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Abstract

Countries that are seeking to establish constitutional democracy after a history of dictatorial or oppressive government confront large challenges in creating stable structures of government and protecting the rights of their citizens. Many countries have the added challenge of considering how their culturally diverse character—which may be linguistic, religious, tribal, ethnic, or even “national” (if the more than one group within the country calls itself a nation)— should be reflected in their constitution and governmental arrangements. Minority groups may seek special arrangements to protect their basic human rights as well as constitutional provisions providing specific rights to protect their cultural identities, to ensure their symbolic recognition, to protect them against economic marginalization, and to ensure their effective role in government. How to pursue these objectives while also creating a common citizenship, social harmony and effective government is a central challenge in framing a constitution. This Working Paper discusses the nature of different minorities that may be politically important, and then considers different approaches to dealing with the constitutional recognition of minorities, the protection of their basic human rights and the entrenchment of specific minority rights, as well as the participation of minorities in government.
Center for Constitutional Transitions at NYU Law
MINORITY RIGHTS IN CULTURALLY DIVERSE SOCIETIES
George Anderson and Sujit Choudhry
with David Vitale
Center for Constitutional Transitions at NYU Law
The Center for Constitutional Transitions at NYU Law constitutionaltransitions.org
About the Center for Constitutional Transitions at NYU Law
The Center for Constitutional Transitions at NYU Law (Constitutional Transitions) generates and mobilizes knowledge
in support of constitution building. Constitutional Transitions generates knowledge by identifying issues of critical
importance to the success of constitutional transitions, where a lack of adequate, up-to-date research impedes the
effectiveness of technical assistance for constitution building, and assembles and leads international networks of
experts to complete thematic research projects that offer evidence-based policy options to practitioners.
Constitutional Transitions mobilizes knowledge through an innovative clinical program that provides “back office”
research support to constitutional advisors in the field, and deploys faculty experts and field researchers for support
on the ground. We meet existing field missions’ needs for comprehensive research, dramatically enhancing their
effectiveness and efficiency in their role as policy advisors and actors.
www.constitutionaltransitions.org
1
MINORITY RIGHTS IN CULTURALLY DIVERSE SOCIETIES
George Anderson* and Sujit Choudhry, with David Vitale
* Visiting Fellow 2013-14, Center for Constitutional Transitions at NYU Law.
Cecelia Goetz Professor of Law and Faculty Director, Center for Constitutional Transitions at NYU Law.
Researcher, Center for Constitutional Transitions at NYU Law; PhD Candidate, London School of Economics and
Political Science.
Executive Summary
Countries that are seeking to establish constitutional
democracy after a history of dictatorial or oppressive
government confront large challenges in creating
stable structures of government and protecting the
rights of their citizens. Many countries have the
added challenge of considering how their culturally
diverse characterwhich may be linguistic, religious,
tribal, ethnic, or even “national” (if the more than
one group within the country calls itself a nation)
should be reflected in their constitution and
governmental arrangements. Minority groups may
seek special arrangements to protect their basic
human rights as well as constitutional provisions
providing specific rights to protect their cultural
identities, to ensure their symbolic recognition, to
protect them against economic marginalization, and
to ensure their effective role in government. How to
pursue these objectives while also creating a
common citizenship, social harmony and effective
government is a central challenge in framing a
constitution.
This Working Paper discusses the nature of different
minorities that may be politically important, and then
considers different approaches to dealing with the
constitutional recognition of minorities, the
protection of their basic human rights and the
entrenchment of specific minority rights, as well as
the participation of minorities in government.
Further reading
Choudhry, Sujit and Richard Stacey: Independent or
Dependent? Constitutional Courts in Divided
Societies”, in Colin Harvey and Alex Schwartz (eds),
Rights in Divided Societies (Oxford: Bloomsbury,
2012).
Choudhry, Sujit: Group rights in Comparative
Constitutional Law: Culture, Economics, or Political
Power?” in Michel Rosenfeld and András Sajó (eds),
The Oxford Handbook of Comparative Constitutional
Law (Oxford: Oxford University Press, 2012).
Choudhry, Sujit: Managing Linguistic Nationalism
through Constitutional Design: Lessons from South
Asia” (2009) 7 International Journal of Constitutional
Law 577.
Dersso, Solomon and Francesco Palermo: “Minority
Rights”, in Mark Tushnet, Thomas Fleiner and Cheryl
Saunders (eds), Routledge Handbook of
Constitutional Law (New York: Routledge, 2013).
Dick, Caroline: The Perils of Identity: Group Rights
and the Politics of Intragroup Difference (Vancouver:
UBC Press, 2011).
Jackson-Preece, Jennifer: Minority Rights: Between
Diversity and Community (Cambridge: Polity Press,
2005).
McGarry, John, Brendan O’Leary and Richard
Simeon: Integration or accommodation? The
enduring debate in conflict regulation”, in Sujit
Choudhry (ed), Constitutional Design for Divided
Societies (Oxford: Oxford University Press, 2008).
Pildes, Richard H: “Ethnic identity and democratic
institutions: A dynamic perspective", in Sujit
Choudhry (ed), Constitutional Design in Divided
Societies (Oxford: Oxford University Press, 2008).
Weller, Marc and Katherine Nobbs: Political
Participation of Minorities: A Commentary on
International Standards and Practice (Oxford: Oxford
University Press, 2010).
MINORITY RIGHTS IN DIVERSE SOCIETIES JUNE 2014
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1. Introduction: Identities and
politics
The individuals who live in a country have many
different identities. In addition to seeing themselves
as citizens of their country, region, and city, they may
also value their membership in national, religious,
ethnic, linguistic, and/or tribal communities. While a
few countries are culturally homogenous, most are
culturally diverse, with majority and minority
communities of different kinds.
The pattern of cultural diversity in some countries is
very complex with different kinds of cultural diversity
overlapping or cross-cutting. For example, linguistic
and religious divisions may reinforce each other, or
conversely, language can unite religiously different
groups. Individuals who are part of a “minority” on
one dimension of identity (e.g. religion) may be part of
the “majority” on another (e.g. language). Patterns of
cultural diversity can also vary across a country’s
territory. Certain minorities may be territorially
concentrated so that while they may be a minority
nationally, they may be a majority in their “home”
territory.
Cultural diversity may serve as the basis for political
division, or it may not. Many factors influence whether
and how a group with a strong sense of identity
mobilizes politicallythese include the extent to which
it is discriminated against, how much the minority is
itself politically united, the institutional arrangements
(such as electoral laws) that might provide an
opportunity for political expression, and the strategies
of leadership within the community. Minorities
sometimes ally themselves with a particular political
party in which they are influential but not the majority.
Thus the political expression of cultural diversity takes
many forms.
At one end of the spectrum a minority can be so
discontented that it mobilizes in large numbers for
separationit might even reach the point of
insurgencywhile at the other end of the spectrum the
minority may feel well-treated and secure, so it makes
no demands for group rights and does not politically
mobilize on the basis of group identity. This paper
concentrates largely on cases that fall in between
where minorities may seek constitutional rights
provisions to protect their interests.
The issue of minority rights in any country will depend
on the nature of its minorities and the character of
their demands. These demands may be narrowly
cultural or religious. But even minorities that claim
cultural rights are often also strongly concerned with
economic issues because they may be the victims of
economic discrimination. Economic discrimination, in
turn, may result from a lack of political power resulting
from inadequate representation in government, and/or
official language policies that place them at a
disadvantage when participating in political life.
Politically, the size of a minority can affect the
dynamics of inter-group relations and the
preparedness of a majority to accommodate minority
demands. A small minority may be viewed as
unthreatening so that some accommodation may not
concern the majoritybut on the other hand, a small
minority may not have the political weight and
leverage to secure significant institutional changes. A
large minority may have the capacity to raise more
fundamental questions about power-sharing and even
the continued viability of the state, which may or may
not receive a positive response from the majority
precisely because of the magnitude of what may be
sought.
Majorities may seek to accommodate minorities so as
to promote political harmony or what they see as
social justice. But on occasion, they may object to
certain rights demands as unreasonable or contrary to
the political values they favor (e.g. resisting religious
schools because of a belief in secular education).
There are also majorities that are clearly hostile to
certain minorities and may even openly persecute
them and refuse to extend even some basic rights to
these minorities. Finally, a minority’s political agenda
may conflict with how a majority views its legitimate
claims.
2. Varieties of minorities
Different types of minorities may pursue different kinds
of objectives in terms of constitutional provisions or
other governmental arrangements or laws. It is
MINORITY RIGHTS IN DIVERSE SOCIETIES JUNE 2014
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important to recognize, however, that the political
context will play an important role in determining both
the opportunities to advance these objectives, and the
specific kinds of objectives sought.
2.1 NATIONAL MINORITIES
“National” minorities are historical communities with a
sense of being a “people”, which usually have their
own language and often a territory within a larger
country, where the majority has a different “national”
character. In some cases, their historic territory may
have been brought into the country through invasion
and conquest, transfer between colonial powers, or
dynastic marriage. It may have occurred voluntarily
as when different cultures agree to form a new
country. National minorities are usually territorially
concentrated and have a distinct language (though it
may have died out), and have some distinct social
institutions. Examples of robust national minorities
include the Québecois in Canada, the Catalans in Spain
and the Scots (who no longer speak a distinct
language) in Britain. Such minorities often seek
substantial political autonomy within their country or
even a right to secede and form a separate country (or
join their fellow nationals in an adjacent country).
2.2 LINGUISTIC MINORITIES
There are 5000 to 10000 languages in our world of
only 200 countries. Thus there are many minority
languages. In some countries there is no clear
majority language. The size of language communities
varies greatly as does the strength and use of their
language. Many small language groups speak their
tongue essentially privately amongst themselves while
they communicate with others in a major language.
The number and sizes of different language groups in a
country, the spatial distribution of language groups,
the possible existence of a common language spoken
by the whole population (whatever their first
language), past history and social differences between
linguistic groups, and urbanization and modernization
all affect the social and political dynamics around
language. Some linguistic minorities define
themselves as “national” minorities. The languages of
indigenous populations within a country may have
greater political claims than the languages of
immigrants.
2.3 ETHNIC AND TRIBAL MINORITIES
Many countries have ethnic, tribal, clan or even caste
minorities that see themselves as distinct, and perhaps
discriminated against, but they also see themselves as
members of a larger “national” community that
extends across the entire country. Such minorities
may be territorially concentrated, and have their own
language, follow a different religion or cultural
practices from the majority. Or these minorities may
be mixed in with other groups and have few distinct
cultural traits. Some tribal or other minorities may be
nomadic, which puts them in contact with different
groups at different times of the year, which may bring
conflicts over land rights between the settled and
nomadic populations.
2.4 INDIGENOUS MINORITIES
In the “settler” countries of the Western Hemisphere
and Australasia, indigenous peoples are usually seen
as distinctive groups descended from the original pre-
contact population: they have been subject to
colonization or external control and dispossessed of
traditional lands. These populations may be
concentrated in relatively small communities, which
may have a dedicated land base, while in other cases,
their identity may blur with that of the larger society
because of urbanization and inter-marriage; such
factors can affect the nature of their demands.
In states without a colonial history and non-settler
states in Africa and Asia, indigenous peoples are often
defined as tribal peoples, associated with a non-
modern way of life, who may have a long history of
occupying a particular area. Alternatively, they may
simply be viewed as the most long-established
population. The vast majority of Nigerians are
considered to be “indigenous” to a state, where they
form the majority. However, with each state there are
“settler” populations (who may have lived there for
generations, but are considered indigenous to some
other state) and these people can be seriously
MINORITY RIGHTS IN DIVERSE SOCIETIES JUNE 2014
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disadvantaged politically and economically relative to
the indigenous majority in the state where they live.
2.5 RELIGIOUS MINORITIES
Many aspects of religious belief and practice can be
pursued privately and without controversy, but religion
can become contentious where the beliefs and
practices of a religious group conflict with those of the
majority, especially when the state has adopted rules
that interfere with religious practices. Some states
accommodate minority religious practices, but others
may impose limitations, whether in the name of the
majority religion or of “secular” policies. Key areas
where religion can be controversial include education,
family law, proselytization, and public dress.
2.6 “MINORITIZED” MAJORITIES
“Minority” politics are often associated with groups that
have grievances regarding their present or past
treatment by a dominant majority. However, there are
also cases in which a national majority has a strong
sense of grievance and separate identity because of
past treatment by a once dominant minority. Even
though such a majority is not vulnerable to being
outvoted on political decisions as a minority would be,
it may still be strongly motivated to seek redress
through politics and group rights. For example, the
Flemish-speaking majority in Belgium, the Malays in
Malaysia, and the black majority in South Africa are
“minoritized majorities” in that they invoke group
rights to justify policies privileging their group just as a
minority group would.
2.7 PATTERNS OF DIVERSITY
Every country has its own pattern of diversity and
these will change over time. In some cases, the
society is dominated by a single cleavage that sets a
clear majority off against a clear minority, but often
the situation is much more fluid, with a variety of
majorities and minorities of different kinds and with
cleavages of different degrees of political salience.
Both majorities and minorities can display very
different degrees of group unity, which also affects
how they frame their claims. Minorities are more likely
to mobilize politically when they feel that they are the
victims of cultural, economic and/or political
discrimination. By contrast, minorities with few
grievances tend not to be politically united.
3. Challenges of culturally diverse
societies
3.1 VARYING OBJECTIVES OF MINORITIES
The political objectives of a minority depend on the
nature of the minority, its sense of distinctiveness and
of being disadvantaged, its size relative to the larger
population, its territorial concentration. These
characteristics vary greatly for minorities, which means
their political objectives and engagement also vary.
1. “National” groups often have as a first priority
territorial autonomy, e.g., a regional government
or even independence. If the group is a large
minority, it may also seek some kind of parity in
decision-making in central government
institutionsor at least protections regarding
how key issues will be decided or managed by
the central government.
2. The objectives of linguistic groups vary according
to whether they identify as a “national” minority
or not, as well as with their size and territorial
concentration. Linguistic minorities often seek to
have their language recognized as having
“official” status; larger linguistic minorities seek
to have their language used as a language of
employment in the bureaucracy and of
instruction in schools, especially in the linguistic
group’s territory. They may also try to limit the
public use of other languages. Smaller linguistic
groups may seek symbolic recognition of their
languages, the use of their languages in
receiving public services, the teaching of their
languages in schools, and so on.
3. Ethnic and tribal groups may seek a degree of
local autonomy, but their objectives are usually
less extensive in this regard than those of
MINORITY RIGHTS IN DIVERSE SOCIETIES JUNE 2014
5
national minorities. They may also seek some
special representation or protections in central
institutions, but again these are all normally less
extensive than the objectives national minorities
would pursue.
4. Indigenous minorities may seek some measure
of autonomy and they are often focused on
protecting certain rights to land use that are
important for their traditional way of life;
alternatively, they may seek special
compensation for the loss of traditional lands.
They can seek symbolic recognition as the
original peoples of a country.
5. The priority of religious minorities is usually to
be able to practice their religion without
persecution or discrimination; however, some
religious groups seek to have their own schools
or other social institutions (perhaps funded by
the state), to be able to be governed by certain
religious laws, notably in the area of family law,
and to proselytize. In rare cases, such as the
breakup of India, a religious minority may seek
independence.
Many of these objectives of minorities can be put forth
as a demand for “rights”.
3.2 APPROACHES TO DEALING WITH
DIVERSITY
Culturally diverse societies can face challenges that do
not arise in more homogenous societies. The cultures
of minorities are vulnerable to the political power of
the majority culture or cultures; the health, economic
well-being or even existence of minority cultures may
be threatened by the choices made by a dominant
cultural community. Conflict may arise between
majority and minority groups where certain groups are
marginalized and excluded from political processes and
from the benefits of political representation. Often
minorities are concerned by the discrimination they
feel in everyday life, so they turn to politics to seek
rules that would bring redress. However, if a hostile
majority controls the levers of political power, such
minorities may suffer indifference or even oppression
and political exclusion at the hands of the state. These
risks can be particularly acute in a period of post-
authoritarian constitutional reconstruction, where a
fragile new constitutional democracy must guard
against a reversion to authoritarian rule or the
emergence of an abusive majority that will threaten
democratic stability.
Views differ on how to deal with minorities with distinct
identities. One approach seeks to assimilate them so
that over time they come to share a sense of common
cultural and political identity with the majority with
little sense of distinctiveness. At the other end of the
spectrum is to accommodate them, through various
forms of recognition, rights protection and
empowerment, accepting that they will maintain at
least elements of a separate identity. An intermediate
approach, integration, accepts that minorities remain
culturally distinct but structures institutions and rights
on a difference-blind basis without reference to
identity. All three approaches seek to ensure that
minorities participate actively and positively in a
country’s political and economic life and institutions as
equal citizens.
Experience suggests that some substantial measure of
accommodation is more likely to succeed in achieving
a relatively integrated and harmonious society.
Minorities that feel fairly treated are more likely to
share a common sense of citizenship with the majority
groups. Attempts to suppress their identity may be
counter-productive. Finding the right balance in
dealing with minorities can be positive both for the
minorities themselves and for the larger society. The
instruments for responding to minorities include
individual rights, group rights and measures for group
self-government or empowerment.
4. Rights of importance to
minorities
4.1 OVERVIEW OF INDIVIDUAL, GROUP AND
COLLECTIVE RIGHTS
Minority rights (or any individuals or groups) vary
considerably in their character. Some may impose
negative obligations on the state by checking state
power, while others impose positive obligations on the
MINORITY RIGHTS IN DIVERSE SOCIETIES JUNE 2014
6
state by requiring the state to act. Some rights are
universal human rights that should be enjoyed in all
societies, while others may be group specific, arising
from a particular society’s history, culture, identity and
political traditions. In addition, rights may be held
equally by all individuals, only by individuals who are
members of a particular national, linguistic or religious
group, or by groups collectively through institutions
governed by groups themselves.
4.2 INDIVIDUAL RIGHTS
Minority or group interests may be protected through
an array of individual rights enjoyed by all persons on
a basis of equality and commonly included in
constitutional bills of rights. These consist of the classic
liberal freedoms (speech, assembly, association,
privacy and religion), as well as the rights to bodily
integrity and due process, participation in the
democratic process and equality (which includes and
guarantees against discrimination). These individual
rights serve the interests of minorities by protecting
their freedoms to develop their respective cultures and
by protecting their equal treatment to ensure their
ability to participate in the political and social life of the
state.
The adoption of constitutional equality rights can be
especially important for minorities. For example,
section 9(3) of the 1996 Constitution of South Africa
provides that:
The state may not unfairly discriminate directly or
indirectly against anyone on one or more grounds,
including race, gender, sex, pregnancy, marital status,
ethnic or social origin, colour, sexual orientation, age,
disability, religion, conscience, belief, culture, language
and birth.
South African courts have interpreted the prohibition
on discrimination to extend beyond the explicitly
enumerated grounds to prohibit discrimination based
on citizenship status. This provision has also been
employed by religious and cultural minorities to protect
their ability to engage in cultural practices.
The equal rights provision in the 14th Amendment of
the US Constitution has been fundamental in recent
decades to many of the key Supreme Court decisions
forcing integration in relation to racial equality.
However, the same provision for many years was
deemed consistent with a “separate but equal”
doctrine that in practice permitted highly
discriminatory practices against blacks (and other
minorities). Thus, individual rights, although essential,
are sometimes inadequate to fully protect minority
interests if they are interpreted narrowly.
While individual rights provide certain protections, if
they are framed as negative rights, e.g. freedom of
religion, they may not provide a minority with certain
positive rights that a minority may seek. For example,
minorities may seek positive rights to health care,
education, social assistance, and housing, to enable
them to demand that the state provide such services,
especially if they are in particular need of them.
Similarly, a negative right for individuals to use
language in private communication does not impose on
the state a positive obligation to give minority
language official status in government and schools.
Whether framed as positive or negative rights,
individual rights are not collective rights of a group or
distinct community and so they do not provide
minoritiesand especially national or other territorially
concentrated minoritieswith institutions that provide
a measure of self-government (as discussed further
below). A politically dominant majority may show little
sympathy for a minority’s claims for such rights.
Moreover, courts mayunless the constitution
explicitly provides otherwisefind that the
institutionalization of certain ethnic or group rights is
contrary to some individual rights. Thus, there are
sometimes constitutional provisions that distribute
political office to members of certain ethnic, linguistic
or religious groups that exclude non-members from
those positions. Bosnia-Herzegovina, for example,
limits eligibility for the position of President to
Bosniaks, Croats and Serbs. Finally, most individual
rights are not absolute but rather are weighed against
competing rights and governmental interests (such as
national security) that may ultimately win out. In most
constitutional systems, such restrictions on individual
rights are achieved through the doctrine of
proportionality, which weighs the relative significance
of different principles in particular contexts. Therefore,
courts may use the doctrine of proportionality to
override or limit minority interests protected by
individual rights. For these various reasons, some
MINORITY RIGHTS IN DIVERSE SOCIETIES JUNE 2014
7
minority groups are not likely to feel satisfied with
individual rights as an adequate means of protecting
their interests and cultures.
4.3 GROUP RIGHTS
In addition to individual rights, a common approach to
protecting certain minority interests is the
entrenchment of group rights in a constitution. Group
rights may be held by a group collectively, or they may
be “group-differentiated rights”, which protect the
interests of a particular group but are held by its
members individually. Whether a particular right is a
group right or a group-differentiated right may depend
on the wording of the relevant provision in the bill of
rights that is, if the bill of rights guarantees the right
to a “nation” or “people” on the one hand, or to
citizens or individuals who are members of specific
groups, on the other. Both categories will be
considered here under the general heading of group
rights.
4.3.1 Language rights
Language rights are often important for linguistic
minorities. Rules regarding language use can favor or
disfavor speakers of different languages. While the
right to choose the language of private or communal
communication derives from the universal human
rights to freedom of expression and association,
international law has weak provisions regarding
language rights in the context of communications with
or within public institutions “official” languages. The
reason is that the choice of official languages depends
on context and what is practical or needed. While the
state may be able to remain neutral on questions of
race and ethnicity, it cannot do so on every type of
identity, such as language, where it must designate a
language or a limited set of languages as having legal
status in relevant state institutions. Not every
language can be equally accommodated.
Governments must select a limited number of
languages to have official status for internal
operations, for services to the public, for the courts
and legislatures, and for education.
Each country will need to determine its language policy
depending on the number and sizes of language
groups, their spatial distribution, and whether there is
one common language spoken by all citizens, whatever
their mother tongue. Some multilingual countries
have adopted a neutral link language to avoid favoring
one or more local languages; this is often the language
of former colonial rulers (e.g. English in Nigeria).
Indonesia actually developed a new language to serve
as the common basis for communication among its
many linguistic groups.
An important dimension of language policy in multi-
lingual countries can be to distinguish which languages
have “official” status in the national government and in
in sub-national governments. The constitutional
designation of a language as “official” or “national” can
be symbolically very important, but does not
necessarily answer the practical issue of the
institutional contexts in which that language is used.
Thus specific and distinct choices must be made to
determine the particular status and rights of different
language in the legislatures, courts, education, civil
services and so on. For example, Canada’s Constitution
establishes English and French as “the official
languages of Canada” and provides that they “have
equality of status and equal rights and privileges as to
their use in all institutions of the Parliament and
Government of Canada”. However, as a practical
matter and pursuant to legislation, the internal
operations of the government are bilingual in some
parts of the country, but in English or French in other
parts; similarly, citizens have the right to receive local
services from the federal government “where numbers
warrant” in English or French, which means that it is
not feasible to offer services in both languages
everywhere. An independent language commissioner
acts as an ombudsman and reports to Parliament on
the implementation of Canada’s language laws.
Devolved systems of government, like Canada, can
also use their constitutions to establish the language
rights of minorities in relation to sub-national
governmentsor at least in some sub-national
governments (and leave other sub-national
governments the power to determine language policy
themselves). Of course, in devolved systems, the
majority in one region may speak a language that is a
minority language across the country as a whole, so
MINORITY RIGHTS IN DIVERSE SOCIETIES JUNE 2014
8
sub-national governments often use their regional
language. In India, Hindi and English are recognized as
the official languages of the nation, but Article 345 of
the Constitution allows state legislatures to adopt other
languages widely spoken in the state as their official
languages. Moreover, Article 347 provides that a
minority language within a state may be recognized at
the state level, so that devolution can favor not just
dominant regional languages but also minority ones.
The South African Constitution designates 11
languages as official, providing that national and
provincial governments may use any of the official
languages for “the purposes of government”, and the
national and provincial governments must use at least
two official languages.
While Canada’s federal and provincial governments
provide some services in both English and French
throughout the country, the Swiss and Belgian
language policy is based more on territorial
unilingualism. Thus most Swiss cantons have one
official language (but a few have two or more) and in
these unilingual cantons all government business is
carried out in one language only, whether at the
cantonal or national level (except for citizens dealing
directly with ministries in the capital). Belgium is
similarly divided into unilingual French and Flemish
speaking areas (with a few districts within these
having limited rights for linguistic minorities), while
Brussels is bilingual.
Thus when considering the language rights of
minorities, it is always a question of a minority relative
to what. German speakers are the majority in all of
Switzerland but the minority in several cantons; in
unilingual cantons where German speakers are a
minority, they have very limited linguistic rights.
English-speakers are the majority in Canada but the
minority in Quebec, where they are subject to a
provincial law that strongly favors French (though
most English speakers enjoy constitutional protection
for their right to English-language schools and most
French-speakers outside Quebec have similar
protection).
4.3.2 Religious rights
Freedom of religion is recognized as a basic human
right, but even in countries that recognize this right
there are many sensitive issues that can arise in
relation to religion and minorities.
Governments’ positions on religion cover the spectrum
from “militantly secular” (e.g. no religious expression
in public institutions, no state funding for religious
institutions, and no religious instruction in schools), to
“accommodating secular” (e.g. some religious
expression in public institutions, some state funding for
religious institutions, some state funding for religious
schools), to “weak official religion” (e.g. the state may
be associated with a religion, but with limited practical
consequences, such as some financial support for
religious institutions), to “cooperative with religion”
(e.g. there is no official state religion, but the state
may work with religious institutions to deliver
programs in areas such as education, health and social
services and might also recognize some religious
personal law), to single official religion (e.g. close
institutional and symbolic links and support; religious
law may apply broadly), to “theocracy” (e.g. where
religion and state are effectively united and
government is by religious leaders). Each of these
alternatives (and there are more) poses different
issues for the rights of minorities.
Regionally devolved systems may further complicate
matters, in that each sub-national government may
have some discretion over the relationship between
religion and public institution. Thus, in Switzerland the
cantons have the right to determine the relationship
between church and state: some are secular, while
others are officially protestant or catholic. In Canada,
the provinces have had different policies regarding the
funding of religious schools.
For religious minorities, the issues that often matter
most relate to their right to have certain institutions
(e.g. places of worship, endowments, schools,
hospitals), and to receive equal treatment for their
institutions relative to those of the religious majority.
Some countries give some religious minorities the right
to publicly funded schools, which may be overseen by
school boards elected by adherents or named by
religious authorities.
Minorities may wish to apply religious law in certain
areas (notably family law); they might also wish not to
be subject to the religious laws of the majority (which
may include certain crimes and punishments, financial
MINORITY RIGHTS IN DIVERSE SOCIETIES JUNE 2014
9
laws and laws regarding proselytization). The Nigerian
constitution prohibits the adoption of an official religion
at federal and state levels, but it does permit any state
to establish a Sharia Court of Appeal with jurisdiction
over Islamic personal law. It also provides for two
bodies of criminal lawthe Criminal Code for the South
and the Penal Code for the Northand the latter
incorporates elements of Islamic criminal law for
Muslims. Several states have gone further and
proclaimed Sharia criminal law, which may extend to
non-Muslims. This has raised constitutional questions,
including the treatment of non-Muslim minorities.
Similar issues have arisen in other countries such as
Malaysia. India and Pakistan have only religious family
law, with no system of secular law, which has
sometimes meant that smaller religious minorities that
do not have fully developed systems of family law may
have to be subject to provisions of another religious
community. Recently, the Indian courts have
reinterpreted religious personal law in accordance with
the constitutional commitments to gender equality
and this tension between religious law and gender
equality is found in many countries.
4.4 LIMITATIONS OF CONSTITUTIONALIZED
RIGHTS IN PROTECTING MINORITY
INTERESTS
While constitutionalizing rights is important, the effect
of such rights provisions will depend on an
independent and impartial judiciary, and on
governments that respect what may be politically
unpopular court decisions protecting minorities.
The effectiveness of constitutionalized rights depends
on governments respecting and complying with court
rulings, which does not always happen. For example,
the Kenyan government ordered Somalians living in
Nairobi and other urban areas to relocate to refugee
camps, despite a ruling of the Kenya courts that such
an order was illegal because it threatens rights.
Another example comes from Israel, where in 2006,
the Supreme Court cancelled a cabinet decision to
provide special educational funding to identified
communities in the periphery of Israel (called “National
Priority Areas”) because it discriminated against Arab
citizens. Of the 500 identified communities, only four
were Arab Israeli. Although the Court gave the
government one year to implement the ruling, it did
not comply and, in turn, the Arab petitioners brought a
petition to the Court in 2008 asking it to declare the
government in contempt.
A further limitation of some rights provisions is that
they act as a form of control only after a right has
been violated, which means they can be enforced only
after delay and significant costs. A court may grant
remedies that do not adequately redress the violation
of a right, long after the damage is done.
These limitations on the effectiveness of rights
provisions can be addressed depending on the context,
but they do show why minorities often want more than
constitutionalized rights whose implementation may
carry a degree of risk. For example, the likelihood of
the judiciary respecting minority rights may be
enhanced if some judges come from minority
backgrounds. It can be important as well to have a
procedure for naming judges that is not dominated by
a majority hostile to one or more minorities. Once
named, judges need tenure and other elements of
security of employment.
5. Institutional design and minority
interests
Minorities may seek political empowerment through
institutions that provide a measure of self-government,
through measures to ensure minorities have effective
representation in shared institutions of government, or
both.
5.1 DEVOLUTION AND FEDERALISM
Minorities that are territorially concentrated may be
politically empowered through devolution or
federalism, both of which create local or regional
political institutions. At the regional level, such
devolution may be established through the
constitution, but there are many instances of
devolution done through ordinary legislation. For large
minorities, devolution may be to a regional
government in which they form the majority, but for
smaller, more locally concentrated minorities,
MINORITY RIGHTS IN DIVERSE SOCIETIES JUNE 2014
10
devolution to the district or municipal level may be
more appropriate. The groups that typically seek
significant regional devolution are national minorities
(who may have the even more ambitious objective of
independence), but linguistic and religious minorities
may seek devolution as well. Indigenous populations
may advocate devolution to a region (state or
province), as in Nigeria and parts of India, but in the
Western hemisphere their populations are often too
scattered or small, so they focus on the level of local
communities (tribes or bands). Bolivia is an
interesting counter-example in that the indigenous
population constitutes the majority and it is the settler
population that has advocated federalism.
Political devolution can answer many concerns of
territorially concentrated national minorities, because it
gives them control or substantial influence over
regional or local governments to which important
responsibilities may be assigned. Their language may
be official and used for many purposes. They may
make special arrangements in relation to their religion
and religious institutions. More generally, they will
have the sense that regional or local government will
reflect their interests and concerns, and that these
governments will not discriminate against them
because they constitute a majority.
A contentious issue in devolution can be whether it is
characterized as “territorial” or “ethnic”.
The underlying concept of territorial devolution is the
equality of all citizens living within the territory of a
sub-national political unit (e.g. region, state, province,
or municipality). It may be that a certain ethnic,
linguistic or religious population forms the majority in a
devolved unit, but members of such a majority do not
have a privileged status relative to other citizens
resident in the region or locality with its own
government. While the creation of the political unit
may have responded to the distinct identity of its
majority, the government is meant to be neutral as
between its citizens, whatever their identity.
By contrast, with so-called “ethnic” devolution, there
may be a sense that the members of the majority or
indigenous (historic) population have certain rights
that other citizens resident there do not. For example,
in Nigeria, the indigenous population of a state has
special privileges in terms of access to government
employment and some educational privileges. Indians
resident on reserves in Canada and the United States
have rights regarding political participation in their
community, land and tax exemptions that non-Indians
resident in their communities do not have.
While political devolution can protect the interests of
territorially concentrated majorities, it can create its
own challenges because there will often be minorities
in these devolved regions (who may be part of a
national majority). In principle, devolved units will be
under a constitutional duty to treat such minorities on
a non-discriminatory basis. However, regional
“minorities within minorities” may still be vulnerable to
the prejudices of the regional majority. They may look
for constitutional protections of their rights (e.g.
schools, language of government services) relative to
the regional majority, as well as for further political
devolution to local communities where they form the
majority, e.g. Canada has constitutional and legislative
protections for the schools of linguistic minorities in
provinces (though these vary by province).
Of course, minorities may not be neatly concentrated
territorially, so devolution to a region or locality would
still not answer such minorities’ concerns for a degree
of self-government. A way to address this can be
through “functional” devolution, by which a certain
responsibility is consigned to a body controlled by
members of a specified (ethnic, linguistic, tribal or
religious) group. Thus in Northern Ireland there are
separate denominational school boards, where the
Catholic and Protestant populations govern their own
schools, which receive government funding,
throughout the territory. In the Netherlands, for many
years there were separate, sectarian governance
arrangements of this type for educational and cultural
institutions.
5.2 POWER-SHARING
Political devolution can be viewed as a form of “power-
sharing” because powers are divided between levels of
government controlled by different groups. But there
are limits to how far this approach can go in ensuring
that minorities truly share in the exercise of
government power. Inevitably, some important
functions will rest with the central government, and
MINORITY RIGHTS IN DIVERSE SOCIETIES JUNE 2014
11
some minorities may be deeply resistant to permitting
central institutions to operate on a majoritarian basis
because they could then make decisions contrary to
the interests or desires of the minority. This has led
some countries to adopt what are called
“consociational” arrangements by which some (or even
all) decisions of the government are made jointly by
representatives of the two (or sometimes three)
groups. Thus in Belgium, the lower house of
Parliament is elected proportional to population (about
60 percent Flemish-speaking and 40 percent French-
speaking), but representatives of either linguistic
community can declare a matter to be of vital interest
to their community and require a double-majority of
the representatives of the two communities for
approval of the measure. Such arrangements assure
the minority that no measure will be agreed without its
approval, but they can lead to periodic deadlocks in
decision-making and frustrations on both sides. These
difficulties are part of the reason why consociational
governance has been adopted only in a few countries
where there are two or more deeply divided
communities.
5.3 ENHANCED OR PROTECTED
REPRESENTATION
Even when full power-sharing is not sought or
available, minorities can be concerned by their
representation in political, administrative and legal
institutions of government. This can be because they
see such representation as providing influence, the
opportunity to ensure their concerns are heard, and
the presence of administrators of the minority
delivering government services to the minority. But
they can also be concerned simply to have a fair share
of government employment, given the importance of
the public sector and the attractiveness of its jobs.
5.3.1 Representation in legislatures
Most national legislatures have an upper and lower
house, whose members are selected through different
methods. In those cases where members are elected,
the electoral system can play a major role in
determining the representation of minorities. For
example, systems based on single-member
constituencies tend to favor local majorities so they
may produce an over-representation of regionally
concentrated minorities and an under-representation
of regionally dispersed minorities. Constituency
boundaries in such cases can also be important for
minorities, because they can be drawn to either
enhance or diminish the probability of a minority
representative being elected.
By contrast, proportional representation (PR) regimes
can enable groups receiving even a very small
percentage of the vote to win representation, but this
will depend on whether there is a minimum threshold
to win a seat and on the number of seats for each
voting district (which, at the limit, can be one district
for the whole country). The threshold rules of PR can,
as in Germany, be modified to make it easier for
parties of national minorities to win representation.
Electoral laws can have several objectives, of which
minority representation may be only one. This goal
must be balanced against other objectives, such as
promoting stable government and broad-based parties.
A law designed to promote representation of minorities
may yield a party system that is too fractured, and/or
minority parties that are extreme or separatist. Some
countries, such as Nigeria and Kenya, require parties
to have a national character if they are to contest
elections, meaning parties should represent a broad
cross-section of the country’s groups and try to
integrate minoritiessuch parties must show a breadth
of party membership and field candidates in much of
the country.
Quite aside from the general design of the electoral
system, electoral laws can have specific provisions that
promote or require minority representation. For
example, the Indian Constitution reserves seats for
scheduled castes and tribes in the national Parliament.
Even when minorities win representation in
legislatures, they may not be able to participate in the
legislative process effectively. To address this concern,
the Constitution of South Africa requires that the rules
of the National Assembly provide for the participation
of minority political parties represented in the National
Assembly, in a manner consistent with democracy.
According to the Constitutional Court, this is a
constitutional commitment that all members of society,
particularly minorities, should feel that they have been
MINORITY RIGHTS IN DIVERSE SOCIETIES JUNE 2014
12
given a real opportunity to have their say, and that
their views have been taken seriously.
5.3.2 Representative executives
Both presidential and parliamentary systems may have
provisions to mandate a certain level of minority
representation in the executive, or at least to require
the executive to be broadly representative. This is
especially true for consociational regimes: in Belgium,
the Constitution requires an equal number of Flemish
and French speaking Cabinet Ministers (plus the Prime
Minister who may be either); in Bosnia-Herzegovina,
there is a three-person collective presidency consisting
of a Serb, a Croat, and a Bosniak, each directly
elected; and, in Northern Ireland, the rules around the
election of the First Minister and Deputy First Minister,
who are elected as a pair, effectively require a
Protestant First Minister and a Roman Catholic Deputy
First Minister, and the choice of other ministers is also
balanced. The Swiss Constitution requires that at least
two of the seven Federal Councilors, who collectively
form the executive, be from the minority francophone
population. The Nigerian Constitution requires that the
cabinet have a representative of each state. In many
other countries, especially parliamentary systems, the
practice is to have a cabinet that represents different
parts of the country, including significant minorities,
though this is not normally a formal requirement.
5.3.3 Courts
Minorities may also be granted special representation
rights in the courts or the highest court. This may be
done through the procedure for nomination: in Kosovo,
for example, the appointment of two of the nine
members of the Constitutional Court requires the
approval of a double majority of all members of the
legislature, and those holding seats guaranteed to
minority groups. In Bosnia-Herzegovina, the power of
appointment rests with ethnically-dominated
constituent units, so that the Serb Republic appoints
two judges, the Federation of Bosnia and Herzegovina
(which is dominated by Croats and Bosniaks) appoints
four, and the President of the European Court of
Human Rights appoints the remaining three judges. An
alternative way to assure minority representation is to
specify directly the composition of a court. In Belgium,
the Constitutional Court must consist of an equal
number of French- and Flemish-speaking judges. In
Canada, three of the nine judges on the Supreme
Court must be from Quebec (which has been
understood as mandating that at least two of those
judges be from the French-speaking minority).
5.3.4 Civil service, military and police,
independent agencies
As important as legislatures, executives and courts are
in any system, they represent only a small fraction of
the total positions within any governmental regime. A
major issue for minorities can be their representation
in the larger structures of government: the civil
service, military and police, and the several
independent agencies that may exist (e.g. electoral
commissions, civil service commission, judicial
commission, finance commission). Minorities may feel
that when they are adequately represented in them,
these institutions are more likely to treat them fairly
and with understanding and respect. They may also
value the important employment opportunities of
government service. Accordingly, many governments
adopt policies designed to enhance minority
employment in their various branches.
Some governments (or constitutions) permit quotas for
representative employment. The Indian Constitution
allows “reservation in matters of promotion to any
class or classes of posts in the services under the State
in favor of the (underrepresented) Scheduled Castes
and the Scheduled Tribes”. The Nigerian Constitution
goes further and requires civil service appointments to
“reflect the federal character of Nigeria”, which in
practice aims at proportional representation of each of
the 36 states. The South African Constitution, in
section 195(1)(i), tries to balance “representativeness”
with other considerations:
Public administration must be broadly representative of
the South African people, with employment and
personnel management practices based on ability,
objectivity, fairness, and the need to redress the
imbalances of the past to achieve broad representation.
This constitutional provision highlights the possible
tension between attempts to balance
representativeness and merit in decisions on staffing
MINORITY RIGHTS IN DIVERSE SOCIETIES JUNE 2014
13
and promotion. This is why many governments avoid
rigid quotas and seek to promote minority employment
in a variety of other ways, including special
recruitment and training programs, and using
representativeness as one factor along with others. Of
course, a minority may argue that merit should include
such factors as ability to speak their language
(especially if they have a right to service in their
language), and understanding of their culture.
Language requirements can be built into staffing
criteria, but can sometimes be resented by majorities
who do not speak minority languages.
6. Approaches to dealing with
minorities
6.1 ACCOMMODATION AND INTEGRATION
We have seen that there is a great variety both of the
minorities that may have political claims, and of the
specific claims that different minorities may advance.
Moreover, the political significance of minorities will
reflect their number, their relative size and cohesion,
as well as the nature of their claims. The
responsiveness of “majorities” to minority claims will
reflect cultural and historical factors, as well as more
practical considerations.
For all these reasons, there is no one model for dealing
with minorities. The area of consensus is probably
largest around the value of the basic individual,
negative rights (expression, assembly, association,
religion, political participation), but even these are
subject to broader or narrower interpretation in
different countries. A general right of “non-
discrimination” or “equal treatment” can also be
powerful, depending on its interpretation. All of these
rights would, of course, apply to all citizens, which
contributes to their attractiveness. They can be very
important for minorities, and in some cases, if
generously interpreted, may respond to many of a
minority’s concerns. They are consistent with the idea
of “integrating” minorities, while respecting their basic
rights.
The choice of how to deal with minorities becomes
more controversial when one moves beyond these
basic individual, negative rights. In practice, the
approach adopted in a particular case may depend not
just on the nature of the minority or minorities in
question, but also on how the majority views the
minority or minorities and their demands. In a highly
“integrationist” approach, a majority may insist on a
common public identity even in the face of
considerable cultural diversity, because of concerns
that empowering minorities or giving them special
protections risks political instability and conflict. Such
an approach is resistant to symbolic constitutional
recognition of minorities or institutional mechanisms
built on cultural or ethnic differences.
By contrast, an “accommodationist” approach may
give constitutional, symbolic recognition to more than
one national, ethnic, religious identity and provide for
some political devolution as well as various measures
to enhance the representation of minorities in
government institutions. These measures would
reflect a belief that they will promote a more
harmonious coexistence of different communities
within the same state.
A country may choose to have elements of both
integration and accommodation in its approach to
minorities. This is often the case with devolution, for
example, where regionally concentrated minorities
may form the majority within a particular region or
local government area, whose government may control
various matters of strong interest to the minority, such
as language policy and education. However, in general
central governments emphasize the equality of citizens
and their integration into a shared country and make
most decisions on the basis of majority rule. It is rare,
even in highly devolved systems, for national
minorities to be granted equal power in the institutions
of the central governmentthe form of power-sharing
described above as “consociationalism”. The more
usual accommodations at the central government level
are on such matters as language policy, guarantees
regarding minority representation in key institutions,
and sometimes symbolic recognition. Upper legislative
chambers (in bicameral constitutional systems)
sometimes have special representation for minorities
and minorities may also find some protection in having
their consent required for certain constitutional
amendments.
MINORITY RIGHTS IN DIVERSE SOCIETIES JUNE 2014
14
Different countries find different balances between the
accommodationist and integrationist approaches and in
many cases the blend both elements.
6.2 STAGED CONSTITUTION-MAKING OR
IMPLEMENTATION
Some countries emerging from autocratic regimes find
that there are high levels of mistrust among certain
groups in the population. They accept that it will take
time to reduce suspicion and develop trust, so they
may take a staged approach to making or
implementing their new constitution by adopting an
accommodationist approach during the negotiation
phase or the early years of implementation, but
shifting to a more integrationist regime over time. In
South Africa, the African National Congress agreed to
negotiate a new constitution with the minority
apartheid regime on terms of relative equality. This
was a way of reassuring the minority non-black
population that a new, democratic constitution would
protect their interests, and it permitted a peaceful
transition of power. The transitional interim
Constitution (1993) entitled any party winning 20 per
cent of the seats in the National Assembly (in elections
on the basis of proportional representation) to a
deputy president and any party winning five per cent
to representation in the cabinet. This power-sharing
structure represented a form of accommodation. The
interim constitution, however, contained a five-year
sunset clause. There was no requirement to maintain
the interim power-sharing structure at the end of that
five-year period, and in fact the 1996 Constitution
abandoned the power-sharing structure and adopted a
more integrationist political system.
Recognizing the intense sectarian and ethnic divisions
in Iraq, the drafters of its Constitution provided for a
first stage with power-sharing in the central
government for four years, after which the regime
would become more integrationist. In the initial stage,
there was a Presidential Council consisting of a Kurdish
President, a Sunni Vice-President and a Shi’a Arab
Vice-President elected by a two-thirds majority in the
legislature; the Presidential Council in turn chose the
Prime Minister. After the four-year transition period,
the Presidential Council was replaced by a single-
person presidency chosen by a majority vote of the
legislature. At the same time, an upper house
representing regions was to be introduced into the
legislature but this has not yet happened. This
structure was designed for an initial stage of greater
power-sharing with an eventual shift to a more
integrationist political system.
7. Conclusion
Minorities exist in all countries, but they take very
different forms and have quite different political
significance. Countries that are marked by a strong
degree of cultural, ethnic, linguistic or religious and
even regional diversity can face special challenges in
dealing with minorities. There may be seemingly
conflicting objectives between nation-building and
recognizing diversity, between individual rights and
more collective rights, between accommodation and
integration. While each country must find its own path,
the approach taken should recognize the importance of
a full recognition of basic rights and of fair treatment
for all. Majorities should ask how they would wish to
be treated if they were a minority. While every
country rightly seeks political stability and harmony,
the best way to realize this may be through
recognizing the contributions that all groups in the
population can bring to a country’s strength and
richness. Thus many successful and highly diverse
countries have found prosperity and stability through
measures such as devolution of power to local or
regional governments with fair sharing of resources,
some power-sharing or guaranteed representation for
minorities in central institutions, an inclusive approach
to national symbols, and appropriate protection and
rights for minority languages. Such measures can be
an integral part of nation-building and balanced with a
integrative approach to citizenship and government.
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