On December 12, 2022, the draft law “On the Essentials of Civil Society” was submitted by the government for consideration of the Parliament. The law does not change the legal status of existing civil society organisations (CSO) in Belarus; however, it imposes special forms of interaction with the state for a small circle of public associations operating on the national level. Thus, despite the official title, the draft law does not regulate civil society as a whole, but only the interaction of certain civil society actors with the state, especially regarding the elections of civil society delegates to the All Belarusian People’s Assembly (ABPA).
Path towards draft law started with Constitutional reform
The country’s top political leadership announced the development of this draft law in 2021. However, the preparation of the document depended on the results of the constitutional reform. In February 2022 the new edition of the Constitution of Belarus for the first time mentioned civil society as one of the actors to send delegates to the ABPA, a new representative body that stands above the separation of powers and “determines strategic directions for the development of the society and the state”.
Tighter grip on state-CSO interaction and support
Thus, in the political dimension, the draft law implements the relevant provisions of the new Constitution. It determines the entities that are entitled to nominate civil society representatives to the ABPA. The procedure for such nominations will be determined by the new edition of the Electoral Code (the draft is also under consideration) and the future law on the ABPA (the concept of which is under approval, but has not been published yet).
The draft law does not introduce any changes to the existing procedures of non-commercial organisations’ (NCOs) establishment, operation, funding or liquidation. At the same time, it introduces a hierarchy and inequality between organisations, with allowing special forms of interaction with the state agencies for some.
Definitions on civil society introduced for the first time: narrow definition of civil society entities, broad definition of civil society notion
Up until now, the civil society notion has not been defined in Belarus at the legislative level, and it has traditionally been understood that it includes all organisational and legal forms of non-state, non-profit legal entities, both membership and non-membership ones. The draft law defines the civil society notion quite broadly; however, it introduces a narrow definition of civil society entities.
- Civil Society – a community of Belarusian and foreign citizens and stateless persons who permanently reside in Belarus and express their civil stance through participation in public relations and institutions that are not prohibited by law.
- Civil Society Entities – membership-based associations of citizens or unions of legal entities, regardless of quantitative, territorial or other qualifications, whose statutory activities are aimed at accomplishing the main objectives of interaction between state agencies (organisations) and civil society, specified in Article 4 of this law. The range of these objectives is wide in scope, but the list is closed1 and covers only a part of possible areas for CSO activities: human rights, gender equality, and many other key issues are missing.
Many civil society entities fall outside of these definitions
Thus, the proposed draft law imposes a special hierarchy of non-commercial organisations, which is not in line with international standards that provide equal treatment2 as a part of the freedom of association:
- Non-commercial organisations that are not classified as civil society entities. These are all non-membership forms of NCOs (institutions, foundations), as well as membership forms of NCOs which cannot be classified as civil society entities due to incongruence of their areas of activity with the list, specified in Article 4 of the law. It seems that a large number of public associations will fall into this category.
- Membership forms of NCOs classified as civil society entities (public associations, including trade unions, as well as unions and associations of legal entities), whose activities are in line with the list of objectives specified in Article 4 of the law, but which do not have the required number of members or registered regional branches to fall into the third category below. General forms of interaction with the state have been defined for this group– participation of civil society entities in the work of collegial bodies of state agencies, public and consultative councils, meetings of local executive and regulatory bodies at their invitation; state authorities’ assistance to civil society entities in their activities; participation of civil society entities in the formulation and implementation of state policies; submission of the proposals on the improvements of legislative acts to rule-making bodies by civil society entities; participation of civil society entities in the preparation and public discussion of draft regulatory legal acts; public control; public procurement. This list of interaction forms is not exhaustive – other legal acts may stipulate additional forms of civil society entities’ interaction with the state. A large number of public associations will also fall into this category. At the same time, the law does not directly indicate the possibility of referring the already existing forms of NCOs, such as state public associations (there are 7 such corporate entities today), political parties (there are 15, as of now) and religious associations, to the second (non-privileged) category.
- Civil society entities with special relations with the state: national-level public associations whose number of members exceeds 100 thousand people and that have branches in all regions of Belarus and in Minsk, as well as trade unions that unite at least a half of the trade unions registered in Belarus. The draft law stipulates that the list of such organisations will be handled by the Ministry of Justice and will be published on the Internet. According to the law On Public Associations that is in effect, public associations must include the information on the number of their members in the reports which are to be submitted to justice agencies by March 1 of each year. Special forms of relations with the state, available to the third, privileged category of organisations, will include only the types of activities that are related to the ABPA, namely: election of delegates to the ABPA in accordance with the procedure stipulated by law; holding meetings with the population, labour collectives, hotlines, dialogue platforms, public receptions, offsite meetings with citizens for collecting and developing proposals for discussion at the ABPA; participation in the implementation of the ABPA final decisions. It can be assumed that the total number of NCOs classified within this category will, at best, not exceed two dozen out of the total number of several hundred national-level public associations that have remained in Belarus. While it introduces special privileges for the third group of organisations, the draft law does not essentially change the legal status of the organisations that do not belong to this group.
The law provides for certain mechanisms of state assistance to civil society entities in general (both general and privileged categories), such as the provision of state support. This includes especially the possible new mechanism for support in the form of the receipt of state property in possession and (or) for use.
Ongoing liquidation
Since 2021, there has been a campaign of liquidation of non-commercial organisations in Belarus. It has affected public associations, foundations, non-governmental institutions and associations (unions) of legal entities. As of December 2022, the Lawtrend list contains the data on 1124 non-commercial organisations, which are either under forced liquidation or have independently decided to liquidate themselves.
- 1Article 4 of this draft law lists the following areas: ensuring civil (national) unity; ensuring independence, territorial integrity of the Republic of Belarus and state sovereignty; facilitating further development of social and rule-of-law state; increasing the involvement of civil society in the administration of state affairs, implementation of state policies with due account of the priority of national interests; organization of constructive interaction between state agencies (organisations) and civil society, aiming at strengthening trust in the institutions of state authority; facilitating consideration of public opinion and citizens’ legitimate interests in the implementation of state policies in order to reach a public consensus on the key issues of the development of the Republic of Belarus; increasing civic consciousness, political culture and social responsibility of citizens; participation in spiritual, moral and patriotic education of citizens based on cultural and spiritual traditions, preservation of historical truth and memory of the Belarusian people; strengthening a single community of “the Belarusian people”, fostering respect for all nationalities, religions and cultures.
- 2See more on this standard of equal treatment in the CSO Meter tool: “The principle of equal treatment means that legislation and state authorities should treat CSOs equally regarding their establishment, registration and activities. Any differential treatment is discriminatory unless it has an objective and reasonable justification, clearly defined by law. Such justifications are applied towards a legitimate aim and follow the principle of proportionality, for example supporting CSOs working in particularly vulnerable areas or with certain groups.” pp. 51-53