Principle of non-discrimination and equitable representation in framework agreement ten years after--formal or substantive equality?!

International and Regional Legal Framework on Non-Discrimination and Equality

On the onset it is relevant to briefly examine the international and regional framework, and as well substance relating to the concepts of equality and nondiscrimination before going to the substance of the discussion. In the next chapter the focus will be placed on the interpretation and comments on the Framework Agreement. (1)

The principle of non-discrimination is a basic concept deriving from the human rights law. Non-discrimination is both a human right on its own and a part of the human right law. (2) This principle which is corollary to the principle of equality is included in international and regional instruments, to which Republic of Macedonia is a State Party. This principle is also to be found at supranational (EU) level.

For instance, the Universal Declaration of Human Rights adopted in 1948, which was in that time non-binding but now considered customary law contains several equality and non-discrimination provisions. Article 2 which is broad in scope and reads: 'Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status ...'

Article 2(1) and 26 of the Covenant on Civil and Political Rights expressly deals with non-discrimination and are considered as one of the most important provisions. The scope of Article 26 is mainly delimited by the concepts of "equality before the law" and "equal protection of the law". This double-faceted formulation provides that the equal treatment obligation is binding both in the lawmaking ("equal protection of the law") and in the application of law ("equality before the law"). Thus, when legislation is adopted by a state party, it must comply with the requirement of Article 26 in that its content should not be discriminatory. And when that law is applied in courts or by administrative bodies, it must be applied in a non-discriminatory manner.

The Covenant talks about the protection against discrimination and inequality, but it does not discuss its characteristics. Convention on Elimination of Racial Discrimination and Convention on Elimination of Discrimination Against Women contains explication what constitutes discrimination but they deal with specific issues of women and race respectively.

The Committee on Human Rights gives insight in the General Comment 18 that for the purpose of the Covenant discrimination is: 'any distinction, exclusion, restriction or preference which is based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms'. However, the Committee stressed that 'enjoyment of rights and freedoms on equal footing 'does not mean identical treatment in every instance'. (3) At some instance neutral laws and policies can be found to be discriminatory, and this goes in lines with the debate formal and substantive equality which will be elaborated in second part of the paper.

The notion of non-discrimination further has been discussed through the case law of the European Court of Human Rights. As the Court has stated, for example, in the judgment in the case of Abdulaziz, Cabales and Balkandali v. the United Kingdom: "a difference of treatment is discriminatory if it 'has no objective and reasonable justification', that is, if it does not pursue a 'legitimate aim' or if there is not a 'reasonable relationship of proportionality between the means employed and the aim sought to be realised'". (4)

The European Convention on Human Rights and Fundamental Freedoms has article on non-discrimination but this is not stand-alone and has to be related to the other substantive rights in the Convention in order discrimination to be claimed. Protocol 12 to the ECHR in Article 1 contains general prohibition on discrimination a propos the provision in the Convention. The problem with this treaty is that has not been ratified by many states parties to the ECHR. (5)

Positive discrimination or temporary special measures may sometimes be needed, and this is different, therefore cannot be considered as discrimination as such, in order to bring disadvantaged or marginalized persons or groups of persons to the same substantive level as others. The fact that there are certain groups or categories of persons who are disadvantaged, or the existence of de facto inequalities, may constitute justifications for adopting measures providing for specific advantages in order to promote equality, provided that the proportionality principle is respected.

Indeed, there are several international instruments obliging or encouraging states to adopt positive measures (see, for example, Article 1 (4) and 2(2) of the Convention on the Elimination of All Forms of Racial Discrimination, Article 4 of Convention on Elimination of Discrimination Against Women, Article 4, paragraph 2, of the Framework Convention for the Protection of National Minorities and Recommendation No. R (85) 2 of the Committee of Ministers to member states on legal protection against sex discrimination.

Principle of non-discrimination and equitable representation in Framework Agreement- an answer to address inequalities?!

Through the Framework Agreement the country from national state with minorities is transposed to multi-ethnic society with communities who have equal rights. And this is in terms of collective rights. By some commentators the constitutional amendments introduced to preamble are quite regressive comparing to the previous one in terms of the smaller communities like Vlavs and other. (6) The recognition of the multi-ethnic society by the Framework Agreement is not something which is problematic. (7) On the contrary discrimination towards smaller communities exists since the 20% rule (8) although this is mentioned in specific areas such as local self-government and use of language, makes equality and non-discrimination workable for ethnic-Macedonians and ethnic-Albanians.

The constitution of the Republic of Macedonia from 1991 and with latter amendments contained a non-discrimination and equality provision. (9) Obviously this has not been enough and the country required stronger affirmation of the non-discrimination and equality principle, first and foremost because of the greater need to promote and protect human rights in the country, and not only formally but also in substantive terms. And second, since Republic of Macedonia has obligations to observe the commitments undertaken by becoming a State Party to international and regional human rights instruments. Recently, due to the developments and requirements by the EU, the country has adopted systematic law on non-discrimination. (10)

The Framework Agreement contains specific provision (4) which talks about non-discrimination and equitable representation. It appears that both terms as included in the Agreement should be examined by taking into consideration the treaty rules on interpretation since the agreement per se is suigeneris one, that does not necessarily mean that is a complex one but that has specifities which cannot be find in some other agreements.

First, this provision, particularly paragraph one stresses: 'the principle of non-discrimination and equal treatment of all under the law will be respected completely'. Analysis of this wording gives impression that the law should be equal for all in at least formal sense i.e. the laws should not discriminate against nobody. This is a problem because neutral laws would not resolve any discrimination whatsoever existing in the country, and as previously discussed sometimes in case of disadvantaged groups there is a possibility of positive discrimination or introduction of temporary special measures.

Another part that should have been included in this paragraph is actually missing and is relevant to the substantive equality. Notably, the requirement as existing in international and regional instruments of 'equality before law' (a segment of substantive equality) which is the other side of the coin of the equality and non-discrimination, notably the one related to enforcement of non-discrimination. Further, the meaning of 'all' in this quotation refers to all people living in the Republic of Macedonia regardless of their racial, ethnic, social and any other status. But is it so in substantive terms?!

Further, 4 (1) mentions the areas where the principle on non-discrimination would be applied and that is in particular: public administration, public enterprises and access to public financing for business development. This is quite restrictive first to the areas where it applies and second to the actors responsible, since mostly it refers to the public or State actors whereas discrimination occurs and is committed by Non-state actors.

Article 4 (2) opens the door to the positive discrimination for 'all communities' who are under-represented in public administration on both central and local level and public enterprises due to long-lasting disadvantageous status in the society, or with the terminology of the human rights law this paragraph deals with the temporary special measures. The modality chosen to achieve this is through equitable representation. Without entering into semantics of the equitable representation, it is obvious that this is technical term and has nothing to do with the substantive meaning of the principle of equality and non-discrimination, but more to the formal since the latter is quite restrictive in its scope.

This article does not determine according to which criteria this equitable representation will be implemented. Having in mind the overall formula that exists in the Agreement and that is 20% rule, one assumes that this is the modality through which equitable representation should be achieved. In simple words, more public administration and public job openings for the ethnic Albanians and little for the communities which are under 20% rule. On the other hand, this positive discrimination measure should not be regarded as a tool for job openings in the public administration in situation when unemployment in the country is around 30% of total population. (11)

Something which is striking is the fact that this technical modality of equitable representation is included in the Constitution as part of fundamental values along with other substantive requirements. One can understand such motivation namely to make the legislative changes, but could not see it as completely necessary since: 1. Equitable representation is a temporary special measure to address previous inequality and when achieved will become oblivious; 2. Commitments of the state for such modification already exist in Framework Agreement which is binding for its organs and bodies and this is the assurance which is just enough to press the state to make such changes and implement equitable representation principle.

Moreover, article 4(2) stresses that equitable representation in the police should be -implemented as soon as possible. Article 4 (3) deals with the equitable representation in the judicial system and at the Office of the Ombudsman. Furthermore, non-discrimination and equitable representation modality is contained in Article 6 Education and Use of Languages. Paragraph 3 of the said Article reveals the true nature of the equitable representation technical modality, as opposite to the Article 4. Article 6 paragraph 3 reads: 'The principle of positive discrimination will be applied in the enrolment in State universities of candidates belonging to communities not in the majority in the population of Macedonia until the enrolment reflects equitably the composition of the population of Macedonia'. Several issues can be identified, that this is first and foremost positive discrimination or temporary special measure, is to be used for the candidates belonging to communities' not in majority in the population and most importantly with limited time-scope until it reflects equitably the composition of the country's population. As stated this is the real nature of the equitable representation and therefore found appealing that this criteria has been included in the fundamental values section of the Constitution.

In terms of figures and actual implementation of this principle some comparative data although dating back to 2004 can be found in the Venice Commission Report, which portray the equitable representations through percentage and sectors. (12) The highest percentage of employment in public administration and court system after ethnic Macedonians hold ethnic Albanians, and the smaller communities hold only few or the small percentage of the positions. However, there is a need for conducting a comparative assessment of the progress of implementation of the equitable representation, although recent data can be found at the central registry of civil servants.

The office of the Ombudsman in its annual report of provides statistical data of the progress of implementation of principle of equitable representation since it is the body responsible for this. (13) The 0.4 percent of complaints relate to the observance of the principle of non-discrimination and equitable representation.

Conclusion

The conclusion suggests as the critics since the beginning of adoption are, that the Framework Agreement promotes on one hand formal equality namely for certain groups, placing the collective rights higher than individual, the latter is a concept of the global human rights framework. And on the other endorses 'non-majority community' vis a vis other smaller communities. It is evident that the Agreement discriminates against smaller communities and this mechanism does not allow for overall protection against discrimination. Additionally, there have been critics for the ethnization of the public administration, which is certainly due to the solutions included in OFA. (14) Moreover, the Copenhagen criteria -prescribe protection of minorities to be first jointly with stable institutions guaranteeing democracy and rule of law condition for accession of candidate countries to EU. (15) In our context 'minorities' does not mean only Albanians but also all other communities living in the Republic Macedonia.

Therefore, the Republic of Macedonia should consider and implement systematic measures deriving from existing international and legal human rights law to constantly fight inequalities. Prompt implementation of the solutions included in the law against discrimination is also necessary. The principle of equitable representation according to the data and conclusions by authoritative bodies has been achieved in terms of ethnic Albanians in public administration representation. In addition, this principle as mentioned above according to the terminology of human rights law is a temporary special measure addressed particularly to a certain groups. In simple words, the country needs substantive equality to be in place by addressing in comprehensive and systematic manner the inequalities of individuals and not only promotion of one ethnic group vis a vis other but measures to really create and function as a multi-ethnic society.

(1) Framework Agreement, 13.08.2001.

(2) Martin Scheinin and Catarina Krause, "The Rights not to be Discriminated Against: The Case of Social Security" in T. Orlin and M. Scheinin, The Jurispudence of Human Rights Law: A Comparative Approach, Gummerus, Jyvaskyla, 2000: 255.

(3) CCPR General Comment No. 18 Non-discrimination 11/10/1989.

(4) Judgment of 28 May 1985, Series A, No. 94, paragraph 72.

(5) Convention on Protection of Human Rights and Fundamental Freedoms Rome. 4.XI 1950, as amended by Protocols Nos.11 and 14, Registry of the European Court of Human Rights June 2010.

(6) YmpimcKii BecHUK, MnpjaHa HajneBCKa, "PaMKOBeH AproBop", 18 September 2001.

(7) Census of the Population, Households and Dwellings in the Republic of Macedonia 2002.

(8) Percentage of population speaking a language other than Macedonian and percentage of population other than Macedonian living in local self-government units.

(9) Constitution of the Republic of Macedonia 1991.

(10) [TEXT NOT REPRODUCIBLE IN ASCII.] 50/2010).

(11) See: www.mtsp.gov.mk; www.avrm.gov.mk.

(12) European Commission for Democracy through Law (Venice Commission), Positive discrimination and access to civil services Report, Constitutional, Legal and Other Measures Aimed at promoting Equitable Representation of Communities in Civil Services and the Experience from the Ombudsman Office by Snezana Teodosievska Jordanoska. Trieste, Italy, 2005.

(13) Republic of Macedonia Ombudsman, Annual Repport 2010, Skopje March 2011.

(14) Gordana Siljanovska, One Decade After OFA--Lessons to be Learned from the Macedonian Experience, Conference Organized by Center for Research and Policy Making, June 2011.

(15) European Council in Copenhagen, Conclusions of the Presidency, 21-22 June, 1993.

Jana Lozanoska LL.M, PhD Candidate and former Director of the Center for Democracy and Security in Euro-Balkan Institute. Currently works as an independent consultant.