Positive disctrimination in Lithuania?

During the most recent visit in Soleczniki (12.08.2015) the President of Lithuanian Republic, Dalia Grybauskaitė, gave a speech in which she again supported the creation of a special development fund for South-East Lithuania. According to the Head of State, this kind of support for the region would improve citizens’ situation, and contribute to eliminating the differences and equalizing the economic situation of the whole country. Such fund would be an indication of positive discrimination, which is recommended in cases of substantial differences between particular regions of the country.

Despite the criticism from the Ministry of the Interior, which thinks that such fund is unnecessary and doubles the actions undertaken as a part of the regional policy, European Foundation of Human Rights (EFHR) is surprised, but also very pleased to hear the President’s statement, who tackled the topic of positive discrimination.

Positive discrimination is a form of conduct, where a certain group is being favored (e.g., national minorities, women, religious groups), in order to ensure equal opportunities for its members. This type of discrimination is most exploited towards women. A record in Charter of Fundamental Rights of the European Union can serve as an example, where Article 23 states: ”Equality between men and women must be ensured in all areas, including employment, work and pay. The principle of equality shall not prevent the maintenance or adoption of measures providing for specific advantages in favour of the under-represented sex”.

The most well-known example of positive discrimination is the affirmative action, which started in 1960s in USA. It is the kind of policy, aiming at improving the situation of certain groups, which were disadvantaged for historical reasons — African Americans, Hispanics, Native Americans, and women. This policy is supposed to give an access to education and decent employment to the representatives of these groups.

Positive discrimination raises doubts, but it is an undeniable fact that often ”lenient treatment” gives economically or socially disadvantaged person the opportunity to fulfill their dream of a decent job that leads to a dignified life.

Lithuania is not one of the leading countries engaged in positive activities towards minority groups. Despite The Equal Treatment Act (Lygių galimybių įstatymas) of 2003, which is supposed to implement the EU Directive of 27 November 2000 that establishes the main framework conditions of equal treatment in employment and occupation, the Foundation points out to the lack of real actions from the Lithuanian State that could improve the development of South-Eastern region of the country.

In the European Union Agency for Fundamental Rights’ document ”The Benefits of Positive Action” created by International Centre for Migration Policy Development (ICMPD), the emphasis is put on the cooperation between organizations, businesses and the society around them. The State and organizations which offer employment should support the areas in unfavorable position (e.g., with high unemployment rate or poorly developed), what would positively influence the functioning of the market in the scale of whole country. Positive action would also be based on using the natural, for the minorities, skills related to their language, tradition or culture. The additional help for the representatives of the minority groups in preparation to the recruiting process for particular position is demanded. Actions towards the positive action are not easy, but it is worth putting more effort into the development of cooperation and integration of the whole country.

An example of actions related to the positive discrimination in Lithuania were alleviations at the state language exam for students at national minority schools. Facilitations, such as shorter essays, more authors to choose from or a possibility of making more mistakes by students, who learned the state language in less hours, gave an opportunity for those students to continue education at universities. The Supreme Administrative Court of Lithuania in 2013 acknowledged these facilitations as contrary to the constitutional principle of equal opportunities (see the ruling). EFHR reminds that this was another, after standardisation of the exam and closing down of minority schools, strike aimed at education of this fraction of Lithuanian society.

Another matter related to the positive action for national minorities is the issue of bilingual election cards, about which you can read more here. In 2003, a month before the referendum on Lithuania’s accession to the EU, a legal record was introduced which gave a possibility of submitting translations of election cards in the language of national minorities; however, in 2006 the Constitutional Court of Lithuania (LR Konstitucinis teismas) acknowledged such law as contrary to the LR Constitution. Central Electoral Commission (Vyriausioji rinkimų komisja) promised that after announcing the Parliamentary elections in 2016, the election materials, information about the election constituencies, and the number of members of election commissions will be available in minority languages.

The lack of solutions regarding the suffrage, which give equal opportunities for the representatives of national minorities to sit in the Lithuanian Republic Parliament, is also a problem. Lithuanian Republic law regulating the manner of holding elections for parliament states that every party must gain at least 5% of the country’s votes to be able to sit in the Parliament from the national list. These regulations apply to all political parties, without differentiating between Lithuanian parties and national minority parties. In August 2013 a draft amendment to the Act, which aimed at establishing lower, 3% electoral threshold, for the parties representing national and regional minorities. Draft faced a barrage of criticism, and many state institutions expressed their opinions on this issue. Parliamentary Law Department recognized the draft amendment as impossible to implement, since all parties are equal. Lithuanian institutions see a lack of functioning definition of national minorities as an obstacle in implementing lower threshold for national minority parties. However, this problem is not unsolvable. Poland can serve as an example, where national minority parties do not have to reach the 5% electoral threshold. Also The Regional Language, National and Ethnic Minorities Act of 6 January 2005 provided a detailed definition, according to which a national minority is a group of Polish citizens that meet the following conditions: 1) is numerically smaller than the rest of the population of the Republic of Poland; 2) significantly differs from the remaining citizens in its language, culture or tradition; 3) strives to preserve its language, culture or tradition; 4) is aware of its own historical, national community, and is oriented towards its expression and protection; 5) its ancestors inhabited the present territory of the Polish Republic for at least 100 years; 6) identifies itself with a nation organized in its own state.

Also the issue with original spelling of names and surnames that consist of letters not occurring in Lithuanian alphabet, is related to the lack of solutions in the field of positive discrimination in Lithuania. LR Constitutional Court in the ruling of 21 October 1999 observed that ”if the norms of the law established that names and surnames of these citizens, in Lithuanian Republic citizens’ passports, were written using a font other than Lithuanian, it would not only mean the negation of constitutional principle of state language, but also a violation of the activities of government and local governments offices, other enterprises, institutions and organizations”. According to the Foundation, the possibility of spelling names and surnames in their original form would not cause any difficulties for the state administration, but would show respect for the rights, to which national minorities are entitled.

EFHR appreciates President Dalia Grybauskaitė’s recent initiative. A special fund intended for the intense development of South-Eastern Lithuania could be a hope for many people who, for reasons independent of oneself, do not have equal opportunities for full education and well-paid, stable job. According to the draft bill, the extra funds will be used to encourage the creation of local communities, development of social, economic and cultural activities, reduction of the diversity, and elimination of economic and social isolation of Southern Lithuania, as well as providing a network of institutions of formal and informal education, so that they correspond to the demographic trends of Southern Lithuania. These defined goals are meant to be completed through activities for the local communities and support for creating new communities, through local social, sport, and cultural activities, through improving the existing infrastructure and creating new, through the reconstruction of the public buildings in the Southern Lithuanian region, through cleaning of the playgrounds and equipping new, as well as through building of new institutions of formal and informal education. If the objectives of this draft were fulfilled and contributed to the growth of economic potential and increased the competitiveness of the region, it would improve the situation of many residents of that region of Lithuanian Republic. Hopefully the situation from the 90s will not repeat itself, when a similar fund, instead of developing the culture of this region, led to the increased process of Lithuanization of the Polish population residing there. We do not yet know, whether the draft bill for a special development fund for South-Eastern Lithuania will be accepted and will fulfill the hopes. The fact of the attempt itself to implement the positive discrimination in such diverse community like Lithuanian society, seems to be important.

Respect for the human rights and the fight for improving the situation of national minorities in Lithuania is the aim of Foundation’s activities, hence it will be actively supporting this project and will keep you informed about its further progress.

EFHR