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Academia 15 Home | Press | Academia | 15 | Artikel6 Political Exclusion of Minorities in Asia and Europe: A Few Comparisonsby Fernand De VarennesThe following is a summary of Dr. Fernand de Varennes's presentation at the Workshop "Politische Repräsentation und Partizapation Nationaler Minderheiten", organised by the European Academy of Bolzano/Bozen on 19 February 1998. Political exclusion in general Historically, governments have often limited political participation to certain categories of people. In some countries, and sometimes fairly recently, only citizens who were men, or White, or members of the dominant ethnic group, were entitled to vote. Even in democracies such as the United States, the right to vote was not universal for all citizens at every level until relatively recently. In some districts of the U.S., there could be requirements to be able to read and write in English or to understand the Constitution in order to be allowed to vote, a convenient way of excluding parts of the population, especially the Hispanics and many Blacks. Today, even though the methods may have changed, there are still countries in Europe and Asia that have found ways of excluding certain categories of individuals, especially members of linguistic or ethnic minorities, from participating in the political process. A number of states have in fact done indirectly what they cannot do directly and restricted both political participation and political representation of certain minorities in two ways:
Political Exclusion of Minorities in Asia. A few examples. In Sri Lanka, after that country became independent in 1948, one of the first decisions made by the government dominated by a Sinhalese majority was to remove the right to vote of more than 5% of the population who were "Indian Tamils": that is Tamils who were brought to Sri Lanka by the British to work in the plantations last century. So these descendants of plantation workers, even though their ancestors may have arrived in that country about 100 years ago, not only could not and still cannot vote, they are not considered citizens, do not have access to some government programs that would permit them to buy land, etc. This, combined with other government measures in the area of official language use that disadvantaged the Tamils in economic and social advance-ment possibilities, has obviously been one of the factors which has brought about an explosion of violence that have killed tens of thousands of people until today and the demand for a separate Tamil state. Another example of an Asian state excluding a large minority from the political process occurred in Malaysia. When Malaysia became independent the Malay majority was faced with a large number of people who were the descendants of Chinese labourers whom the British colonial power had brought or encouraged to settle in that part of Southeast Asia. With 1957 independence came provisions in the constitution that gave the Malay majority permanent spots in the government, made Islam the national religion, and made Malay the national language. Furthermore, the 1957 Constitution contained complex rules as to who could become a citizen of Malaysia. The effect of these rules was in practice to exclude mainly members of the Chinese minority from becoming citizens and thus being able to participate in the political process. Once again, instead of saying that the Chinese are not allowed to vote, the government simply denied most of them citizenship. While the route to follow was different, the destination was the same: some members of an ethnic minority were to be excluded from the political process, regardless of whether they were born in Malaysia, and regardless of how many generations they had lived there. Eventually, after some violence and the realisation that many Chinese, politically excluded by the denial of citizenship and the right to vote, or disadvantaged through the government's various programmes favouring the Malay majority, had joined the Communist movement, the rules on citizenship were relaxed. Since then most people of Chinese origin have become citizens, can vote and participate in the political process. Political Exclusion of Minorities in Europe. Three examples. As it is in Asia, so it is in Europe. Three countries can serve as examples where you also have the exclusion of many members of an ethnic minority from the political process. In the Ukraine with members of the Tatar minority, and in Estonia and Latvia mainly with the Russian minority. Once again, they are denied either the right to vote through denial of citizenship or - even if they are citizens - the possibility of being recognised as democratically elected officials if they do not satisfy certain linguistic requirements. The Tatars in the Ukraine In the case of the Tatars in the Ukraine,1 one expert described the consequences of the political exclusion of a large number of members of a minority because of denial of citizenship in the following words: Ukraine is reluctant to extend citizenship to an estimated 100,000 (40%) of Crimean Tatars, excluding them from the benefits of privatization and limiting their freedom of movement. Deprived of voting rights, non-citizens will not participate in the upcoming elections in Ukraine. The issue of Tatar political representation and official recognition of their democratically-elected self-government is also unresolved and shrouded in uncertainty. This weakens this group's ability to fight the anti-Tatar policies of the Crimean government and anti-Tatar biases in Crimean society at large. Ukraine's handling of the Tatars, the only significant pro-Kyiv political force in Crimea, is ambivalent. Most recently, a mandatory exchange of Ukrainian passports (the second since independence) inflicted another blow to the freedom of movement of the Crimean Tatars, deepening rather than reducing their isolation. Few of the Crimean Tatars who are eligible for passports can afford to pay the 100 dollars US which are required for this document because of the very high levels of unemployment within this community, and the way in which their life savings were wiped out by hyper-inflation in the early 1990s. Linguistic minorities in Latvia The exclusion of members of a linguistic minority from political participation in Latvia is even more striking. Since the adoption of the Law on Citizenship in July 1994 in Latvia, there were some estimates that less than 10,000 out of almost 700,000 Latvian non-citizens had succeeded in acquiring citizenship by way of naturalisation, out of a total population of about 2,500,000. In practice, that means that more than half a million people, many of them born in Latvia; have lost the right to vote in national elections since that country "became a democracy"! The Saeima (Latvian Parliament) also rejected in 1996 amendments to the law on the local government elections which would have permitted non-citizens to vote. This represents almost one third of the Latvian population. Nearly all of these are members of the Russian minority who cannot qualify because they cannot or believe they cannot pass the language requirements for natura-lisation. Interestingly enough, someone who does not speak Latvian but can show that he was born of Latvian parents before the Russian occupation can automatically become a citizen, even if born outside Latvia. The language requirements for naturalisation purposes in Latvia have the effect of depriving almost a third of the population of that country of virtually all political rights. What the naturalisation law has done is to ensure that one ethnic minority is almost entirely politically powerless and voiceless. Furthermore, those that are not citizens are also often excluded from public service jobs, cannot buy property, cannot participate in the privatisation schemes, and are to a large degree increasingly excluded, rather than integrated, at the political and social levels. There are of course some members of the Russian minority who have the right to vote since they are citizens, but even in this case there are also linguistic requirements in Latvia that can exclude their elected representatives from participating in the political process. Even if elected by a clear majority, a person will not be permitted to sit as a representative in a political body if s/he is not sufficiently fluent in Latvian. Amendments adopted in 1996 by the Latvian Parliament require that elected officials, including officials elected in a municipality, must be fluent in Latvian. In some parts of Latvia, this requirement means that Russians who are citizens of Latvia and who have been elected can be prosecuted and excluded from elected positions if their level of fluency in Latvian is not high enough. Linguistic minorities in Estonia Estonia is in a similar situation as Latvia, in the sense that a large part of the population who are members of a linguistic minority are excluded from political participation because of either language restrictions on elected officials or exclusion from the right to vote through denial of citizenship, once again essentially because of language requirements. In 1997 there were about 300,000 stateless persons residing in Estonia, representing about 25% of the population living in this country. Once again, these are people who are all members of a linguistic minority, many of which have been born in Estonia, who do not qualify for citizenship because they do no have a sufficient mastery of the official language, Estonian. There are also another 100,000 or so who are not citizens of Estonia but hold Russian or Ukrainian citizenship. Once again, many have been born in Estonia but cannot become citizens because of the language requirement. In all, you have more than a third of the population of Estonia who are mainly members of the Russian minority and who are excluded from the right to vote in national elections. They are however permitted to vote in local elections, but they are still not permitted to elect the candidate of their choice. As in Latvia, elected officials must have a certain level of fluency in the official language, or else the "free democratic choice" of the population will be rejected by law for "inappropriate knowledge of the state language". The electoral process and political participation for minorities Yet there are fundamental human rights that have an important consequence on the electoral process and political participation for minorities. For example, a law or other state measure which excludes individuals from being candidates or from holding an elected public position because they do not speak the official language could be in breach of international law because it may be discrimination. It could in certain circumstances constitute an unreasonable, and therefore discrimi-natory, restriction. In this way, members of ethnic or linguistic minorities who would be excluded from running for or occupying an elected office because of an unreasonable language requirement could argue that the state is acting in breach of a fundamental human right in international law. In light of the importance of a free and democratic political process open to all citizens, the exclusion from elected office of citizens who are members of a minority because of the linguistic preferences of the government is such a serious consequence that it is more than likely contrary to non-discrimination as to language in international law. In the case of Estonia and Latvia, the regulations that prevent elected officials who belong to the Russian minority from sitting in public bodies is in all likelihood unreaso-nable and thus a form of discrimination, given the large percentage of individuals who are members of that minority in those countries. The political exclusion of individuals who belong to an ethnic or linguistic minority by denying them citizenship is a more complica-ted issue, but there are also human rights aspects to this issue which cannot be ignored in any serious analysis of the political participation of ethnic or linguistic minorities. Conclusions A few clarifications are however necessary in order to have a better understanding of what is involved. There is not in international law or European law a "right to a specific citizen-ship" as such, although statelessness must be avoided. But it is no longer true that in international law citizenship is a sovereign matter. While such a statement is sometimes still repeated in some legal textbooks, the more correct position is that whereas states have a great deal of latitude in the rules they adopt for naturalisation purposes, international human rights can affect these matters. More precisely, non-discrimination under Article 26 of the International Covenant on Civil and Political Rights affects all areas of state activity, including naturalisation. There is also under the Convention on the Reduction of Statelessness an obligation on states that are signatories to avoid creating situations of statelessness, which is what is occurring in countries such as Latvia, Estonia, and to a lesser degree the Ukraine. Non-discrimination does not mean a state cannot require knowledge of the official language for naturalisation purposes. However, there may be situations where the circumstances in a state are such that only permitting naturalisation if an individual knows the official language could be discriminatory if it "operates in a vacuum" in relation to the social reality of the state. These words were used in an international decision handed down by the Inter-American Court of Human Rights where it was indicated that linguistic requirements for naturalisation can in some situations be discriminatory. If large numbers of people living in a country do not know the official language, then the naturalisation rules should also reflect this reality and permit the acquisition of citizenship with knowledge of the other main languages spoken in the country.3 In other words, if large numbers of people in a state speak a language other than the official language, it may be necessary to permit naturalisation in one or more additional languages, as is the case in the U.K., where knowledge of Gaelic or Welsh can be a "substitute" for knowledge of English. In addition to applying non-discrimination to the situation of the Russian and Tatar minorities in order to permit their increased political participation and representation, there are other limits to the state's power to exclude members of certain minorities from participation in the political process. In a letter to the Estonian government dated 6 April 1993, the High Commissioner for National Minorities of the OSCE, Max van der Stoel, invoked a number of international legal instruments to urge Estonia to reduce statelessness. A similar letter was sent on the same date to the government of Latvia. In other words, there is the suggestion that the refusal to grant citizenship to individuals belonging to linguistic or ethnic minorities who were born in these countries but who are stateless because mainly of the language requirements is probably contrary to international law.4 In 1995 the United Nations Human Rights Committee also commented on Latvia's performance of its obligations pursuant to the International Covenant on Civil and Political Rights, and indicated that it was concerned that: ...a significant segment of the population will not enjoy Latvian citizenship due to the stringent criteria established by the law, and the policy deliberately chosen to consider each case on an individual basis and pursuant to a timetable calculated to delay the naturalisation process for many years... The 1993 UNHCR report on "Nationality Laws in former USSR Republics" concludes that, pursuant to the Convention on the Reduction of Statelessness, Latvia must grant its citizenship to those stateless residents born on its territory.5 There are of course social and historical explanations for these situations. However, there are in citizenship matters just as in any other areas of state activity limits to a government's discretion. There is no longer an absolute state sovereignty in citizenship matters or on who is entitled to the right to vote. International human rights must be respected in these areas, just as in any other area of state activity, because they represent both moral and legal standards of international law and for humankind. Dr. Fernand De Varennes, visiting professor at the European Academy of Bolzano, Asia-Pacific Center for Human Rights, Murdoch, Australia Notes:
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