Evoluţia constituţională a României

Constitutional equality and minority rights
Case studies from Slovakia and Serbia 

 

PAP SZILÁRD-ISTVÁN

Abstract:
Ever since its debut in 2008, the actual economic crisis raised numerous questions on one big implication: is there a possibility that capitalism could come to an end? In this respect, the aim of my paper is to give a theoretical approach on this matter, critically explaining two of the most important theories on capitalism fall down, that of Karl Marx and that of Joseph Schumpeter.

Keywords: economic crisis, the end of capitalism, Joseph Schumpeter, creative destruction, socialism

As constitutional engineering and the idea of amendments appear more frequently in Romanian political discourse, the need for clarifying certain fundamental constitutional concepts arises. This is the case with the notion of constitutional equality, one that may have serious practical implications on how the constitutional body is defined in polities composed of more than one ethnic group. The stake of such clarifications becomes even greater if we take into consideration the fact that the delimitation of the constitutional body affects in a decisive manner the path of democratic consolidation. According to the analytic framework set up by Juan J. Linz and Alfred Stepan, the term „consolidated democracy” refers to a political situation in which democracy became „the only game in town”, that is if and when „all actors in the polity become habituated to the fact that political conflicts will be resolved according to the established norms and that violation of these norms are likely to be both ineffective and costly”.¹ The achievement of this desired goal presumes, as well, that „no significant political groups seriously attempt to overthrow the democratic regime or secede from the state”²

Consequently, one essential independent variable for democratic consolidation is „stateness”. The „stateness” variable refers to the definition of the political community, and poses the question, who should be member of this community and who should not. As Linz and Stepan expressed, when „there are profound differences about the territorial boundaries of the political community’s state and profound differences as to who has the right in that state, there is what we call a ‘stateness’ problem”³ Translated in practical terms, „stateness” problems refer to a situation in which there is no consensus on the boundaries of the political body, and in which certain groups of the population do not take for granted the existence of the state and its political setting. However such a situation is contrary to the requirements stated previously and thus makes democratic consolidation difficult, if not impossible.

It becomes obvious that such unfortunate conditions are very likely to emerge in multinational states. The majority of Central and Eastern European states - starting their democratic transition and consolidation in 1989 - are polities that contain considerable national minorities, a fact that inevitably brought forth in different moments the question of „stateness”. The following paragraphs shall look at the differing answers given to this question through the prism of two recent events taking place in Slovakia and Serbia respectively. The following observations adhere to the hypothesis formulated by Linz and Stepan according to which „in a multinational setting, the chances to consolidate democracy are increased by state policies that grant inclusive and equal citizenship and that give a common ‘roof’ of state-mandated and enforced individual rights.”⁴

On June 30, 2009 the National Council of the Slovak Republic enacted a law which changed the previous legislations regarding the state language (principally Act No. 270/1995 on the State Language of the Slovak Republic and Act No. 184/1999 on the use of languages of the national minorities). The bill regulates the usage of the Slovak language in many areas, such as geographical names, names of localities and streets (Art. 1, § 3.), in the educational system (Art. 1, § 4.), mass media, cultural event and assemblies in public spheres (Art. 1, § 5.), armed forces, fire departments (Art. 1, § 6.), courts and criminal proceedings (Art. 1, § 6.). The supervision and enforcement of the law belongs to the Ministry of Culture, which can impose fines from 100 to 5,000 Euros for those violating the law (Art. 1, § 9.). The act caused serious protests from the part of the ethnic minorities in Slovakia (mainly ethnic Hungarians who constitute around 10% of the country’s population) and severely damaged the relationship between Slovakia and Hungary.

In practical terms the bill asserts the primacy of the Slovak language in any kind of public affair (offices, army, public inscriptions, information provided by public institutions, documents in the educational system etc.). In localities, where the number of individuals belonging to national minorities is larger than 20% of the population, the minority language can also be used, but only after the state language was used. In other cases even this possibility is banned.

The second case which will be addressed briefly by the present paper is related to the Serbian province of Vojvodina⁵. On November 30, 2009 the Serbian legislature adopted the statute of the region. This statute is meant to broaden the domain of the previously existing autonomy of the Serbian province, providing it with the right of establishing a developmental bank, representative offices in foreign countries, and to govern its own courts, etc.⁶ The special situation of the Vojvodina region is given by the fact that about 35% of its population belongs to ethnic minorities, among which the most numerous are the Hungarians (290,207), Slovaks (56,637), Croats (56,546), Montenegrins (35,513) and Romanians (30,419).⁷

At the first glance the two cases presented above are of different nature. However a closer scrutiny reveals that the policies adopted by the governments of Slovakia and Serbia are differing responses to the same question, to that of constitutional equality. Is ignoring a major cleavage existing within the Slovak constitutional polity, and thus treating uniformly groups that are profoundly different, consistent with the idea of equal treatment of all citizens? Is the self-government of geographically concentrated ethnic minorities consistent with the same idea? The problem arising from the two cases was described by Michel Rosenfeld in the following manner: „So far as constitutional equality requires pursuing inclusion, it ought to, at times take certain differences into account, and at other times, disregard them. In general, a sphere of activity with respect to which a particular difference ought to be disregarded constitutes a ‘sphere of assimilation’. In contrast, a sphere of activity in relation to which a particular differences ought to count amounts to a ‘sphere of differentiation’.”⁸ When dealing with the fundamental shaping of the state the Slovak government ignored the ethnic/linguistic differences, thus introducing general public affairs into the ‘sphere of assimilation’. Unlike its Slovak counterpart, the Serbian government considered that the ethnic dimension should be taken into account, and introduced the same level of public affairs into the ‘sphere of differentiation’.

Before advancing with the argument of the paper, the concept of cleavage needs to be clarified. The present study employs the term to describe „an objective demographic division, such as class, ethnicity, or religion”⁹ or a division based on „perceptions of association”¹⁰, that are politicized and are conductive to political conflict.¹¹ In other words, cleavages are political divisions originating in divisions on the societal level and are sources of potential conflict. The type and intensity of such political conflict depends on the overall political setting. As we have seen a consolidated democracy is able to contain these conflicts in a peaceful, norm-regulated and policy-oriented framework, but in other cases such cleavages may pose problems of „stateness”.

If one wants to understand the arguments underpinning the alternative responses given by Slovakia and Serbia to the question of constitutional equality, it has to analyze the broader context in which a particular institutional choice is made. The Slovak case can be incorporated into a context that is labelled by Rogers Brubaker as „nationalizing” nationalism of the state.¹² The notion implies a set of conscious governmental actions to assimilate a national minority living in the territory of the state, thus making the borders of the Slovak state equivalent with that of the Slovak ethnie. This type of conduct can aim different degrees of assimilation, and it is based on the view that state and nation are intertwined and inseparable entities. The study of the historical background triggering out this nationalizing nationalism is not the purpose of the present paper, it focuses instead on the constitutional and institutional choices arising out of this phenomenon.

Article 12 of the Constitution of the Slovak Republic¹³ stipulates that „(1) People are free and equal in dignity and their rights” and that „(2) Basic rights and liberties on the territory of the Slovak Republic are guaranteed to everyone regardless of sex, race, colour of skin, language, creed and religion, political or other beliefs, national or social origin, affiliation to a nation or ethnic group, property, descent, or another status. No one must be harmed, preferred, or discriminated against on these grounds”. It also guarantees the right of national minorities to use their language in dealings with the authorities (Art. 34, (2)). Formally, thus, the requirements of equality are fulfilled by the constitution. Nevertheless, there is a principle that makes possible the enactment of laws that violate certain rights. It can be found in paragraph (3) of Article 34.: „The enactment of the rights of citizens belonging to national minorities and ethnic groups that are guaranteed in this Constitution must not be conducive to jeopardizing the sovereignty and territorial integrity of the Slovak Republic or to discrimination against its other inhabitants.” This principle implies that national minorities may use their own language insofar as it does not violate the right of ethnic Slovaks to use the state language. This kind of legal reasoning is not new and can be found in other European countries as well. In a decision of 2001 the Constitutional Court of the Republic of Latvia stated that „Latvia is the only place in the world where the existence and development of the Latvian language and together with it the existence of the main nation may be guaranteed. Limitation of the usage sectors of the Latvian language as the state language in the state territory shall be regarded as the threat to the democratic system. (…)Thus – the private life of the applicant is limited to protect the right of other inhabitants of Latvia to use the Latvian language freely in the entire territory and to protect the democratic state system.”¹⁴ Both the Slovak and the Latvian case clearly imply a strong fusion of the ideas of nation and state, and assert the supremacy of the official languages in relation to other ones.¹⁵

How can this argumentation be reconciled with the idea of equality? If we accept that every individual is constitutionally equal, then each individual should have the right to use freely his/her own language in every situation. In a linguistically homogenous society this can be the case but in a heterogeneous one this is practically impossible. Therefore reality should be accommodated to the idea of equality. There are two ideal-typical alternative ways to accomplish this objective. The Slovak example can be labelled as segmental equality, which implies that citizen are divided into two or more mutually exclusive subclasses (e.g. Slovaks and national minorities) and individual-versus-individual equality is realised within, and not between, these subclasses.¹⁶ The other type is the bloc-equality and it presupposes two or more groups, equality being realised between subclasses (blocs) and not within them.¹⁷

If one wants to realise a normative evaluation of the Slovakian language law, it must base its verdict on the concept of proportionality. According to this there must be individual or group differences of such type and weight that they can justify unequal treatment.¹⁸ Restrictions and negative discrimination is employed most frequently to counter some perceived of real threats. The declared goal of the language law is to protect the Slovak language and the Slovak nation and state. In this equation the question whether the Hungarians are a real threat or not does not have any significance. The restriction of individual rights is a reality even if the justification underpinning it is an irrational one. Nonetheless one might say that such measures are neither appropriate, nor necessary and causes more disadvantage than real value. Thus they are disproportionate measures and their legitimacy might be questioned. Living aside this later aspect, nevertheless, the whole dispute on the Slovakian language law reveals problems that are related to „stateness”. Starting from a particular definition of the state-nation dyad, the Slovak majority nation is applying nationalizing state policies, while the Hungarian minority group, situated on the other side of the political cleavage, opposes this. However, as Linz and Stepan claim: „Some ways of dealing with the problems of stateness inherently incompatible with democracy.”¹⁹

As mentioned previously the Serbian example implies an institutional choice opposite to the Slovak one. The broader context of offering increased rights of self-government to Vojvodina is given by the declaration of independence of Kosovo, formerly part of Serbia. In the first place, it must be emphasized that Serbia has a larger experience of decentralization and federalization given the historical experience of post-1945 Yugoslavia (both constitutions of 1946 and 1974 offered an autonomous status to Vojvodina).  Its bloody dissolution can also be regarded as an extremely influential experience in this respect. The Serbs have experimented with nationalizing state policies, for example in Kosovo. This province enjoyed the same autonomy within Yugoslavia as Vojvodina, however it was stripped of this status in 1989 by Slobodan Milosevic.²⁰ The often violent conflict ended with the declaration of independence of Kosovo in 2008.

All of these aspects may be the causes of a larger degree of moderation from the part of the central government, and of a greater toleration towards minority groups. The Constitution of the Republic of Serbia²¹ states that the government „shall promote understanding, recognition and respect of diversity arising from specific ethnic, cultural, linguistic or religious identity of its citizens through measures applied in education, culture and public information” (Art. 48).

However the question of equality arises again. How can the self-government of one region be accommodated with the overall equality of the citizens? Unlike Slovakia, Serbia attempts to combine the concepts of segmental equality and bloc-equality. In other word, they try to establish an institutional setting which realizes equality within as well as between blocs. This objective is achieved not through an artificial and abstract equalization of all citizens but it takes into consideration their ethnicity and religion, and attempts to realize a practical equality that transcends and overcomes these significant divisions.

The equality characterized above is achieved by the method of compensatory inequality. It implies an unequal allocation of resources with the purpose of offsetting broader inequalities.²² This measure of compensatory inequality is consecrated by the Constitution in Article 21: „Special measures which the Republic of Serbia may introduce to achieve full equality of individuals or group of individuals in a substantially unequal position compared to other citizens shall not be deemed discrimination.” Thus, in the Serbian case unequal treatment is justified by the aspiration for greater equality, therefore, the test of proportionality can be easily passed.

It is obvious that, unlike Slovakia, Serbia chose to detach the idea of the nation from that of the state and adopted, at least nominally, a path which takes into consideration the observations of Jurgen Habermas: „the forms and procedures of the constitutional state together with the democratic mode of legitimation simultaneously forge a new level of social integration”²³, i.e. a kind of constitutional patriotism. In other words, the Serbian approach resolves the question of legitimacy which might arise in the case of multiethnic states. If we judge by this institutional setting, Serbia is on the right way towards accommodating its national minorities and resolving its long-standing problems of „stateness”.

The Serbian solution can also be approached through a different conceptual framework. It is clear that Serbia attempts to realize something that Slovakia is failing to do, namely, to establish an institutional setting that engenders an inclusive definition of the citizenry and realizes equality transcending deep social division, thus containing conflicts that could query the existence of the state itself. But besides the institutional aspects such an arrangement needs the will of political elites belonging to the „adverse side”. Arend Lijphart labelled such a political conduct as „consociational democracy”, and defined as the elites’ „deliberate efforts to counteract and unstabilizing effects of cultural fragmentation”.²⁴ „The essential characteristic of a consociational democracy is not so much any particular institutional arrangement as the deliberate joint effort by the elites to stabilize the system.”²⁵ The consociational democracy is, thus, able to neutralize the centrifugal influence of profound division on the political system. The merits of such a paradigm are obvious, for the willingness of political elites to cooperate instead of competing is a decisive factor in resolving profound antagonisms. This framework also helps to predict in which direction the Slovakian case might evolve, unless a serious change occurs. The mutual competition of the Slovakian governing elite and the Hungarian elite might trigger a radicalization on both part, and these increasing centrifugal forces might cause serious hardships for the Slovak state. The Serbian arrangement, on the other hand, might lead to stability and might facilitate democratic consolidation.²⁶

Nonetheless, we have to admit that elite behaviour is a very unstable and unpredictable dimension. That is why the need for an institutional dimension to perpetuate consociational democracy arises. Lijphart himself formulated an institutional model that would fulfil this requirement. The consensus model of democracy attempts to divide, disperse and limit power is various ways in order to enable as broad participation in the act of government as possible. Consensus democracy can be characterized by inclusiveness, negotiation and compromise.²⁷ Among the ten institutional dimensions of a consensus democracy is the vertical dispersion of powers, i.e. decentralization and federalization, a dimension that reminds us of the Serbian example we have dealt with.

The domain and scope of a consensus democracy is very broad, including various dimension. The present study has focused on a tiny aspect of this broad domain, namely on the manner in which equality is codified in a constitution and is implemented in normal policy issues. The two examples tackled above clearly show that the same principle can be interpreted in various manners in accordance with the will of the interpreter and with the constraints of a context. However the hazardous interpretations may lead to serious problems (in the current case to the breach of human rights). Therefore we must set up some criteria that guide the interpretation in the right direction. In the case of any constitutional principle, one must also keep in mind the original purpose of any democratic constitution is its garantisme²⁸ function, that is, to restrict arbitrary power, limit the government and protect fundamental rights and liberties.

Besides emphasizing the divergences between the Slovak and the Serbian cases, it must be pointed out that the present study had theoretical interests focusing on constitutional principles underpinning certain institutional choices. Due to the lack of appropriate temporal distance, the effects and the quality of implementation of these institutional choices cannot be assessed. Nonetheless, they have to be analyzed as different instances of dealing with issues of national minorities and their lessons should be incorporated in future decisions.

PAP SZILÁRD-ISTVÁN – Masterand, Facultatea de Ştiinţe Politice, Universitatea Bucureşti.

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