Who wants to privatize the elections, or The small legislative leak vs the big electoral ship

The draft law 263, recently voted in the first reading and left for the autumn session, apart from amending the Electoral Code and the Code of Audiovisual Media Services, provides for an amendment of Article 52 (3) of the Administrative Code, as follows: “Non-profit, trade union and charitable organizations which become involved, in any form, in the electoral campaign shall be punished by a fine of 30 to 50 conventional units, in case of individuals/persons in positions of responsibility, and of 100 to 150 conventional units, in case of legal entities”.
 
The amendment, according to the explanatory note, derives from Letters 5 and 6 of the Constitutional Court concerning the need to provide for certain penalties, including a penalty for NGO involvement in the election campaign. It should be noted that the high Court did not make reference to all NGOs and would not be able to do so, anyway.
 
Let’s imagine how this provision would work.
 
…Starting 30 days prior to the ballot, for a whole month NGO-owned media entertain us with articles and videos on the subjects of gastronomy, gardening, folklore and whatnot. Not a word about the elections. While concerned with voters’ rights, polls monitoring and voter education, NGOs lie low for a month, afraid of getting involved. All national NGOs, including politically affiliated ones, and all their individual members lock up in their offices, refuse invitations to pre-election meetings or, when they do go there, do not ask any questions and do not argue, for the sake of staying out of it.
 
On the day before the ballot NGOs obediently return to their statutory activities…

We are this close to being forbidden from touching the ballot boxes.
 
Possibly, the amendment is meant to “clear” the electoral campaign of reproachable actions, of which there have been plenty in any election so far. Only it seems rather like a doctor cutting off a patient’s arm instead of treating his aching finger.
 
Objectionable practices
 
Today’s populism, like yesterday’s communism, seeks adversaries. Communism found them in imperialists; populism does in NGOs. And they use similar armory to fight their “enemies”, such as denigration campaigns, administrative harassment, funding restrictions, excessive regulations, vilification of certain groups (refuge seekers, ethnic or sexual minorities), and physical attacks.
 
Hungarian, Polish and Croatian authorities have tried to drive NGOs, advocates of civil liberties, out of the country, imputing lack of patriotism or tax evasion. In Bulgaria, Croatia, Hungary, Italy, Poland and Romania, NGOs which criticize the parties in power are accused of acting against national interests. Bulgarian, Hungarian, Italian, Romanian and Spanish NGOs have reported physical attacks on their employees or property.
 
In Croatia, Hungary and Poland, reduction of funding was explained by political reasons, and the funds were redirected from power-criticizing NGOs towards government-loyal organizations and churches. Under the excuse of combating money laundering and terrorism financing, Croatian, German, Hungarian, Polish, Romanian and Spanish NGO’s are facing or about to face new bureaucratic rules of detailed and more frequent reporting of their activities, funding, beneficiaries and expenses.
 
In Hungary, Poland, Spain, UK and Ireland, authorities have stopped or significantly reduced NGOs’ involvement in the drafting of laws and public policies.
 
In Bulgaria, nationalist parties have been fighting since 2017 for a law to forbid foreign funding of judges’ associations. The extreme right-wing and pro-Russian formation “Ataka” would even like to have professional associations of the legal sector banned. In Russia, a law was enacted in 2012 stating that all foreign-funded NGOs must declare themselves “foreign agents”. A similar law exists in Transnistria.
 
In Hungary, George Soros’s bashing has caused the government to adopt, in 2017, the Law on the Transparency of Organizations Supported from Abroad and to introduce a special 25 per cent tax for migration-related NGOs. This example was followed by the Turkish autocratic regime and the ex-populist government of Italy.
 
Citizens united in NGOs become inconvenient for authoritarian politicians. Nothing new under the sun. The American philosopher Hannah Arendt said it back in 1951: totalitarian power becomes possible when a nation is made up of isolated, discouraged and suspicious individuals.[1]
 
The way forward
 
NGOs are so important for democracy that they are protected by international regulations.
 
The right to participate in public affairs, directly linked to the freedom of association, is inherent to ECHR’s system (Article 11).[2]
 
International standards and best practices to “weigh” the amendment are contained in reference documents, such as:
- Convention for the Protection of Human Rights and Fundamental Freedoms (aka European Convention on Human Rights);
- Recommendation CM/Rec 2007(14) of the Council of Europe Committee of Ministers to member states on the legal status of non-governmental organizations in Europe;
- OSCE/ODIHR and Venice Commission’s Joint Guidelines on the Freedom of Association;
- Recommendation Rec 2001(19) of the Council of Europe Committee of Ministers to member states on the participation of citizens in local public life;
- Report on funding of associations, adopted by the Venice Commission at its 118^th Plenary Session (Venice, 15-16 March 2019);
- Guidelines for civil participation in political decision-making, adopted by the Council of Europe Committee of Ministers on 27 September 2017;
- Code of best practices for civil participation in political decision-making (2009);
- UN International Covenant on Civil and Political Rights, signed on 16 December 1966 and in force since 23 May 1976.
 
Fulfillment of the freedom of association can only be restricted in exceptional cases, based on rigid criteria stipulated by international instruments. The standards and best practices are officially adopted by the Moldovan state.
 
When written words should not remain
 
The author of the amendment seems seriously concerned with the eventual political activities of certain NGOs and proposes to herd them all in for a month, just in case. Let’s not forget, however, that NGOs are free to openly support a candidate or a party in elections, provided that they clearly state their motivation and the financial assistance, as the case may be, complies with the law on the funding of election campaigns and political parties.
 
The phrase “involved, in any form” in the proposed amendment reminds us of a similar phrase, “political activities of any kind”, which appeared in a Romanian draft law. The Romanian lawmaker intended to leave politically active NGOs without public funds. The Venice Commission, at a plenary session in 2018[3], stated that the draft law used a very broad terminology and expressed its concern that a legal provision thus formulated could end up lacking clearly defined limits and lead to an unjustified restriction of civil society organizations’ right to “carry out advocacy activities related to public matters” and to “support a party or a candidate in the election race”. The Commission wonders: if a representative of an NGO criticizes publicly the declarations made by a party or an independent candidate – declarations which they deem a potential expression of hatred, – can this be qualified as political activity? In conclusion, the Venice Commission referred to the ECHR case of Zhechev vs. Bulgaria (claim No 57045/00 of 21 June 2007), in which the Court had decided that the Bulgarian authorities’ refusal to register an association on the grounds that its objectives were of “political” nature represented a violation of the Convention, pointing out the ambiguity of the term “political”. 
For the avoidance of such issues, the Venice Commission recommends the Romanian lawmaker to formulate the provision in a way that would not prevent NGOs from “carrying out advocacy activities related to the discussion of public matters”.[4]
 
What will it suggest to the Moldovan legislator in this case?! We may find out in autumn…