Transparency in the Legislative Process and the Role of Civil Society

📌 This text is the result of the transcription of the panelist’s participation in Bússola Tech’s event

My name is Diego Díaz and I’m a researcher and founder of Impacto Legislativo in Mexico, a small NGO and parliamentary monitor organisation that is dedicated to transparency in the legislative power. 

One of the lessons we have learned from this pandemic, due to lockdowns and social distancing, has been the absolute importance of technology on a massive scale, to continue with our everyday lives. It is thanks to technology that millions of students have been able to continue with their lectures, through digital platforms. The economy has kept moving, thanks to home office and video conferencing, and even families and loved ones have kept in touch in spite of the distance.

For the first time, a global sudden phenomenon forced all of humanity, in practically every aspect of our lives, to adapt within weeks to new reality. A reality that is definitely here to stay. Of course, government institutions, including Congress and Parliaments were not exempt from this global occurrence. 

This also revealed that the level of digital advancement of legislative institutions was in despair. For example, parliament’s accustomed to the use of digital means quickly and with relative ease adapted to virtual plenary and committee sessions and some of them didn’t even have to stop legislative procedures. However, this was not the case for the great majority of legislators around the World, particularly those in developing countries or at the subnational level, in regard to the use of the internet and with insufficient infrastructure to sustain digital archives and document management. 

I would like to provide a couple of examples from my Country, Mexico. The Federal Senate and the Lower House of Congress are both relatively used to common practice of digital procedures. This includes introduction of bills, roll call attendance and voting orders of the day, schedules and even administrative procedures, such as acquisitions. Once lockdown and sanitary policies were enacted, both chambers resumed activities after a few weeks having their first plenary session in June, 2020. Most of them were held back by procedural adaptations that required to be made, like roll call voting from the distance and virtual committee rules, but they did not have to stop, because they did not require a great or a major change to adapt. 

However in the same city in Mexico, the local Congress of Mexico City came to a halt that lasted months, because at the subnational level the degree of digitalisation was very poor and everything was done through physical means. This meant that even urgent procedures, such as the approval of the anti-corruption local system and the designation of high-level authorities, had to be postponed. Some of them were postponed as late as September, 2020, that’s nearly seven months. 

This also translated into a degrading of transparency level, because since archives relied on physical papers and folders, they could not migrate easily to a home office environment and in turn, freedom of information requests had to suspend deadlines until October, 2020. Therefore, transparency was another victim of Covid-19, due to the lack of an administrative and procedural organisation. In this example, we’re talking about the same city, with similar institutional conditions and only isolating administrative costumes. 

Evidently, the effect over underdeveloped institutions, poor countries and states project a much more difficult scenario. However, Covid-19 conditions have also allowed opaque practices to be disguised as sanitary precautions, for example committee hearings and open forums have been replaced by simple YouTube streamings and in other cases have simply ceased to occur. This was the case in Mexico for the approval of the legislative re-election procedure, many constitutional reforms, federal budget and the dismantling of 100 trusts and public funds. All of them were very important legislative decisions. In addition to neglecting the citizen oversight and independent evaluation for the designation processes of two commissioners of transparency in November, 2020 by the Federal Senate. This happened because they were considered good proactive practices, but were not a legal obligation.

I would like to underline a very important finding. When good practices are not set as a legal obligation, they remain at the discretion of politicians and quite often gradually fade out, as the public agenda shifts to another topic. 

Here’s another example: Mexico is one of the eight countries that promoted the open-government partnership in 2011. In 2014, the Federal Senate was the first to welcome the declaration of parliamentary openness, even promoting the creation of open-parliament partnership at the national level. In 2015, the general transparency and access to information law became the first, and arguably the only, open-parliament legislative procedure from beginning to end, enacted by the Mexican Congress. In this case, even the actual drafting of the bill incorporated members of organisations of civil society and parliamentary monitoring organisations. Opinions from academia, autonomous institutions, and private citizens were considered into the drafting of the bill. The result was one of the most ambitious transparency laws in the world, that even served as a model to the Organisation of American States. At the time, Mexico hosted the Open-Government Partnership global summit, and the eyes of the world were set on our country as a promoter of transparency. As soon as the global attention shifted to another topic, the political willingness to promote open-parliament and congressional openness terminated. It is no secret that politicians react to what happens under public scrutiny, when the media and the global attention set their eye on a particular subject, however it is impossible to have this condition in all or even large amounts of legislative actions. 

This is one of the reasons why the parliamentary monitor organisations that integrate the Latin-American Network for Legislative Transparency have promoted the adoption of practices and legal obligations at the national and subnational levels. 

This includes: 

1. I) Standards of openness in designation processes, such as supreme court appointments, electoral transparency commissions, ambassadors and cabinet confirmation, ombudsman designations, amongst others. They must all allow independent and autonomous evaluations by experts, through open hearings with absolute transparency in the publication and evaluation of results, prior to the designation and confirmation. 

1. II) Integrity and anti-corruption standards. This includes independent equity evolution monitoring and red flagging of possible conflicts of interest.

III) Acquisitions and public purchases must abide normative and regulated best practices, open to public scrutiny and allowing audit and inspection.

1. IV) Publicity of bills prior to being set on the floor for voting. It must also allow opportunities to be reviewed by the public. This means at least 72 hours prior to roll call voting.

In this and many other regards, the Latin-American Network for Legislative Transparency has conducted a bi-annual evaluation of National Congresses in the region since 2012. In 2021, we will evaluate 14 countries in the legislative transparency index, including the legal obligation to incorporate the standards previously mentioned. 

Also in 2021, a group of organisations of Mexico will conduct the first measuring of the legislative openness index in 32 local congresses in Mexico. It is by providing objective evaluations with backup evidence that civil society organisations intend to help Parliaments and Congresses to transform and embrace openness and transparency, by pinpointing with precision each of the areas of opportunities, where standard practices must be improved. 

For example, it is unacceptable that well into the 21st century, we still have Congresses that upload bills and roll call votes in blocked PDFs or in uneditable photographs, instead of providing open-data repositories. The result is a limitation of possible added value of information and the prospect of innovation, both of which could significantly benefit representatives and have greater levels of trust and support from their constituencies. 

Another example is the access to plenary and committee sessions, where entry is restricted to congressional invitation and there is no obligation to consider citizens’ proposals into the drafting of the bills. Even obtaining a meeting with a representative may prove an impossible challenge for many common citizens. This in turn, effectively reduces open-parliament to a mere slogan and severely puts representation in doubt. 

Civil society organisations are a communication bridge between society and representatives, not only to create bills, but to transfer legitimacy and legitimate procedures and therefore to come to members. Civil society organisations, and particularly parliamentary monitor organisations are dedicated to convincing members that transparency is not an enemy, but rather a pathway to a better representation, to a more efficient means of governance and to a redefinition of a relationship between congress and citizens.