In 1999 the Sándor Márai Foundation elaborated a special training program in order to prepare so-called Roma assistants for different fieldwork in Roma settlements. The program consists of a 300 hours long intensive training making eligible a Roma specialist to work as assistants in different fields. The program gives a diploma on the basis of which the Roma assistants might have (state funded) jobs in Roma communities. However the diploma would be eligible for state funded positions only in the case that the Roma assistants will work in their communities.

This memorandum prepared by the Center for Legal Analyses-Kalligram Foundation aims at describing the legal background of the solution of the problem of Roma assistants as well as at creating a conceptual basis of affirmative action policies (positive discrimination or positive action) projects in Slovakia.

EU and Council of Europe:

There are three major European documents recommending positive action for the relevant states dealing with different problems of, among others, Roma minority: the EU Directive implementing the principle of equal treatment between persons irrespective of racial or ethnic origin No. 2000/43/EC (EU Race Directive), the EU Directive Establishing a general framework for equal treatment in employment and occupation No. 2000/78/EC, (EU Employment Directive) and the Council of Europe Protocol to the European Convention on Human Rights and Basic Liberties No.12. These documents represent the most important stage in the recent development of international (supranational) law in the field of combating discrimination. They are of profound importance to Slovakia, a member state of the Council of Europe and an associated country with the EU, currently in the process accession negotiations.

The stated purpose of the EU Race Directive is to “lay down a framework for combating discrimination on the grounds of racial or ethnic origin, with a view to putting into effect in the Member States the principle of equal treatment. Both the Race and Employment Directives suggest the possibility of the adoption of positive action measures by countries in order to ensure “full equality in practice.” This might include the maintenance or adoption of “specific measures to prevent or compensate for disadvantages linked to racial or ethnic origin.” The directive does not elaborate any further, nor does it require such measures to be taken. However, in the spirit of promoting the equality principle, Member and candidate countries have many options available to them in implementing effective positive discrimination or affirmative action programs.

Since the above-mentioned documents have recommendatory character, there are no obligatory measures in the international documents states need to develop. Therefore it depends on the minority (and social) situation as well as on (political) will of the states to adopt policies of positive action.

USA:

As among others the US affirmative action experience show such policies are the question of political will, not legal or constitutional question as in Central and Eastern European’s government use to emphasize. In the United States affirmative action was a term and concept largely ignored until the passage of the Civil Rights Act of 1964, which created a broad bar against discrimination in privately-owned facilities open to the public (Title II), discrimination in federally funded programs (Title VI), and discrimination by both private and public employers. The support behind affirmative action peaked with President Johnson’s issuance of Executive Order 11,246. The Order regulated affirmative action taken by government contractors in all employment activities, and required employers to submit affirmative action plans analyzing the demographics of their workforce and indicating proactive measures the employer would take to ensure greater equality. The intent of the order was to take “affirmative action” to create more equal representation of minority groups in employment and education

Although the Slovak government’s strategy (Strategy of the Government of the Slovak Republic for the Solution of the Problems of the Roma National Minority and Set of Measures for Its Implementation, Stage I.II., 27) contains the possibility of positive action, in general it is difficult to advocate the concept of positive discrimination in Slovakia. The Slovak political elite, as well as the general public is unlikely to support such a concept to solve the "Roma issue".

To understand the negative perception of positive discrimination in Slovakia one needs to understand the ironies of positive discrimination in the history of communistic Czechoslovakia. This also helps to understand the recent needs of disadvantaged groups of Slovakia. The perceived misuse of concept of equality by the communist political elite built strong antipathy in the society against these practices. This factor and the post-communist period with no effective control and answers to the new (ethnic) problems have caused misunderstandings toward minorities.

Positive discrimination has negative connotation for the generations grow up to see how the Communist society is giving more advantages to their selected people. The Slovak society needs to be shown the new equal opportunities policies has nothing to do with positive discrimination policies during Communism. The Roma minority, which “de iure” has equal position in society, needs equal opportunities de facto as well. Therefore the state needs to initiative such policies according to the newly developed European model and to learn lessons from practices of communist regime. The aim must be to grant equal opportunities to disadvantaged groups and access to employment, services and education “de facto” as well.

Another argument against the usage of such policies is the Slovak Constitution and legal system. Several lawyers are emphasizing positive discrimination is in contradiction with the article 12 paragraph 2 of the Constitution stating „Basic rights and freedoms on the territory of the Slovak Republic are guaranteed to everyone regardless of sex, race, color of skin, language, creed and religion, political or other beliefs, national or social origin, affiliation to a nation or ethnic group, property, descent, or another status. No one must be harmed, preferred, or discriminated against on these grounds.” For this debate is possible to mention several already existing legal measures in the Slovak legislation as resolution of the government on practicum’s (UV o stazistoch), Zákon o pomocnikoch PZ SR as well as international examples.

Another argument against the usage of such policies is the wording Slovak Constitution. Several lawyers emphasize that positive discrimination is in contradiction with the article 12 section 2 of the Constitution, which states: „Basic rights and freedoms on the territory of the Slovak Republic are guaranteed to everyone regardless of sex, race, color of skin, language, creed and religion, political or other beliefs, national or social origin, affiliation to a nation or ethnic group, property, descent, or any other status. No one shall be harmed, preferred, or discriminated against on these grounds.” Similarly article 34 sect. 3 of the Constitution states that “the exercise of the rights of the citizens belonging to national minorities and ethnic groups (...) must not result (...) in discrimination of the other inhabitants.” Moreover, it can be argued, that international documents, which enable positive discrimination, have priority only over (regular) statutes, and not over the Constitution (see Articles 154c and 7 sect. 5 of the Constitution).

On the other hand, many articles of the Constitution derogate from the above-mentioned prohibitions - for example article 38 of the Constitution guarantees special working conditions for women, disabled people and young workers. On the basis of these derogations several “regular” statutes entitle special groups to special treatment (Labor Code, Act on Employment, etc.). It seems that any employment of positive discrimination policies is currently dependent on the reading and interpretation of the constitutional principle of anti-discrimination. More formal reading of the relevant constitutional articles would lead to prohibition of positive discrimination (of course with exception to explicitly stated constitutional derogations such as in Article 38). More substantive reading of the anti-discrimination principle would enable positive discrimination under certain circumstances theoretically in all areas. But given the fact, that there is no any relevant case law of the Constitutional Court, these questions remain open.

As the closest example let us mention the new policy of the Czech government not just allowing different form of affirmative action, but using the first time the term of affirmative action in governmental measures in Central Europe.

As the final statement let us quote the regular Report of the European Union on Slovakia, which states the possibility of relevant and limited form of positive action is recommended, if the social need of a particular disadvantaged group.

It is not easy to come up with a clear legal definition of a Roma assistant. As it is evident from the new Czech Education Act, as well as from several NGO projects, Roma assistants are basically assistant teachers in primary schools whose task is to serves as persons in whom Roma pupils have enough confidence and who can build up a relationship with the pupils motivating them to achieve better results in the educational process.

The basic characteristics of a Roma assistant therefore are that it must be a Roma person in some kind of an institutionalized relationship with a primary school, taking part in the educational process. From a legal point of view, employing such a person seems to be the major problem. As already mentioned, the principle of non-discrimination in built in the Slovak Constitution; but it is also a enacted in the current Labor Code. Both the newly adopted Labor Code and the Code on Public Employees include the principle of equal treatment and non-discrimination more strongly: from a so-called "principle" of the current Labor Code, the binding nature of which could be disputed, the principle became an integral part of both acts and the definition on indirect discrimination was also added. This means that the exemption for Roma assistants would have to be, for the sake of legal certainty, adopted by law, too.

Another possibility of introducing Roma assistants to schools would be to establish a contractual cooperation between the schools and NGOs; the assistants themselves would thus not become employees of the school, but would remain with their NGOs. There are several issues to be considered under this model, too: how the NGOs would be chosen and what would be the status of the assistant in the respective school.

Legal Bases:

According to the questionnaire of the Ministry of Foreign Affairs („Dotazník týkajúci sa afirmatívnych akcií v Slovenskej republike“) in general for positive discrimination is possible to consider paragraf 2/f of Law on Employment (Zákon o zamestnanosti) No. 387/1996 stating increased possibility of access to jobs of disadvantaged groups in Slovakia.

There are several possible solutions to ensure legal background of Roma assistants in Slovakia. In general there are three ways: either with a new law, resolution of the government or amendment of relevant bills allowing the activity of Roma assistants.

Regarding a new law there are no clear conditions what it should contains. Since the recent political situation seems not allowed to pass such sensitive legislation on affirmative action policies, the other two ways may be more eligible for legislators and experts as well.

Regarding the resolution of the government there are some opinion of independent experts worry about the possibility of change such resolution by a new government. To ensure participation of Roma groups and communities on such program there is need of solid legal base of result, e.g. state funded positions.

There are five laws seems necessary to amend to ensure positions for Roma assistants in the state sector:

• Labor Code (Zákonník práce)

Add a paragraph on economically weak layers (disadvantaged groups) of Zakonnik prace, possibly described limitation of affirmative action policies (as Roma assistants)

• Law on Employment (Zákon o zamestnanosti)
• Law on Social Help (Zákon o sociálnej pomoci)

Amend the structure of social workers and make Roma assistants eligible for work as social workers on the basis of the diploma they are receiving. According to this law social workers need high school degree.

• The Law on State Servants and the Law on Public Servants

The aim of the two laws coming into the force on April 1, 2002 is to diminish the influence of politics (political parties) on public administration as well as to increase the capacity of public administration. Both laws were drafted according to strict criteria of EU and will increase the conditions (including education) to access to the public administration, which may be in contradiction with the possible legal base of Roma assistants.

 

 

 

Introducing affirmative action policies seems necessary to address the lack of social cohesion of different disadvantaged groups in Slovakia. Both the US and the currently more advanced European experiences show affirmative action as possible and limited answer on those problems, the Roma minority faced with in CEE. However there is no compulsory international document or treaty to address affirmative action, therefore the recommendations on different level should be emphasized for the Slovak administration by their European counterparts.

However due to the bad experience in the past with such policies both the public and decision makers seem undecided or negative toward the introducing. Therefore it will necessary to bring more positive experience with this kind of policies as well as to emphasize the main conditions for affirmative action: the political will.