Genesis of the Hungarian Anti-Discrimination Legislation

“Legislation for Human Rights”

Stockholm, Sweden, 24 August 1998

by Gyorgy Konczei

Today I am going to talk about the genesis of the Hungarian 'Anti-Discrimination Legislation', its content, and about the developments that are going on in the Council of Europe concerning the necessity of the anti-discrimination legislation in member states of the Council of Europe.

The background

There have been two very important developments in Hungary in 1998. The first is the adoption of law number XXVI of 1998 by Parliament, and the second is the further development of the Hungarian Independent Living Movement. Both of these developments reflect the fact that Hungary is leaving the old fashioned approach of disability, characterized by pity, paternalism, charity, and a medical approach, and is taking on a legal approach which acknowledges the rights of disabled citizens.

I am going to begin with the words of Mr. Bengt Lindquist on the rights of people with disabilities. He wrote these words as part of the report on the international expert meeting on legislation of equal opportunities for people with disabilities in Vienna, in 1986.

“The ideas and concepts of equality and full participation for people with disabilities have been developed very far on paper but not in reality. In all our countries, in all types of living conditions, the consequences of disability interfere in the lives of disabled persons to a degree which is not at all acceptable. Many of the existing obstacles and limitations occur in areas of fundamental importance to our situation as citizens of our societies. If a person in a wheelchair wants to attend a public meeting, be it social, cultural or political, and if they cannot get into the meeting room because the building is not accessible, his rights as a citizen have been violated. A blind person, interested in a public debate, who has no access to a daily paper in which the discussion takes place, is in a similar situation. When a person is excluded from employment because of the fact that he is disabled, he is being discriminated against as a human being. If a general education system is developed in a developing country, and disabled children are excluded, their rights are being violated.”

If you compare the situation of 1986 and 1998, you may decide that we have not moved forward too much. But we did.

Philosophy

The Hungarian experience has shown that there is a basic conflict between the human rights and the daily lives of people with disabilities. Although the Law ensured certain rights, these rights remained on paper. Elementary facts, basic principles, and historical events, all led us to understand the necessity of equal opportunity legislation. In our view, equal opportunity legislation means two different things at the same time. On one hand, it means anti-discriminatory measures, on the other hand, it means positive discriminatory measures, or affirmative actions.

Equal opportunity legislation intends to reconstruct social reality as a livable one for everyone including people with disabilities.

In the lives of persons with disabilities negative discrimination is an elementary factor in Hungary: they experience poverty, barriers and low quality of life. We applied two theoretical approaches to this discrimination. One is the so called 'process based theory' that focuses on the process of discrimination. The other is the 'result based theory' that focuses on the result of the discrimination.

Andrew Koppelman calls the highest level of action in connection with discrimination 'anti-discriminatory project': “Anti-discriminatory projects, seeks to reconstruct social reality, to eliminate or marginalize the shared meanings, practices, and institutions that unjustifiably single out certain groups of citizens for stigma and disadvantage.”

During the preparation of the law in Hungary, we used the theories of Isaiah Berlin, a liberal philosopher, as a philosophical basis. Berlin wrote several essays on the distinction between positive and negative freedom. In the famous “Two Concepts of Liberty”, he stated that the state can be seen to function as a system on two poles, with the night watchman approach and the paternalistic approach on opposite poles. Today’s states have mixed systems. From the historical facts, the historical elements, we saw that the roots of anti-discriminatory legislation concerning people with disabilities go as far back as the 1950-s and 1960-s.

The ultimate goal of anti-discriminatory legislation is not merely to eliminate inequality based on disability, but 'disabilitism' itself. I use the word disabilitism as one uses racism and sexism in legal systems and in everyday life, to mean the view of people in the streets towards people with disabilities.

There are two basic legal systems or law families in Europe: the Continental system and the common law system. The Continental law system is used first of all in Germany, in Austria, and in Hungary, and strongly influences the Norwegian, Swedish and Finnish systems. The common law system is used for instance in Australia, New Zealand, Canada, in the US , in the U.K., and in Ireland. The basic view and practice of the Continental system is mainly based on affirmative actions. So in a common law type system, it seems to be much easier to create an anti-discrimination legislation. Thus, anti-discrimination legislation can be found in Australia, New Zealand, Canada, in the US, and in the U.K. (There is another one, recently created in Ireland, but the Irish Constitutional Court found it unconstitutional so, they are working to revise it.)

The Hungarian legislation – some facts

The new elements of the Hungarian legislation are the followings: there is no paternalism, no charity, there are no old fashioned medical views rather a legal guarantee for the rights and self-determination of people with disabilities. The law number 26 of 1998 was adopted by the Hungarian Parliament on March 16, 1998. All 330 MP-s voted for it. It seemed to be a winning game, but it was not. We started to work for this legislation in 1992, that was followed by a long interruption between 1994 and 1997. From the beginning on, all of us, people with disabilities, professionals, and disability rights activists working for the legislation agreed that the law should refer to discrimination, to the existence of discrimination, it should declare the equal rights of people with disabilities, and it should prohibit discrimination and should make litigation possible in the case of discrimination.

Litigation is also a crucial point, because in many countries legislation for people with disabilities remains on paper. Because litigation is not a normal everyday practice in countries that belong to the Continental law system, there are problems with the law affecting everyday life. But if litigation is possible in a case of discrimination, if it is made possible by law, it will work as a de facto 'automatic monitoring system of the legal regulations.' This was a crucial point in our view.

In February of 1997, NGO-s, professionals, many persons living with a disability, service-providing non-profit organizations of people with disabilities, and organizationsfor people with disabilities were asked to write studies about what they wanted to see in the law and what they did not want to see in the law. We sent out 150 requests for studies and received about 90 responses, their length varying between 2-15 pages.

The starting point for all of us was that Hungary is an inaccessible country and the Hungarian society is an inaccessible society; inaccessible for a physically, a mentally disabled person, but also for the hard of hearing and the blind people. So there is a reference in the law on the existence of discrimination in Hungary, there is a description of equal rights, plus a description of independent living. The term 'independent living' is introduced in the Hungarian legal system by this law. (We did not have independent living organizations in those years in Hungary). The law describes clearly the responsibility of the state in respect to the environment, communication, transport, supporting services, aid, education, employment, culture and also sports.

The law will be introduced on January 1, 1999, and it will create a national level lobbying body on disability. Groups of people with disabilities are represented in the national body. More than half of the seats will be filled with people with disabilities and less than half of them will be filled with civil servants from different ministries and with other people. There is a four-year disability program, newly developed by the law, which must be created by the national body, and must be adopted and monitored by the Parliament. It was not possible to prohibit discrimination in the law because Hungary belongs to the Continental legal system. (My lawyer colleagues, whom we made the codification together with, did not really support the clear antidiscrimination solution). The only solution was to make a reference to a civil code to prohibit discrimination.

The civil code refers to the Constitution of Hungary, which prohibits discrimination on the basis of age, race, sex, skin color or religion, but disability is not mentioned in the Constitution. Disability was not mentioned in the civil code either, but in the law which passed, on March 16th, references were made to the civil code: “no-one can be discriminated against on the grounds of disability”. If there is discrimination, the discriminated person may turn to the court in order to stop discrimination and for compensation. In this way we were able to introduce a clear anti-discriminatory principle into the Hungarian legal system.

The law also creates a system for rehabilitation by creating a public foundation for rehabilitation, which will have local and regional elements. It also creates a so calledcost of disability payment, which introduces to the Hungarian legal system another new element. The concept here is as follows: if someone lives with a disability, that person has additional costs and these additional costs must be reimbursed by the society.

There are deadlines set for making the public transport system accessible by 2010, and for making public buildings accessible by 2005. After these deadlines, for instance, if a person with a disability cannot use a bus in Budapest then, they may litigate the Budapest transport company for discrimination.

New developments in the Council of Europe

A year ago, a decision was made by the Council of Europe, by a higher decision making body, that a special group would analyze and study whether there is a need for anti-discrimination legislation in Europe. The committee was called the Committee on Rehabilitation and Integration of People with Disabilities and Working Group on the Legislation Against People with Disabilities. The committee started its work by studying the situation, Governments wrote reports for the committee on the legal situation and the practical situation of people with disabilities in the member states.

No one knows what the result will be in 1999 when the mandate of the committee will be over. There will be NGO hearings. People with disabilities and members of organizations who want to learn about them can contact any international non-governmental organization having a consultative status with the Council of Europe.

To conclude, I think that a country's independent living movement and the movement of people with disabilities should make the decision if anti-discrimination legislation is needed in the country. If they decide positively, then they should prepare themselves to fight for it, because governments and governmental bodies typically are not in favor of such legislation.

I wish you luck in your struggles for your rights.

Thank you for your attention.