CSP And NHC Held a Side Event at the SHDM, on Civil Society's Role in Human Rights-Friendly Law-Making: Experiences, Successes and Challenges
CSP AND NHC HELD A SIDE EVENT AT THE SHDM, ON CIVIL SOCIETY'S ROLE IN HUMAN RIGHTS-FRIENDLY LAW-MAKING: EXPERIENCES, SUCCESSES AND CHALLENGES
26 April 2021
The Civic Solidarity Platform, together with the Netherlands Helsinki Committee held an online side event at the second Supplementary Human Dimension Meeting (SHDM) of 2021 on Democratic Lawmaking: Ensuring Participation. The side event was dedicated to the role of civil society in human rights-friendly lawmaking. During the event speakers from civil society organisations from Russia, Ukraine, Turkey, Hungary, Poland and the Netherlands shared their experiences, success stories and challenges connected to safeguarding human rights standards in new legislation.
Elena Shakhova, from Citizen’s Watch, Russia, indicated the three most significant examples of the recent challenge to democratic law-making and public participation in the Russian Federation. The first example is the adoption in 2020 of numerous and fundamental amendments to the Constitution, which took place very quickly and without any meaningful public discussion, ignoring the strong criticism by the Venice Commission and civil society.
Another example is the legislation regarding the status of foreign agents that was greatly expanded in 2020. Both independent anti-corruption experts and representatives of the international human rights bodies pointed out that the definitions in these laws are weak and can be easily misused, and called on Russian authorities to refrain from adopting legislation that violates the rights of civil society activists and NGOs. However, voices against the amendments were disregarded and the laws were adopted. “Now almost anybody can receive the status of a foreign agent, it doesn't matter whether you are an NGO, a media journalist or just an individual. If you raise a dissenting voice, the foreign agent label is always there to silence you.”
Finally, Ms Shakhova talked about a new bill in the State Duma concerning education. In November 2020, a group of deputies introduced a bill proposing to define educational activities in the federal law on education. The bill authorizes the government to regulate and control educational activities, which are defined extremely broadly. “As you can see, these laws have much in common. The real aim is to harass any dissent and discussion of pressing issues and problems in civil society. These laws make toxic any link to and any interaction with a ‘foreign agent’,” Ms Shakhova added.
Ms Oleksandra Romantsova, from the Center for Civil Liberties, Ukraine, shared stories of successful advocacy practices in Ukraine. The first such story was connected to the amendment of Article 3 of the Law "On Prevention of Corruption" that took place in 2017 and based on which not just civil servants but also anti-corruption activists were obliged to submit asset declarations. This change was actively criticized then by the EU, as well as the entire human rights community of Ukraine. An active advocacy campaign was launched to repeal these amendments. Finally, following the change of government, the Constitutional Court of Ukraine declared e-declaration for anti-corruption activists unconstitutional on June 6, 2019.
The second example which Ms Romantsova pointed out is connected to the adoption of a new electoral code by the Ukrainian parliament in December 2020, which radically changed the electoral system in the country. Namely, it opened the door for IDPs and internal labour migrants to participate in all types of elections in Ukraine. The adoption of the new electoral code was preceded by four years of advocacy campaigns carried out by Ukrainian civil society at the national level.
Another successful story is connected to the efforts of civil society for the harmonization of the norms of international humanitarian law and the Criminal Code of Ukraine. As the Criminal Code does not contain a full-fledged definition of the concepts of international crimes, throughout the seven years of the international armed conflict on Ukraine’s territory Ukrainian judges were unable to give a correct description of the crimes that have been occurring in the occupied territories of Donbas and Crimea. Following years of advocacy activities and street actions carried out by human rights defenders, the bill passed the first reading and is awaiting to be put to the second vote.
Feray Salman, representing Human Rights Joint Platform, Turkey, highlighted the erosion of the rule of law and democratic institutions in Turkey, one of the most recent examples of which is the decision of the president on the withdrawal from the Istanbul Convention. Ms Salman remembered that public participation in the legislative law making process was never easy in Turkey. But with the EU accession process following 2005, there were some efforts to change the system and to enable the civil society organizations to take part in the lawmaking process. Nevertheless, all these efforts ended with no result. According to her, nowadays another method of governing bodies to silence civil society organizations is to ignore their voice completely, which is what happened in the case of the withdrawal from the Istanbul Convention as well.
Ms Salman mentioned several patterns which emerged in the law-making process throughout the last three years in Turkey. Namely, the rushed discussions of draft bills and manipulation of the agenda of the parliamentary commissions, both of which makes it even more difficult for civil society to intervene in time in the process and to provide significant input into the law-making. “We keep fighting and trying to push for the respect of human rights and rule of law. But, unfortunately, Turkey's position right now is far from this. The governing body in Turkey is opaque. The decisions are made in the current presidential structure in a way that makes it impossible to communicate with this system to change their approaches towards the policies. It is not a participatory but rather an autocrat state”, she added.
András Kádár, representing the Hungarian Helsinki Committee, talked about the importance of participation in the legislative process. According to him, Hungarian legislation to enable this participation is exemplary on paper. However, in practice, political will plays a significant role. “What we have seen in the past decade is a very quickly deteriorating practice of consultation. The government and the ruling party have used many different means to circumvent these rules.”
Mr Kádár brought examples of how the parliamentary debates are being rushed, and very important human rights-related issues are pushed through without any meaningful consultation. According to him, due to the rules of parliamentary debates and how these rules are abused, most of the time this channel of consultation is also closed for civil society.
“When you ask me about success stories, unfortunately, I have to say that if you don't have the necessary political will, it's very difficult to reach successes during the lawmaking process. What we have as human rights NGOs is primarily litigation, bringing to court cases after the laws have been adopted. But the problem is that these tools are much less efficient, much more painful. And I believe in solving issues through consultation before seeing the government and the state power in court,” Mr Kádár added.
Marcin Wolny from the Polish Helsinki Foundation for Human Rights underlined how the parliament of Poland directly affects the position of civil society organisations in the lawmaking process. According to him, for many years Poland was a witness of the progressive degradation of the parliament, which has become the executor of the will of the political leaders.
Mr Wolny singled out the basic problems in the lawmaking process, such as knee-jerk and hasty legislation. Politicians want to address identified problems by adopting a new law, without even considering other solutions. Key regulations are introduced, suddenly, as a surprise to MPs, media and citizens. This limits citizens’ ability to get involved in the legislative process and raise awareness of such changes. In such a system, there is no time to conduct public consultations, which is why this process carries a significant risk of violating human rights principles.
Last but not least, one of the major problems that Mr Wolny underlined is the complete disregard of constitutional reservations made by lawyers, MPs and civil society organisations. He talked about the harsh working conditions for the civil society organisations to make their voice heard. However, he also underlined that there is still some space for CSOs to influence the legislation adopted by the parliament.
Harry Hummel, representing the Netherlands Helsinki Committee, pointed out three important aspects of the legislative process in the Netherlands. First of all, he underlined that the central role in advising on legislative proposals is played by the Council of State, which has a big expertise in advising on what constitutes a proper law from the perspective of human rights. There is usually no strong time pressure on the Council’s work, as it takes sometimes months to prepare their proposals. In parallel to this process, there is often a procedure for the citizens, including civil society organizations, to comment and participate in the process. And it happens quite often that the relevant ministry substantially rewrites proposals which are then submitted to parliament.
However, the second round does not always lead to a satisfactory second proposal and this is where the system has some weaknesses. Namely, if the government is determined to continue with the proposal, for which the first advice was negative, then it can do so. An example of this was the so-called System Risk Indication (SyRI) legislation, which was a very privacy-intruding scheme, aiming to link all kinds of government databases to discover the possible fraud of social security funds by citizens. It was adopted despite a very critical advice of the Council of State. After the law was already in force, a broad civil society coalition started a court case against it, and it was eventually struck down.
The third point that Mr Hummel touched upon is cases when new legislation is not necessarily noncompliant with human rights, but the way in which the government agencies work makes it very problematic. An example of this is the recent so-called child care allowance scandal, when over the years law was applied illegally to tens of thousands of citizens, based on a very discriminatory approach. In this regard, after a number of years parliament has undertaken an investigation and finally asked the Venice Commission to advise on how to reform systems and procedures that should serve to correct the improper application of legislation in the Netherlands.
The full video recording of the side event is available HERE.