Changes in the laws on NGOs: what civil society has managed to undertake so far
Public hearings: realistic limits of influence
Strange as it may seem, the first reports that Belarus is preparing a package of amendments to the laws on NGOs came from Switzerland.
On October 9, 2018, Aliena Kirycenka, a member of the Belarusian delegation and head of the Department for Non-Profit Organizations (NPOs) at the Ministry of Justice, presented Belarus’s report to the UN Human Rights Committee in Geneva and stated that amendments were expected to be made to the Laws “On Non-Governmental Organizations” and “On Political Parties” in 2019. Planned changes envisage the simplification of the registration procedure for NGOs, a shorter list of documents that NGOs will have to submit to the relevant registration authority for registration (“minimized” is how Ms. Kirycenka put it), as well as the possibility for an NGO to engage with the registration authority electronically. “I hope we will be able to pull through and make amendments to the legislation with regard to the possibility of electronic submission of documents to the registration authority,” said the representative of the Ministry of Justice in Geneva.
Afterwards, in October 2018, the report about the upcoming amendments to the laws on NGOs was overshadowed by the heap of messages about other high-profile statements by the Belarusian delegation in Geneva. The controversial assessment by a representative of the Investigative Committee of the defendants in the so-called “BelTA case” as “trivial hacking” received the broadest media coverage.
However, professional organizations specializing in the legal framework for the operation of non-profit organizations benefited from the Geneva report as the starting point to prepare their position on the announced amendments.
Therefore, when the plan for legislative activities published in January 2019 officially confirmed the intention to submit to the parliament the draft law “On Amendments to the Laws on the Activities of Political Parties and Other Non-Governmental Organizations”, Belarusian civil society had already been prepared to discuss the concept for the proposed draft law.
During the first few months of 2019, civil society held several rounds of discussions of the tentative changes. As early as January 20, the round table “Prospects of the development of framework legislation on non-profit organizations” was held with the participation of a wide range of NGOs, where an analytical review was presented to highlight the challenging aspects of legal relationships falling within the scope of the laws to be reformed. On March 20, political parties held a round table of their own, entitled “Amendments to the Law ‘On Political Parties’: Expectations, Challenges, and Proposals”, where Aliaksiej Peckurav, the deputy head of the Department for Non-Profit Organizations at the Ministry of Justice, informed the leaders of opposition parties (ranging from the right-wing BPF and UCP to the left Green Party and A Just World) about the amendments proposed by the Ministry.
Therefore, civil society was actively involved in the process of discussing the draft law at the earliest stage of concept development. At the same time, a certain difference could be observed in tactics applied by political parties and non-political NGOs: the approach of the latter was focused on responding to the changes proposed by the Ministry, while the parties were rather in favor of a broader discussion of the issue of legal regulation of the establishment and operation of political parties. Whereas the former approach included criticism of poor proposals and support for positive innovations, the latter one implied a quality change in the existing legal framework, regardless of the content of the rather limited and cautious innovations declared by the Ministry of Justice. For example, one of the parties’ flagship proposals was to address the possible format of state financing of political parties, which is a radical alteration of the existing procedure (Article 24 of the Law “On Political Parties” in its current version expressly prohibits the financing of political parties at the expense of the republican or local budgets).
Further work on this legislative initiative proved that both approaches to the draft law have a future. At least, the long overdue issue of state support for political parties has been removed from the taboo list, and the draft law submitted for public discussion by the Ministry of Justice includes a provision reading that the state can render political parties and unions informational, methodological and other support (although the Ministry is not ready to lift the ban on budget financing yet).
On the whole, the “inputs”, which the government had provided for the Ministry of Justice to develop the draft law, looked rather scarce and consistent with what Ms. Kirycenka said in Geneva. The Council of Ministers, which had instructed the Ministry of Justice to draft the document, notes in its rationale that the preparation of the draft law was necessitated by the need to upgrade the regulations provided by the Law of the Republic of Belarus dated October 5, 1994 “On Political Parties” and the Law of the Republic of Belarus dated October 4, 1994 “On Non-Governmental Organizations” based upon the track record of their respective application. According to the substantiation included in the plan for legislative activities for the year 2019, the draft law was proposed:
- to enshrine in the legislation that documents containing information about the operation of political parties (including financial reports) should be made available to the general public, i.e. to envisage the obligation to publish this information in the media/or on the websites of political parties themselves;
- to provide for the possibility of submitting documents for the state registration of NGOs to the judicial authorities in the electronic format, as well as the possibility of exchanging information between the registration authorities and NGOs in the electronic format;
- to simplify the procedure for parties and NGOs to submit information about the continuation of their operation and changes in the status of organizational structures of NGOs.
The Ministry of Justice was designated as the initiator of the development of the draft law “On Amendments to the Laws on the Activities of Political Parties and Other Non-Governmental Organizations”.
However, of particular interest is the rationale for the introduction of the mandatory publication of financial statements by political parties (and judging by the version of the draft law presented for public discussion, this applies to all of the three thousand NGOs operating in the country). In doing so, the authors of the draft law cite recommendations of the Group of States against Corruption (GRECO), which, they say, contain a prescription to increase the level of transparency of political financing in Belarus. In 2016, GRECO adopted the Third Round Evaluation Report on Belarus, which focused on the criminalization of corruption and transparency of the financing of political parties.
This substantiation looks like quite a cunning move, since Belarus never agreed to the publication of the GRECO report and recommendations. This is the only case of such secrecy among all the members of this treaty institution of the Council of Europe! However, anyone can read the summary of the GRECO report — it is a public document, which makes it clear that GRECO experts are not so simple-minded and naive that they see the source of corruption in such a humble element of Belarus’s political system as its political parties: “[Parties]only play a marginal role in the country’s political/electoral process,” GRECO notes in its report, rather disappointingly.
Nevertheless, the majority of parties did not voice their rejection of the proposed norm concerning the publication of financial statements. Apparently, this attitude is caused by the fact that political financing in Belarus is not channeled through party funds — and this is not only about mythical “suitcases with cash from abroad”, but also about quite real “black funds” to finance the campaigns of candidates representing something that in Belarus can be viewed as an equivalent of the “Nonpartisan Bloc for Cooperation with the Government”. It is emblematic that all attempts to disclose the sources of financing of the “voluntary” activities of the Belarusian Republican Youth Union and the Federation of Trade Unions of Belarus in the course of election campaigns always fail: even at a meeting of the Central Election Commission in the presence of foreign monitors the leader of official trade unions demonstrated flowery eloquence when asked about the sources of financing of the Federation’s political campaigns during the 2015 presidential race, while providing minimum data about the real funding (saying something like “God sent it”).
Anyway, the elaboration of a common stand of political parties with respect to this law has become an example of probably the most extensive cooperation of the opposition in recent years. The proposals submitted to the Ministry of Justice were signed by the leaders of the BPF, UCP, Green Party, BSDP (H), A Just World, and representatives of the organizing committee of the BCD. In May 2019, the Ministry of Justice set up a working group to develop a draft law, including representatives of civil society, in particular, the Belarusian Helsinki Committee, Tell the Truth association, and a number of political parties.
On the eve of the first meeting of the said working group, parties issued a political statement detailing their position on how amendments to the law “On Political Parties” can really contribute to the democratization of Belarus. A number of meetings of representatives of parties were held at the Ministry of Justice, and Ihar Barysav, the chairman of the Belarusian Social-Democratic Party (Hramada), was included in the working group of the Ministry of Justice focusing on the preparation of the draft law. Importantly, he presented not only the position of his party, but also proposals regarding the draft law that had been signed by almost all opposition forces of the country (perhaps with the exception of the CCP-BPF).
NGOs also took steps to form a consolidated position. However, the Ministry of Justice refused to include in the working group a representative of the Legal Transformation Center, who was delegated by a resolution of the VIII Congress of the Assembly of Non-Governmental Democratic Organizations of Belarus. Nevertheless, other representatives of non-profit organizations and parties voiced their common interests and presented a consolidated position at the meeting of the working group.
Therefore, during the preparatory phase of this draft law, both NGOs and political parties were actively engaged in the discussion of the concept for the proposed law.
In this connection, sweeping categorical accusations of the parties, which allegedly ignored the legislative initiative despite it being critically important for them, seems ungrounded. Presumably, the author of these accusations, Siarhiej Alfer, is simply unaware of the matter, since representatives of the leadership of the UCP — to which the author of these unfounded accusations used to belong until quite recently — were also involved in the most active development of the common stance of political parties, alongside experts representing other parties and lawyers specializing in the freedom of assembly. It would be more appropriate to state that parties and NGOs actively joined the process of the preparation of an important regulatory act and wish them not to lose momentum.
The past six months have made it clear that the Ministry of Justice is ready to hear rational arguments as it develops the draft law. It is already known that the proposed introduction of mandatory registration of organizational structures for nationwide NGOs will not affect those NGOs that have already been registered. Some of the most unfavorable norms, which were on the Ministry of Justice’s agenda, were not included in the draft law.
The draft amendments to the Laws “On Non-Governmental Organizations” and “On Political Parties” developed by the Ministry of Justice were submitted for public hearings, to be held in the period from July 12 to August 2. Both the changes previously announced by the Ministry (online submission of documents for the registration of NGOs, introduction of the obligation to publish financial reports by March 1) and some other innovations were brought up for discussion.
When commenting on the content of the amendments submitted for public hearings, a side note should be made about the phase of lawmaking activity, at which this public discussion is currently taking place: it is only the position of the Ministry of Justice, which has not been approved by other ministries. It is very likely that the draft law will undergo significant changes compared with the current version. Indeed, the norms concerning electronic communication between the registration authorities and NGOs, norms pertaining to online meetings of NGOs’ governing bodies, and other technical innovations will likely to remain in place. However, NGOs can and must argue and seek to prove the irrationality and harmfulness of other norms, especially those limiting the salary bill in NGOs to forty percent of an NGO’s budget — preventing such negative innovations is a realistic task, and support to effectively deal with them can be procured from other influential stakeholders.
Along with the search for allies among external stakeholders, it also appears important to consolidate positions within civil society. It is not about civil society having a single exclusively correct approach to the issue of legislative regulation, but rather about building coalitions and formulating common positions that include interests of various organizations. Overcoming the dividing lines within the democratic community is deemed critical: it would be inexcusable for parties to focus only on the part of the bill that concerns amendments to the law “On Political Parties”, or for NGOs to speak exclusively of changes made to the law “On Non-Governmental Organizations”. The rational voice of democratic organizations should not be muffled by the clamor of loyalist and conservative organizations, whose ignorance and lack of reason can only be compared with their selfless willingness to support any repressive and restrictive, or simply thoughtless initiatives of the authorities.
At the same time, it should be kept in mind that the interests of non-profit organizations will also be affected by the new draft law of the Republic of Belarus “On State Registration and Liquidation (Termination) of Economic Entities” (scheduled to be drafted in December 2019 and submitted to the Parliament in September 2020). It is expected that this law will be designed to regulate the creation and registration of the legal entities, whose creation and registration are currently regulated by Decree of the President of the Republic of Belarus No. 1 “On State Registration and Liquidation (Termination) of Economic Entities” dated January 16, 2009.
Legal entities of this kind include, inter alia, such non-profit organizations as institutions and associations (except for associations of NGOs). Importantly, it is the institution that has recently become the preferred format for new civil society organizations — because of the simplicity of establishment and absence of excessive controls that can be observed with respect to parties and NGOs. In the first half of 2019, state agencies did not publish any official information about any draft versions of the said bill.