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Individual opinion of P.N. Bhagwati, Lord Colville,
and Maxwell Yalden (dissenting)
We find ourselves unable to agree with the view taken by some of our colleagues in
regard to the applicability of article 19, paragraph 2, and article 26 of the Covenant, though we
do agree with them so far as articles 17, 25 and 27 are concerned. Our reasons for taking a
different view from that taken by our other colleagues are the following:
Re: article 19 paragraph 2
1.
So far as the alleged violation of article 19, paragraph 2 is concerned, it may be pointed
out that when the admissibility decision was given by the Committee on 7 July 1998, the
Committee declared the communication admissible without specifying what were the articles of
the Covenant which appeared to have been violated. The only question raised in the
admissibility decision was whether or not the State party had violated its obligations under the
Covenant. However, the Complaint in the communication which was sent to the State party
related only to violation of articles 17, 25, 26 and 27 of the Covenant. The communication did
not allege violation of article 19, paragraph 2, and the State party was therefore not called upon
to meet the challenge of article 19, paragraph 2. We do not therefore think that it would be right
for the Committee to make out a case of violation of article 19, paragraph 2, when that was not
the case put forward by the authors in the communication. We can appreciate that if the authors
had not claimed violation of any particular articles of the Covenant but had made a general
complaint of violation by the State party of its obligations under the Covenant on the facts
alleged in the communication, the Committee might have been justified in holding that on the
facts as found by it, any particular article or articles of the Covenant were violated. But when
specific articles of the Covenant were relied upon by the authors in the communication,
especially when advised by counsel, we do not think that it would be right for the Committee to
make out a new case for the authors.
2.
Moreover, we find that the only allegation in the communication as set out in
paragraphs 3(4) and 3(5) is that the authors were denied “the use of their mother tongue in
administration, justice, education and public life.” In our view this allegation does not make out
a case of violation of article 19, paragraph 2. So far as the administration is concerned, English
being the official language of the State party, it is obvious that no other language could be
allowed to be used in the administration or in the Courts or in public life. The authors could not
legitimately contend that they should be allowed to use their mother tongue in administration or
in the Courts or in public life, and the insistence of the State party that only the official language
shall be used cannot be regarded as violation of their right under article 19, paragraph 2. In
regard to the use of Afrikaans, the mother tongue of the authors, in education there is nothing to
show that the authors were not allowed to use Afrikaans in the schools or colleges run by them
and this allegation of violation of article 19 paragraph 2 also therefore remains unsubstantiated.
3.
Of course, the authors might have argued that their language rights under Article 27 were
being denied, and this allegation could then have been examined by the Committee; however,
this is hypothetical, as in fact their Article 27 submission related entirely to land use