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Breach of Article 64 of the Constitution by the Ministry and Department of Education [2005] VUOM 3; 2003.03 (11 April 2005)

REPUBLIC OF VANUATU
OFFICE OF THE OMBUDSMAN

PMB 081
Port Vila
Vanuatu

PUBLIC REPORT

ON THE

BREACH OF ARTICLE 64
OF THE CONSTITUTION BY THE
MINISTRY AND DEPARTMENT
OF EDUCATION

Date: 11 April 2005

9590/2005/03

REPUBLIC OF VANUATU
PUBLIC REPORT ON THE
BREACH OF ARTICLE 64
OF THE CONSTITUTION BY THE MINISTRY AND DEPARTMENT
OF EDUCATION

TABLE OF CONTENTS

1. JURISDICTION
2. PURPOSE, SCOPE OF INVESTIGATION AND METHODS USED
3. RELEVANT LAWS, REGULATIONS AND RULES
4. OUTLINE OF EVENTS
5. RESPONSES BY THOSE WITH COMPLAINTS AGAINST THEM
6. FINDINGS
7. RECOMMENDATIONS
8. INDEX OF APPENDICES

SUMMARY

This report is issued to outline the negligence of the Ministry and Department of Education to provide services in one’s language of education as required by Article 64 (1) of the Constitution. These two institutions are the very government institutions that should uphold and promote the use of official languages.

In 1999 several French educated individuals including teachers, staff of the French Embassy and a francophone scholarship applicant received letters and other documents in English from the Ministry and the Department of Education.

The Ombudsman found that the Ministry and Department of Education breached Art. 64 (1) of the Constitution in not providing services in French to francophones.

The Ombudsman recommends that the Minister responsible for Education issue a circular advising the staff of the Ministry and Department to respect Art. 64 of the Constitution. The Ministry should also set up its own translation facilities.

It is also recommended that the government through the Office of the Prime Minister liaise with other appropriate government agencies to prepare a Bill for Language Rights.

1. JURISDICTION

1.1 The Constitution and the Ombudsman Act allow the Ombudsman to look into the conduct of government, related bodies, and Leaders. This includes the conduct of both the Ministry and Department of Education in communicating with various persons in the official language he or she does not use.

2. PURPOSE, SCOPE OF INVESTIGATION AND METHODS USED

2.1 The purpose of this report is to present the Ombudsman’s findings as required by the Constitution, the Ombudsman Act and the Leadership Code Act.

2.2 The scope of this investigation is to establish the facts about both the ministerial and departmental formal communication with persons in the official language he or she does not use and to determine whether or not such a linguistic practice was proper.

2.3 This Office collects information and documents by informal request, summons, letters, interviews and research.

3. RELEVANT LAWS, REGULATIONS AND RULES

3.1 The constitutional and statutory provisions relevant to this report are mentioned in (APPENDIX Q) of this report.

3.2. Section 64 of the Constitution provides for a citizen of Vanuatu to obtain in the official language that he or she uses the services which he may rightfully expect from the administration of the Republic of Vanuatu.

4. OUTLINE OF EVENTS

4.1 On 8 July 1999, Mrs Marie-Francoise Hamard complained to the Ombudsman that Ms. Lemeunier, who was the Officer in-Charge of the CFEB (Centre de Formation de l’Éducation de Base) project at the French Embassy, had received a Job Description form (APPENDIX A) from the Ministry of Education for the recruitment of two Ni-Vanuatu francophone teachers for the academic year 2000. The form was written in English, whereas Ms. Lemeunier is French educated.

4.2. On 4 August 1999 the Ombudsman sent a letter to the Director General of Education requesting him to explain the policy of formal communication to francophone teachers and whether the Ministry and Department respected the principles of the Constitution as stated in the Article 64.

4.3 On 5 August 1999 the Principal Scholarship Officer, Mr Antoine Thyna sent a letter in English to a francophone applicant for scholarship (Anthony Livuslili) informing him that his application was unsuccessful.

4.4 In his response dated 11 August 1999 the Director General said that there was a standard policy of the Ministry and Department to communicate with their employees in the language he or she used. Furthermore, both respected the provisions of Article 64 of the Constitution. However, translation had often been a problem due to budgetary constraints refer to (APPENDIX B).

4.5 On 20 August 1999 the Ombudsman asked the Director General about the steps to be taken so as to remedy the situation. The Director General did not seem to reply to it in his letter dated 23 August 1999 (copy of letter attached as APPENDIX C).

Another letter was sent on the same day to the Minister of Education, Honourable Joe Natuman with regards to the language right policy.

4.6 In his response dated 15 October 1999 the Minister of Education Honorable Joe Natuman said that

"Since my taking office I have attempted to ensure that people receive letters and other documents in their working language... The problem of translation of documents is one which is facing the whole Government due to the fact that we do not have qualified translators around and it costs money. However, the Ministry is trying its best to ensure that important documents are printed in English and French." (see APPENDIX D).

4.7 On 3 November 1999 Mr Jean George Mandon from the French Embassy in Port Vila received a memorandum in English convening a meeting for which he was to attend in person. This memorandum, which was signed by the Acting Director of Policy and Planning Services, Mr Gideon John, was sent to the members of the Institut National de Technologie du Vanuatu (INTV) Strengthening Project Coordinating Committee. Six of the members were francophones (see APPENDIX E).

4.8 On 15 November 1999 the French Ambassador received an undated letter from the Minister of Education, Youth and Sports inviting him to a Donors Round Table discussion on the Education Master Plan at INTV Hall (see APPENDIX F). The letter was written in English.

4.9 On 22 August 2002 the Ombudsman asked then Minister of Education, Honourable Jacques SESE, to provide a copy of a circular advising the personnel within both the Ministry and Department of Education to respect the provisions of Article 64 of the Constitution. He also wanted to know how the Minister would resolve the above mentioned situations of receiving letters in a language that are not of one’s educational background.

4.9 In his response dated 24 September 2002 the Minister of Education, Honourable Jacques Sese said:

"Je tiens à vous informer qu’il n’y a pas de letter avisant le personnel du Ministère de l’Education, afin de respecter les principes ennoncés par l’Article 64 de la Constitution" (please refer to APPENDIX G) [I would like to inform you that there is no letter advising the staff of the Ministry of Education to respect the provisions of Article 64 of the Constitution].

4.10 Even though both the Ministry and Department of Education were sending letters written in English to the French citizens and francophones, the Minister would not say how he was intending to resolve the situation.

5. RESPONSES BY THOSE WITH COMPLAINTS AGAINST THEM

Before issuing this report a working paper was sent to the persons mentioned in this report to give them an opportunity to respond. A copy of the working paper was sent in July 2004 to the then Caretaker Minister of Education Honourable Nicolas Brown, the Director-General of Education Mr. Abel Nako and Messrs. Serge Briand and Bernard Sexe from the French Ambassy.

We did not receive any reply from any of the above named persons.

6. FINDINGS

6.1 Finding: The Ministry and Department of Education have breached Article 64 of the Constitution by sending documents and letters that were written in English to two French citizens and to other francophones.

7. RECOMMENDATIONS

7.1 Recommendation 1: The Minister responsible for Education should issue a circular to the personnel of both the Ministry and the Department to respect the provisions of Article 64 of the Constitution.

7.2 Recommendation 2: The Minister of Education should send a copy of this circular to the French Embassy.

7.3 Recommendation 3: The Ministry of Education must set up translation facilities within the department and ministry so as to avoid further breaches of Article 64 of the Constitution and in effect, respect the rights of every citizen of Vanuatu to receive from them services in each individual’s language of education

7.4 Recommendation 4: The Government through the Ministry of the Prime Minister should start consulting the appropriate government agencies including the State Law Office to prepare a bill for Language Rights to give effect to Article 64 of the Constitution.

Dated the 11 April 2005.

Mr. Peter K. TAURAKOTO
OMBUDSMAN OF THE REPUBLIC OF VANUATU

8. INDEX OF APPENDICES

A Copy of Job Description form

B Copy of letter dated 11 August 1999

C Copy of letter dated 23 August 1999

D Copy of letter dated 15 October 1999

E Copy of memorandum dated 3 November 1999

F Copy of undated letter that was received by the French Ambassador on 15 November 1999

G Copy of letter dated 24 September 2002

Q Relevant laws, regulations and rules

APPENDIX Q

RELEVANT LAWS, REGULATIONS AND RULES

3.2 CONSTITUTION OF THE REPUBLIC OF VANUATU

RIGHT OF A CITIZEN TO SERVICES IN OWN LANGUAGE

RIGHT OF A CITIZEN TO SERVICES IN OWN LANGUAGE

64. (1) A citizen of Vanuatu may obtain, in the official language that he uses, the services which he may rightfully expect from the administration of the Republic of Vanuatu.

(2) Where a citizen considers that there has been a breach of subarticle (1) he may make a complaint to the Ombudsman who shall conduct an enquiry in accordance with Articles 62 and 63.