreak of heated debate in the press about the most effective way to teach English in schools.

The fact is that anyone who lives in Jamaica and cannot use English is at a severe disadvantage. Such persons are denied access to the flood of knowledge, information and entertainment which comes to us from overseas through the medium of English. English is also a vital means of communication within Jamaican society itself. It is the medium through which most public and formal communications takes place. Debates in Parliament, prime time television and radio news broadcasts, the issuing of hurricane warnings from the Meteorological Office, and so on, all employ mainly English. All of the agencies of the state providing services t the public do so in English. They make little or no provision for persons with limited knowledge of English. Thus, if you wish to access services of the public health system, the passport office, tax offices, the legal system or the Ministry of Agriculture, and you don't have an effective command of English, you have a serious handicap, 'yu kaana daak'.

Those who are currently in the school system have to develop effective control of English if they are going to have the power to communicate and be communicated with, which comes from knowing English. English should, therefore, not only be taught in schools in Jamaica but it should be taught using the most effective means available to us. However, language learning and language teaching are very complex activities. Language teaching research done the world over and within the Caribbean, as well as public discussion about English language teaching options in Jamaica, suggest that there are no quick fixes. Improvements in the teaching and learning of English will take time.

But while the Grass in Growing ... 

By focusing on the issue of teaching English in schools, we express an understandable anxiety for the welfare of our children, the workforce of tomorrow. What, however, about the often overlooked adults, those who are currently producing and who make up the workforce of today? Many such persons have, through no fault of their own, moved through or past the education system without developing an adequate knowledge of English. In a national Language Competence Survey of Jamaica carried out on 1000 Jamaicans of both genders, all classes, levels of education, and across a variety of places of origin, 36.5% failed to demonstrate the competence in English required to explain a preference for one object over another. They, however, were able to express themselves fluently on this issue in Jamaican.

It is to these people that language rights are important. Too often, such persons find that the services of public bodies are provided to them in a language with which they are not familiar, English, and no other. To add insult to injury, such persons, in the course of trying to understand and make themselves understood, are often made to feel stupid by others because of their lack of control of English. The research work of Kadian Walters supports this by establishing that such people receive lower quality information from officers designated to interact with the public and are made to feel embarrassed in the course of their interaction with public officers. In over 100 interactions respectively in English and Jamaican, 76% of the cases where the caller felt disrespected involved calls using Jamaican. The benefits of improvements in English language teaching in scools cannot be made retroactive to people who are already adults.

So, even as we take steps to fix the education system and improve the teaching of English, there will continue to be hundreds of thousands of citizens of Jamaica who have long left school or never been to school, and who lack effective control of English. These people, many in the 50s, 60s and 70s, are not likely to learn much more English than they already know. they will, however, continue to suffer because of their lack of control of English. While the grass is growing, the proverbial horses, in very large numbers, are starving.

Do we accept that hundreds of thousands of our fellow citizens should pay for public service through their tax dollars and yet have problems accessing those services because of the language in which those services are provided? Are such persons not entitled to the same level of services from government offices and other public bodies, to which they contribute by way of taxation, as are persons fortunate enough to speak, read, write and understand English? Do all members of the public have the right to the same level of courteous service from public bodies, irrespective of their language? Ought language discrimination not to be treated in the same way as discrimination on grounds of gender, race, colour or creed?

But don’t Public Servants ‘Help Out’?

Of course, as you read this, your mind flashes to the last time you were n the tax office or the passport office, and you saw some public servant manfully trying to explain to someone the process which had to be followed. Surely the problem is being handled by well thinking officials who help the public by using language members of the public can understand? Again, however, let us look at some research on this question recently done by Hilma Linton and Cameleta Ffrench in six financial institutions in the Half Way Tree area of St. Andrew.

A researcher visited each institution in the Half Way Tree area of St. Andrew. A researcher visited each institution and speaking to the customer service personnel in Jamaican (Creole)/Patois, asked for information on how to open an account with the institution. In four of the six cases, the overall pattern was for the customer service personnel to be indifferent, unfriendly and sometimes directly rude. The investigator had to ask several questions in order to get the information needed. Four days later, the same researcher, dressed in exactly the same way, entered the same institutions making the same inquiry, but this time using English. The responses were polite and helpful. Information that had not been asked for was given voluntarily, inclusive of detailed directions to the relevant section of the institution to which the customer was being sent.

On the positive side, in two of the cases, the same helpful and friendly service was accorded the researcher when she spoke in Jamaican and when she spoke in English. This tells us that if there is the will, staff providing services to the public can be selected and/or trained to provide bilingual services to the public in a non-discriminatory manner.

The unsatisfactory behaviour of the four other persons dealt with in this study makes it clear that the issue of ensuring fair treatment to the public cannot be left to whims of the individual officer who deals with a member of the public. Even though this piece of research was directed at private enterprises in the main, there is no doubt that the same pattern of language use exists in the public sector which is the focus of our discussion. 

How can the Charter of Rights Promote Language Rights?

One way to promote language rights for persons who do not know English is to ensure that public agencies provide service to members of the public in a language they can understand. This means providing the same quality of service in Jamaican as is provided in English. One way to make this happen is to insert into the constitution a provision guaranteeing freedom from discrimination on grounds of language. This would allow citizens some redress if they felt that they could not receive from public bodies, in a language in which they are competent, information to which they are entitled.

It was with this in mind that I have made representations to the Joint Select Committee of the Houses of Parliament set up to consider a bill in the form of a Draft Charter of Rights which would become part of the Jamaican Constitution. In a presentation made on 31st May, 2001, I addressed 13-(2) of the Draft Charter of Rights which currently states that 'Parliament shall pass no law and no public authority or any essential entity shall take any action which abrogates, abridges or infringes... (j) the right to freedom of discrimination on grounds of (i) gender, (ii) race, place of origin, social class, colour, religion or political opinions' was incomplete. I proposed the addition here of '(iii) language'.

If Parliament accepts this proposal, it would be granting the right to freedom from discrimination on the ground of language on the same basis as freedom from discrimination on grounds of gender, place of origin, social class, colour, religion or political opinions. Parliament would be prevented by the constitution from passing any law, and any public authority or essential entity taking any action which 'abrogates, abridges or infringes' the right to freedom from discrimination on grounds of language.

The Charter defines discriminatory in 1, 24-(8) as, '...affording different treatment of different persons attributable wholly or mainly to their respective descriptions by gender, race, place or origin, social class, political opinions, colour or religion...' Language would have to be added to this list. Our suggested modifications to the Draft Charter would serve to add to an already existing provision, in 13-(2).(i), which blocks Parliament, public authorities and essential entities from taking action which interferes with '... the right to fair and humane treatment by any public authority...' This would guarantee not just the right to receive, from a public body, service in a language in which the citizen is competent, but ensure that this is provided in a courteous and respectful manner.

Hubert Devonish

Professor of Linguistics & Coordinator

The Jamaican Language Unit

The University of the West Indies

Mona Campus.