What’s wrong with Rahvakogu?

Posted: January 12th, 2013 | Author: | Filed under: Estonia, human rights, philosophy, politics, thoughts | 1 Comment »

A new web-based portal has been created in Estonia, called Rahvakogu (People’s assembly in English). It is described as “an online platform for crowd-sourcing ideas and proposals to amend Estonia’s electoral laws, political party law, and other issues related to the future of democracy in Estonia.” The web-based portal is the first step in a process dedicated to amending Estonia’s laws regarding elections, political parties, their funding and inclusion of civil society. In January the ideas are gathered, in February they will be analysed by experts and in March they will be debated at town-hall like events after which they will be presented to the Riigikogu (Estonian Parliament). It is backed by Estonian Cooperation Assembly (an institution hosted by the President mainly dealing with publishing the Estonian human development report and several NGOs). The process got started after a financing scandal concerning the ruling party Reformierakond and subsequent denials by the people involved.

As a disclaimer, it should be mentioned that the things that came up in the scandal were bad and shocking and should receive a response. It is not clear whether the stepping down of the Minister of Justice was an adequate remedy, but it seems that parties will not engage in similar shady deals any longer. One should also not feel anything but great respect towards everyone who have been pressuring those who lied and who want to change the system to be better. In a democracy that is what has to be done, the governing system is never going to be perfect, nor will there ever be perfect politicians. Political party financing scandals are common in all democratic countries, big and small.

It is great to have more people contributing to a democratic governing system. As time goes by, new forms of governance are also appearing, including multilevel and network governance systems, taking into account the multitude of actors involved in governance. That is especially true in the context of the European Union, but also in the level of the state, the local governments, multinational companies, etc. It is great to have more inclusive, more participatory democracy in which politicians are not the only ones with competence or influence.

However, Rahvakogu as a response to the crisis is misguided at best and dangerous at worst.

First, Estonian democracy is at a stage in which it is important to focus not on the “will of the people”, but on the protection of minorities and human rights. Estonia has built up in 20 years a fairly good system of government in which the will of the people seems to translate into policies and rules. There is no election fraud, there is a free and unfettered media, the governing system is one of the most transparent ones I have encountered. You are able to have your say and argue your case. Things are not so good when it comes to understanding that majority is not everything. The classic case is the abolition of the death penalty, but there are also cases like equal rights for same-sex couples, etc, which are not supported by the majority of the population, yet they are something that needs to be done. A modern democracy not only translates the will of the people into policies and laws, but also does this in a way that takes into account human rights, including the rights of the minorities. Otherwise it is a “tyranny of the majority” or ochlocracy or mob rule.

The Constitution is there for a reason. It sets up fundamental rights and the basic governance system, including the institutional set-up as well as law-making processes. It limits the power of those who make rules and protects those who might be impacted.

Rahvakogu takes place outside of the constitutional framework. Because of the context in which it was created, it has huge popular support, which means that it has or at least appears that it has legitimacy. This legitimacy is based on the people and institutions involved, but also the support of the media and the context of perceived failings of the exisiting democratic system. This means that when those Rahvakogu proposals appear in front of the parliament, they carry a lot of importance and support so that it will not be easy for any parliamentarian to say no to them. This means that Rahvakogu becomes kind of ad hoc de facto alternative to the parliament, which is definitely not compatible with the Constitution.

Perhaps I am exaggerating the situation and things are not that bad (they are not that bad yet). However, looking at what has happened in Hungary, one should be very careful. The statements attributed to the people involved in the process have also been worrying. The Charter12 that was a kind of manifesto also contributing to the creation of Rahvakogu includes a passage that states:

A new social contract is needed. Neither the President, the Riigikogu or the Government have shown their desire to change the situation. If the system is incapable of reforming itself, then in order to execute its will and exert pressure, civil society must convene an alternative institution, dominated by representatives of civil society.

So my main argument against Rahvakogu is that it hurts rather than helps Estonian democracy. It tries to fix small things about financing political parties, putting into danger much bigger things like our legitimate democratic institutions. It promotes an understanding of democracy as unfettered rule of the people rather than responsibility that comes with it.

There are a number of other concerns:

  1. The process only includes a certain segments of the society. The website is not available in Russian or English, thus leaving out those people who are Estonian citizens or who just live here for a longer time. It shows that when it comes to important social issues, Estonia is still monoethnic and monolingual country (obviously people with no internet do not deserve to have a say as well).
  2. The process is opaque. It is beyond bizarre that a process that calls for more democracy lacks basic transparency (i.e. who are the people involved and how, financial issues etc).
  3. The hastily organised system is neither well-funded nor thought through. The analysis and impact analysis of proposals will be done supposedly by volunteers for free in a month.
  4. E-democracy is great, but it should still be democracy. Technology should be made to serve people, rather than be a thing in itself. Many people involved seem to still have this faith that technology will be the solution to all of our problems. The problem is in us, so the solution is in us as well.
  5. There is very little to no criticism of the process in the public discourse, probably out of fear of being unpopular. The people involved are also seem to be taking an arrogant, superior position (specifically the head of the Estonian Cooperation Assembly).
  6. It is a diversion from more pressing issues that are crucial for the further development of Estonia (aging population, migration, future of EU). So many people (now also myself) have spent so much time and effort on this, other pressing matters receive little or no attention.

It might be that the above is just an unfounded fear and I should start wearing a tin-foiled hat, perhaps my professional background as a lawyer makes me think in a specific way, but I am really worried about what is going on. I am not sure if it would be worse if the whole thing fails or if it is successful.

Update 13 January 2013

Some more thoughts:

1. There is also the connection of the President to the process, which runs against the idea of separation of powers. The process is mainly managed by Olari Koppel from the Estonian Cooperation Assembly, an institution, which is attached to the Office of the President. Mr Koppel was very recently a senior member of the President’s staff. Also mentioned on the list of collaborators on the project is the Legal Adviser to the President Ülle Madise. A well respected scholar as well as civil servant, I do not think she would get involved in anything that is legally questionable. However, if there is a proposal that comes through from Rahvakogu, it is confirmed by Riigikogu and then it comes to the President’s desk for signature (the President can refuse to sign those drafts into law which he thinks are unconstitutional). Does the President stop the law and what happens if he does or does not do it? (Paragraph edited for clarity on 13 January 2013, at 14:47)

This is a serious issue, as many of the proposals (even those that are presented by “reasonable” people) are possibly contrary to international human rights standards and basic democratic concepts (limitations on political speech, getting rid of equal votes by giving parents and extra vote, etc). The process needs to be such that things such as these do not go through.

2. I will expand a little on some of my short points of concern (my main critique is still the potentially harmful impact to democratic institutions and the democratic process, as elaborated above):

2.1. Laws should never be made according to strict time-pressure. The current schedule is way too tight for even the best minds to go through them in a meaningful way. Considering that there is a lack of competent social scientists in this country (mostly due to lack of adequate funding for social science research), it remains to be seen if the smart-sourcing part really is that smart. Smart legislation requires years long process of getting input from stakeholders and the general society, analysing its impact and then having a debate about it. Doing all that in three months for the hundreds of proposals seems like a mission impossible for me. Especially when there is no financing available. And if there was financing for the analysis, then would it not be correct to organise a public procurement for this, so that the best offer can win (this alone might take three months).

2.2 The fact that there is a list of names on the Rahvakogu website does not make the process transparent. We would not accept if the government only published names of officials and not what they do and what they are responsible for. The fact that we know that there might be 20 000 euros allocated for the process does not make it transparent if we do not know how it is going to be spent.

2.3. The problem is not that there are not enough ideas to make things better in terms of elections and political parties and their financing. The ideas are there and have been there for a long time. Therefore crowdsourcing is quite unnecessary, what is necessary is to enact those amendments. They can be legitimately enacted only following the democratic process and not by bullying the political parties through Rahvakogu to accept them, thus threatening the democratic foundations of this country. This time it might be the ‘good’ guys doing it for a ‘good’ cause, but the same thing might be repeated by people with other motivations in the future.

2.4. The distinction between Rahvakogu and other portals such as the failed Täna Otsustan Mina (Today I Decide) or Petitsioon.ee is quite clear. The former was set up by the government, thus being clearly a part of the democractic process with all the democratic safeguards intact. The latter is a private undertaking for different proposals, one that is neither endorsed by the President nor run by a public organisation, and there can be many such portals, if people wanted to start them up. Most importantly, however, it is the context in which Rahvakogu came to be which might be dangerous. At any other time, it would not have the same impact or perceived legitimacy as it has today.

One Comment on “What’s wrong with Rahvakogu?”

  1. 1 siim tuisk said at 1:55 on January 13th, 2013:

    Pisut konstruktiivset kriitikat.
    1. punkt on mõneti vale, Rahvakogu on lubanud vene ja muukeelsed tekstid tõlkida eesti keelde.
    2. punkt on vastatud siin http://www.rahvakogu.ee/pages/tegijad ja riigieelarve seadusega, mis andis Koostöö Kogule 60 000 euri.
    3. Analüütikud ei hakka tasuta tööle, ning saavad olema vägagi professionaalsed, või heidad näiteks Lauristini kvalifikatsioonile midagi ette?
    4. Mis on halba tehnoloogias, mis harib rahvast, laiendab demokraatlikku protsessi ja pakub lahendusi?
    5. Asjaliku kriitika vastu ei ole kunagi midagi, meeleldi kuulaks.
    6. Rahvakogu on meelega väga spetsiifiliselt ja kindlalt defineeritud, et saavutaks tulemuse ja võimaldaks rahva arvamust ka tulevikus paremini arvestada. Tegemist ei ole messia või snake oil’iga, mis kõik mured eemaldaks. Miks rünnata seda siis kõrvalejuhtimisena, kui ta teeb oma asja väga hästi?

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