By Jason Wood
One of the more promising trends in the area of social justice is the increase in public participation in governance, sometimes called “direct democracy”. Made possible largely by the ubiquity of cheap and fast internet services, many countries have invested in digital platforms that allow legislators to better understand the priorities and wishes of their constituents.[1] In some cases, much of the initial work of drafting legislation can be outsourced to civil society organizations and public interest groups.[2] The internet has enabled interested governments to be more responsive to their citizens, with minimal financial investment.
But what happens when governments are not so interested in hearing from the people? In 2004 the Indonesian government enacted the National Development Planning System Law, supposedly to guarantee public participation in lawmaking. Unfortunately, while the law created the organizational structures to provide public input, there was no requirement that the government actually follow through with any action.[3] A 2017 study of the system found it was dominated by government actors, who often had an adversarial relationship with the public and civil society organizations.[4]
Where this sort of impasse is found, what options might the citizens have?
In 1966 the United Nations adopted the International Covenant on Civil and Political Rights (“ICCPR”), which contains the following statement in Article 25:
Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions:
To take part in the conduct of public affairs, directly or through freely chosen representatives;[5]
The covenant has been ratified, or otherwise committed to, by 173 nations.[6] The comments accompanying Article 25 explain that these rights are “a broad concept which relates to the exercise of political power, in particular the exercise of legislative, executive and administrative powers,” and that the specific implementation of these rights “should be established by the constitution and other laws.”[7] The comments make clear that this right extends beyond democratic representation: “Citizens also take part in the conduct of public affairs by exerting influence through public debate and dialogue with their representatives or through their capacity to organize themselves.”[8]
To what extent does this covenant guarantee a right of direct democracy? More to the point, does it provide legal recourse for citizens whose democratically elected officials are ignoring the will of their constituents in setting policy initiatives and passing legislation?
South Africa attempted to answer these questions in 2006, when their Constitutional Court considered whether the enactment of four laws had violated the legislature’s responsibility to facilitate public involvement. In addition to having ratified the ICCPR in 1998, South Africa included in its 1996 Constitution that “1. The National Assembly must- a) facilitate public involvement in the legislative and other processes of the Assembly and its committees.”[9]
The Constitutional Court held that the combination of ICCPR and Constitutional provisions gave the National Assembly a lot of discretion but also implied a reasonableness standard that protected citizens from abuse of that discretion.[10] The appropriate level of public participation would vary by situation, with the court considering such factors as how controversial the bill was, how interested the public would be in the subject, and how urgently the legislation needed to be passed.[11] In the specific case considered, the court found that two statutes lacked adequate public consultation and suspended them.[12]
Globally, legal challenges in this area have been rare. Additionally, the provisions of the ICCPR discussed above have apparently never been challenged before the United Nations Human Rights Committee, at least as regards the right of public participation in lawmaking. However, the Doctors for Life International case shows that it is possible for citizens to effectively wield this right and hopefully more will follow.
[1] See, e.g., Senado Lanza App “Mi Senado”, Libreta de Apuntes (Feb. 27, 2017), http://libretadeapuntes.com/2017/02/senado-lanza-app-mi-senado/.
[2] See, e.g., Six Pioneers in Digital Democracy: vTaiwan, Nesta, https://www.nesta.org.uk/feature/six-pioneers-digital-democracy/vtaiwan/ (Last visited Jul 28, 2020).
[3] OECD Open Government Review – Indonesia, OECD (2016), https://www.oecd.org/gov/open-gov-review-indonesia.pdf.
[4] Salahudin, Achmad Nurmandi & Jainuri, Urban Planning in Decentralization and Local Autonomy Era: A Case Study on the Relationship Between Local Government and Civic Group in Development and Budget Planning in Malang City (Indonesia), in Management of Cities and Regions 49,49 (Vito Bobek ed., 2017).
[5] International Covenant on Civil and Political Rights art. 25, Dec 16, 1996, 999 U.N.T.S. 171.
[6] International Covenant on Civil and Political Rights: Status, United Nations Treaty Collection, https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&clang=_en.
[7] U.N. Human Rights Committee, General Comment Adopted by the Human Rights Committee Under Article 40, Paragraph 4, of the International Covenant on Civil and Political Rights, U.N. Doc. CCPR/C/21/Rev.1/Add.7 (1996).
[8] Id.
[9] S. Afr. Const., 1996.
[10] Doctors for Life International v Speaker of the National Assembly and Others 2006 (12) BCLR 1399 (CC) (S. Afr.).
[11] Id.
[12] Id. (A third statute was not of sufficient public interest to require consultation, and the fourth had not yet been passed and thus was not evaluated.)
Law Journal for Social Justice 