Alternatives to freedom of peaceful assembly as a democratic tool of influence on the lawmaking process and decisions of public authorities in the Republic of Belarus
Natallia Gurko, lawyer
Persons participating in peaceful assemblies (demonstrations, rallies, marches, pickets) publicly express their position on a particular issue and expect a response from the state authorities or some private actors. Under this article, the freedom of peaceful assembly will be considered exclusively as a way to influence the lawmaking process and decisions of state bodies.
The purpose of this article is to review currently existing democratic alternatives to freedom of peaceful assembly, which can be initiated by the public, taking into account the specificity of the current political and legal regime in the Republic of Belarus.
In democratic countries, state authorities are obliged to ensure the freedom of peaceful assembly in accordance with international standards. However, it is not a secret for anyone that the present legislation of the Republic of Belarus, namely the law “On Mass Events in the Republic of Belarus” significantly limits the freedom of peaceful assembly. First of all, in accordance with the law, the procedure of holding mass events in Belarus has a notification character only in certain places that are away from the eyes of the general public and the target audience. In other places, the procedure of holding mass events is permissive. Secondly, in accordance with the law, organizers of the peaceful assembly must pay all the costs related to the event (public security, medical care and cleaning the area). Thirdly, holding of spontaneous actions and counter-demonstrations is completely prohibited. Consequently, people cannot often exercise this right and publicly express their interests in order to achieve changes in legislation or in decision-making process. Moreover, people may be afraid of expressing their interests through peaceful assemblies due to the existing practice of police detaining and penalizing participants of peaceful assemblies.
Freedom of peaceful assembly is certainly a significant human right, but if it’s frustrated it’s not the end of the road in practical sense, as there are alternative ways of interacting with state authorities to promote public opinion and influence government activities in lawmaking and decision-making process.
Therefore, while human rights organizations have not yet succeeded in the adoption of a new version of the law “On Mass Events in the Republic of Belarus”, citizens can also express their public interests in other permitted ways.
TAKING PUBLIC OPINION INTO ACCOUNT IS NECESSARY
Certainly, for state authorities taking public opinion and public interests into account in lawmaking and decision-making processes is necessary. Alla Sokolova, Belarusian expert in sociology of law, argues that public opinion is a source that allows the legislator to get an idea of the needs and interests of citizens, their value orientations and social expectations. For a democratic state, it is extremely important to consider the needs and interests of society. Taking into account opinions and interests of citizens contributes to improved efficiency and effectiveness of legislative acts, and also to the alignment of decisions with public expectations.
Positive consequences of taking into account public interests in lawmaking are next: stronger credibility of upcoming laws and regulatory acts, and legislation in general; greater public involvement in state affairs and greater public awareness; and also the subsequent effective achievement of socialization and implementation of legal norms.
At the present moment, besides the freedom of peaceful assembly, there are a number of opportunities for citizens of democratic counties to express their opinions and interests.
First of all, in accordance with Article 37 of the Constitution, citizens of the Republic of Belarus have the right to participate in the solution of state matters through freely elected representatives. Therefore elections can be called an indirect form of expression of public opinion and indirect participation of citizens in the lawmaking and decision-making process.
The subsequent effect of holding free and fair elections is a formation of state authorities, whose activities are aimed at adopting legislation and taking decisions in the interests of the people, which correspond to the dominant values and ideas of society. During fair elections, people have an opportunity to choose persons in positions of authority as their representatives who share common interests and listen to public opinion, involving citizens in mass discussions and sample surveys.
Openness and transparency are necessary elements of the preparation and holding of fair elections in Belarus.
Special contribution to the fight against falsifications is made by the election observation missions of the Organization for Security and Cooperation in Europe, the election observation program of the human rights center "Viasna" and the Belarusian Helsinki Committee "Human Rights Defenders for Free Elections", as well as the joint campaign of public structures and political parties on election observation "The right to choose.". Since 1996 no Belarusian elections have been recognized as democratic by independent observers and international democratic community. Therefore its possible to argue that electoral institution in Belarus does not function properly and does not fulfill its function of electing representatives of citizens.
Article 37 of the Constitution on the direct participation of citizens in the administration of the affairs of society and the state refers to the holding of referenda.
The referendum is a direct expression of the will of the citizens, it may be held to resolve the most important issues of the State and society, and therefore cannot cover the whole spectrum of public interests.
Although questions of wording submitted to a referendum cannot accommodate the full scope of public opinion and a clear answer to a very specific question is expected, this method of direct democracy as a form of expression of the will of the people is indispensable for a democratic state. The referendum is most relevant in cases where to answer “yes/no” is enough to make appropriate changes to legislation. For example, it can be a question of retaining the death penalty or a question of the equal status of the Belarusian and Russian languages, which were initiated by the president in past referendums.
At the moment, none of the past referenda in Belarus was initiated by citizens, therefore it can be argued that the institution of referendum in Belarus is not functioning properly. An adequate access should be provided to citizens to exercise their right to initiate republican and local referenda.
Legislative changes are required to simplify the procedure itself, which would make it more accessible to citizens. In section VII on the referendum of the Electoral Code of the Republic of Belarus (EC), one can find a number of obstacles for a group initiating a referendum. First of all, special difficulties may arise from the requirement to form a fund. All the costs must be financed from the fund, including all expenses related to collecting signatures of citizens in support of the proposal to hold a republican referendum and campaign for the initiation of a republican referendum. Article 114 (1) of EC establishes restrictions on the amount of voluntary donations of citizens of Belarus and legal entities (no more than 15 and no more than 30 common unit, respectively). Moreover, there is a limit on the amount of expenses that may be incurred by the fund. It is not clear for what purpose these restrictions were introduced, except to restrict the initiative group from raising funds and then spending funds.
In addition, according to Article 115 of the EC, the collection of signatures of citizens in support of the proposal to hold a referendum must be carried out within two months from the date of registration of the initiative group. However, it should be borne in mind that the costs associated with campaigning collecting signatures must be taken from the funds of the initiative group, and opening a fund in a bank is only possible after registering the initiative group, which can also take some time. Therefore, the initiative group cannot start collecting signatures immediately after registration. The group must first open the fund, then raise funds so that they can be used for further expenses associated with the conduct of the referendum and campaigning. Consequently, the time to collect signatures is much less than two months.
Moreover, after the Central Commission has reviewed of all of the actions taken by the initiative group; after review of the Ministry of Justice and the General Prosecutor's Office of the Republic of Belarus on the compliance of the question submitted to the referendum with the law; if there are at least 450,000 signatures of citizens (including at least 30 thousand signatures of citizens from each of the regions and the city of Minsk), the President of the Republic of Belarus has the right to reject a proposal to hold a referendum (Article 117 of the EC).
Thus, the procedure is not only complex and difficult in a practical sense, but also has a number of obstacles and it can meet resistance from public authorities at all stages.
For example, in 2012, the authorities of the Smolevichi district refused to allow citizens to register an initiative group to hold a local referendum on the construction of a Chinese technopark, due to the fact that “the issue falls under the jurisdiction of republican authorities, not the local one, since the decree on the construction of the technopark signed Lukashenko ..." and "...Lukashenko's decrees cannot be discussed at a referendum".
However, procedural aspects are not the only problem for organizing a referendum. This was demonstrated during the political campaign "People's Referendum", which ended due to weak internal organization of the civilian political community and local activists of the campaign.
REPUBLIC AND LOCAL MEETINGS
Further, Article 37 of the Constitution informs us about the right of citizens of the Republic of Belarus to participate in the discussion of issues of state and public life at republican and local meetings.
Every five years, on the initiative of the President, the Belarusian People’s Congress is held. Although this institution is one of the most important forms of democracy, in Belarus its functioning has been a subject to legitimate criticism. It is too early to judge the results of the socio-economic development program of Belarus for 2016–2020, which was adopted at the last meeting, but it can be noted that not one of the main objectives of the program of the previous five-year plan was implemented. The holding of the republican meeting itself has a number of disadvantages. First of all, the meeting is held according to the old Soviet model of congresses. Secondly, meetings are usually held in a run-up of presidential elections, thereby creating a kind of election campaign for the current president. Thirdly, there is an opinion that at the meeting there is a certain circle of people who share the views of A. Lukashenko, while dissident individuals and independent media are not welcome. Therefore, this institution does not perform its main function of representing public opinion, but represents more a stage to present state policies to Belarusian citizens and international community.
As for local assemblies, an expert in the field of self-government, Miroslav Kobasa in his analytical work “Local self-government in Belarus - how to turn a myth into reality” notes that there are obstacles to the realization of the citizens' initiative to hold a local assembly: a large number of required signatures (at least 10% of citizens living in the relevant territory); the duty of the initiators to finance all the costs of holding a local assembly; organizational issues for which the permission of state bodies is necessary.
The factors listed above significantly constrain civil society in organizing local assemblies. For holding local assemblies the stage of collecting signatures could be completely excluded, as in order to collect signatures, requires campaigning and persuading people to sign, which can cause additional difficulties and require additional expenditures from the initiators.
DISCUSSION OF DRAFT LAWS
According to Article 37 of the Constitution, the direct participation of citizens in the administration of the affairs of society and the state shall be safeguarded by the discussion of draft laws.
Participation in the public discussion of draft laws can be taken at the Legal Forum of Belarus forumpravo.by. However, it should be noted that the activity on this website is extremely low. Under some drafts there are no discussions at all. Examples of such projects with the complete absence of proposals and comments can be the following: Draft Decree of the President of the Republic of Belarus “On the creation of a traceability system for goods”, Draft Resolution of the Council of Ministers of the Republic of Belarus “On establishing the standard form of an agreement”, Draft Resolution of the Council of Ministers of the Republic of Belarus “On approval of the Strategy attracting foreign direct investment in the Republic of Belarus until 2035 ", Draft Amendment No. 5 to the Technical Regulations of the Customs Union "On Food safety”. On the other hand, absolute champions on the active discussions are: Draft Decree of the President of the Republic of Belarus “On Amendment of the Decree of the President of the Republic of Belarus” (on improving road safety) - 1,636 comments; Draft Law of the Republic of Belarus “On Amendment of the Law of the Republic of Belarus“ On Road Traffic ”- 1337 comments; Draft Law of the Republic of Belarus “On the Treatment of Animals” - 475 comments; Draft Decree of the President of the Republic of Belarus “On payments for participation in road traffic” - 390 comments.
Taking into account the country's population, the figures are more than modest, which indicates extremely low civic social activity. The section of the population most involved in discussion of draft laws in Belarus are car owners and animal lovers.
Of course, some draft laws may be completely incomprehensible to ordinary people because of their lack of understanding or lack of interest in a particular issue, for example, such as the above-mentioned Draft amendment No. 5 “On food safety”. This kind of discussion requires the opinion of independent experts on the quality and safety of food, managers and employees in the field of public catering, as well as those people who are interested and not indifferent to this topic.
It is also worth adding that individual ministries post draft regulatory acts on their websites for discussions. Such an opportunity exists, for example, on the website of the Ministry of Taxation of the Republic of Belarus, as well as on the website of the Ministry of Economy of the Republic of Belarus. However, such discussions are not public, as citizens shall send suggestions and comments by a specified e-mail address. Consequently, interested people cannot openly get to know each other’s opinions.
CIVIL LEGISLATIVE INITIATIVE
There is also a civil legislative initiative in Belarus (Article 99 of the Constitution). At the moment, none of the adopted law has been initiated by citizens.
Referring to the Law of the Republic of Belarus “On the Procedure for Exercising the Right of Legislative Initiative by Citizens of the Republic of Belarus”, it can be noted that the procedure for submitting draft laws to the House of Representatives is rather complicated. The legal procedure for exercising the right of civil legislative initiative resembles the procedure for initiating a referendum. And although the current law “On the Procedure for Exercising the Right of Legislative Initiative by Citizens of the Republic of Belarus” does not contain specific restrictions on fundraising by the initiative group, Section 14 (2) of the law states that the procedure for creating an account and spending money is determined by the Central Commission, i.e. the commission has the right to establish such restrictions. In this regard, as in the case of the referendum, it is necessary to simplify the procedure and reduce the control of the initiative group by the Central Commission of the Republic of Belarus on Elections and Republican Referenda.
The initiative group, as in the case of the referendum, may encounter difficulties and resistance from the authorities at every stage of the procedure, starting with the registration of the group and the draft law, ending with the submission of the draft law to the House of Representatives. For example, the initiative group with the draft law “On introducing changes and amendments to some laws of the Republic of Belarus on the issues of holding elections and referendums”, which was headed by a Belarusian politician, Dmitry Uss in 2012, was not registered due to the fact that the meeting of the members of the initiative group was considered as illegitimate. In an interview with tut.by, Dmitry Uss stated that “the authorities deliberately prevent citizens from exercising the right of legislative initiative, since they are not interested in democratic changes in electoral legislation”. The politician also noted that in Minsk "the KGB was in charge of checking the group: pressure was exerted on the members of the group, they were required to write a statement of non-participation in the group meeting".
Petitions are increasingly gaining popularity in modern Belarusian society. There is no term “petition” in our legislation. A petition is a collective appeal of citizens in a written form to the state authorities about the need for public reforms or changes in legislation. The right to send personal or collective appeals to state bodies is enshrined in the Constitution of the Republic of Belarus (art. 40). Collective appeals are considered in the manner prescribed by law of July 18, 2011 No. 300-З “On Appeals of Citizens and Legal Entities”.
In the case of a referendum and a civil legislative initiative, the signature collection stage may not be reached due to any circumstances (for example, rejection of the application for registration of the initiative group and the question it proposes) and, accordingly, the actions of the initiative groups may not attract widespread attention. On the other hand, in the case of a petition, everything is much simpler: the whole procedure starts with creating the petition in accordance with the terms of the website on which it places; then signatures are collected (there is no minimum or maximum number of signatures that must be collected), and then the petition is sent to the appropriate state authority. Unlike the democratic channels discussed above, in the case of a petition there is a higher chance that the authorities will pay attention to the existing problem and public concerns on some specific issues. In addition, unlike previously considered methods, with the help of petitions one can influence not only the decisions of state authorities, but also private actors (for example, as a result of petition #1785 published on Petitions.by, concerned potato lovers managed to return potato to the menu of the McDonald’s restaurant chain).
At the moment, taking into account the development of information technology, the most popular and convenient form of petitions is electronic. In an interview for the website citydog.by, the expert of the digital freedom laboratory of Human Constanta, Andrei Sushko notes that the most popular platforms for creating petitions and collecting signatures in Belarus are Change.org, Zvarot.by and Petitions.by.
Although Change.org is popular on the Internet in Belarus, applications submitted via this website do not fully comply with the legislation due to the lack of indication of the addresses of the signatories, respectively, the authorities are not obliged to consider them. For example petition on the introduction of a moratorium on the death penalty in Belarus, placed on the website change.org collected 113,652 signatures but did not bring any results other than attracting the attention of the public and the media to the existing problem.
It should be noted that despite the fact that both Belarusian websites Zvarot.by and Petitions.by organized their activities within the framework of the legislation, the principle of their work is slightly different: with the help of Zvarot.by, requests are sent immediately on an individual basis from each signer, while Petitions.by collects signatures and after a while provides one collective appeal to the destination.
Co-founder and lawyer of the platform, Vladimir Makhnach, in the same interview for citydog.by, called the petition for the introduction of criminal responsibility for cruel treatment of animals one of the bright positive examples of Zvarot.by activity. As a result of the petition, the Prosecutor General's Office put forward this proposal for The House of Representatives, and later on the deputies of the House of Representatives reviewed the draft law. It entered into force on January 29, 2015 and supplemented the Criminal Code of the Republic of Belarus with Article No. 339-1, establishing criminal liability for animal cruelty.
The website Petitions.by offers users to exercise their right to participate in the management of the city, however there are also petitions to amend the Belarusian legislation (for example, petition No. 2322 “On making the necessary amendments to the law on state environmental impact assessment”).
The creator of the website, Vladimir Kavalkin, argues that the most unsuccessful are politicized problems, while cases related to the improvement of the courtyard, street, city, changes in road markings and road repairs are more successful.
ELECTRONIC DEMOCRACY (e-Governance / e-Democracy)
In the future, one can take into account e-democracy which is emerging in Belarus. According to the website of the Ministry of Defense of the Republic of Belarus, E-democracy is a form of democracy which is characterized by the use of information and communication technologies as the main means for collective thought processes. These processes include mutual informing and joint decision-making during the voting process. Computer networks in this case are the tools of a democratic political system.
E-democracy is usually understood as a new form of democracy in which citizens participate in the process of governance through information technologies. In the electronic environment, it is possible to conduct voting of citizens for government decision-making, as well as holding elections, referendums, civil legislative initiatives, and also sending electronic appeals to governmental bodies and communicating with governmental representatives. However, so far, in Belarus, the government approached this phenomenon rather modestly. There are no prerequisites for electronic transformation of existing democratic institutions In the Informatization Development Strategy in the Republic of Belarus for 2016-2022.
Currently, portal.gov.by is functioning on e-services, the goal of which is to involve citizens into the world of e-government and offer electronic services and administrative procedures for receiving government services, providing access to electronic databases of various departments and allowing individuals, legal entities and government bodies obtain services in various fields (for example, social protection, taxation, judicial proceedings, and so on).
It is also worth to mention the portal "Moj Gorad", which carries out the sending of requests to the divisions of city executive committees or urban services concerning housing and communal services and urban economy. People also have an opportunity to leave a feedback to assess the quality of the work of the organization that they contacted.
Those platforms do not yet provide opportunities for voting and legislative initiatives. Belarus could follow the example of the Russian Federation and create a platform for the right of legislative initiative. In Russia, there is a website “Russian Public Initiative” where citizens can post their initiatives. Using information technologies, this procedure seems to be more accessible to citizens.
At the moment, in Belarus, besides the freedom of peaceful assembly, which is very limited at the level of legislation and law enforcement, there are various democratic channels of interaction of citizens with the authorities that are not implemented properly or are not implemented at all, among them: elections, civil legislative initiative, referendum, republican and local meetings, discussions of draft laws, collective appeals to state bodies. Electronic petitions are the most popular among citizens and are very simple in a practical way, but not all of them reach their final goals. As practice shows, the more politicized the issue is, the less chances of making changes are possible. On the other hand, rather simple, but completely unpopular way is to discuss draft laws, which indicates the extremely low civic social position of Belarusians.
All the considered methods are guaranteed by the Constitution of the Republic of Belarus, however, in practice, the procedures for implementing the Civil Legislative Initiative, referendum, republican and local assemblies have a number of shortcomings restraining citizens for their implementation. In this regard, legislative changes are needed to simplify the procedures and ensure adequate access of citizens to existing democratic institutions. In addition, due to the informational progress, the state should take into account the development of e-democracy in the country. Modern informational technologies provide an opportunity to improve existing democratic institutions.
Besides legislative restrictions, the reasons for poor implementation, or the complete lack of implementation of the constitutional rights of citizens, there is a problem of low activity of civil institutions in political processes and the disorganization of the opposition.
Considering the above facts, it can be concluded that public pressure should be applied as widely as possible, using various ways of influence in conjunction with the involvement of the media, the general public and using the Internet. An excellent example of broad civic activism and expression of public opinion through various means, such as protest actions, petitions, public hearings on an existing problem, coverage of a problem in mass media and social networks, is resistance against Decree No. 3 “On the Prevention of Social Dependency” , or as it is also called “the decree of parasitism”. Thanks to the efforts of concerned Belarusians, in January 2018, the law was repealed and Decree No. 1 “On promoting employment of the population” was adopted, as a result of which the list of persons subject to the law was reduced. Yes, the problem was not fully resolved, but here it is important to mention the fact that the authorities reacted and people managed to achieve positive changes. Thus, wide public pressure using several democratic channels to influence the government can positively affect the situation, attract the attention of Belarusian citizens to the existing problem and contribute to the development of public dialogue and manifestation of civic participation in the life of the country.
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