AFFIRMATIVE action in Slovakia violates the country 's constitution, the Constitutional Court ruled on October 18 in striking down a key provision of a recent anti-discrimination law.
The court found fault with a clause in Slovakia's Anti-Discrimination Act that had provided a legal basis for temporary measures to help the most disadvantaged groups in society - particularly the 350,000-strong ethnic Roma population - narrow the gap with the mainstream.
Positive discrimination, the justices ruled, is still discrimination, and as such is banned by the Constitution.
The decision upheld the case submitted to the Court by Justice Minister Daniel Lipšic of the Christian Democratic Movement (KDH), who had opposed the positive discrimination legislation first proposed by his ruling coalition partner, Pál Csáky of the Hungarian Coalition Party (SMK).
Lipšic welcomed the court ruling as one of the key verdicts in Slovakia's constitutional development. Backed by a cabinet majority, he had challenged the Act in October 2004.
"The Constitutional Court confirmed that in Slovakia it is not possible to discriminate, either in the positive or negative sense, on the basis of someone's skin colour or national origin," he said after the decision was handed down.
Csáky, who serves as deputy prime minister for European Integration, Human Rights and Minorities, did not share his colleague's enthusiasm, and said the verdict was "not entirely good news" for Slovakia. However, he said he would respect the decision of the court.
The Anti-Discrimination Act, which took effect on July 1, 2004, banned discrimination on the basis of sex, race, religion and gender. However, the Act also provided that "specific compensatory measures may be adopted to prevent people from being disadvantaged on the basis of their racial or ethnic origin, in the interest of securing equal opportunity in practice and observing the principle of equal treatment."
Csáky has frequently argued that this positive discrimination clause is not about giving some groups advantages at the expense of others, but instead about giving a boost to people who are on the bottom rung of society and unable to help themselves. He has also stressed the temporary nature of the clause.
The clause was originally intended to help Slovakia's Roma community, which is poorer, less healthy, less educated, less employed and more discriminated than most citizens - in general, the country's most disadvantaged group.
But Lipšic argued that any law that gave the Roma advantages, such as easier entry to university, based purely on their ethnicity would discriminate against Slovakia's non-Roma citizens. He pointed out that the Slovak Constitution guarantees equality for all citizens regardless of ethnicity or race, and said that the provision of aid could still continue through other, Constitutionally acceptable channels.
"It's still possible to give advantages to people who are in poverty despite the fact that 95 percent of them belong to the Roma ethnic group," Lipšic said.
The cabinet's appointee for the Roma community, Klára Orgovánová, suggested that a certain hypocrisy lay behind some arguments against affirmative action.
"On the one hand some people worry that a certain group will enjoy advantages based on ethnicity and race, but on the other hand they don't seem disturbed by the fact that neglected groups have existed in Slovakia for many years, or that a huge group of citizens [the Roma] lives in unbelievably bad conditions. This doesn't seem to bother many people, or perhaps they're not willing to see that their bad conditions are also the result of ethnic discrimination," Orgovánová told The Slovak Spectator.
"If a Roma child doesn't go to school because his or her parents didn't go either and the child is not motivated, that's one thing, but people should also understand that in most cases these kids are in segregated classes, sometimes even in segregated parts of school buildings, and that too is discrimination," she added.
Orgovánová pointed out older democracies where affirmative action has helped to even the field for disadvantaged groups, and said that without the controversial clause her work of fighting to improve conditions for the Roma would now be much harder.
"That paragraph would have made my work easier. It would have been easier to push through certain improvements if there were a law to back my efforts. For example, in a school that has two classes where Roma children are taught and three classes for non-Roma children, it's easier to put pressure on the principal to mix the classes together if there is a law to back up my request. Now I have to beg them to do so.
"This clause would really have helped to resolve the issue of integrated education," she said.
However, Orgovánová said she believed the cancellation of the clause would not endanger government projects and assistance that have already been launched for the Roma community.
"I don't think the cancellation of the provision will affect the compensation strategies we already use in some of our government programmes. I hope we will be able to build on this philosophy," she said. The cabinet adopted a document in 2003 promoting the integration of the Roma communities into mainstream society. The document states that "compensation strategies" do not discriminate against the rest of the population.
Slovakia's National Centre for Human Rights has also used the new legislation in dozens of discrimination cases. In 2004, the Centre received more than 200 complaints.
While the European Union has recommended that its member states help their disadvantaged groups, it has said it will not intervene into Slovakia's legislation in this area.
For Lipšic, however, any form of discrimination is bad.
"The whole problem with positive discrimination is that [it is based on the argument that] to prevent ourselves from discriminating we have to discriminate. This is an argument out of Catch 22," Lipšic said last March in Košice, where the Constitutional Court was discussing the Anti-Discrimination Act for the first time since Lipšic submitted his motion.
The Justice Minister also argued that positive discrimination supports stereotypes by strengthening the belief that some groups are unable to succeed without extra help.
Lipšic's views are not shared by the majority in parliament, which passed the Anti-Discrimination Act on May 20, 2004 with a strong majority of 107 coalition and opposition MPs backing the bill in the 150-seat legislature.
MP's from Lipšic's KDH party, a strong opponent of positive discrimination, either abstained or voted against the Act.
Nor is the KDH's position widely held by the Slovak public. According to a September 2004 survey carried out by the Institute for Public Affairs (IVO), a Bratislava think tank, 84 percent of respondents supported the Act as passed. Only four percent thought the Act was wrong.
24. Oct 2005 at 0:00 | Beata Balogová