Legislation

THE LANGUAGE LAW COMMISSION AND ITS BACKGROUND

The Language Law Commission was given its terms of reference by the Government. The Commission was to draft a proposal, in the form of a legislative bill, for a new Act of Parliament governing the use of national languages in Finland, Finnish and Swedish, as well as for other relevant legislation.

A number of issues lie in the background of the Commission's work. The first, and the most important, is the Constitutional Rights Reform of 1995 and the subsequent new Constitution of Finland, which entered into force on March 1, 2000. Finland's status as an officially bilingual country and the principle of equality between the national languages are enshrined in the Constitution, as well as linguistic rights and duties of the public authorities in matters pertaining to the language. In the light of these new provisions of the Constitution, it became essential to assess the amendment needs of the language legislation in force.

Secondly, there are materially, technically and formally obsolete provisions throughout the 1922 Language Act and the other language legislation of general application. The legislation was enacted under different social and economic conditions and for a different type of society. The partial reforms of the language legislation undertaken over the years have not been enough to make up for all its shortcomings.

Thirdly, our domestic language legislation has been in need of scrutiny also for reason of globalization. On one hand, the legislation must be viewed in the light of the international treaties and obligations binding Finland, even if it does appear to meet all requirements, at least in essential questions. On the other hand, it is vitally important to make comparisons to the linguistic regimes of other countries when the domestic one is being reformed, for a number of reasons: to achieve a certain degree of similarity between the various systems; to discover new ideas, or even solutions, in other countries; and to exchange experiences of the practical application of language legislation.

Fourthly, criticism has been directed in numerous contexts against the current language legislation and the way it is implemented in practice. The atmosphere of the debate has nevertheless remained positive, which of course has been an advantage in view of the launching of the reform work. Accordingly, an express item on the reform of the Language Act was included in the program of Prime Minister Paavo Lipponen's second Government, which then led to the Language Law Commission being established in August 1999.

Reform goals: Modernization and clarification

It has been an important goal of the Commission to modernize the Language Act materially, technically and formally, as well as to ensure that the linguistic rights referred to in the Constitution will be realized also in practice. At the same time, the aim has been to strengthen linguistic equality and to provide the means for remedying any defects that may be encountered in practice.

... and Promotion of Bilingualism in Finland

The Language Act has also its symbolic value to the citizens. Language is one of the most important elements in the maintenance of the unity of people and the preservation of its special characteristics. Moreover, it is an essential tool for individuals to exert an influence on society. Accordingly, the Commission has proposed in its report that all citizens should have an equal opportunity to use their own language in their dealings with the public authorities, and to receive services in that language. Linguistic equality is conducive to reinforcing the people's identity and to creating an atmosphere of security and togetherness.

The Commission's leading goal has been a positive attitude to bilingualism and, hence, indirectly also to multilingualism and a multicultural society. Another goal has been that the country would be visibly and tangibly bilingual. This latter goal is important, so that individuals in Finland can also in the future lead their lives and participate in the society in their own language, either Finnish or Swedish, and so that both the Finnish-language culture and the Swedish-language culture can remain in good vigor in this ever globalising world.

Commission proposes the enactment of a new, modern Language Act

The Commission's report incorporates a proposal, in the form of a legislative bill, for a new Language Act and for other relevant legislation. The new Act would repeal the 1922 Act of the same name. "Language Act" (kielilaki/språklag) is in the opinion of the Commission a suitable title also for the new enactment. It is familiar, concise and illustrative of the enactment's material contents.

According to the proposal, it is the objective of the Language Act to guarantee the constitutional right of everyone to use their own language, Finnish or Swedish, before courts of law and administrative authorities. It is a further objective that everyone's right to a fair trial and good governance are guaranteed no matter what their language is. Moreover, an individual's linguistic rights should be realized without need for specific express reference to the same. According to the proposed legislation, however, an authority is free to provide more extensive linguistic service than the minimum standard required by the Language Act.

The new Language Act is proposed to be divided into chapters, with contents as follows:

(1) The national languages, the objectives and scope of application of the Act, the relationship of the Act to other legislation, linguistic divisions of the country, unilingual and bilingual authorities and linguistic provisions elsewhere in the law

(2) The guarantees of linguistic rights

(3) The right to use Finnish and Swedish before the authorities

(4) The language of the case

(5) The internal and working languages of public authorities

(6) The languages of legislation and information to the general public

(7) The promotion and monitoring of linguistic rights

(8) The competence to issue subordinate provisions, entry into force and transitional provisions

The draft proposal for a new Language Act is intended to meet the challenges of today and of future years. Special attention has been paid also to the technical and formal quality of the Act, to plain language and to unambiguity.

Main contents of the new Language Act

Applies to Finnish and Swedish – provisions on other languages elsewhere

The new Language Act would only apply to the national languages, that is, Finnish and Swedish. It would provide for the right to use Finnish or Swedish before the authorities. Moreover, it would provide for the duty of the public authorities to realize and promote linguistic rights.

Specific legislation would govern the use of the Sámi language and languages other than Finnish and Swedish. There is a reference to Sámi in the proposed Language Act. In addition, the Romany language and sign language are mentioned in the preparatory works, with a recommendation for the further development of sign language. Moreover, the proposed Language Act contains a reference to the Act on the Autonomy of Åland, which governs linguistic conditions in the Åland Islands.

Applies to public authorities and also to others performing public duties

The new Language Act would have an extensive scope of application as regards the concept of public authorities. Firstly, it would apply to courts of law and to other bodies administering appellate justice. Secondly, it would apply to all the administrative emanations of the State, as well as to municipalities and federations of municipalities. Moreover, it would apply to the independent institutions under public law, such as the Social Insurance Institution and the Bank of Finland. Parliamentary activity would be excluded from the scope of application of the Act, but it would nonetheless apply to the administration of the Parliament (e.g. the Library of Parliament and the Office of the Parliamentary Ombudsman).

It is proposed that the scope of application of the Act be in certain cases extended also to State enterprises, corporations and private individuals, where these are performing public duties.

The Act would not apply to Universities, other institutions of higher education, and other educational institutions, the Evangelical Lutheran Church of Finland or the Finnish Orthodox Church. Specific legislation would apply instead.

General legislation, to be supplemented by specific provisions

The proposed Language Act is general by nature, containing only the most significant provisions on the use of Finnish and Swedish. It would be supplemented by language provisions in specific legislation. The objective is that the minimum linguistic rights laid down in the Language Act would not be restricted by way of the specific provisions.

In the legislation currently in force, there are numerous provisions on the use of Finnish and Swedish spread across a range of administrative sectors. In contrast, the proposed Language Act contains merely a list of significant linguistic provisions, useful as an example or an illustration of the entirety of the language legislation. There are important linguistic provisions e.g. in the legislation on education and culture, the legislation on health care and social welfare and the legislation on criminal investigations and court procedure. In addition, the Commission proposes a new Act on the Linguistic Proficiency Required of Public Officials, which would be a new addition to the list.

Division of the country into unilingual and bilingual municipalities

The Language Law Commission proposes the retention of the current system, where the municipalities are divided into unilingual and bilingual ones on the basis of the proportions of the languages in their populations. The division would be fixed for ten years at a time by a Decree of the Government.

A municipality would be defined as bilingual, if the Finnish- or Swedish-speaking minority were at least eight percent of the population of the municipality, or at least 3,000 inhabitants. However, a bilingual municipality would not be defined as unilingual, unless the proportion of the minority decreased to below six percent. In addition, if the municipal council so proposed, it would be possible to define a municipality as bilingual for the following ten-year period, even if it otherwise were to be unilingual.

According to the new Language Act, a public authority would be either unilingual or bilingual. The Commission proposes that unilingual authority would mean a State authority whose jurisdiction covers only unilingual municipalities with the same language, an authority of a unilingual municipality and an authority of a federation of municipalities, where all the member municipalities are unilingual with the same language. In contrast, bilingual authority would mean a State authority whose jurisdiction covers unilingual municipalities with different languages, or at least one bilingual municipality, an authority of a bilingual municipality and an authority of a federation of municipalities where there are member municipalities that are unilingual with different languages, or at least one bilingual member municipality. One of the objectives of the proposal is to clarify the current, admittedly confusing, linguistic regime. In addition, the proposal entails an extension of the duties of the authorities. For instance, an authority within the central administration is to serve all citizens in both national languages, regardless of the linguistic status of their municipality of residence.

Public authorities to guarantee linguistic rights on their own initiative

According to the proposal of the Language Law Commission, public authorities should see to the realization of individuals' linguistic rights on their own initiative. In other words, it would not be necessary for anyone to make specific reference to their linguistic rights. Hence, bilingual authorities are to provide service to the public both in Finnish and Swedish. They must also see to it that both national languages and the right to use them are clearly visible inside and outside the offices, in the names of the authorities, on their letterhead, in their publications and on their websites.

As it is the case today, the guaranteeing of linguistic rights would be a task also for state enterprises and for companies owned by bilingual municipalities. These should provide service and information to the public both in Finnish and Swedish, unless this was unnecessary in view of the nature of their activities.

Moreover, companies, organizations, foundations and persons under private law, where providing services on commission by the public authorities, as well as individuals performing tasks in public administration, would have to take due note of the linguistic rights in the same manner as public authorities.

Precise norms on the right to use Finnish and Swedish before the authorities in given situations

Chapters 3 and 4 of the draft Language Act contain provisions – more precise than the current ones – on the right of private individuals and legal persons to use Finnish or Swedish before the authorities. The draft contains also a provision on the right of a party to a matter to interpretation and translation. There are very detailed provisions in the draft on the determination of the language of the case in various situations, such as an administrative matter, a matter of administrative judicial procedure, a criminal matter, a civil or petitionary matter and a matter before an appellate authority.

In accordance with the new Constitution, the main idea is that an individual's linguistic rights are not dependent on his or her citizenship. The same linguistic rights are to be guaranteed to all, not just Finnish citizens. Hence, a foreign citizen whose own language is Finnish or Swedish has the same right as a Finnish citizen to use his or her own language. This proposal is justifiable also in terms of EC law: It is given that citizens of the European Union are not unduly put into different positions because of their citizenship, nor discriminated against on linguistic grounds.

The proposed provisions would not entail any expansion of the linguistic rights granted in the current Language Act. Nevertheless, it is an express objective that the rights enshrined in the Act would be realized also in practice.

The Constitution governs the right of all persons to use their own language. According to the draft Language Act, everyone has a choice to use either Finnish or Swedish, in situations covered by the Act and within the limits set therein, even if the language of choice was in fact not the language that the person has registered as his or her mother tongue.

According to the proposal, the language used in a unilingual municipal authority would, as a rule, be the language of the municipality. Nevertheless, the municipality could use also the other language, if requested to do so. In addition, in certain matters pertaining to the fundamental rights of the individual, such as taking a child into municipal care, everyone would be entitled to use his/her own language, even if not the language of the unilingual municipality.

Language of legislation and of information to the public

It is proposed that provisions on the language to be used in legislation and preparatory works be included in the Language Act. Some provisions on these questions already exist in the Constitution and in certain other enactments. However, as the matter is of considerable importance, it has been deemed necessary to duplicate those provisions in the proposed new legislation. According to the draft Language Act, Acts of Parliament are enacted and promulgated in Finnish and in Swedish. Also Decrees and other subordinate official norms are issued in both languages.

It is proposed that draft legislation and the pertinent reports issued by the Ministries and by State Commissions, Committees, Working Groups and corresponding bodies be published in Finnish. The publication would have to include a Swedish summary, as well as the complete Swedish version of the proposed legislation. Moreover, a report should be published as a complete Swedish version, if it has noteworthy importance to the Swedish-language population of the country.

The proposal contains provisions also on the language of legislation and reports pertaining to the Åland Islands. As a rule, these have to be published as complete Swedish versions.

In addition, the Commission's draft Language Act contains specific provisions on information to the public. The leading principle is that both national languages are to be used when a State or a municipal authority issues information to the public in a bilingual municipality. Moreover, it is required from the Ministries to provide information that is essential to individual life, health and security in Finnish and Swedish throughout the country. It is further proposed that the notifications, announcements and promulgations of bilingual authorities, as well as their other information to the attention of the public, are to be issued in both languages. However, the provision of information should not be equally extensive in Finnish and in Swedish. But in matters pertaining to the rights of the individual, information should have the same coverage in both languages.

The draft Language Act contains some provisions on signs, traffic signs and place names. It is to be noted that, in bilingual municipalities, the indication of the place names in both national languages in road signs is of importance to linguistic identity. Certain Swedish-language place names have a lot of history. For reasons of heritage, these place names should be retained in signs and on maps even if the municipalities themselves were unilingually Finnish (for instance, Hämeenlinna/Tavastehus, Lappeenranta/Villmanstrand, Savonlinna/Nyslott, Hamina/Fredrikshamn and Tampere/Tammerfors).

Special rules for defense and foreign affairs

It is proposed that the new Language Act contains some of the provisions on the Defense Forces that are already extant in the 1922 Act. The legislation should guarantee the opportunity for men and women performing national service in the military to receive instruction in Finnish or in Swedish. Accordingly, the Language Act would have a provision that at least one unit of the Defense Forces has Swedish as its language. It would be possible to establish other Swedish-language units and lower-level formations, as well as bilingual units, by way of the specific legislation on the Defense Forces.

It is proposed that the language of the military authorities is Finnish. However, the authorities of the Swedish-language unit would use Swedish. In addition, everyone would be entitled to use their own language in their dealings with the military authorities. It is proposed that Finnish remain the command language of the military, also in the Swedish-language units.

There are also certain provisions on foreign affairs in the draft Language Act. The Commission proposes that Finnish missions abroad would be subject to the provisions on bilingual authorities with Finnish as the language of the majority. However, honorary consulates would not be within the scope of application of the Language Act. It is further proposed that the Ministry for Foreign Affairs be authorized to issue more detailed provisions and instructions on the use of foreign languages in Finnish missions.

Public authorities to promote linguistic rights

A general provision on the promotion of linguistic rights is proposed by the Language Law Commission. According to the proposal, the public authorities would have the duty to see to the cultural and social needs of the Finnish-speaking and Swedish-speaking populations of the country on an equal basis, as is provided also in the Constitution. The proposal duplicates also the constitutional provision on the organization of the public administration. Accordingly, in the organization of the public administration the objective should be coherent linguistic divisions, where the opportunity of the Finnish-speaking and the Swedish-speaking populations to receive services in their own language is guaranteed.

The Commission proposes further that the authorities' activities should be conducive to preserving the linguistic heritage and promoting the use of both national languages. The draft provision would give the public authorities the competence to undertake specific measures in order to guarantee the cultural or social needs pertaining to the national languages.

Ministry of Justice to monitor the application of the Language Act

It is proposed that the new Language Act contain a provision charging each Ministry to monitor the application of the Language Act in its particular sector. In contrast, the Commission has not considered it necessary to establish a dedicated position of language ombudsman. This is because there is no reason to differentiate between linguistic rights and the other rights enshrined in the Constitution. It is important that the highest overseers of legality monitor also the realization of the linguistic rights, so that these are not considered to be less important than other constitutional rights.

The current Language Act does not provide for any authority to see to the administrative tasks involved in the application of the Act. According to the proposal, however, the Ministry of Justice would have a special monitoring responsibility. The Ministry would also be competent to issue recommendations relating to the language legislation and to make initiatives for the correction of defects.

The Language Law Commission proposes that the Government submit a report to the Parliament on the application of the Language Act and the realization of linguistic rights; one report per electoral term is envisaged. The report would cover not only Finnish and Swedish, but also Sámi, Romany and sign language. Thus, the report would be a more general account on the linguistic developments in the country.

New Proficiency Act and practical proposals for the improvement of language skills

The Language Law Commission proposes the enactment of a new Act on the Linguistic Proficiency Required of Public Officials. This would supersede the old legislation pertaining to State officials. The scope of application of the new Act would be expanded. It would cover not only State officials, but also the officials of municipalities and federations of municipalities, and of independent institutions under public law.

The new Act would be general by nature. It would charge the public authorities to provide training and undertake other personnel development measures in order to have the personnel acquire the linguistic proficiency that is necessary for the performance of their tasks and required by the Language Act and other legislation.

The proposed Act would contain provisions on the manner of determination of the proficiency requirements and their publication. Thus, the linguistic proficiency required for a given post should be determined before the post is advertised as vacant. In addition, the required proficiency should be made public before the vacancy announcement. There would also be provisions on the verification of linguistic proficiency at the time of appointment. Proficiency could be shown e.g. by passing the requirements for a degree from an educational institution, by taking a designated proficiency examination or in another appropriate manner.

The Proficiency Act would also contain general provisions on examinations in Finnish and Swedish and on the general language requirements for State personnel. The current regime is proposed to be retained: For posts where the general competency requirement is a degree from a University or polytechnic, a perfect command of the language of the majority in the authority's jurisdiction is also required. The current term, "perfect command" in Finnish or Swedish, is nevertheless proposed to be replaced by the expression "excellent command." This is not intended to signify any change in the material requirements.

Detailed linguistic requirements in the State administration would be set separately by an Act, a Decree of the Government or a decision by the authority concerned. The linguistic requirements on the personnel of municipalities and federations of municipalities would be set in the municipal staff regulations.

The proposed new Language Act and the connected new Act on the Linguistic Proficiency Required of Public Officials will not by themselves suffice to improve the language skills of the personnel of the public authorities and other organizations performing public tasks. Many practical measures are also needed. For purposes of planning for further measures, the Language Law Commission has drawn up a list of practical proposals for measures to realize linguistic rights. The Commission emphasizes the importance of language skills in the activities of the authorities and the responsibility of the senior management in the safeguarding of linguistic rights. Language training is no doubt necessary, but it can be offered in many ways. For instance, the Commission proposes everyday immersions, that is, the use of both Finnish and Swedish in the workplace, as often as possible. The list of proposed measures is annexed to the report of the Commission.

Entry into force in 2004

The Bill for a new Language Act and related legislation is intended to be submitted to the Parliament in the spring of 2002, after the report has been sent out for comments and the draft revised. The Acts are intended to enter into force in the beginning of the year 2004.

The enactment of a new Language Act will necessitate the revision of legislation in many administrative sectors. The responsibility for this lies with the Ministries in question, with the Ministry of Justice being responsible for coordinating the efforts. In addition, the Ministry of Justice provides training and instructions for the drafting work required for the amendment of the various language provisions in the legislation. Furthermore, the Ministry of Justice is in charge of the general information and education exercise relating to the Language Act and linguistic rights; this will have to begin already before the Acts enter into force.

Source: Mercator new, December 2002, http://www.om.fi/uploads/i0qyauwgw18ziqq.pdf

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