NDI - National Democratic Institute for International Affairs

OSCE Human Dimension Seminar:
Democratic Institutions and Democratic Governance

Working Group II:
Strengthening Legislative Capacity and Practices
in a Democratic Structure

Remarks by:
K. Scott Hubli,
Senior Advisor for Governance,
National Democratic Institute for International Affairs

Warsaw, 13 May 2004

Thank you very much for giving me the opportunity to address this working group on "Strengthening Legislative Capacity and Practices in a Democratic Structure." My name is Scott Hubli and I am the Senior Adviser for Governance at the National Democratic Institute for International Affairs, or NDI. For those of you who are not familiar with NDI, it is an international, non-profit, non-governmental, democracy promotion organization, chaired by former US Secretary of State Madeleine Albright. It currently maintains offices in some 55 countries—including a number of OSCE participating states. NDI's mission is to support the efforts of fellow democracy activists around the world, primarily in areas of electoral process strengthening, political party development, legislative strengthening and civic participation. NDI receives support for its programming from the US National Endowment for Democracy, the US Agency for International Development, a number of European bilateral donors, private foundations and international organizations, including the UNDP and the World Bank. As a result, my remarks are those of a democracy promotion practitioner, rather than an academic, legislator or government representative; they are based on observations drawn from NDI's programs over the past 20 years in strengthening legislative capacity in countries around the world.

I would like to begin by echoing some of the comments that have already been made regarding the importance this session. The OSCE has long played an important role in election observation and monitoring. Its engagement in this area will continue to be critical as long as flawed election processes occur within the OSCE region. However, for a number of reasons which I will review in my remarks, efforts at strengthening electoral processes must be supplemented by a greater focus on the quality of post-election democratic processes and institutions—including the role of parliament. I hope my remarks provoke a healthy discussion on the ways that the international community and the OSCE can help strengthen the democratic nature of post-election governance.

From a practitioner's perspective, the international community's approach to strengthening democratic legislatures has differed substantially from the approach taken to strengthening elections. Historically, approaches to parliamentary strengthening have tended to be very relativistic—emphasizing training and the sharing of technical expertise by offering a broad range of options and models. Parliamentary strengthening efforts have not traditionally emphasized the use of minimum standards for legislatures or for the role that legislatures play in policy making and oversight. This is in contrast to the approach used to strengthen democratic elections, where ODIHR has worked to help develop an international consensus on standards for democratic elections. Although election-related work has also involved sharing comparative information and technical expertise, electoral process strengthening has tended to use a rights-based or standards-based approach, evaluating whether states have complied with international election norms and standards. The standards-based approach has also included assistance with respect to international monitoring of electoral processes and capacity building for domestic election monitoring organizations.

The central thrust of my remarks is that the standards-based approach used to strengthen elections can also be useful in strengthening legislatures. I will start by outlining the reasons why a focus on international minimum standards for democratic legislatures makes sense. I will then look at areas where the existing commitments of OSCE participating states address legislative processes, and where these OSCE commitments could be expanded or supplemented with reference to international norms or good practice. I will conclude with some specific recommendations regarding how ODIHR can help move this process forward.

THE NEED FOR A STANDARDS-BASED APPROACH TO LEGISLATURES

I would first like to review a few global trends and touch briefly on some of the reasons why an international standards-based approach to strengthening legislatures makes sense. Some of these global trends are more pronounced in certain democracies than others; taken as a whole, I suggest that they strongly support taking a more standards- or rights-based approach to legislative development around the world.

The Shallowness of the "Third Wave" of Democratization and Increased Public Cynicism. The first reason for a standards-based approach to legislative strengthening is tied to the shallowness of the so-called "third wave" of democratization and the increasing level of public cynicism about politics. It is increasingly clear that democratic elections alone do not guarantee democratic post-election governance. There has been much written about the rise of "fa�ade democracies" or "pseudo-democracies"—that is to say, democracies that have the outward forms of democracy, but which lack the underlying democratic culture needed to support and animate these democratic forms. Put another way, there is growing appreciation for a need to increase focus on the quality of the post-election democratic process relative to the focus on the mere existence of elections and democratic institutions. Even in developed democracies, cynicism about politics and politicians is on the rise, as noted by the keynote speakers in the opening plenary.

It is unfortunate that Zekeriya Ak�am is not able to be present with us this morning. It is my understanding that his remarks would have focused on the cultural aspects of democracy. In my opinion, although democracy is a right for all human beings, there can be no doubt that for democracy to flourish, democratic institutions must be bound to the cultures of the societies that elect members to them. There must be an indigenous democratic culture to support the functioning of formal democratic institutions. In addition to support for elections, the international community must focus on supporting the development of this democratic culture worldwide, and on ensuring the quality of post-election democratic governance processes. If this is not done, it is possible that a disproportionate emphasis on election monitoring may in fact indirectly and inadvertently promote "fa�ade-democracies" by prioritizing the form of elections over the democratic nature of the policy-making and oversight processes that follow from them.

Changes in the Nature of Political Participation toward Influencing Government In-Between Elections. A second reason for focusing on minimum standards for democratic legislatures relates to the changing nature of political participation in many developed and transitional democracies. Many studies have been done on declining voter turnout in developed democracies. There are valid methodological questions that have been raised with respect to many of these studies; it is also true that voter turnout has increased in particular elections in particular countries—often as a result of greater political polarization or political competition or in response to a specific high-profile issue or event. Still, regardless of the ways that voter turnout trends are measured, it is clear that there is a widespread perception that voter turnout is declining. This has led many commentators to posit a decline in the level of citizen engagement in politics.

I think that what we are seeing is less a decline in political engagement by citizens, than it is a change in the nature of political engagement. In the developed democracies, there appears to be a change in the way people participate in politics—away from participation through political parties around contested elections and toward participation in politics in between elections through civil society organizations (CSOs)—particularly single-issue advocacy groups. Anecdotal evidence seems to bear this out. Some have cited growing membership figures in some large single-issue pressure groups, which can exceed membership in any of a given country's major political parties. Again, drawing on anecdotal evidence—some of the largest political demonstrations haven't been organized by political parties around election-related issues, but are instead often organized by CSOs to influence policy in between elections—for example, the Countryside Alliance's efforts to protect fox-hunting in Britain have mobilized 300,000 marchers in London, one of the largest demonstrations since World War II. The internet appears to have accelerated this trend, given the increased ease with which individuals are able to identify like-minded individuals concerned about a specific issue, as well as the increased ease that the internet provides to communicate policy preferences to elected officials. The anti-war movement in the US has increasingly used the internet in organizing and the success of groups like "moveon.org" have demonstrated a number of changes in the ways that people engage in politics.

Given this apparent trend in political engagement from engagement in politics through elections and political parties to greater engagement in politics in between elections through civic organizations, it is important to complement the emphasis given by the international community on election standards with a similar focus on standards for legislatures in between elections. This is particularly true of mechanisms for obtaining public comment and input in law-making and oversight.

The Importance of Multilateral Approaches In Setting Minimum Standards for Post-Election Democratic Processes. There is a third reason why I believe it is important to support the development of an international consensus on minimum standards for democratic legislatures. Quite simply, the lack of a developed international consensus creates a space for unhelpful unilateralism. As a practical matter, standards regarding the quality of post-election democratic processes are needed for a range of purposes—whether it is in the conditioning of aid or assistance in the developing world, in guiding the efforts of donors who are supporting legislative strengthening, or in shaping new democratic processes in post-conflict reconstruction. To the extent that there are not international standards governing democratic law-making and oversight, countries that condition aid or are involved in post-conflict reconstruction have greater freedom and political space to define their own standards. Standards developed through a process of international consensus can help build a shared vision of the nature of post-election democratic processes. Again, the efforts of the international community over the last several decades to develop and refine international election standards provide an excellent model that should also be explored in the development and expansion of standards applicable to legislatures and the democratic conduct of policy making and oversight.

Emerging International Focus on Minimum Standards and Best Practice for Democratic Legislatures. Lastly, I would note that there is an increasing body of information to draw on in developing international minimum standards for democratic legislatures. Donor efforts to help strengthen parliaments and legislatures began in earnest in the early 1990s; donor evaluations of their efforts over these years provide a wealth of information regarding good practice. A number of international parliamentary organizations and assemblies have, in recent years, produced documents that have been extremely helpful in collecting good practice and in moving toward the development of standards. As but one example of an attempt to codify best practice, at its session in Amman in May of 2000, the Inter-Parliamentary Council of the IPU approved a set of "Guidelines for the Content and Structure of Parliamentary Websites." This document provides a set of recommendations for improving parliamentary transparency through the use of websites. To take another example, a Commonwealth Parliamentary Association Study Group recently produced a set of "Recommendations for an Informed Democracy," which includes a list of standards governing the interaction between parliament and the media. The Commonwealth Parliamentary Association has also approved a proposal from NDI to organize a panel on the issue of possible minimum standards for democratic legislatures at their 50th Commonwealth Parliamentary Conference in Canada this summer. There are a host of other organizations that have a wealth of experience on parliamentary development that should be drawn on in inventorying norms, commitments, principles and "good practices"—including, of course, the OSCE Parliamentary Assembly and the Council of Europe Parliamentary Assembly.

So, to restate, there are several trends that argue for increased use of standards-based approaches to legislative development: 1) the shallowness of the "third wave" and increasing public cynicism, 2) the increasing importance of citizen's political engagement in politics through civic organizations in between elections, rather than political engagement primarily through political parties at elections, 3) the need for international, multilateral approaches to developing standards, and 4) emerging best practice regarding parliaments and their role in law-making and oversight.

Before proceeding to how these trends impact the OSCE and the commitments of OSCE participating states, I would like to briefly address two possible reservations with respect to the development of minimum standards for democratic legislatures. First, some have cited the diversity in legislative and parliamentary practice as a practical bar to a standards-based approach—noting the wide range of practice among the national assemblies in parliamentary and separation of powers based systems. However, in response, I would argue that the diversity in electoral systems is arguably no larger, given the extremely wide range of electoral practices in majoritarian and proportional representation systems. A second possible reservation is the politically sensitive nature of the processes that parliaments use for law-making and oversight. Although legislative operations, and the nature of policy-making processes and oversight are politically sensitive issues, they are, arguably, no more politically sensitive than the conduct of elections. Moreover, there already exists a solid basis for further development of legislative standards in the existing commitments of OSCE participating states—even if these commitments are less developed than those relating to electoral processes.

EXISTING COMMITMENTS OF OSCE PARTICIPATING STATES RELATING TO DEMOCRATIC LEGISLATURES

This now brings me to the role that the OSCE may be able to play in helping to facilitate the further development of international best practice and standards relating to democratic legislatures. Although existing commitments provide a solid foundation for minimum standards for democratic legislatures, the implications for some of these general standards on legislative practice are not always clear. In these areas, examples of good practice would seem to be particularly useful. Let me just touch on a few of the existing political commitments of participating states that relate to minimum standards for democratic legislatures:

Transparency of the Law-Making Process

"[L]egislation, adopted at the end of a public procedure, and regulations will be published, that being the condition for their applicability. Those texts will be accessible to everyone." (Copenhagen Document, 5.8)

This commitment for a public procedure and for the accessibility of texts require a degree of legislative transparency. I believe there is also some guidance on this issue from recommendations of past Human Dimension Implementation Meetings; there is also a broad range of good practice that would benefit from further codification. I have already mentioned two efforts in this regard—the "Recommendations for an Informed Democracy," developed by the Commonwealth Parliamentary Association and the "Guidelines for Parliamentary Websites," developed by the Inter-Parliamentary Union. Many of the Commonwealth guidelines on the interaction between parliament and the media are consistent with the spirit of the Copenhagen Document, although they provide additional concrete guidance on how this spirit can be translated into practice. In addition, it should be noted that election-related commitments of participating states also have implications for parliamentary transparency. Elections for parliament are, of course, only meaningful when the electorate has information about the performance and record of existing legislators who are running for reelection. In some countries, the lack of transparency of voting records of parliamentary actions has hindered democratic accountability.

Oversight of the Executive

"[All human beings have the right to] a form of government in which the executive is accountable to the elected legislature or the electorate" (Copenhagen Document, 5.2)

In addition to the Copenhagen document, the OSCE Parliamentary Assembly has issued several declarations relating to the oversight role of parliament. However, although the principle of oversight of the executive by the elected parliament or citizens is well-established, guidance on the how this is translated into practice could be further strengthened. It seems clear that the principle of executive accountability to parliament implies that the parliament must have access to the information from government that is necessary to effectively conduct oversight. Effective parliamentary oversight requires several components—the existence of formal powers and techniques of oversight, the capacity of members and staff to use these powers and techniques, and the political incentives and the resources for these powers and techniques to be used. There is emerging good practice with respect to all of these components. As the OSCE and participating states try to ensure fulfillment of this commitment with respect to executive accountability, ODIHR can help exercise a leadership role by collecting and codifying best practice in participating states—perhaps leading to the adoption of more specific commitments in this area. It is also expected that leadership exercised by ODIHR in this area would have an impact beyond the participating states—just as its work on elections has had a much broader impact on the development of international electoral standards.

Corruption and the Role of Political and Nonpolitical Legislative Staff

"Participating states pledge to strengthen their efforts to combat corruption and the conditions that foster it, and to promote a positive framework for good government practices and public integrity." (Istanbul Document, 33)
"[All human beings have the right to] the clear separation of the State and political parties" (Copenhagen Document, 5.4)

Arguably, one of the main reasons for the failure of some formally democratic institutions to deliver democratic governance relate to a lack of strong public integrity systems and a lack of a clear separation between ruling political parties and the state. Again, although the commitments referenced above imply a number of minimum standards for democratic legislatures and although there is a wealth of good practice in this area, this hasn't been codified. The blurring of political party-related functions and the role of nonpartisan parliamentary staff can raise questions relating to these OSCE commitments. To cite an example from the United States, there have been instances where nonpartisan staff have violated the law by engaged in campaign activity while acting as legislative employees. In some countries, where similar restrictions on the blurring of political and nonpolitical roles have not been enforced or do not exist, this blurring of functions can change the incentive structures that exist within the legislature and, in some institutions, can contribute to the problem of so-called "fa�ade democracies." While there are a number of ways to regulate conflicts of interest issues for members of parliament, it would seem that the above commitments imply that all participating states at least have a system for regulating conflicts of interest of members of parliament. Again, there is a range of good practice that has emerged with respect to asset disclosure by elected officials, the role of ethics committees in parliament and codes of conduct for staff.

Opportunities for Public Input in Law-Making

"Legislation will be formulated and adopted as the result of an open process reflecting the will of the people" (Moscow, 18.1)
"[Participating States will] endeavor to seek ways of further strengthening modalities for contacts and exchanges of views between NGOs and relevant national authorities and governmental institutions." (Moscow, 43.1)

As the public increasingly looks for opportunities to participate in the law-making process in between elections, it is crucial that democracies provide opportunities for ongoing citizen engagement in the policy-making process. Failure to do so can fuel public cynicism in politics and, over time, create conditions for populism and or democratic failure. Again, there is a broad range of good practice with respect to ways in which legislatures can reach out to citizens and citizen groups and provide opportunities for hearing their views. The most common mechanisms involve public hearings, provisions for public comment on draft legislation, and provision of staff to respond to constituent mail and comments on legislation that is before the legislature. Some legislatures are experimenting with web-based methods of receiving public comments on draft legislation.

Minimum Rights for Opposition Groups in Parliament

"[The Participating States] recognize the importance of pluralism with regard to political organizations." (Copenhagen Document, 3)

Pluralism requires opportunities for the minority political groups that are represented in parliament to present their views. This implies certain minimum rights for minority parties in parliament to participate in debate and to pose questions of government. It may also require the allocation of a minimum level of resources for minority party caucus staff or party groups, relative to resources provided to the ruling party. Again, there is a wide range of accumulated good practice in this area. Let me cite one example of good practice: in one OSCE country, in a subnational legislature, a single party won all but two seats. In the interests of promoting pluralism, the legislature, with the support of the majority party, modified the procedures within parliament to the benefit of the minority party and to promote pluralism. These changes included removing the minimum number of members to form a parliamentary group or caucus. The parliament also took a very creative approach with respect to the right to ask parliamentary questions. Rather than having the two opposition members responsible for being the sole voices in questioning the government in parliament, the parliament created a procedure that also allowed the public and the media to submit questions to be asked within parliament. There are a range of other methods of promoting pluralism and the "deliberative politics" that Professor J�rg Steiner referenced yesterday within the legislative context.

Adequacy of Parliamentary Resources

"The participating States reaffirm their commitment to implement fully all provisions of the Final Act and other OSCE documents relating to the human dimension." (Copenhagen, Preamble, par. 1)

In some so-called "fa�ade democracies" parliaments have the formal constitutional rights to engage in oversight, but this right is not implemented because the parliaments lack sufficient resources relative to the executive branch. To conduct effective law-making and oversight, parliament requires sufficiently qualified staff and resources. Of course, the level of resources will vary from country to country. However, this commitment to implement OSCE documents relating to the human dimension implies certain things relating to parliamentary resources - that legislatures have a degree of autonomy over their budget and that parliament have access to levels of staff that allow it to conduct meaningful oversight over the executive.

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There are, of course, a broad range of other commitments by OSCE participating states that have implications for minimum standards for democratic parliaments—relating to gender, separation of powers, freedom of speech, freedom of association, and the rights of national minorities.

CONCLUSION: NEXT STEPS AND RECOMMENDATIONS

To conclude, I would like to offer the following recommendations for the OSCE / ODIHR to consider with respect to strengthening legislative capacity:

Inventory Norms, Commitments, Principles and "Good Practice" Relating to Democratic Legislatures. Recently, ODIHR prepared a progress report on the establishment of an inventory of existing election-related norms, commitments, principles and "good practices." This effort to restate election-related commitments of OSCE participating states and related good practice should be applauded, and could serve as a model for a parallel document inventorying existing election-related norms, commitments, principles and "good practices" for democratic legislatures. I would suggest that such a compilation or inventory would be an excellent first step in the move toward a more standards-based approach to legislative strengthening among OSCE participating states.
Consider Expansion of Commitments Relating to Democratic Legislatures. This brings me to my second recommendation. The election-related commitments of participating states are more detailed than the commitments that govern post-election democratic governance. At some point, this imbalance may need to be addressed. Although the existing commitments of OSCE participating states relating to democratic legislatures provide a solid, existing framework on which to build, the inventory that I proposed above will likely disclose areas where additional clarity would be beneficial. Either separately, or as part of the recommended inventory of existing commitments and good practice, ODIHR may wish to consider putting forth recommended additional commitments for participating states relating to democratic legislatures and their ability to make laws and ensure accountability.
Support the Development of Domestic Capacity to Monitor Commitments Related to Post-Election Democratic Governance Standards. Lastly, as international standards and good practice for democratic legislatures become more defined, it may be appropriate for ODIHR to support the ability of domestic monitoring groups to monitor post-election political processes, in addition to monitoring elections. One of the challenges faced by many domestic election monitoring organizations is the difficulty of maintaining their institutional capacity in the period in between elections. NDI has increasingly been working with domestic election monitoring coalitions to monitor a broader range of activities—for example, implementation of Millennium Development Goals or poverty reduction efforts. There is no reason that these groups should not also be trained to monitor compliance with commitments outside the electoral context, such as asset declaration regulations or compliance with other possible areas for legislative standards. In some areas, the domestic monitoring organizations can also be useful in conducting opinion research regarding that can shed light on public perceptions regarding a government's compliance with OSCE commitments and in highlighting areas that require additional development. There has been much talk at this seminar about the need for the development of democratic culture to support the existence of formal democratic institutions. The advantage of domestic political process monitoring is that, in addition to helping to ensure compliance with international norms relating to democratic governance, it can simultaneously help to build a grassroots democratic culture.

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Thank you very much for your kind attention and I would welcome any questions or comments that you may have.