History and Future
of Positive Discrimination in Slovakia
This study discusses
the practical and theoretical legal arguments surrounding the concept of positive discrimination (affirmative
action), and examines the possibilities of acceptance or refusal of positive
discrimination policies by the Constitutional Court of the Slovak Republic.
Although the legal questions are the dominant subject of this report, authors
highlight also the importance of extra-legal factors which often influence the
attitude of the courts towards positive discrimination, and address the
controversial historical experiences with positive discrimination in Slovakia
and touch upon the current trends in Slovak political environment as well.
While there are many
ways of approaching the problem of positive discrimination, as will become
clearer in the discussions below, it is useful to begin with general
explanations of the main terms used througout the document, as well as
explanation of the types of discrimination that affirmative action and positive
discrimination programs seek to redress, to give the reader a better initial
understanding.
2. Affirmative
Action and Positive Discrimination
If we do not follow
the strict lines and nuances of the legal framework, which might vary from
country to country, one can definine the term “affirmative action” as attempt
to make progress towards substantive rather than merely formal equality for
those groups that are currently underrepresented in significant positions in
society by explicitly taking into account certain defining characteristics
(e.g. race, gender...) which have been the basis for discrimination (Appelt,
8). Slightly different view, which does not nesessarily stick to previous
discrimination as precondition, is given by Rosenfeld, quoting Kent Greenawalt:
“‘Affirmative action’ is a phrase that refers to attempts to bring members of
underrepresented groups, usually groups that have suffered discrimination,
into a higher degree of participation in some beneficial program. Some
affirmative action efforts include preferential treatment; others do not”
(Rosenfeld p 42, emphasis added by authors).
Affirmative action as an active concept thus
can be generally understood as any action to create a new,
non-discriminatory situation of (factual) equality targeted on members of
specific group (segment of society) identified by certain characteristics. Affirmative action is usually regarded as a
remedy for past discrimination, and is employed mainly in areas such as employment, education, or
voting. The distinctive characteristic of affirmative action is that it
goes beyond “simple” adherence to the non-discrimination principle, and calls
for some degree of special concern or even preference (Glazer, 139).
Affirmative action may thus entail dissemination of information,
consciousness-raising, good faith efforts to recruit women or minorities,
special vocational & training programs, but also preferences, or – in its
most extreme form – reverse discrimination (discussed below). (Peters p 21).
More detailed examination of the origin and development, as well as different
forms of affirmative action and issues relevant for its lawfulness is provided
below.
It is necessary to add that the term affirmative
action is used in the U.S. and South African contexts, as compared to
European region, which tends to use the terms “positive discrimination” or
“positive action.” As envisioned by the EU in gender context, “positive
discrimination” broadly encompasses “all measures which aim to counter the
effects of past discrimination, to eliminate existing discrimination and to
promote equality of opportunity between women and men, particularly in relation
to types or levels of jobs where members of one sex are significantly
under-represented” (Boston Coll. Treaty
of Amsterdam article p 17, quoting Communication on Kalanke ruling).
In the context of the EU legal framework the principle of equal opportunities
complements the principle of equal treatment (formal non-discriminination), and
adds to it a factual equality dimension (Peters p 247).
“Positive
action” is
more commonly used in EU official documents when allowing for the possibility
of positive discrimination. As suggested
for instance by the EU Race Directive (Council Directive 2000/43/EC of 29 June
2000 implementing the principle of equal treatment between persons irrespective
of racial or ethnic origin[1]),
adopted under the article 13 of the EC Treaty, positive action entails measures
taken by countries in order to ensure “full equality in practice” (Article 5 of
the the Directive). This might include the maintenance or adoption of “specific
measures to prevent or compensate for disadvantages linked to racial or ethnic
origin.”
Under the Council
of Europe human rights protection scheme,
Protocol No. 12 to the European Convention on Human Rights offers a
similar definition of positive action, in which “the principle of
non-discrimination does not prevent States Parties from taking measures in
order to promote full and effective equality, provided that there is an
objective and reasonable justification for those measures” (preamble).[2]
On the level of
the legal systems of the member states of the European Union and the Council of
Europe, one can find certain specifics. For example a recent Equal Opportunity
Commission consultation paper, “Equality in the 21st C.: a new
approach” (January 1998)[3]
gives a more polarized distinction between the two terms. “Positive action is defined as the ‘whole
range of good equal opportunities practices’” including such practices as
flexible working patterns and the promotion of equal opportunity policies to
deal with sexual harassment, whereas positive discrimination is defined as “‘giving
preferential treatment to a previously disadvantaged group (frequently women)
to compensate for past discrimination’” (UK article, citing paper). This approach places positive discrimination
closer to one of the forms of positive
dicrimination – reverse dicrimination (discussed below), a narrower a reduced
approach than is usually seen.
“Reverse
discrimination” can be defined as an extreme form of affirmative
action/positive dicrimination, one which runs counter to concepts of equal
protection, due process, and fundamental rights (see Peters p 2). Reverse discrimination occurs when a
discriminatory structure that advantages some individuals/groups and
disadvantages others is merely “reversed,” such that the formerly disadvantaged
individuals/groups may enjoy privileges that are no longer granted to the
formerly advantaged individuals/groups.
Reverse discrimination seems to operate predominantly under the concept
of compensatory justice, where it is considered necessary to take some dramatic
action to not only to correct but also to compensate for historical
inequities. Peters explains reverse
discrimination within a gender context: “[Reverse discrimination] awards
gender-based preferences to women in competition for a scarce good and thereby
immediately disadvantages male competitors. . . . The gender-based preferences
are motivated by a desire to remedy past wrongs or to increase female
representation in public and professional life” (p 22). The designation “reverse discrimination”
seems to often apply to preferences, due to race or gender (or other such
characteristics), applied to hiring, promotion, layoffs, admissions, contracts,
or access to opportunities, and justified by compensatory logic (see Peters p
22).
For the purposes of this report, affirmative action, positive discrimination and positive action will be considered to be roughly equivalent, both encompassing a whole range of practices (including preferential treatment). The term affirmative action will be used in the US context and the term positive discrimination will be used in the European context for consistency.
3. General forms of
discrimination
Direct discrimination is where one person is treated less favorably than
another due solely (or predominantly) to his or her identification with a
certain disadvantaged group (racial, ethnic, etc). For example, a woman who is not allowed to vote since only men
may vote; or a Roma person who is not hired (even though he may be qualified)
solely (or predominantly) because he is Roma.
Indirect
discrimination
occurs when an apparently neutral provision would put persons belonging to
certain group(s) at a particular disadvantage.
This can also be understood as the occurrence of a disparate impact
or effect upon a certain group due to otherwise neutral rules. One example may be a shopkeeper who does not
allow women wearing long skirts to enter the shop. As no particular racial or ethnic group is named, the rule is
facially neutral, but it may indirectly discriminate against certain minority
group members who tend to wear head scarves.[4]Indirect
discrimination encompasses institutional racism that is built into the very
structures, practices and procedures of governments or businesses.[5]
Discrimination may
also take the form of harassment (unwanted conduct related to
identity with a certain group, having the “purpose or effect of violating the
dignity of a person and of creating an intimidating, hostile, degrading,
humiliating or offensive environment.” – language from EU Race Directive). Harassment need not necessarily be directed
at the victim, but may exist within an intimidating environment. Instruction of another to
discriminate also comprises discrimination, as does victimization, where
complainants of discrimination are made to suffer adverse subsequent treatment
in retribution for their complaint.
4. Origin of Affirmative
action/Positive discrimination
Affirmative action and positive discrimination programs have usually arisen in places with a historical record of discrimination that has led to modern inequities in areas such as employment, education or voting. Some countries offer clear examples of overt discrimination, such as the histories of slavery in the U.S. and apartheid in South Africa. In other countries, or with regards to non-racial groups (i.e. women), historical discrimination might have taken more subtle, systemic forms, such as denial of access to top-quality educational institutions which in turn allow for career opportunities and political involvement. In any case, whether overt or covert, practices having discriminatory effects may be found in nearly every modern society. As global awareness of human and civil rights issues grows, due in part to the recent emphasis on such rights by the UN and EU, countries are beginning to introduce more substantive anti-discrimination measures into practice, sometimes allowing for affirmative action.
Among
the European states and on the level of the European Union and the Council of
Europe, positive discrimination is a conscious response to practices of
discrimination, exclusion and denial of rights.[6] A culture of “human rights” (particularly in
the guise of the principle of non-discrimination) has begun to grow via international
treaties such as the International Covenant on Civil and Political Rights[7],
International Covenant on Economic, Social and Cultural Rights[8],
International Convention on the Elimination of All Forms of Racial
Discrimination[9], Convention
on the Elimination of Discrimination against Women[10], Convention on the Rights of the Child[11],
European Convention on Human Rights and Basic Liberties[12],
etc. These treaties have impacted European countries as their principles and
standards are integrated into national laws, prohibiting different types of
discrimination, setting up monitoring bodies, and creating systems of redress
and reparation (see COE report p 36-37). However, none of these international
treaties mandates positive discrimination. If mentioned at all, the positive
discrimination is recognised as practice which does not breach the
anti-discrimination principle.[13]
On the domestic level of individual states, in
general it can be said that many European states have a long tradition of
protective legislation for working women and physically disabled, maternity
leave and other similar “special treatment” regimes. This is often so due to the so-called concept of welfare state
(see for example Peters 190-191, where she discusses the German case). But
these special regimes hardly justify preferential treatment in its strict sense
(reverse discrimination).
In the recent
decades, EU has been taking a step ¢further¢. Article 2 (4) of the Equal Treatment Directive[14],
arguably one of the most prominent of the directives that refer to positive
discrimination[15], allows
„measures to promote equal opportunity for men and women, in particular by
removing existing inequalities which affect women´s opportunities (...)”. The
content and meaning of this provision was hotly debated in the case law of the
European Court of Justice (see below). The principles underlying modern
positive discrimination in the EU are clearly stated in the Amsterdam Treaty
(see Boston College article p. 30-32 and Deflorian, p. 5 - 6 for discussion;
see especially Treaty, amended article 141, para. 4). According to Peters, “
the new treaty law takes a definite stand in favour of substantive equality” in
the sense of equally worthy living conditions and options. It is this notion of
equality which informs affirmative (positive) action.” (Peters, p. 235)
4.2 Example: United States’ Affirmative Action
Affirmative
action policies in the United States grew out of a history of slavery and
racial discrimination. While early US
politics upheld the traditional racist system of slavery, the end of the Civil
War in 1865 prompted Congress to pass the Fourteenth Amendment to the US
Constitution, which provided for equal treatment under the law of all US
citizens. Soon after, the Civil Rights
Act of 1875 was passed, giving all citizens, regardless of race, equal legal
rights. Federal “freedmen” programs to
benefit blacks were developed, such as assistance for food, education, labor
contracts, medical care and other protective and remedial measures (see ie Spann
at p 3-4). These programs can be considered the predecessors to what later
emerged as affirmative action, since they specifically benefited a historically
disadvantaged group, with no substantially equivalent benefit being offered to
whites (see Turner p 2-3).
Despite the
advancement the 14th Amendment, the Civil Rights Act, and subsequent
federal programs represented, equality was still grossly incomplete. In recognition of the problem of
discrimination, President Franklin D. Roosevelt passed Executive Order 8802,
prohibiting federal employment discrimination on the basis of race, and calling
for employers to “provide for the full and equitable participation of all
workers in the defense industry without discrimination” (see Turner p 4-5,
quoting the Order). Still, segregation
and injustice existed in many areas, prompting American citizens to develop an
organized civil rights movement. They
proceeded and experienced a victory in the 1954 US Supreme Court case, Brown
v. Board of Education, where the plaintiff challenged the Plessy v.
Ferguson legacy of “separate but equal” schools for black and white
children. The U.S. Supreme Court found
the rule unconstitutional, thus outlawing racial segregation in education. Civil rights activists continued to seek
enforcement and expansion of equality, prompting President John F. Kennedy to
issue Executive Order #10925, creating the Equal Employment Opportunity
Commission (EEOC), and directing federally-contracted employers to “take
affirmative action to ensure that applicants are employed, and employees are
treated during their employment, without regard to race, creed, color or
national origin.” The concept of
“affirmative action” was thus born.
However, 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
in 1965 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, to seek - as President Johnson
remarked - not just equality as a right and a theory but equality as a fact and
equality as a result.
A debate about the
merits of affirmative action has followed, in which supporters characterize it
as the creation of an equal opportunity of preference (similar to historically
accepted opportunity-granting affiliations such as workers’ unions or
influential family connections), compensation for past wrongs to minority
groups, and an important tool for fighting systemic discrimination, encouraging
diversity, and providing minority role models.
However, opponents of affirmative action have criticized the policy as
having a negative impact on recipients (by portraying recipients of affirmative
action benefits as competing under lower standards), discouraging ambition
among minority groups (due to the lower standards), and as having a negative
impact on whites (via so-called “reverse discrimination” and punishment of generations
not responsible for historical wrongs) and on society (by reinforcing racial
differences and creating racial competition and conflict).[16]
Modern US
affirmative action has evolvlangnp1033
efully interpreted but somewhat limited concept. The US Supreme Court has played a
significant role in shaping affirmative action, through decisions that have
progressively erected significant challenges to affirmative action policies.
Affirmative action programs are also being challenged by the people, as in the closely
watched example of California’s reaction to affirmative action policies and
impacts via Proposition 209. Prompted
by the growing resistance to affirmative action and its perceived negative
impact on white employees, who were beginning to resent what they saw as
“preferential treatment” to minorities, California voters passed legislation in
1996 to eliminate public sector affirmative action, in the areas of employment,
education, and government contracts. Californians
voted to ban both discriminatory and “preferential” treatment based on
race, sex, color, ethnicity, or national origin.
4.3 Importance of historical context
Historical
and contextual explanations not only serve as justification for affirmative
action and positive discrimination programs; they also provide a method for
determining who shall be the beneficiaries of the programs. If a country justifies its affirmative
action programs by the idea of compensating for historical discrimination, then
all groups (individuals who identify with groups) which have historically
suffered discrimination will be covered by affirmative action (the U.S. model)
(see Higginbotham p 216).
This report later
addresses how, in Slovakia, a legacy of communist approaches to “equality”
affects current attempts at lawmaking for equality and positive discrimination
laws.
5. Issues and factors relevant to the
lawfulness of AA/PD
Having discussed the
meaning of positive discrimination/affirmative action and their histories, we
will now adress the following question: what legal issues and extra-legal
factors are relevant for the lawfulness of positive discrimation programs
(affirmative action)? First we briefly address the more general and abstract
context of variety of notions of equality, justice and the role of government
and their impact on the acceptability of affirmative action. This is followed
by analysis of legal issues, which have been relevant to the courts in various
countries when deciding on (un)lawfulness of positive discrimination. Finally we
bring our attention back to extra-legal factors, which influence not only the
legislature, but – as it is suggested – often also the decisons of the courts.
5.1 Notion of equality, government and “bona fide”
qualifications
The
importance of dominant society´s general notion of equality, justice and role
of the government for the general acceptance of affirmative action programs is
often emphasized by authors dealing with affirmative action/positive
discrimination. For example Peters, commenting on the affirmative action in the
US, provides that the central notion of
the affirmative action debate is equality and its comepting visions (Peters,
73). According to Appelt, the unclear notion of equality is the one of the main
problems connected with affirmative action (Appelt, 2000). Many authors point
to the interesting fact that the arguments of both the proponents´ and the
opponents of affirmative action seem to be capable to be framed in a manner
that makes it seem consistent with general principles of equality and race
neutrality. As provided by Spann, “if one views eqaulity as a concept that is
to be measured against an ideal or aspirational baseline, race-conscious
affirmative action seems necessary to equalize imbalances caused by slavery and
segregation, and thereby does more to promote equality than would mere
prospective neutrality.However, if one elects to adopt the status quo as the
baseline for making equality determinations, thereby creating preexisting
differences in the allocation of resources as given, affirmative action seems
like a racially discrimnatory deviation from the principle of prospective
neutrality.” (Spann, 9)
In general
it can be noted that the visions of equality and jusrice compete on diferrent
philosophical/political scales, always surrounding the same core of the problem
of notion of equality.[17]
In this context - as provided by Peters - affirmative action seeks to realise
substantive as opposed to merely formal equality, and is mostly justified
within the anti-subordination paradigm and not as an antidiscrimination
instrument, although that is also possible (Peters, 93). According to Peters
“affirmative action is supposed to create equal results or equal opportunity in
an egalitarian sense, and is rooted in the belief that formal equal opportunity
is insufficient. Affirmative action runs counter to the merit principle as soon
as it allows preferential treatment of less qualified individuals. It contains
a group perspective to the extent that it distributes rights and burdens on the
basis of membership in the group.” (Peter, 93).
This introduction
to equality illustrates the concept of using differing “means” to achieve an
equal outcome, or using identical means that lead to differing outcomes. The example of a merit-based distribution
system falls into the category of using equal means that might lead to
differing outcomes. Every person
receives an equal share of the good, but there is no consideration given to how
much each person already has, or needs.
A needs-based distribution system is more akin to an ends-driven
conceptualization of equality, since each person might receive a different
share, but the result should be that each person has an equal amount in the
end. There are problems with both
systems, though. If a country focuses
on creating equal “opportunity” (by passing out equal shares to each person),
there is the already mentioned risk that the results might leave some people
wanting – in the end, equality might not exist. This is to be seen more specifically in the example of
color-blind employment or admissions practices, wherein a segregated or unjust
environment is merely perpetuated by treating everyone equally – each person
might have one share more of the “public good,” whatever form it may take, but
the relative inequality is exactly the same.
On the other hand, a system in which an equal outcome is sought
necessarily entails disparate treatment to achieve such outcome. In that case, the country must question
whether seemingly unequal treatment is justified by the end-goal of
equality.
The brief
overview of more abstract and philosophical grip of the problem of affirmative
action/positive discrimination provided above was not self-purposed. The legal
debate and expert analyses and criticisms of judicial decisions dealing with
positive discrimination have been recently very influenced by this abstract
analytical approach.[18]
According to Rosenfeld, in cases where, for example, the constituional text is
particularly general, abstract, and vague, the intent of the framers difficult
to ascertain, constitutional theory indeterminate and relevant precedents
lacking, the judges´decision may rely heavily on philosophical argument
(Rosenfeld, 140). However, Rosenfeld emphasizes that the practice of constitutional
interpretation is never merely reducible to that of philosophical
interpretation (Rosenfeld, 140).
The
practical importance of “abstract” approach to the problem of legality and
legitimacy of affirmative action/positive discrimination can be illustrated by
the relevance of the societally dominant, or even constitutionally proscribed
notion and role of the government. It can be for example argued that the U.S.
constitutional tradition of negative rights, forcing the U.S. Supreme Court to
construe constitutional rights as not implying that government is held
to positively protect and secure them, is from the legal point of view more
hostile to affirmative action, than the German constitutional principle of
social state.[19] Even if we
accept the pro-active notion of government, question arises to what extent can
the exercise of governmental goal of securing equality reasonably limit the
individual rights of citizens, especially the right to be free from
discrimination.[20] As it is
often emphasized[21], western
legal tradition is deeply rooted in individual rights, and the idea of rights
attaching to a group that can override individual fundamental rights is
essentially foreign to law, since it belongs more to politics. In words of De
Florian, “if law is used openly to achieve purposes of distributive justice, it
becomes the target of criticism of bias and partiality.” (1996, 15). According
to opponents of affirmative action, the new “pro-active” government course
threatens the abandonment of concern for individual claims to consideration on
the basis of justice and equity, now to be replaced with a concern for rights
for publicly detrmined and delimited (for example racial and ethnic) groups.[22]
On the other hand, some of the proponents argue that lawyers must increasingly
take a notice of the fact that individuals live and act in groups, and that
modern societies increasingly require new means in order to co-ordinate all
these interests, and call for recognition of the fact, that substantive
equality cannot be achieved without taking into account the existence of groups
in which individuals act, and that therefore it is not reasonable to conceive
affirmative action as a limited exception to a constitutional right to formal
equality (De Florian, 2000, 102).
One final thought
to add to these considerations, before moving on to ascertain which affirmative
action programs are acceptable and which are not, is the assumption given to
the term “bona fide qualifications.”
Characteristics such as sex or race (etc.) are often considered not to
be bona fide qualifications. If they
are not, then use of such characteristics in hiring or admissions (etc.)
decisions gives the appearance of illegitimate preferences being used. However, this assumes a narrow conception of
what “job qualifications” entail in mainly merit-based societies. If one considers sex or race broadly, each
can legitimately serve as a job qualification just as an individual’s level of
education, or contacts or personability do.
In the example given by Rosenfeld, hiring a female professor into an
all-male department at a coeducational college would have positive effects for
the larger college community, so the fact that she is female is a legitimate
job qualification that makes her a more attractive candidate (see Rosenfeld p
50-51). Using a broader
conceptualization of “qualifications” thus supports the ideals of affirmative
action.
5.2 Issues
relevant to courts when deciding on (un)lawfulness
In
addition to use of more abstract philosophical arguments, the courts – when
deciding on (un)lawfulness of affirmative action/positive discrimination – had
to develop certain techniques, which would enable them to cope with the very
complex problem. Putting together all these ways of judicial inquiry
will enable better understanding of why some affirmative action programs have
been found legally acceptable by the courts, and others have not.
The very
first issue, that the court in this context has to take into account, is of
course the constitutional and statutory regulation, which
varies from country to country. In the US, the equal
protection clause in the Constitution provides the basis to effectualize
equality through affirmative action laws; based on the clause, the Court has
defined what affirmative action is constitutionally acceptable and what is
not. Similarly, in South Africa the
constitution neither requires nor prohibits affirmative action (Higginbotham p
212 and p 218)[23]. Among the
European states, which are parties to the Convention on Human Rights and Basic
Liberties, the proctection against discrimnation (article 14 of the Convention)
is conceived as accesoric and must be connected with violation of any of the
other rights vested in the Convention[24].
The basic treaties of the European Union (European Communities) provide for a
richer normative framework, covering “formal” equal treatment supplemented in
certain areas by equal opportunity concept.[25]
However, the
constitutional and statutory underpinnings often do not provide all the answers
necessary for a consistent solution. According to Spann, the US Supreme Court
has had a great difficulty determining when racial affirmative action programs
are constitutionally and statutorily permissible (Spann, 161). From the
judicial point of view, among the issues, that appear to be relevant to the
lawfulness of affirmative action/positive discrimination, is often the
strictness of judicial control (standard of review). For example in the US, the so called “judicial
scrutiny” is a constitutional term of art[26],
and the standard of review (“degree of scrutiny”) has captured most of the
Court´s attention in its affirmative action cases. Because racial affirmative
action programs employ race-based classifications to make resource allocation
decisions, they are subjest to strict scrutiny, voluntary affirmative action
being currently an exception.[27] The legal test applied under the
strict-scrutiny standard is whether the racial affirmative action program
advances a “compelling” state interest.[28]
On the other hand, gender affirmative action enjoys mostly intermediate and
thus more favourable, however still unsettled degree of scrutiny (under the
intermediate scrutiny the goals must be “only” important, not compelling).[29]
Another
issue relevant to the lawfulness of affirmative action, which is raised in
connection with its goals, is what justification the Court will recognize as
legitimate. In general, the goals of affirmative action programs may be
compensatory or distributive, aiming for example at diversity. If we take the
US example, under the judicial doctrine, racial affirmative action is not
limited to remedial action for identified victims of prior discrimination, but
as a remedy for a proven violation of Title VII of the 1964 Civil Rights Act, courts
may order affirmative action that benefits non-victims. Affirmative action
oriented “towards the future” is more suspect than remedial action, while they
cannot aim at proportional representation for its own sake. For instance,
diversity of views in a faculty or a student body or in broadcasting has only
in part been accepted as a legal objective of affirmative action.
In case of
compensatory affirmative action, the issue is what findings of prior
dicrimination are required for an affirmative action to be valid. The US
Supreme Court has addressed the need for formal findings of past racial
discrimination, although the actual importance of formal findings is difficult
to asses.[30]
Nevertheless, according to Spann, the
presence or absence of reliable findings of past discrimination may continue to
be dispositive.[31]
The
examination of the goals of the affirmative action/positive discrimination can
be supplemented by an inquiry involving a test of the means for achievement
of the policy´s goals. In European jurisprudence, the ECJ has focused more
on the “means” of the laws, holding in the Kalanke case (out of
Germany), that positive discrimination policies should create a level “starting
point” (see Boston College article p20).[32]
Under the US strict judicial scrutiny requires the policy to be “narrowly
tailored” or even “necessary” to the advancement of the compelling state
interest.[33] And since
this requirement is closely linked to the protection of the fundamental rights
of the competitors, the ultimate focus of the constitutional and statutory test
is the burden imposed on the dispreffered. This is often accompanied by a
judicial inquiry whether an affirmative action plan stigmatizes or stereotypes
either its intended beneficiares or the dispreffered “innocent” third parties,
who are not (directly) responsible for past discrimination of the potencial
beneficiaries.[34]
In the US,
many of the recent afirmative action cases have involved redistricting plans
majority-minority, or substatntial minority voting districts.[35]
These cases dealt with “gerrymandering” overly motivated by racial
considerations.[36]
The most
important issue connected with evaluation of policy means appears to be adequacy of
the form, in which the affirmative action program is designed. Policies
aimed at correcting the exclusion of certain groups from full social
participation stand on a continuum from formal policies of non discrimination
to preferential treatment. This continuum covers for example
a) active
enforcement of non-discrimination laws (monitoring, accessible grievance
processes, reliable system of redress)
b) abandonment of formally neutral hiring
policies which may be biased toward certain groups, and are not relevant to the
job performance
c) active
recruitment from disadvantaged groups
d) group
targeted eduscation and training programmes
e) protective
working legislation (e.g. for working women, young people or disabled)
f)
preferential treatment[37]
There exist many distinctions within the
programs themselves which contribute to whether they are found acceptable or
not by the courts and the people. A
specific affirmative action program might grant automatic preference or offer
flexible guidelines; it might be voluntarily adopted or a court-imposed program;
it might seek to create equal treatment for each individual or equality between
certain societal groups; it might be temporary, indefinite, or permanent; and
it might occur in a public institution or at a private company. These several factors each merit attention.
When affirmative action takes the form of a
preference program (i.e. in hiring or firing, or admission), it might grant
automatic preference to certain individuals/groups (such that between two
otherwise equally qualified candidates, the member of the preferred
characteristic – women, blacks, Catholics – would be automatically awarded the
position). Such treatment is usually
justified as being necessary to compensate for past discrimination (see popular
arguments section for more thorough treatment of this idea). The preference might alternately be a flexible,
or advisory one – in which case, being a woman/ black/Catholic would count
as a positive factor towards one’s candidacy but would not necessarily override
other considerations. In the EU,
automatic preferences were struck down by the ECJ in Kalanke. Under a subsequent case, Marschall,
remedial flexible preferences are still acceptable (Boston article p 22,
see also Texas article for discussion, p 215).
Flexible/ inflexible attributes may be found in both quotas/goals (see Rosenfeld
p 45).
Voluntary vs.
court-imposed programs were considered in US cases United Steelworkers v Weber
(voluntary affirmative action program in private sector), Johnson
(voluntary in public sector) (see Turner book, p 24-28, 52-58), Sheet Metal Workers
(see Spann 24+; court imposed plan), and Paradise (Spann p 27-30).
Closely tied to
the voluntary (or not) nature of the policies is who is carrying out the
policies – private companies or public/government agencies? In the US DeFunis case, an affirmative
action policy that was voluntarily created by a private company was
upheld. (See i.e. J. Lax paper p
10) Also the US Supreme Court’s
constitutional decisions regarding the 14th Amendment apply only to
state programs. Statutory decisions
regarding the Civil Rights Act apply to
private programs (see Spann p 10).
While permanent
forms of positive discrimination or affirmative action may be unacceptable
to the courts, temporary schemes (such as the temporary race-based
quotas in the US Weber case) may be acceptable.
Perhaps more
conceptual than the past few distinctions is whether individual rights or
group rights are being sought. This
goes to the idea of what constitutes equality – who is the “subject” deserving
equal treatment? (see i.e. Rosenfeld p
15) The ECJ has been viewed as a champion of individual rights (Texas journal
218, also Peters p 85-87). US
affirmative action is also premised on individual rights, so group rights
justifications do not support policies (see Rosenfeld p 4-5).
5.3 Extra-legal factors and
their impact
Importance of
extra-legal factors for the judicial acceptance of affirmative action/positive
discrimination can hardly be overestimated. According to many opinions,
judgements on constitutionality of the practice of affirmative action are primarily
shaped by extra-constitutional factors[38].
These can be the experience with racial discrimination, multi-ethnic and
multicultural character of society[39],
large lower caste, high degree of immigration,
unquestioned authority of the constitution and the courts (all present
in the US)[40], German
national re-unification[41],
long period of apartheid (South Africa), latent political divisions among the
judges causing doctrinal instability[42],
and so on.
Unique relevance of extra-legal factors is
confirmed by already undertaken comparative analyses, which show that
constitutional practice may evolve contratry to the constitutional framework
and theory. This is the case of more widespread US practice of affirmative
action notwithstanding the relatively hostile constitutional framework, in
comparison with less developed German affirmative action policies, despite more
favourable “social state” constitutional background.[43]
Moreover, comparative studies reveal that constitutionality of the most extreme
form of affirmative action - reverse discrimination – is probleamtic due to
factors beyond constitutional values, and even beyond cultural values.[44]
Assesment of reverse dicrimination can depend for instance on one´s belief in
the power of law as a formant of society, or instrument of cultural
transformation.[45] As
emphasized by Peters, “the responsivness of the law to societal and historical
circumstances and the interplay between law and morality are particularly
important for legal strategies to overcome discrimination such as affirmative
action.” In this view power of law to combat discrimination is limited – if the
gap between legal prescriptions and society´s sense of justice becomes too,
great, compliance diminishes and the law loses its moral authority. In other
words, “the close interplay between anti-discrimination law (including
affirmative action) and societal attitudes may prevent the successful
transplantation of legal instruments from one country to another.”[46]
The obvious political and societal sensitivness
of the (un)lawfulness of affirmative action (especially reverse discrimination)
divides the commentators in two distinct “opinion camps”. Although the
proponents of affirmative action/positive discrimination admit that current
legal framework is extremely weak, and that its contribution to the solution of
the problem seems entirely limited to giving a (not always) suitable form to a
prior primarily political decision, they still call for futher efforts. As put
by Deflorian, “(...) there are fields where law has intrinsic limits as means
of rersolution of social disputes, and that the abandonment of neutrality is a
dangerous path that may lead to the loss of legitimacy of law. Yet, although
striking a balance between the right to equality and neutrality is a difficult
enterprise, there is no other choice for lawyers but try it.”[47]
On the other hand, the opponents of affirmative
action call for abandonment of “judicial politics” and claim that a scrupulous
adherence to a (formal) non-discrimination may prove, because of the
limitations of human justice, to be the most effective contribution that law
(as opposed to political action) can make to the achievement of equality.[48]
In the words of Kull in the context of racial discrimination, “the advocates of
a color-blind Constitution have at every stage been those who were unwilling to
leave the proper use of racial classifications to be settled by the political
process, and who sought therefore to put such distinctions beyond the reach of
legislators and judges alike.”[49]
6. Positive discrimination in Slovakia
In this part of the
report we examine the legal system in Slovakia, and take into account also some
extra-legal factors. What are the regional historical experiences with programs
similar to what is today considered positive discrimination? Is the current
Slovak legal environment hostile towards positive discrimination, or is it
friendly? Can the historical experiences influence the future (un)acceptance of
positive dicrimination programs?
6.
1 Historical development of legal framework and extra-legal context
During the last 80 years Slovakia and
its population has witnessed a very unique shifts in dominant (or at least
official) notions of equality, classifications of citizens and role of the
government, which were supplemented by relatively frequent changes in political
environment and regimes. These changes were of course reflected - to greater or
lesser extent - in the legal farmework enabling or even mandating policies,
which today could be labeled as positive discrimination.
6.1.1 The first
Czechoslovak republic
There were several
relevant historical developmetns and changes in the legislation during the
period of the so-called 1st Czechoslovak republic (28.10.1918 – 29.9.1938).
Some of them “outlined” problematic and sensitive “positive discrimination”
issues (mainly status of ethnic minorities), which sporadically but intensively
troubled the region throughout the rest of the twentieth century.
In 1920 the Czechoslovak National Assembly
passed a constitutional act[50],
which guaranteed 4 mandates in the National Assembly to the so-called Siberian
legionieres, who were returning to Czechoslovakia from the war. This act can be
considered as interesting form of “merit-based” positive discrimination in area
of passive voting rights.
The 1920 Czechoslovak Constitution[51],
being one of the first of “modern” twentieth century constitutions, gauranteed
a special protective legislation for mothers, families and married couples.[52]
As it was already mentioned above, of
particular importance was the status of ethnic minorities, mainly because of
the specific Central-European context with the new nation states emerging after
the dismemberance of the Austro-Hungarian Empire. Already the
Saint-Germain-en-Laye Peace Treaty[53]
signed in 1919 dealt in its articles 10-13 with status of one of the ethnic
minorities, which lived within the borders of newly established Czechoslovakia
– the Carpathian Ruthenians. These articles provided guarantees not only for
specific linguistic, religious and educational rights and recruitment of local
public officers from the Ruthenian population,
but also for regional self-government (political authonomy).
These international provisions were later
transposed into the Constitution of the Czechoslovak republic (1920)[54],
which - in addition to that - guaranteed also non-discrimination and special
cultural, educational and linguistic rights (but not political regional
autonomy) for other ethnic, religious and racial minorities[55].
The issue of political participation of ethnic minorities in the local
self-governmental bodies was addressed partly in the 1928 public administration
reform[56],
which, however, left the self-governmental institutions – in comparison with
the central state administration - very weak[57].
Regarding the status of ethnic minorities
during the 1st Czechoslovak republic, it should be also noted that
in 1927 Act no. 117/1927 of Coll. of s. and o. introduced special regime for
Roma, which were, however, at that time not considered ethnic minority. (ADD
what was in the statute)
Is it possible to claim, that the legal
regulation of specific linguistic, religious, associational, cultural or even
political rights of ethnic and other minorities during the period of the first
Czechoslovak republic included patterns of what we today call positive
discrimination?
In authors opinion yes – these specific rights for members of certain minorities
aimed at effective equality and balancing of disadvantages stemming from the
fact, that these Czechoslovak citizens were not members of the majoritarian
Czech or Slovak nation (or members of the dominant churches respectively). But
two things have to be emphasized in this context: firstly, the actual level of
respect paid to these specific rights (level of practical
application/implementation) is today hard to measure, due to lack of relevant
sources of information. In general it can be said, that in years 1918 – 1938
Czechoslovakia offered comparatively high level of protection of rights, mainly
through well functioning system of independent courts (especially
administrative)[58]. On the
other hand, there are examples of non-implementation of those rights – e.g. the
political autonomy of Carpathian Ruthenians was not effectively exercised until
1938.
Secondly, the proscribed forms positive
discrimination were different in their nature and strictness. They varied from
language laws to international obligations for targeted ethnic recruitment of
public officers from the Ruthenian population. Specific and relatively strong
form of positive discirmination in area of “governance” was the internationally
and constitutionally proscribed political regional authonomy of the Carpathian
Ruthenians, but this was never effectively and fully exercised until 1938.
6.1.2
The second Czecho - Slovak republic and the Slovak war state
The period of the so-called “second Czecho –
Slovak Republic, which began after the September 1938 Munich Agreement
and ended by the creation of Hitler´s sattelite independc and mult war state on
14th of March 1939, gave birth to two political authonomies. One of
them – the authonomy of the Carpathian Ruthenians[59]
– was based on international obligations. The second one – the Slovak regional
political authonomy[60]
– was a result of ever more complicated relationship between Czechs and
Slovaks, which was latently present since the establishment of Czechoslovakia,
and intensified during the sencond half of the 193O´s, accompanied by the rise
of fascism and national socialism in the Central Europe.
As it was already suggested, regional ethnic
authonomies (such as those granted to Slovaks and Ruthenians) can be regarded
in the Central European context as extreme form of positive discrimination in
governance. In general it can be said that aim of the authonomies was to
preserve cultural, linguistic, regional and other identities of the (dominant)
regional ethnic inhabitants, with ambition to recongnise and pay attention to
special local ethnic needs. However, the efforts for ethnic (national) balance
within Czecho – Slovakia were not successful also due to wider Central European
pre-war situation, and lasted only very shortly.
The
totalitarian fascist Slovak war state (14.3. 1939 – 4. 5. 1945) provides
examples of the worst negative discrimination ever employed in the
Slovak history. Enacted statutes and secondary legislation and governmental
practices (especially after 1941), which in various manners categorized the
citizens or inhabitants (especially the Jews), systematically violated their
constitutional rights.[61]
It is interesting to note, that the
Constitution of the Slovak war state[62]
guaranteed the political participation of ethnic German and Hungarian
minorities by means of creating two political parties (Deutsche Partei and
Magyar Nemzeti Párt) which exclusively represented the two ethnic minorities.[63] This was analogical to the totalitarian
single party system within the majoritarian Slovak population, with single Hlinka´s Slovak People´s Party being legally
the only party entitled to represent the will of Slovak nation.[64]
Following the Czechoslovak constitutional
tradition, the Constitution of the Slovak war state guaranteed specific
protective legislation for mothers, families and married couples[65],
and guaranteed special rights for registered churches and ethnic minorities.[66]
However, as it was already emphasized, this Constitution was a constitution of
totalitarian fascist state, and therefore was in practice more fictive than
real.
6.1.3
The post-war years and epoch of “people´s democratic regime”
The
early post-war years in re-established Czechoslovakia can be characterised as
years of continuing troublesome legal classifications of citizens and
inhabitants, which were this time a result of and a reaction to the local
ethnic background of war conflicts and the temporary abolishment of
Czechoslovakia.
The1945 Košice Governmental Program provided, that
“terrible experiences of the Czechs and Slovaks with the German and Hungarian
minority, which to a great part became an instrument of external conquerring
policy, and among which especially the Czechoslovak Germans were used directly
for genocide against Czech and Slovak nations, force the re-established
Czechoslovakia to undertake a deep and ever-lasting intervention. The Republic
doesn´t want to prosecute it´s loyal German and Hungarian citizens and
especially not those, who in the hardest days kept their loyalty to it, but the
villains will be treated strictly and without mercy (...)”. However, among the
many acts and policies, that followed and implemented the Košice program
declaration, were nowadays hotly-debated problematic Beneš presidential decrees[67],
among which some – as their opponents argue - were based on unreasonable ethnic
classifications and presumption of collective guilt.[68]
After the second
World War, the greatest ethnic minority in Slovakia – the Hungarian minority -
faced three serious threats that challenged their existence: the population
exchange, the enforced moving and the so-called reslovakization. While the
German had been deported by the Czechoslovakian administration almost
completely (altogether 2 996 000 people)[69],
it happened just partly in case of the Hungarian minority. The so-called population exchange agreement
initiated by the Czechoslovak administration was signed on 27. February 1946 by
Ministers of Foreign Affairs of Hungary János Gyöngyösi and Slovakia`s Vlado
Clementis. The number of Hungarians moving to Hungary from Czechoslovakia were
around 73 187 during the population exchange in 1947-48[70]. According to some sources (???), the
offices dealing with the deprivation selected mainly rich peasants as well as
the intelligence of the Hungarian minority (mainly teachers).
In addition to that, these post-war local
ethnic tensions resulted also in temporary abolishment of voting rights for
Czechoslovak citizens of non-slavic origin.[71]
The early post-war years in re-established
Czechoslovakia can be characterised also by a struggle of representatives of
the Slovak National Council, which was created as co-ordinative political body
during the Slovak National Uprising in 1944, for recognition and constitutional
guarantees of full equality between Czech and Slovak nations within
Czechoslovakia. This resulted in assymetric model of governance with special
local representative and executive bodies in Slovakia[72].
However, this model (especially after the communist pouché in 1948) was until
its abolition in 1968 never properly and fully implemented, and the Slovak representative
and execin0ve institutions substantially degradated into regional institutions
almost completely directly subordinated to the central Czechoslovak government.[73]
The
1948 Czechoslovak Constitution was a result of the preceding Communist pouché in
February 1948, which was organized with the assistance of Stalin´s USSR. This
document launched the so-called “people´s democratic regime”[74],
and despite being inspired by the Soviet model of governance, it kept certain
formal democratic patterns, such as constitutional guarantees of the rights of
the citizens, formal framework of parliamentary democracy, or concept of
independent judiciary.[75]
Nevetheless, during the period of intensified stalinism and the rest of the
50´s, the Constitution was often amended, and most importantly – the political
practice sharply constrasted and did not comply with the constitutional
requirements.[76]
The wording of the Constitution resembled and
reflected the new political environment and official ideology of the Communist Party,
which served as justification for the violations of individual rihghts[77],
and brought “new dimensions” to the development of official notions of equality
and classification of citizens.
The first (and most radical) dimension was
economic. As stated in the Memorandum to the proposal of the Constitution, the
capitalist economic system was declared as pernicious and outdated. “We need to broaden democracy from mere
political, parliamentary democracy to all spheres of social life, especially in
the economic, administrative and social direction. (...) Fomal equality before
the law between a capitalist and proletar, and personal freedom or even freedom
“to earn money” of unemployed worker, who for ages cannot find a job and whose
family is dying from malnutrition, does not mean a lot. But now, when we
guarantee social rights to all citizens (...) the provisions on equality of
citizens and the democratic freedoms of citizens gain the real content. The
guarantees of social rights of citizens would be empty, if we would keep the
capitalist system, if legal order and the Constitution would be still governed
by capitalist principles. It is the new economic system that enables planned
economy, which gives the state real instruments to secure the social rights of the
citizens and in this manner give the real background to democratic freedoms.
Only free citizens in this sense, that is citizens secured against unemployment
and poverty in case of unability to work due to bad health, can successfully
work in such economical system, where the creative iniciative of the peoples is
most needed, in order to fulfill great constructive plan.[78]
In line with this, the 1948 Constitution gave
framework to economic system, especially by introduction of newly defined
property and other individual rights[79]
and legal forms of economic undertakings[80].
The Constitution thus indirectly expressed relations between different social
classes and layers, and paved the way towards socialism.[81]
This general framework, which amibition and ideological goal was to remedy past
injustices and economic inequalities, was supplemented by special emphasis on
equality of men and women[82],
and special protective legislation for pregnant women, mothers, disabled and
juveniles[83], and – most
interestingly – by principle of equal chances and equal opportunities to all
citizens.[84]
The second dimension of the changes introduced by the 1948 Constitution is linked with national and ethnic issues. The equal status of Czech and Slovak nations was formally declared and the non-functional assymetric model of governance preserved.[85] As to the status of ethnic minorities, the Communist Party changed the attitude on minority policy in accordance with imperative of “international friendship” and the theory of Marxism-Leninism. The Moscow-based communist policy-makers could hardly tolerate any unfriendly relationship between the members of their block. Paradoxically, this led to abandonment of specific constitutional guarantees for protection of rights of members of minorities and of the act on use of the minority languages.[86] The first explicit and specific provision adopted in the epoch of people´s democratic regime, which mentions minorities can be found only in Constitutional Act no. 33/1956 of Coll. on Slovak national bodies: “In the competence of the Slovak National Council is (...) secure, in accordance with the principle of equality, appropriate economic and cultural conditions for citizens of Hungarian and Ukrainian ethnicity.”[87]
As it was already
mentioned, the “law in books” was often not regarded as the binding guideline
after the Communist pouché - the policymaking proceeded by directives issued by
the Party and the Government. If one attemtps to monitor the ethnic positive
discrimination practices, he/she inevitably faces lack of official sources.
Therefore the few available documents we can use are policy-papers and reports
made by the UV KSS and relevant governmental bodies.
The institutional building of the ethnic minorities started in 1948, when Új Szó, the still existing Hungarian daily was launched as official newspaper of the Communist Party in Hungarian language. A year later Csemadok, the National Cultural Association was established. Especially the activities of the Csemadok can be considered as useful for strengthening the capacity and extending a network of the Hungarian minority by establishing local groups of Csemadok. This extensive (local) network helped to foster the identity of the Hungarian minority during the early years of Communist regime.
In June 1952, the
Czechoslovak government passed the resolution on “Some question of ethnic
Hungarian citizens”[88].
The resolution was passed without official numbering and marked as secret, what
made the implementation even more complicated.
The resolution did not contain any special minority rights, but the
special report attached to the resolution pointed to the “lack of ethnic
Hungarians working in the state administration”.[89]
The document urged the Council of Trustees[90]
to adopt more comprehensive resolution to measure the problem of
minorities.
Resolution
No.626/1952 adopted by the Council of Trustees on July 1 1952 introduced more
exact forms of new policy toward ethnic minorities and forced education in the language of
ethnic minorities in every level except higher educational level.[91]
The resolution was
used as a kind of basic document for the next two decades in Slovakia, mainly
because the administration did not feel like to adopt a comprehensive law on
the minority question. One of the
reasons could be the the highly informal decision-making, in other words
respect to “rule of practices” instead of the “rule of law”, which was a result
of formal position of Parliament in the system. The Communist Party`s various internal bodies were
the main decision makers and the government the executive. The implementation
of the practices was then in hands of state administration.
The most important
goal of the Resolution No.626 was to place Hungarians in different level of
state and party administration as well as to ensure the usage of the Hungarian
languages in the public (official) use and to strengthened the Hungarian media
and literature.[92]
Interestingly enough, it provides first documented examples for special
targeting of ethnic Hungarians into the state administration and other
important positions. The Resolution gave direct examples of the positions that
should have been “filled” by Hungarians, but did not contain figures.
The I.2.point gave
a task to the Ministry of Home Affairs to appoint an ethnic Hungarian citizen
to a position of Vice-Chairman of the Council in Nitra and Košice. The I.2.b
point of resolution gave tasks to name ethnic Hungarian citizens to the
regional (Krajský národný výbor) councils in Bratislava, Nitra, Banská Bystricia and Košice for the
position of assistant referent for education, adult education and physical
education.[93] Also the
resolution gave orders to implement such a policy in all relevant local
councils as well. To fill the positions
– even higher ones – was emphasized in the I.2.e point.[94] In addition to that, the Resolution provides
order to fill the leadership position in state owned factories on the national
and local level.[95] Therefore
the Resolution No. 626 covers different level of party, public, administration
and business sector, controlled by the Communist Party.
Regarding the implementation of the resolution
we will quote László Végh, the former collaborator of the Secretary of the
Council of National Minorities of the Office of the Government between 1981-90.
Mr. Végh highly emphasized during the interview the unproblematic
implementation of the different resolutions. According to him, there was no
problem with implementation despite the fact that it was marked as “top
secret”, because such resolutions of the Central Committee of the Slovak
Communist Party were for the administration crucial.[96]
Subsequent report
about the result of the policy of Czechoslovak Communist Party (KSC) regarding
the Hungarian minority from 1959 stated, that all steps were made on the basis
of principle of equal rights of the citizens.[97]
This formulation was the official explanation for the practice developed for
the purpose of the Hungarian, later on Ukrainian and Polish minority.[98]
One of the
practices towards strengthening the “elite” of Hungarian minority was to create
minority bodies in the party structure for the benefit of Hungarians. Report
issued
by the Central Committee of the Slovak Communist Party (UV KSS – the Slovak
branch of the Czechoslovak Communist Party ) in 1959 describes the role and
importance of ethnic Hungarian officers among the Hungarian minority in
Czechoslovakia.[99] Certainly
these practices can be considered as positive discrimination practices.[100] The Hungarian cadres became the political
and cultural leaders of the Hungarian society and – as many sources claim -
enabled to KSC to control the Hungarian minority.[101] Almost only communist cadres became
journalists, or led the cultural and other associations of Hungarian
minority. They created the new “elite”
of the Hungarian minority.
The resolution of the Council of Trustees No.37/1959 contains the task
to widespread the possibility of involving more Hungarians in the
administration on the local level (councils), and can thus serve as example of
positive discrimination employment policies towards Hungarians in the epoch of
peple´s democratic regime .[102] This resolution is also the first document
which contains tasks regarding the minority education. However, the resolution mainly deals with the
strengthening of Slovak language education of Hungarian minority.
However, the best source for the implementation of the policy of positive discrimination on Hungarian minority in the 1950´s is the resolution No. 0164/59 of the Council of Trustees. This document clearly expressed satisfaction with the increased number of minorities (Hungarians) in the local ad regional councils.[103] However, the resolution again did not provide exact figures and positions.
So far we have concentrated on policies towards Hungarian ethnic minority during the period of Czechoslovak people´s democratic regime. The situation of Roma was somewhat different. Until 1950, the government did not develop special practices toward Roma. The first attempt to deal with the question came from Ministry of Culture, adult education and information started non-systematic steps to solving social and cultural problems of Roma through adult education programs.[104] The administration faced a question, whether the Roma should be treated as ethnic minority at all.[105] The answer to the question finally came with the Directive of Ministry of Interior No. 24/1952 on correction of the situation of persons of Gypsy origin, which emphasized “de iure” equal position of Roma, but inlcuded no exact tasks for the regional and local administration on executing the concept. Various steps were consequently made in the field of education, culture and healthcare, but less effort were put into social-economic questions.[106]
This Directive is the first example of the concept of the communist regime toward Roma, which was “to involve the persons of Gypsy origin into the constructive effort of people’s democratic regime”.[107] The governmental strategies towards Roma were focused on three topics: education (alphabetical programs to fight illiteracy of Roma), increasing number of Roma employees and residence (liquidation of Roma settlements and dispersion of their inhabitants in the country).
Regarding positive discrimination practices, Eva Davidová in her book
does mention an interesting episode. In 1954 the Ministry of culture, adult
education and information organized a two weeks training for selected Roma, who
after finishing the training might work in the local administration and among
Roma. However, according to Davidová, despite of the relatively high number of
participating Roma, just a few of them finally took those offered positions.[108]
Important and influential element on the state policy on Roma was the Soviet Union, where the state gave their national identity and cultural autonomy which was reflected in publishing Roma books, journals and running Roma theatres. However the pro-assimilation policy won in Czechoslovakia. The aim of the Czechoslovak Communist concept on Roma was their integration to the society without respect to their tradition and character. Due to the main characteristics of the concept, the result was attempt to assimilate Roma. The government and the Communist Party assumed that the Roma could overcome their backwardness only by giving up their way of life and by assimilating into the majoritarian population and refused to recognise Roma as ethnic minority.
In the late
50-ies the regime found the old Roma tradition of frequent in-land migration as
the most important obstacle to the Roma integration. One
of the state’s efforts involved the domestication of the then nomadic Vlašika
Roma. Communist experts came to a conclusion that being domesticated was better
than a nomadic style of living. Without asking those whom it concerned,
the Roma, in 1958 the state issued an act intended to settle down the Roma by
taking their horses and wagon wheels from them. The
Law No. 74/1958 allowed administration
to count the Roma living nomadic lifestyle and settled them forcibly on the
night of February 3, 1959. They were
moved to high-rise housing complexes and dispersed among the rest of
population. [109] There were
special Roma schools established, the healthcare on Roma was growing. However,
all steps of the state administration were dominated by the integration effort.
Therefore even in the Roma schools, the school prepared them for integration to
the majoritarian society and the Roma children did not foster their ethnic
identity. However, these schools were the first important tool to fight high
percentage of illiteracy of Roma children.
Dispersing Roma to different places in the country damaged natural
communities. The systematic changes abolished the so-called vajda
(voivod)-system, caused even greater problems in communication with Roma.[110]
In the 70-ies the policy towards Roma
took social aids as instrument. The Roma minority was in part controlled by
social allowances. When a Roma child was absent in the school, the social
income would be stopped for their parents. According to experts, such policy
created dependency of many Roma families of the state.[111]
6.1.4
The Constitution of 1960 and the era of socialism
The
Constitution of the Czechoslovak socialist republic of 1960 was filled with
various ideological phrases, which sharpened the already present classifications
and mistreatment of the citizens in name of economic equality – the so-called
economic democracy, socialism – which supposed to pave the way towards the
final stage of historical development, the communism.[112]
Paradoxically, openly proclaimed class concept of society, abolishment of
traditional principles of protection of
individual righst and liberties and political plurality embedded in the
Constitution was less fictive than the text of the 1948 Constitution.
As the Preamble to
the Constitution explicated, “We are already giving effect to the socialist
principle: Everyone according to his abilities, to everyone according to his
work.(...) In the upcoming period, when the work will become the first vital
need, we want to reach growth of productive forces and social welfare, which
will enable to accomodate all rising social needs as well as manysided
development of each member of the society. Then we will be able to give effect
to the highest principle of distribution – the principle of Communism: Everyone
according to his abilities, to everyone according to his needs!”
The Czechoslovak
Communist Party, avantgarde of the proletariat, became the only constitutional
“leading power” in the society and the state[113],
and the planned socialist economy was declared as base of Czechoslovak economy, with all its
consequences for private property and enterprise and other inidividual rights.[114]
Article 20 of the Constitution guaranteed, that “the society of workers secures
equality of citizens by cretaing equal chances and equal opportunities in all
spheres of the life of society.”
In general it can
be stated, that this Constitutional framework of “economic equality”
characterised the following two decades in Czechoslovakia, perhaps with
exception to the Prague Spring efforts
of 1968, which were unsuccessful for various well-known reasons. The
ideological “economic equality” background guaranteeing “positive
discrimination for everyone” and material equality rather than formal, which was transformed into the legal system and internal directives and
policy within the Party, served again as official justification for violation of individual rights of the
citizens.
In area of national
and ethnic relations, the official legal framework in the period of socialism
(1960 – 1989) has substantially changed. In 1968 the unitary Czechoslovakia was
transformed into federation of Czech and Slovak Republics, as an expression of
equality between these two nations.[115]
However, the concept of federation could not – for obvious reasons – function
within the concept of centralized planned economy and “centralized democracy”
controlled by the Communist Party, and thus (especially after 1970) was in
practice “re-made” into highly centralized quasi-federation.[116]
The Constitutional
Act no. 144/1968 of Coll. on status of ethnic minorities in CSSR has – in
comparison with the 1960 Constitution -
widened the catalogue of cultural, associational, educational,
linguistic and other specific rights of members of ethnic minorities. For the
first time since the Second World War it recognised also the German ethnic
minority, together with Hungarians, Ukrainians and Poles[117].
The Act also guaranteed also proportionate
participation of minorities in representative bodies.[118]
In shoukld also be noted that the history of the preparation of the Constitutional Act was rather
controversial. One of the sources[119] quotes the
original wording as follows: “Czechoslovakia is the common home of the Czech
and Slovak nation as well as minorities living in it`s territory”.
However the text was later changed and the adopted text of the Constitution
finally did not contain the word “minority”. Finally in the Memorandum to the proposal of the Act we can find
the following text: “ensures not only
individual rights of individual citizens as representatives of ethnic minority,
but counts with minorities as groups.”
However, the
corresponding statutes, which would enable exercise of the constitutionally
guaranteed rights of members of ethnic minorities, were never adopted during
the period of socialism.[120]
Thus in order to trace real patterns of positive discrimination based on
ethnicity one has to resort to informal Party practices. In the following
sections we concentrate mainly on Hungarian minority, which was located mainly
in Slovakia, and the Roma, which were not explicitly legally recognised as
ethnic minority.
The informal
positive discrimination practices targeted on Hungarian ethnic minority in the
“socialism era” shifted from the “employment in administration” issues of the
50´s mainly to problems in
education.
In 1960 the Resolution No. 64 of the Presidency of the Slovak National Council[121]
ordered the capacity building of Hungarian and Ukrainian schools. [122]
But the “real” long history of attempts to address the problems of education of
ethnic Hungarians started with the task to increase the number of qualified
teachers for Hungarian schools is mentioned in the Resolution No.74 of the
Slovak National Council.[123]
Ever since this resolution, the question of the low number of Hungarian
teachers was mentioned in every report
and document adopted by relevant bodies dealing with education in every level.
This resolution also dealt with the methodical question of teaching in Hungarian
language, but the resolution did not contain exact measures to solve the
question.
Another important
focus of the administration during the “socialism era” was on the number of
Hungarian students in the higher education. As the reporting part of the
Resolution no. 74 stated, “…in the Hungarian schools were gradually set up
possibilities ….in Czechoslovakia for setting up equal opportunities to invoke
further studies or work”.[124]
However the introductory report states still not appropriate result in
education of Hungarians. “Task for the Slovak National Council and national
councils will be to develop political and educative efforts in the Hungarian
elementary schools in order to increase the number of ethnic Hungarian students
in technical and agricultural secondary grammar schools”.[125]
One of
the attempts was to raise the level of the Slovak language knowledge among
Hungarian students. That represented the main challenge of the
administration. More attention was
payed to education materials, schoolbooks, adult education of teachers in the Hungarian
schools and minority school development in general as well.[126]
After the passage of the 1968 Constitutional Acts on Czechoslovak federation and on ethnic minorities, the informal practices were even reinforced. In autumn 1969 the newly established Council of Minorities at the Office of the Government was designed as advisory body to the Slovak National Council for the purpose of Hungarian, Ukrainian and later also Polish minority. After the Slovak Government was formed in January 1970, the executive of the Council, the Secretary of the Council of Minorities became also one of the sections of the Office of the Government.
The Council of Minorities as advisory body of the Government had no
decision-making competence. Due to the
structure of the communist administration, the Council of Minorities in many cases was in good position to
operate more “effectively”, than his status allowed him.[127]
The Head of the Council was the Vice Prime Minister, and that personal link
enabled influece on the policy making on minorities. The capacity of the Head
of the Minority Council was even stronger, since the Vice Prime Minster
controlled the Ministry of Education and Culture as well. These two ministries
were directly responsible for creation of the minority policy. [128]
Officialy the
Council of Minorities had competence to adopt recommendations on policymaking on ethnic minorities. According
to the last Secretary of the Council László Végh, the implementation of the
recommendations deepened on the pressure put by the Head of the Council on the relevant decision-making bodies in the
Communist Party. Due to the practice of making pressure through
telephone, Végh named the whole implementation as the “telephone policy”.[129] However, due to
this very informal practice there are no written materials available on the
implementation of the recommendations.
As it was already mentioned, the rare policy papers and reports of
Central Committee of the Slovak Communist Party did not contain data on
education policies.
According
to László Végh the advocacy and lobbying in the interest of Hungarians
could be rather strong partly due to
low number of minorities the Council had covered. Additionally the Hungarian
human resources in the administration were stronger than of the other
minorities due to the measures adopted earlier. There were strong Hungarian “island” in the Council fostering
particularly Hungarians issues and trying to address individual (Hungarian)
cases. [130]
After 1968 raising number of minority (mostly Hungarian
and Ukrainian) students on the higher education level and the strengthening the
level of the Slovak knowledge of the student of the Hungarian secondary grammar
schools was the most important topic of the party and governmental reports. The
1972 Governmental Resolution No. 230 introduces another new attempt to raise
number of minority students in the higher education. As the 1.b point of the
resolution stated, there should be more attention payed to acceptation of
Hungarian and Ukrainian students by “creating favourable condition for them”[131]. Another method was to ignore the weaker knowledge of Slovak language of minority
applicants during the applying exams.[132]
Despite all these efforts, in 1976 there were (only) 5,2 % of Hungarians selected for the
higher education institutions.[133] The minutes of the Council of Minorities
from June 22, 1976 quotes Stefan Chochol, the Ministry of Education about how
to raise the number of Hungarians at the Universities. Stefan Chochol stated,
there is a difference between the number of Hungarians at the higher education
institutions (5,2%) and the number in the secondary schools (11,9%). [134]
According to Chochol in some Universities it was not possible of raise the
percentage of Hungarians to more than 7% due to the lack capacity.[135]
Despite of the lack of written materials on the quota system for minority
students in the early 70-ies, his words can be considerd as evidence for such
quota-based policy.
According to
László Végh, also the Council of Minorities adopted informal practices to
overcome lack of Hungarian students in the higher education. One of the methods
the Council used was helping Hungarian students at the appeal. Despite the efforts, these practices did not
affect deeply the situation.[136]
As the reports of the Council of Minorities showed in the late 80-ies, the
problem and figures were the same in the end of the Communist regime as well.[137]
As it was already
mentioned in previous section of the study, after the settlement of Roma at the
end of 1950´s the main effort of the state policy towards them was to integrate
them into the majority society. Between 1965 and 1968 the Committee for Issue
of Gypsy Inhabitants was the main body to executing state policy toward Roma.
The framework of the policy was issued in the Governmental Resolution
no.502/65, the main goal being the dispersion of the Roma to the country.[138]
The 1970´s introduced slightly amended practices towards the Roma. The
1970 Resolution No. 279 of the Czechoslovak Government recognised Roma for the
first time as “ethnic group” and officially lanunched new policy of
socio-cultural work among them.[139]
In addition to that, the state administration abolished the practice of planned
dispersion. However, the concept of labeling Roma issue as “social integration
problem” did not change.
As the most important step for the Roma development can be considered
the establishment of the Association of Gypsies-Roma in Czech and Slovak
Republic in 1968. During its short existence, the Association proved to be the
first Roma-led organizations trying to foster the Roma identity and
culture. The Association represented
the Roma at different levels – even in international conferences, and has
introduced education, cultural and most importantly employment programs. The
Association initiated and supported traditional Gypsy crafts and created employment possibilities for
Roma. In 1973, the administration
closed the Association for “the organizational mistakes and insufficient
mobilization of their members”[140].
Inspired by the mission of the Association, since 1974 the state
administration diverted its attention to issues of employment. As the 1985 governmental report on the
tasks for Roma citizens shows, especially the employment of Roma women and the
issue of Roma youth was the main focus.[141]
For example the state administration tried to involve Roma youth in special
employment. For 14-15 years old Roma the so-called “praxis” in various
factories and agricultural organizations was set up. The “reason” for the
praxis was the administration’s finding, that the “stabilization of employment
of Roma depends on their professional preparation.”[142]
However, the state employment policy was keeping the Roma on ineffective capacity level and was giving
them less-paid and heavy job mainly. This employment practice maintained the
social-economic distance between the Roma and the majority. As representatives
of Charta 77 Initiative stated, “due to recent economic situation the regime
needs to keep Roma minority uneducated, with no inspiration…The need of
unqualified workers will decrease, which will bring mass unemployment for
Roma”.[143]
The administration initiated selection of Roma for different positions
in administration and the Party. However, these attempts were mainly informal
and therefore there is no written source available on this practice. The
administration tried to fill the positions that directly dealt with Roma
minority, but there was lack of sufficient Roma human resources.[144]
Arguably the most relevant issue in area of positive discrimination
practices in education was higher education practices towards Roma.
Unfortunately there are no exact numbers, but the interviewed experts believe
in the existence of advantages for Roma
when applying to higher educational institutions. However, such practice was
never official.[147]
6.2
Current Slovak legal framework and possible future development
Having discussed the historical
development of legal framework of positive discrimination and relevant
extra-legal practices and political factors in former Czechoslovakia, in the
last part of the study we address the current legal framework in Slovakia[148],
which is a result of the legal and political development during the last
decade. Is the concept of positive discrimination acceptable under the current
Slovak Constitution? What extra-legal factors might influence the
(un)acceptability of positive discrimination?
The current Slovak
Constitution[149] contains
provisions, that provide for various forms of positive discrimination, using
various classification criterions as well. First of all, the Constitution – as
all Constitutions since 1920 - secures protective labour legislation for women
(including pregnant women), juveniles and disabled. [150] Juveniles and children enjoy also special protection in other
areas.[151] These
provisions, which are often “doubled” and reinforced through various
international treaties, by which Slovakia is bound[152],
are transformed in relevant statutory regulations.[153]
It is important to mention, that one of these “executing” statutory provisons
mandates under certain conditions the most strict form of discrimination –
the quota system in area of employment
of disabled persons.[154]
In the most general
notion of positive dsicrimination, the Slovak Constitution proscribes “socially
and ecologically oriented market economy”[155],
and in accordance with that, it guarantees various social rights connected with
system of social security, including support in case of unemployment.[156]
The Slovak
Constitution also guarantees special linguistic, cultural, associational and
other rights to members of ethnic minorities and groups[157].
These “positive discrimination rights” are guaranteed to individuals (members
of the minorities), and not to minority groups as such[158].
Unlike the above mentioned positive discrimination example, the etnic-based
positive discrimination contains a special provision stating that “the exercise
of the constitutionally guaranteed rights of citizens belonging to ethnic
minorities and groups must not lead to (...) discrimination of the other
inhabitants.” However, the exact legal content and impact of this provision on
positive discirmination of ethnic
minorities is not clear.
As we have showed,
the current Slovak Constitution - as
well as the relevant statutes - enable or even mandate positive discrimination.
However, a separate question is whether these “positive discrimination
provisons” can be considered as special provisions “exercising” and putting in
a more concrete form the general formal anti-dicrimination principle vested in
article 12 section 1 and 2, or whether they derogate and “deviate” from the
general principle in enumerated fields .
In the latter case
it would impossible to extend the current positive discrimination boundaries
beyond the constitutionally proscribed classification criterions and areas,
perhaps with exception to successfull referral to binding international
treaties, which enjoy priority over domestic statutes (not the Constitution),
and which extend the positive discrimination beyond the limits given by the
Constitution.[159]
A consistent
interpretation, by which the Slovak Constitutional Court would solve the
relation between the general (formal) anti-dicrimination principle and the
“positive discrimination” provisions, was given only once by this judicial
organ. Although in the last years various attempts to introduce ethnic[160]
and nepotistic[161]
positive discrimination in higher education and ethnic and gender[162]
based positive discrimination in voting were initiated, only one relevant case
reached the Constitutional Court in the last decade.
This case, which
dealt with statutory proscribed ethnic quotas in local municipality elections,
was very interesting because the statutory regulation aimed at protection of
(otherwise majoritarian) citizens of Slovak ethnicity.[163] These quotas reserved a certain percentage
of seats in the local municipality parliaments for the representatives of
Slovak ethnicity in voting districts, where the Slovaks are in minority
position. The Constitutional Court in 1998 abolished these provisions,
reffering to general anti-dicrimination principle and stating in its reasoning,
that “no matter what legal force a legal regulation posseses, nor the legal
regulation, nor application of such regulation by public administrative bodies
can advantage or disadvantage certain groups of citizens against other groups
in their access to elected and other public offices (...)”.[164]
And although this case was not directly linked with the constitutionally
guaranteed positive discrimination of ethnic minorities (because the
majoritarian Slovaks are of course not recognised as ethnic minority), the
Court in its reasoning in connection with the protection of voting rights also
expressed the following opinion: “The Constitution of the Slovak Republic does
not contain provision, interpretation
of which would enable to justify policy enabling to limit or modify basic
rights of the citizen in order to improve the status of members of ethnic
minorities or groups.”[165]
This single positive
discrimination case, that has until now reached the Slovak Constitutional Court
suggests that the Slovak Constitutional Court has taken unfriendly, narrow and
careful attitude to potential extension of positive discrimination programs
“stepping” beyond the constitutional framework, which explicitly mandates or
enables positive discrimination. However, due to a very low number of cases
(which causes lack of constant
doctrine), it is hard to predict any future attitudes of the Court towards
positive discrimination programs. Despite this it can be said, that if Slovakia
joins the European Union, due to the nature of the EU law the Slovak
Constitutional Court will probably be strongly influenced by the standards
developed by the European Court of Justice in Luxembourg.
Finally, as the
examples from foreign countries show, the extra-legal factors influencing the
final verdict of judicial organs in cases dealing with positive discrimination
are often crucial. However, in our opinion, the future development of
extra-legal (especially political) environment in Slovakia is in this context
equally hard to predict, especially due to controversial historical experiences
which we have discussed in the previous chapters and due to various current newly emrged or even “conflicting” societal trends. Local
experiences with totalitarian positive discrimination aiming at economic
material equality “supported” with
abolishment of formal equality and individual rights, public opinion
traditionally very sensitive to ethnic minority issues, the current Slovak
political scene still crystallising and
constant high international pressure to solve problems of the Roma
minority being present (just to name a few examples) may still give birth to a
very interesting development in judicial acceptance or unacceptance of positive
dicirmination policies in Slovakia.
Works Cited
BOOKS:
Blumrosen,
Alfred. Modern Law: The Law
Transmission System and Equal Employment Opportunity (1993).
Council of Europe:
Exclusion, Equality before the Law and Non-Discrimination. Proceedings at a seminar organized by the
Secretariat General of the Council of Europe, Sept. 29 – Oct. 1, 1994.
Innes, Duncan, et.
al., ed. Reversing Discrimination:
Affirmative Action in the Workplace (1993).
McWhirter,
Darien. Equal Protection (1995).
Peters, Anne. Women, Quotas and Constitutions: A
Comparative Study of Affirmative Action for Women Under American, German,
European Community and International Law (1999).
Rosenfeld,
Michel. Affirmative Action and Justice:
A Philosophical and Constitutional Inquiry (1991).
Spann,
Girardeau. The Law of Affirmative
Action: Twenty-Five Years of Supreme Court Decisions on Race and Remedies
(2000).
Turner,
Ronald. The Past and Future of
Affirmative Action: A Guide and Analysis for Human Resource Professionals and
Corporate Counsel (1990).
Urofsky,
Melvin. Affirmative Action on Trial:
Sex Discrimination in Johnson v. Santa Clara (1997).
LAW JOURNAL
ARTICLES, INTERNET, OTHER:
DeFeis, Elizabeth.
The Treaty of Amsterdam: The Next Step Towards Gender Equality? 23 B.C. Int’l
& Comp. L. Rev. 1 (1999). (Boston
College article)
Hinton, Eric. The Limits of Affirmative Action in the
European Union: Eckhard Kalanke v.
Freie Hansestadt Bremen. 6 Tex. J. Women
& L. 215 (1997). (Texas article)
Lax, Jeffrey. “Equal Protection: Benign
Discrimination.” Yale University Senior
Essay (unpublished) (1996).
Bahl,
Kamlesh. “Pride but still Prejudice:
The Government Must Make a Priority of Gender Equality by Bringing Forward
Fresh Legislation.” Law Society’s
Guardian Gazette, Vol. 95 No. 32 p. 14 (Aug. 26, 1998).
Amos, Merris. “Something Positive on Positive
Discrimination?” New Law Journal, Vol.
149 No. 6887 p. 688 (May 7, 1999).
“Article 13.” Found at http://www.cre.gov.uk/ (visited 6/13/01).
Race Relations
(Amendment) Act 2000.
Sex Discrimination
Act 1975.
Disability
Discrimination Act 1995.
“Age Diversity in
Employment – Code of Practice.” Found
at http://www.dfee.gov.uk/agediversity/foreword.htm (visited 6/20/01).
“Gender
Mainstreaming in Sweden: A Gender Equality Perspective in all Policy
Areas.” Fact Sheet, Found at http://www.regeringen.se (visited 6/11/01).
“Men and
Equality.” Fact Sheet, Found at http://www.regeringen.se (visited 6/11/01).
“Shared Power:
Women and Men in Decision Making.” Fact
Sheet, Found at http://www.regeringen.se (visited 6/11/01).
“National
Machinery for Equality between Women and Men.”
Fact Sheet, Found at http://www.regeringen.se (visited 6/11/01).
Caplan-Cotenoff,
Scott. Parental Leave: The Need for a
National Policy to Foster Sexual Equality.
13 Am. J.L. and Med. 71 (1987).
Kaleidoscope
Sweden 2001, “Constitution (1975).”
McCrudden,
Christopher. Mainstreaming Equality in
the Governance of Northern Ireland. 22 Fordham Int’l L.J.
1696 (1999).
Higginbotham,
Michael. Affirmative Action in the
United States and South Africa: Lessons from the Other Side. 13 Temp. Int’l & Comp. L.J. 187 (1999).
“Affirmative
Action and the New Constitution.” ANC document.
South African
Constitution (1996), Chapter 2, Bill of Rights.
Abdelrahman,
Aliaa. Affirmative Action in the United
States and South Africa: Why South
Africa Should Not Follow in our Footsteps.
19 N.Y.L. Sch. J. Int’l & Comp. L. 195 (1999).
White Paper:
Affirmative Action in the Public Service.
General Notice, Notice 564 of 1998.
Government Gazette Vol. 394, No. 18800 (April 23, 1998).
“Summary of the
Employment Equity Act, 55 of 1998, Issued in Terms of Section 25(1).” Found at http://www.labour.gov.za/docs/legislation/eea/index.html (visited 6/14/01).
Employment Equity
Act, No. 55 of 1998.
Promotion of
Equality and Prevention of Unfair Discrimination Act, No. 4 of 2000.
Ford,
Christopher. Symposium on Affirmative
Action: Challenges and Dilemmas of Racial and Ethnic Identity in American and
Post-Apartheid South African Affirmative Action. 43 UCLA L. Rev. 1953 (1996).
“Justices Won’t
Review Affirmative Action Case,” Michael Fletcher, Washington Post 5/30/01.
“Supreme Court
Won’t Hear Diversity Case,” Sharif Durhams, Milwaukee Journal Sentinel 5/29/01.
Reaves, Jessica.
“Is Affirmative Action Legal? Don’t Ask the University of Michigan,” Time,
3/28/01.
Prohibition
Against Discrimination or Preferential Treatment by State and Other Public
Entities: Initiative Constitutional Amendment.
Official Title and Summary prepared by Attorney General (California, Proposition
209, 1996).
Millenson,
Debra. Whither Affirmative Action: The
Future of Executive Order 11,246. 29 U.
Mem. L. Rev. 679 (1999).
Day, John
Cocchi. Retelling the Story of
Affirmative Action: Reflections on a Decade of Federal Jurisprudence in the
Public Workplace. 89 Calif. L. Rev. 59
(2001).
Jones, James
Jr. The Genesis and Present Status of
Affirmative Action in Employment: Economic, Legal, and Political
Realities. 70 Iowa L. Rev. 901 (1985).
Blumrosen,
Alfred. Society in Transition IV:
Affirmation of Affirmative Action Under the Civil Rights Act of 1991. 45 Rutgers L. Rev. 903 (1993).
Brody, Carl
Jr. A Historical Review of Affirmative
Action and the Interpretation of its Legislative Intent by the Supreme Court.
29 Akron L. Rev. 291 (1996).
West, Martha. The Historical Roots of Affirmative
Action. 10 La Raza L.J. 607 (1998).
Affirmative Action
Timeline, Found at http://www.auaa.org (visited 6/3/01).
Dworkin,
Ronald. Affirming Affirmative Action. New York Review of Books, 10/22/98.
Dworkin,
Ronald. Is Affirmative Action
Doomed? New York Review of Books,
11/5/98.
Regents of the
University of California v Bakke, 438 U.S. 265 (1978)
United
Steelworkers of America v Weber, 443 U.S. 193 (1979).
Fullilove v
Klutznick, 448 U.S. 448 (1980).
Firefighters v
Stotts, 467 U.S. 561 (1984).
Wygant v Jackson
Bd. Of Educ., 476 U.S. 267 (1986).
Local 28 of Sheet
Metal Workers’ Int’l Assn v EEOC, 478 U.S. 421 (1986).
United States v
Paradise, 480 U.S. 149 (1987).
Johnson v
Transportation Agency of Santa Clara Co., 480 U.S. 616 (1987).
City of Richmond v
J.A. Croson Co., 488 U.S. 469 (1989).
Metro Board, Inc.
v Federal Communications Comm’n, 497 U.S. 547 (1990).
Adarand
Constructors, Inc. v Pena, 515 U.S. 200 (1995).
Hopwood v Texas,
236 F.3d 256 (5th Cir. 2000), cert. denied 6/25/01.
Smith v Univ. of
Wash. Law School, 233 F.3d 1188 (9th Cir. 2000), cert. denied
5/29/01
Wooden v Board of
Regents, 2001 U.S. App. LEXIS 7159 (11th Cir. 2001) (appeal
pending)
Johnson v Board of
Regents, 106 F. Supp. 2d 1362 (S.D. Georgia 2000) (appeal pending)
Grutter v
Bollinger, 137 F. Supp. 2d 821 (E.D. Mich. 2001) (appeal pending)
Gratz v Bollinger,
122 F. Supp. 2d 811 (E.D. Mich. 2000) (appeal pending)
[1] Official Journal of the European Communities, L 180/22
[2] However, the Protocol will only enter into force once 10 Member States have ratified it; as of June 25, 2001, only one ratification has been recorded (see Veronika Leila Szente, “The Principal Elements of the European Union Race Equality Directive,” presentation at the Recent Mechanisms & Principles for Protection against Discrimination on Ethnic Basis and the Bulgarian Legislation seminar, February 22-23, 2001; Sofia, Bulgaria).
[3] Cited in UK article, something positive on
PD”
[4] This example is suggested by James A. Goldstone in “Roma rights workshop in Italy: new developments in Anti-Discrimination Law,” Roma Rights: Newletter of the European Roma Rights Center, No. 1, p. 67 (2001). Provisions having an indirectly discriminatory impact are usually allowed if objectively justified by a legitimate aim, and if the means of achieving that aim are appropriate and necessary - see for example Art 5 sect. 2(b) of the EU Race Directive.
[5] See Makbool Javaid, “The EU Race Directive,” 150 New Law Journal 1593 (2000).
[6] See COE report p 18+
[7] Adopted and opened for signature, ratification and Accession by UN General Assembly resolution 2200A (XXI) of 16 December 1966, entered into force on 23 March 1976. For anti-discrimination principle see articles 2, 3, 4, 20, 24, 26, 27 of the Convention.
[8] Adopted and opened for signature, ratification and accession by UN General Assembly resolution 2200 A (XXI) of 16 December 1966, entered into force on 3 January 1976. Anti-discrimination principle is vested in the Covenant for example in Article 2 section 2
[9] Adopted and opened for signature and ratification by UN General Assmbly resolution 2106A (XX) of 21 December 1965, entered into force on 4 January 1969. For anti-dicrimination provisions see articles 1, 2, 4, 5, 6, 7 of the Convention.
[10] Adopted and opened for signature, ratification and accession by UN General Assembly resolution 34/180 of 18 December 1979, entered into force on 3 September 1981. See articles 1 – 5, 7 – 15.
[13] See for example article 1 section 4 of the International Convention on the Elimination of All Forms of Racial Discrimination, which states: “Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or oexercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, howver, taht such measures do not, as a consequence, lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved.”
[14] Directive 76/207 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions
[15] See also Article 5 of the relatively new Directive 2000/43 implementing the principle of equal tretment between persons irrespective of racial or ethnic origin and Article 5 – 7 of the Directive 2000/78 establishing a general framework for equal treatment in employment and occupation. For general discussion of the EU legal framework see Peters, p. 231-242 and Deflorian, p. 3-7
[16] See F. Michael Higginbotham, Affirmative Action in the United States and South Africa: Lessons from the Other Side, 13 Temp. Int’l &Comp. L.J. 187, 205-09 (1999).
[17] An in-depth overview of this issue is provided for example by Rosenfeld or Peters
[18] For philosophically and analytically rich criticism of ECJ´s decisions on positive discrimnation in EU see for example Charpentier and Schiek
[19] See for example Peters 348
[20] See for example Peters, 201 a nasl.
[21] See for example De Florian (1996) 15, (2000) 102
[22] See for example Glazer, 1987, 197
[23] According to Higginbotham The openness of this ‘a-constitutional’ approach leaves much to subjectivity; affirmative action programs are dependent upon government commitment, legislative support, executive enforcement, judicial interpretation, and popular acceptance (p 212).
[24] This ofr course does not exclude a more strict approach on the state level.
[25] For a more detailed analysis see for example Peters, 231 and De Florian
[26] However, as emphasized by Peters (47), the observance of statutory prescriptions may also be controlled strictly or less strictly.
[27] See Peters, 47
[28] See for example Spann, 1640
[29] For more detailed analsys see Peters 94
[30] Spann, 170
[31] Spann, 170
[32] Also consider Swedish example here. Government flyer on Gender Mainstreaming explains what ‘equality’ means to the Swedes. It’s more along the lines of equal opportunity, not equal outcomes.
[33] Spann 164
[34] In the racial context, see for example Spann 173
[35] See Spann, 180
[36] For more detail se Spann 180 and following
[37] Compare Williams, 2000, 70 and following, and Peters22
[38] Peters, 348
[39] For more detailed analyses see Peters 348
[40] See Glazer, 2000, 147
[41] See Peters, 348
[42] See Spann 10 and 192
[43] See Peters, 354
[44] Peters, 353
[45] See Peters, 354
[46] Peters, 351
[47] Deflorian, 2000, 103
[48] See Kull, 222
[49] Kull, 224
[50] Constitutional Act no. 234/192O of Coll. of statutes and ordinances on representation of Siberian legionares in Chamber of Deputees of the National Assembly.
[51] Published as Act no. 121/1920 of Coll. of s. and o., which introduced the constituional charter of the Czechoslovak republic.
[52] See § 126 of the Constitution
[53] Published as no. 507/1921 of Coll. of statutes and ordinances
[54] See § 3 of the Constitution
[55] See § 128 – 134. The linguistic rights were in detail regulated by Act no. 122/1920 of Coll. of s. and o.
[56] See Act no. 125/1927 of Coll. of s. and o. on organisation of political administration
[57] See Gronský – Hřebejk, 1999, p. 88
[58] The Constitutional Court, although established, did function only few years and then its importance diminshed.
[59] See Constitutional Act no. 328/1938 of Coll. of statutes and ordinances on authonomy of Carpathian Russia
[60] See Constitutional Act no. 299/1938 of Coll. of statutes and ordinances on authonomy of Slovak region
[61] For detailed overview of the legislation see Gronský – Hřebejk, 1999, p. 188 - 240
[63] See § 59 of the Constitution and Act no. 121/1940 of Slovak collection on political parties of ethnic minorities.
[64] See § 58 of the Constitution and Act no. 215/1942 of Slovak collection on Hlinka´s Slovak People´s Party.
[65] See § 87 of the Constitution.
[66] See § 88 – 95 of the Constitution.
[67] See... Jozef Zaťkuliak (ed.), K dekrétom prezidenta E.Benesa a k nariadeniam Slovenskej národnej radz vo vztahu k súcastnosti, Parliamentary Institute, Slovak National Council (NR SR), Bratislava, maj 2000, p.
[68] See...
[69] Gyönyör József, Terhes örökség, A magyarság lélekszámának alakulása Csehszlovákiában, Madách-Posonium, 1995, p. 247
[70] Frič, Pavol, Gál, Fedor, Hunčik, Peter, Lord Christopher, Maďarská menšina na Slovensku, Zde a nyní, 1993, p. 25,
[71] See for example Governmental ordinance no. 48/1945 of Coll. on election of the Temporary National Assembly, Act no. 28/1946 of Coll. on permanent lists of voters, Constitutional Act no. 65/1946 of Coll. on Constituional National Assembly.
[72] See the 1945 First Prague Agreement btw. the Government of the Czechoslovak republic and chairmanship of the Slovak National Council as well as subsequent 1946 Second and Third Prague Agreements.
[73] For more details see Gronský, 1999, p.143 and
[74] This regime lasted until adoption of new socialist Constitution in 1960.
[75] Compare Gronský, 1999, p. 242
[76] Compare Gronský, 1999, p. 246
[77] According to § 38 of the Constitution, the statutes could “clarify” the limitations of rights and freedoms of the citizens in case of threats to people´s democratic regime.
[78] Memorandum, as re-publsihed in Gronský, 1999, p. 284
[79] See article XII, § 1 - 38 and § 146 – 164 of the Constitution
[80] See § 151 – 161 of the Constitution
[81] Compare Memorandum to the proposal of new Constitution.
[82] See § 1 sect. 2 of the Constitution
[83] See § 29 of the Constitution
[84] See article III section 2 of the Constitution
[85] See article II, and § 93 – 122 of the Constitution
[86] For more details see Gronský, 1999, p. 246 and 284.
[87] See § 2 of the Act.
[88] Návrh usneseni vlády o některých otázkách občanu maďarské
národnosti. Ministerstvo
vnitra, zn.I-748-24/5-1952-I/1.
[89] Gyönyör, op.cit, p. 267
[90] The Council of Trustees was Slovak national executive body, which belonged to the assymetric model of governance in Czechoslovakia.
[91] Poverenictvo
vnútra, zn. 193/51-sekr.taj., Bratislava 26.júna 1952. „Prisne tajné!”, Úrad
Predsednictva Zboru poverenikov, c. 626/1952-SP-taj.
[92] Úrad Predsednictva Zboru poverenikov, c. 626/1952-SP-taj. This was confirmed by László Végh duirng the interview on October 24, 2001
[93] Poverenictvo vnútra, zn.
193/51-sekr.taj., Bratislava 26.júna 1952. „Prisne tajné!”, Úrad Predsednictva
Zboru poverenikov, c. 626/1952-SP-taj., p. 3.
[94] Poverenictvo vnútra, zn.
193/51-sekr.taj., Bratislava 26.júna 1952. „Prisne tajné!”, Úrad Predsednictva
Zboru poverenikov, c. 626/1952-SP-taj. , p.4.
[95] I.3.a. of the Resolution No.626, op.cit. p. 2.
[96] Interview with Laszló Végh, October 24, 2001, Samorin, Slovakia
[97] Zpráva o výsledcich politiky KSC v práci mezi obyvateľstvem maďarské národnosti v Československé socialistické republice, 1959, p. 2., Archive of Bibliotheca Hungarica, Samorin
[98] Ukrainian minority first appears in the Consituitional Law, No.33 in 1956, Polish minority in the Constituion (Law No.100) in 1968
[99] Zpráva o vysledcich politiky KSC v práci mezi obyvatelstvem madarské národnosti v Československé socialistické republice, 1959, p. 7., Archive of Bibliotheca Hungarica, Samorin
[100] Interview with Peter Huncik, László Végh
[101] The Hungarian minority in Czechoslovakia remanied not responsive during the 1956 revolution in Hungary, source…..
[102] 6.b of the Resolution No.37 of Council of Trustees, in: Opatrenia najvyssich orgánov státnej správy, prijatych v obdobi 1952-1973 v suvislosti so zabezpecovanim postavenia národnosti zijucich v Slovenskej socialistickej republike, Urad vlady, Odpor pre národnostné mensiny, Bratislava, 1973, p. 7.
[103] Uznesenie Zboru poverenikov, Cislo 0164/59-taj., 5. February, 1959, p. 1
[104] Davidova, op.cit., p. 191
[105] Davidova, op.cit., p.192
[106] Davidova, op.cit., 192
[107] Smernice Ministerstva vnitra 24/1952, Úprava poměru osob cikánského původu, p., Archive of Bibliotheca Hungarica, Samorin
[108] Davidova, opc.it., p.192
[109] Bucek, Jan, Responding to diversity, Solutions at the local level n Slovakia, in: Anna-Mária Biró and Petra Kovács (ed.), Diversity in Action: Local Public Management of Multi-Ethnic Communities, p. 278
[110] Interview with Péter Huncik, Sándor Márai Foundation
[111] Interview with Péter
Huncik, Sándor Márai Foundation
[112] Compare Preamble to the Constitution, article I
[113] See Article 4 of ther Constitution
[114] See Article 7 – 15 and 19 – 38 of the Constitution
[115] See Constitutional Act no. 77/1968 of Coll. on preparation of federal organisation of the Czechoslovak socialist republic, Constitutional Act no. 143/1968 of Coll. on Czechoslovak federation. And its subsequent amendments.
[116] Compare Gronský, 2000, p. 141. See also Constitutional Act no. 125/1970 of Coll. which amended the Constituional Act no. 143/1968 on Czechoslovak federation.
[117] See article 1 of the Act.
[118] See article 2 of the Act.
[119] Frič, op.cit, p. 27
[120] Compare Gronský, 2000, p. 71
[121] Slovak “parliamentary” body, which was in 1960 part of the assymetric model of governance.
[122] No.2. of the Resolution No.64, Uznesenie Predsednictva SNR z 27. októbra 1960 o vychovno-vzdelávacich vysledkoch na skolách s vyucovcim jazykom madarskym a ukrajinskym v skolskom roku 1959, in: Opatrenia najvyssich orgánov státnej správy, prijatych v obdobi 1952-1973 v suvislosti so zabezpecovanim postavenia národnosti zijucich v Slovenskej socialistickej republike, Urad vlady, Odpor pre národnostné mensiny, Bratislava, 1973, p. 2
[123] In: Opatrenia najvyssich orgánov státnej správy, prijatych v obdobi 1952-1973 v suvislosti so zabezpecovanim postavenia národnosti zijucich v Slovenskej socialistickej republike, Úrad vlády, Odpor pre národnostné mensiny, Bratislava, 1973, p. 2.
[124] Uznesenie Predsednictva Slovenskej Národnej Rady No. 74, April 28, 1961, p.2
[125] Uznesenie c.74, op.cit, p.3
[126] See more: Uznesenie vlády SSR c. 270,
June 21, 1972, in: Opatrenia najvyssich orgánov státnej správy, prijatych v obdobi 1952-1973
v suvislosti so zabezpecovanim postavenia národnosti zijucich v Slovenskej
socialistickej republike, Urad vlady, Odpor pre národnostné mensiny,
Bratislava, 1973, p.3 (Archive of Biblioheca Hungarica, Samorin, Slovakia)
[127] Interview with László Végh, October 24, 2001
[128] Inteview with László Végh, October 24, 2001
[129] Interview with László Végh, October 24, 2001
[130] Interview with László Végh, October 27, 2001,
[131] Uznesenie vlády c.230, July 9, 1972, in: Opatrenia najvyssich orgánov státnej správy, prijatych v obdobi 1952-1973 v suvislosti so zabezpecovanim postavenia národnosti zijucich v Slovenskej socialistickej republike, Urad vlady, Odpor pre národnostné mensiny, Bratislava, 1973, p.4 (Archive of Bibliotheca Hungarica)
[132] Záznam zo schodzy vlasy SSR pre národnosti, ktorá sa konala 10. októbra 1975, p.3, Archive of Bibliotheca Hungarica, Samorin, Slovakia
[133] Zápisnica z rokovania Rady vlády SSR pre národnostné menšiny zo dna 22. juna 1976, p. 7, Archive of Bibliotheca Hungarica, Samorin, Slovakia
[134] Zapisnica, op.cit, p. 7
[135] Chochol statement regards the Faculty of Medicine, in: Zápisnica, op.cit, p.7
[136] Interview with László Végh, October 27, 2001
[137] In 1985 the percentage of Hungarian students in the higher education institutions were 5,3%, Záznam zo schôdzy Rady pre národnosti SSR konanej dna 8. októbra 1985 , c. 1905/1985, p. 4., Archive of Bibliotheca Hungarica, Samorin, Slovakia
[138] Davidova, op.cit, p. 203-204
[139] Uznesenie vlády CSR 279/71, Uznesenie vlády SSR 210/72, Archive of Bibliotheca Hungarica, Samorin
[140] Davidova, op.cit, p.207
[141] Sprava, op.cit., p2
[142] Sprava, op.cit., p.3
[143] Precan, op.cit., p.
[144] Interview with László
Végh
[145] Interview with Péter Huncik
[146] Zámery ďalšieho postupu skultúrnenie cigánskych obyvateľov do roku 1990
[147] Interview with László Végh
[148] Independent Slovak Republic was established on 1 January 1993. See Constitutional Act no. 542/1992 of Coll. on extinction of the Czech and Slovak Federative Republic.
[149] No. 460/1992 of Coll. as amended
[150] See Article 38, 41 section 2 of the Constitution
[151] See article 41 section 1 of the Constitution.
[152] There is a number of Conventions signed in the framework of UNO, ILO, Council of Europe and other organisations, to which Slovakia is a party. For demonstrative list of these Conventions see for example Čič a kol., 1997 p. 197 and 210
[153] See for example Labour Code no. 311/2001 of Coll. of statutes
[154] See § 113 of the Act no. 387/1996 of Coll. of statutes on employment as amended
[155] See article 55 section of the Constitution
[156] See article 35 section 3 and article 39 of the Constitution.
[157] These rights are reinforced and concretised also in many international treaties and Conventions, to which Slovakia is a party. The Roma minority is currently recognised as ethnic minority the governmental resolution “Zasady vladnej politiky SR k Romom” from 1991 although initially one of the appelate courts recognised Roma in a criminal proceeding as racial (not ethnic) minority (see Banská Bystrica Court decision – Ivan Mako case)
[158] See Čič a kol., 1997, p. 176
[159] This would be possible through use of article 7 section 5 or 154c
respectively. However, these treaties mostly only enable, and do not mandate
positive discrimination. See Prochazka, Radoslav, OS
[160] The Medical faculty of the Comenius University attempted in June 2002 to introduce a positive disicrimination of Roma applicants, however this effort was immediately abandoned. Orgovánová: Návrh na uprednostňovanie Rómov na LF UK je motivujúcim krokom, SME, May 23, http://www.sme.sk/clanok.asp?cl=552473
[161] In November 1999 the Academic Senate of the Law Faculty of the Comenius University introduced a positive discrimination for applicants, who were sons or daughters of employees of the faculty. However, this decision was abolished in April 2000 and was never brought into practice. See Minutes of the Sitting of Academic Senate, 22nd November 1999 and 26th April 2000.
[162] In 2002 the Minister of Interior has announced, the
Ministry is preparing a statute, which would guarantee for women certain
percentage of nominations on the party candidate lists. This act was finally
not introduced to Parliament.
[163] See former § 9 section 4,5 and 6 of the Act no. 233/1996 of Coll. of statutes on local municipality elections.
[164] See decision no. PL.ÚS 19/98
[165] See decision no. PL.ÚS 19/98