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Impacts on Democratic Institutions and Human Rights

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Impacts on Democratic Institutions and Human Rights PART II. Impacts on Democratic Institutions and Human Rights Both the pandemic itself and the state responses have those who have suffered from the negative (and often had significant implications for the exercise and enjoy- cumulative) consequences of inequality, which includes ment of fundamental freedoms, human rights, and the sections on hate crimes and discrimination, discrimina- functioning of democratic institutions and processes tion against women, gender inequality and domestic across the OSCE region. In the following sections, an violence, Roma and Sinti, migrants, as well as victims overview is provided on how the pandemic has affected and survivors of trafficking in human beings. democratic institutions based on the rule of law and participation; specific human rights and civil society; Examples from across the OSCE region are provided to and how equality and inclusiveness have been impact- illustrate the thematic trend analysis and highlight areas ed. These three sections are aligned with ODIHR’s of concern as well as indicate what may be considered strategic work and analyse the implications of emer- as good practices. All observations offered here are gency responses in the different fields of expertise of firmly rooted in OSCE commitments, as well as inter- the Office. national human rights law and other relevant standards. The observations are also based on relevant good na- This part is further divided in sections. The first ad- tional practices, and on previous recommendations dresses the functioning of parliaments, democratic where applicable. In accordance with relevant OSCE law-making, justice institutions, elections and election commitments to mainstream a gender perspective into observation, and National Human Rights Institutions all policies, measures and activities, this report also (NHRIs) and human rights defenders. The second ex- takes into account the potentially different impact on amines specific fundamental rights and freedoms that women and men. have been particularly affected by the emergency re- sponse, namely the freedom of movement, freedom Finally, each section will conclude with a series of rec- from torture, ill-treatment and arbitrary detention, the ommendations, to support participating States in their freedoms of assembly and association, freedom of re- efforts to ensure they fulfil their commitments and re- ligion and belief, and the right to a fair trial. Third, it spect human rights in their responses to the Covid-19 gives a deeper look at the human rights situation of all pandemic and other emergency situations. 64 II.1 DEMOCRATIC INSTITUTIONS AND PROCESSES This section aims at identifying prominent trends and The 56 national parliaments of the OSCE participating providing indications of areas of concern, as well as States242 have responded in considerably different ways good practices, regarding the regular functioning of na- to the challenges posed by the Covid-19 pandemic, tional parliaments, justice institutions, electoral process- adapting their functioning through specific measures es and National Human Rights Institutions in the OSCE and some unique solutions. Within such a diversity, region. It is beyond the purview of this report to offer a three main observations are possible. First, the data detailed and comprehensive record of all the measures collected by ODIHR illustrate national parliaments’ gen- and processes adopted by participating States during eral ambition across the OSCE region to continue their the Covid-19 pandemic, also taking into account the regular functioning to the extent possible, offering as a diversity of parliamentary, judicial and electoral systems result a number of good practices and lessons which that exist across the OSCE region. could inform counterparts in other countries and inspire inter-parliamentary co-operation. Secondly, however, II.1.A FUNCTIONING OF PARLIAMENTS limitations (in some cases rather severe) have impacted the functioning of many national parliaments, in regard The scope of this section is to offer an overview of the to both procedural and logistical aspects, as well as to functioning of national legislatures across the OSCE the substantial scope of their work, curtailing legislative region during the Covid-19 pandemic, providing an functions and limiting oversight. Thirdly, in a limited assessment of the potential limitations that the crisis number of participating States, national parliaments has exerted on the normal exercise of legislative and have been harshly impacted by the crisis, and have parliamentary oversight powers in participating States. been unable, to a great extent, to ensure their normal National parliaments need to play a crucial role in shap- functioning. In a few cases, it was up to the point of de ing democratic responses to this unprecedented crisis facto abdicating legislative, representative or parliamen- and in ensuring its ability to continue to make decisions, tary oversight functions. by guaranteeing the representation of all voices in so- ciety, an effective oversight of governments,238 and the Within the diverse spectrum of measures taken by inclusive and transparent adoption of legislative meas- parliaments across the OSCE region to ensure they ures.239 To this end, participating States have committed continue functioning properly, it is possible to identify in 1991 in Moscow “to ensure that the normal functioning five main trends that illustrate shared solutions adopted of the legislative bodies will be guaranteed to the highest to address the challenges posed. While the ultimate possible extent during a state of public emergency.”240 results of these solutions vary, they point on the one hand to the reactiveness of parliaments in dealing with Rather than a thorough legal assessment of the na- the emergency situation, and on the other hand to the tional parliamentary procedures put in place by partic- impact this had on their normal parliamentary work. ipating States in response to the Covid-19 pandemic, this section will review how states have successfully ensured the regular functioning of their legislatures, in accordance with principles of separation of powers and discussed in Part I. This section rather looks at how the pluralistic democracy.241 pandemic and emergency measures affected parliaments in their normal functioning as democratic institutions. 242 The Holy See does not have a parliament due to the specificities of its statehood. The European Parliament, 238 See Copenhagen Document (1990) para. 5.2 while being a full legislative body for 27 Member States, 239 See Copenhagen Document (1990) para 5.8 is not included here, as the European Union cannot be 240 See Moscow Document (1991) para 28.5 considered a participating State as such. It is recognized 241 See also the section on the role of parliaments specifically that the European Parliament was also majorly affected by in adopting and controlling the introduction of emergency the pandemic and that a series of adaptive measures were measures, including formal states of emergency, which is introduced to ensure its continued functioning. 65 The first trend highlights the decision of a number of Closely related to reduced calendars, several parlia- national parliaments to amend their rules of procedures, ments have also adopted measures to limit the thematic allowing for certain alternative arrangements in their span of their work, deciding in most cases to limit their work to be introduced under the specific circumstanc- functioning in connection to work related to Covid-19 or es of the Covid-19 pandemic.243 Although procedural similarly urgent cases. Different degrees of prioritization in nature, such a decision has been instrumental and were noted across the OSCE region.245 As a result, the necessary to alter the normal functioning of parliamen- pandemic turned out to be a substantial challenge to tary work, enabling the introduction of some of the representative democracy across the OSCE region, other measures that are reported further below. Such halting or weakening a considerable part of legislative examples can represent, in their flexibility and respon- processes, parliamentary oversight and scrutiny, as siveness, a valuable practice for those national parlia- well as regular representation of citizens’ concerns and ments that have in their rules of procedure an obstacle interests beyond the immediate crisis-related needs. to introduce necessary measures to continue working under emergency circumstances. A fourth set of measures adopted by a number of par- liaments was to reduce the number of deputies having A second set of measures put in place by a number of to physically attend plenary sessions and committee legislatures has been to limit the number of plenary ses- meetings, in some cases also lowering the quorum sions and committee meetings, revising the calendar necessary for voting and passing legislation.246 and streamlining the work of the parliament. This ap- proach seems to be aimed, in most cases, at reducing However, the most widespread practice emerging the potential health risks of carrying out parliamentary during pandemic, and perhaps the one with the most work for those parliaments that require physical pres- lasting impact, has been the introduction by several ence, usually complemented by additional measures parliaments of innovations and technological solutions for members of parliament and parliamentary staff in- allowing legislatures to operate remotely and virtually. volving social distancing
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