Exactly 26 out of 27 member countries of the EU already have a bizarre legal construct called the "anti-discrimination act". There are vigorous efforts at the European level to do the same thing in the 27th country, the Czech Republic, too.
Because the bill has been "ordered" by the European bureaucrats and the country may face sanctions (let's say it: the Czechs may be discriminated against) if the anti-discrimination bill is not approved, most deputies in the Parliament actually voted to approve it. President Klaus has a different opinion and needless to say, your humble correspondent agrees with every word:
Dear Mr Chairman [Miroslav Vlček, the spokesman of the lower chamber of the Czech Parliament],
I am using my competence described in the article 50 of the Constitution of the Czech Republic and I am returning a bill stamped on April 24th, 2008, about the equal treatment and legal means to protect against discrimination and about the change of several laws (i.e. the anti-discrimination act) to the Chamber of Deputies.
You sent me the bill on May 2nd, 2008.
I consider the bill to be a useless, counterproductive, and low-quality bill while its consequences seem to be problematic.
The bill contains nothing that would be entirely new for the Czech legal system. Most of the things included in the bill are already described in existing legal regulations (from the Czech constitution to the charter of human rights and freedoms to particular laws and special regulations). There is no need to create an "umbrella" bill for these legislative policies, a bill that would become, by its very character - much like the charter of human rights and freedoms - a superior legal construct above the other laws. If some of our laws are insufficient or inefficient in practice or if something is missing in them, the problems can be fixed by a novelization of a particular law or by the adoption of a new bill.
The ban on discrimination is included in the charter of basic rights and freedoms, more particular policies are codified in a plethora of international agreements that stand above our country's laws as well as in the ordinary laws themselves. This bill is - by its very essence - a kind of pedagogical anti-discrimination booklet, summarizing the content of other laws. Its goals are ideological, not legal. However, this is not the role that laws should play. They should define the rights and duties and not to propagate edification.
It's no secret and no justification that this bill was proposed and approved as a mandatory implementation of a directive of the European Commission. In my opinion, this fact is not fit to become an argument. The directives approved by the Council (together with the European Parliament or with the European Commission itself) are politically legal tools that express the interest to achieve certain goals of the Union in individual member states. Only their outcome is binding, the form and methods of the realization of these goals are up to the individual member states. The states are bound by the obligation to accept the regulation but they are not bound by a prescribed legal format that should achieve such a goal. It is up to them how they transform these directives into their legal systems. The format of an "umbrella" anti-discrimination law was chosen by our government, not by the European Union.
The Czech Republic is not discriminating against anyone, and it is thus unsurprising that this hypothetical discrimination is not the theme of the bill. Nevertheless, the bill gives the citizens the right to be treated equally in the relationships of the private and commercial sectors which is, by definition, impossible. In an essential way, it tries to interfere with matters that have been subjects to refinements by traditions and ethical standards for centuries. Using this legal construct, our government is trying to "codify a good behavior" and it tells us that the main driver behind our good behavior should be a bill, not the education in the family, generally accepted and unwritten formulae of behavior that are usual in our society, natural role models, traditions, etc. It is another attempt to regulate the human life by laws.
By its very philosophy, the bill denies the fact that every person is a completely unique ensemble of innate as well as learned skills, characteristics, and prerequisites. It denies that each of us can be expected to have a different level of success, a differently strong relationship to work, a different efficiency, and a different behavior. The bill is trying to remove inequality. The latter is, however, a natural phenomenon. Whenever we are deciding, we are considering our subjective preferences or our equally subjective experience. This bill wants our decision making to become objective which is nothing else than a politically correct utopia. The bill constitutes a fundamental violation of the basic right of individuals to create their own preferences and of their freedom of choice. The freedom of choice is, in fact, presented as a sort of exception by the bill. It may be expected that this bill will have a negative impact upon the legal warranties and on the interpersonal relationships in general. The bill is not only a bad one; it is dangerous as well. The idea that any bill will bring the state of equality, created on the drawing boards of social engineers, is - thankfully - a false idea.
In the context of our legal traditions, a completely new and unknown principle advocated by the bill is the presumption of guilt. The new version of §133a, paragraph 3, of the civic legal code that says: "When the accuser presents actualities in the court that could imply that the accuser was directly or indirectly discriminated ..., the defendant is obliged to prove that the principle of an equal treatment hasn't been violated" is utterly absurd. It contradicts our legal principles and traditions but also the European ones and it could lead to new wrongdoings and injustice.
Another questionable aspect of the bill is the shift of the enforcement of the law to the office of ombudsman. This institution was originally created to defend the citizen against the government organs. However, it would suddenly become able to interfere with the private and commercial relations. It would be a radical change of the competences of this institution.
The extraordinary and strange character of this bill is also reflected in the unprecedented additional disclaimer added by the Czech Senate before they approved it: "The Senate considers the anti-discrimination act to be a tool to implement demands that follow from the European law and that could lead to sanctions against the Czech Republic if they are not fulfilled. The Senate however doesn't identify with the character of the bill that artificially interferes with the natural evolution of the society, doesn't respect the cultural differences between the member countries, and puts the requirement of equality of outcomes above the principle of free choice. The Senate urges the government to disapprove attempts to impose further anti-discrimination regulations at the European level." These arguments of the Senate strengthen my conviction that I cannot sign this bill and I have to return it to the Chamber of Deputies. I believe that the Chamber of Deputies will seriously consider my arguments and that it will protect our legal system from being expanded by this fatally flawed bill.
Václav Klaus, Prague, May 16th, 2008
(Speedy rough translation: LM)
P.S. Ms Džamila Stehlíková who grew up in Kazakhstan (echoing the chairman and other officials of the Green Party) has criticized Václav Klaus because his decision threatens our place in Europe. ;-) The lower chamber will discuss and vote again. Before they sent it to Klaus, about 55% of the deputies supported the bill. They still need over 50% of the deputies to override Klaus's veto.