in the context of semi-distinguished protest of prominent individuals, in order to justify violations of the prohibition of discrimination, I feel obliged to present my understanding of legal rules of request on which the claim is based to Commissioner for the protection of equality ,that you have at the request of the Coalition against Discrimination (CAD), signed during the the previous two days.
Request of CAD and partner organizations is directed to the Commissioner for the protection of equality from which is required to decide whether to carry out her function to which she was elected or if she will continue to perform the professional activity of Professor of Law, University of Nis. We founded our request on the following terms of existing legislation:
1. In Article 28, paragraph 5 Law on the prohibition of discrimination, explicitly states that Commissioners can not exercise any professional activity in accordance with the law. Purpose of this provision is to prevent the Commissioners that in their working hours or that their work activities arent devoted to any other business.
When we worked on the formulation of the Law on the prohibition of discrimination, especially in the public debate on the Bill, as well as considering the procedure of legal text in the ministries and the deputies of the National Assembly, no one had anything against this legal rule. It is not even expressed any belief that we should provide exceptions to this rule that would allow the Commissioners to carry out scientific, educational or other professional activity.
Therefore, this rule is necessary to understand as absolute, also shoud be interpreted in accordance with the intention of the legislator, and that is to ensure that the Commissioner as a whole is dedicated to its functions for which he was elected. Satisfying the public interest in this area, especially the interests of victims of discrimination, requires the engagement of the overall working capacity of Commissioner, a position that was articulated with provisions of Article 28, paragraph 5 Act.
Starting from the fact that, in her letter to the Dean of Law Faculty in Nis, Commissioner confirmed that she remains employed at the Faculty, and that she was at her request the Teaching and Scientific Council of the Faculty has awarded her five classes to lecture, which includes her commitment testing of students in these subjects, and guided by a sense of the above rules prohibit discrimination, KPD has considered that Commisioner should make a decision about whether to continue to perform the function on which she is selected or professional activity as Professor Faculty of Law in Nis.
2. In the reference to "the law" in the last words of this rule, refers to the professional activity that is conducted in accordance with "law", on lawful professional activity, just to prevent the Commissoner in the interpretation of the rules, blocking such validly after contract or other legal basis, with which she could get round specified statutory prohibition. Therefore, this reference does not apply to the law relating to the prevention of conflicts of interest, as it is in the comments of those who are dissatisfied with our statement. Two separate arguments can be put forward in support of this assertion.
3. First, Article 30, paragraph 1 Law on Agency for the fight against corruption,is said that official, and it is in our case, Commissioner, during the performance of its functions can not perform other work or activity that requires employment. This rule applies to the legal position of Commissioner because she has in her letter to the Dean of the Faculty of Law on June 24, 2010, confirmed that she remains in full employment at the university.
In paragraph 2 of this Article, exceptions are to the above rules, and states that official may engage in scientific research or educational activities, provided that this does not jeopardize the objectived performance and reputation of public office. In the context of this rule, it would be reasonable to ask what would happen in cases where the Commissioner was faced with a complaint which is directed against her discriminatory treatment in relation to her students or against discriminatory treatment of faculty where she is employed.
However, in the last paragraph 7 of this article of the Law on Agency for the fight against corruption, specifically states that other law may prescribe what official duties or activities must not be carried out during the exercise of their functions. The second law in which this rule refers, in our case is exactly the law on the prohibition of discrimination. As stated in Article 28, paragraph 5 This law directly prohibits the Commissioners to carry out all professional activity, therefore, any professional activity, without exception.
If this legal structure would be interpreted in favor of the Commissioners present preferences, and that is that the law on the prohibition of discrimination referres to the Law on Agency for the fight against corruption, no meaningful rule could not be derived from this interpretation - the law that referred to the Law on the prohibition of discrimination to in Article 30, paragraph 7, instructs back to Article 28, paragraph 5 Law on the prohibition of discrimination, and this again in Article 30, paragraph 7 Law on Agency for the fight against corruption ... Even those who do not have professional legal education without difficulty can agree with the view that pointless legal structures are not possible, apropos they shouldnt be held on to.
4. Secondly, Article 30 Law on the prohibition of discrimination is talking about the reasons for the removal of Commissioner for the protection of equality. The rule contained in paragraph 3, item 4 of this article, specifically separates the three reasons for dismissal. The first reason applies only to perform "professional services" Commissioner during the performance of its functions. Another reason is activated if the Commissioner conducts another "duty" or "job" that could affect her/his autonomy and independence. Finally, the third reason for dismissal is if the Commissioner acts contrary to the law governing the prevention of conflict of interest when carrying out public functions, that is contrary to the Law on Agency for the fight against corruption.
In this way, the rule of paragraph 3, point 4, establishes three different reasons for the removal of Commissioner, undoabtly separates the reason for dismissal which is related to the performance of her "professional activities", from reason that is related to "conflict of interest". Consequently, with confirmation from Agency for Anti-Corruption that she is not in conflict of interest, which could possibly help her if the process for her dismissal would start, because of this reason it doesnt mean shes alowed to perform her profesional activity as Professor at Faculty of Law, that is to hide her self behind confirmation of the Agency in order to continue her profesional activity while on her function. This is the main position on which we grounded our request to Commissioner, that you have supported.
In the hope that i contributed to a better understanding of this very complicated and potentially very harmful case, i remain available to everyone for further discussion. At the same time, i take this opportunity on the behalf of CAD i say thanks for the support provided by you signatures to our attitudes and commitments, and that confirm that we will continue to advocate for enforcement of law , especially those to whom we care most personally and professionally.
Belgrade, July 29, 2010.
Friendly, Sasa Gajin, coordinator of the CAD
Members of the Coalition against discrimination are: Center for Advanced Legal Studies, Civil Rights Defenders, LABRIS - organization for lesbian human rights, anti-trafficking center, Network Committee for Human Rights (CHRIS network), the Association of Students with Disabilities Initiative for Inclusion "Velik i Mali" and Gayten LGBT.