Statutory Analysis and the Necessity of Data:

By Emma Brown

In my first year Constitutional Law course, my professor went on a small tangent during one class about the importance of data. We were discussing equality rights, and she was explaining “adverse effects discrimination” – imploring us to think divergently by considering that facially neutral policies and laws may have differential impacts on certain groups. Without data, she elaborated, these adverse effects are not always clear.

In May, when I finally had time to read for pleasure, rather than for school, I devoured Caroline Criado Perez’s book, “Invisible Women: Data Bias in a World Designed for Men.” The book outlines countless ways that the gender data gap unintentionally leads to policies and designs that put women disproportionately at risk. As I read this book, my mind was pulled back to that Constitutional Law lecture. Little did I know that my summer placement would build on this pattern, highlighting in my mind the importance of understanding laws within the context of their background and enforcement.

Since June 10th, I have been working at the Centre for Law and Democracy (CLD). The organization, which works to “promote, protect and develop those human rights which serve as the foundation for or underpin democracy,”[1] is best known for its data – in particular, the Global RTI (right to information) Rating. The rating system consists of 61 Indicators, which each evaluate a different component of “RTI” laws. The fact that the organization created this type of quantitative evaluation is not surprising, since the Executive Director studied and taught mathematics before obtaining an L.L.B. and pursuing a career in human rights.

While the organization is best known for this rating system, however, the vast majority of the organization’s time is spent on other projects, which tend to be focused more on qualitative analysis of laws from around the world. In particular, my work has mostly involved statutory analysis of international laws related to civic space. The analysis I conduct is then used for a project CLD is currently working on with a major international NGO. While many of my tasks are meant to be merely focused on the evaluation of laws, and not policy, I’ve quickly learned how difficult it is to conduct this type of analysis sincerely without looking at the reality on the ground.  In many cases, law and practice – those two perennial counterparts – are unfortunately juxtaposed.

The easiest laws to evaluate are the ones that are clearly deficient. For example, the Penal Codes in Rwanda and the Democratic Republic of the Congo (DRC) contain provisions that criminalize those who damage the reputation of heads of state.[2] In Rwanda, this provision exists despite the fact that general defamation has been decriminalized. In the DRC, the Code contains a general defamation offence,[3] but insulting the head of state (prohibited under the press law) carries a heavier penalty.[4]  In both cases, the provisions violate international standards, which establish that public officials must withstand a greater degree of criticism than others.[5] Issues like these – where laws clearly violate international standards, or, as is common in the area of access to information, simply don’t exist[6] – are easy to spot.

It becomes much more difficult when laws appear acceptable on their face, but a quick google search shows that practices in the applicable country do not align with the official laws or policies. Here, data becomes crucial in order to understand why this misalignment occurs. Often times, it’s a mere issue of enforcement – when state actors ignore the laws, they become irrelevant. For example, while Montenegro’s public assemblies law largely reflects international standards – containing a notification (rather than approval) system, creating an appeal process for refusals of assemblies, and recognizing (albeit in a vague way) spontaneous assemblies[7] – police frequently misinform organizers of assemblies on their rights and obligations.[8] As a result, the rights conferred by the law are largely meaningless. However, in many other scenarios, the divergence between law and practice are caused by much deeper issues.

Often times, the failure to operate in accordance with the official laws has to do with the reason for the laws’ existence in the first place. An example of this issue can be seen in Serbia’s Law on Personal Data Protection (adopted in 2018).[9] The motivation for passing this law was (at least in large part) to support Serbia’s goal of EU membership – not, as one might assume, to create the best data protection scheme in the Serbian context. Because of this, the law virtually mirrors the European Union’s General Data Protection Regulation (GDPR) but fails to take into account Serbia’s history in this area.[10] In general, there is a lack of privacy culture in the country, meaning that most individuals and organizations are not aware of privacy rights.[11] In terms of legislative history, the previous 2010 Law on Electronic Communications required telecommunication providers to keep records of the source, destination, and timing of all electronic communications for one year, for potential government use.[12] Until 2013, this data could be collected without a warrant,[13] and even after this provision was found unconstitutional, rates of unauthorized access were unknown, as technical systems created by the previous regulatory framework continued to exist.[14] Because of this, the 2018 law may appear acceptable on its face, but when considered in relation to Serbia’s history, its flaws are more crucial than they may first appear. While it is too soon to fully examine the law’s impact, it has been criticized as being overly complicated – which is problematic in light of the lack of privacy culture – and as failing to address digital privacy issues – which is concerning considering the existence of current avenues for unauthorized surveillance.[15]

The impacts of a country’s background on the effectiveness of a particular law is, of course, very context specific, but has been relevant in each of the nine countries I’ve looked at through my placement. In many cases, the motivations behind legislation are rooted in international political goals, but in others, the motivations are rooted in different, but equally relevant concerns: In Rwanda, media laws have to be considered in light of the media’s role in the genocide.[16] In Bosnia & Herzegovina, policies regarding government consultation with civil society have to be understood in light of the fact that NGOs were largely created after the war to deal with service needs, not civil society ones.[17]

As a law student who previously completed an undergraduate degree in “legal studies,” I’ve long been aware that laws cannot be fully assessed in isolation. However, my time at CLD has greatly deepened this understanding, as I’ve seen how many different ways practices can deviate from laws. Issues can, of course, can be rooted in a law’s structural flaws, but can also arise when the law appears perfectly adequate but fails to take into account the context it is meant to operate within. Data, then, seems crucial for anyone hoping to affect positive change through statutory analysis, as recommendations for future improvement should ideally be sensitive to the causes of the deficiencies, rather than just the technical inadequacies of the applicable law – virtually identical provisions can be appropriate in one country, and entirely lacking in another. Much like in the context of equality issues, where policies that appear neutral can have adverse effects on different populations, and in the context of design, where the gender data gap can put women at disproportionate risk, sincere analysis of human rights law requires data regarding the motivation for the creation of each law and the societal context that it operates within.

In this way, my placement at CLD has not only made me familiar with international human rights standards related to civic space and given me the opportunity to engage with laws from a variety of different legal systems; it has also given me a new skepticism that will undoubtedly impact how I consider the laws I study through the remainder of my degree (and later, engage with through the course of my career).

 

 

[1] Centre for Law and Democracy, “About Us,” https://www.law-democracy.org/live/about-us/what-we-do/.

[2] Art 236 of Law No 68/2018 of 30/08/2018 (Rwanda); Article 77 of Law No 96-001 of 22 June 1996 (DRC); Article 251, 252.

[3] Art 74 of Decree of 30 January 1940 on the Penal Code (DRC).

[4] Article 77 of Law No 96-001 of 22 June 1996.

[5] General Comment No. 34, CCPR/C/GC/34 at para 38.

[6] For example, the Democratic Republic of the Congo, Burundi, and Madagascar recognize the right to information in their constitutions but have no implementing legislation.

[7] Law on Public Assemblies and Public Performances, Official Gazette of Montenegro No. 52/16.

[8] ECNL: Monitoring the Right to Free Assembly (2017): (http://ecnl.org/wp-content/uploads/2017/12/ECNL-FoPA-Montenegro-2017.pdf), pg. 4.

[9] Law on Personal Data Protection (Official Gazette of the Republic of Serbia. No 87/2018).

[10] BD2P, “Serbia: The Law on Personal Data Protection,” December 2018, online: https://www.bd2p.com/upload/files/1545208079-eef11.pdf at pg. 3.

[11] EDRi, “Will Serbia Adjust its Data Protection Framework to GDPR,” 2019, online: https://edri.org/will-serbia-adjust-its-data-protection-framework-to-gdpr/.

[12] Art 128-129 of the Law on Electronic Communications (Official Gazette of the Republic of Serbia, No 44/10).

[13] Global Freedom of Expression (Colombia University), Summary of Constitutional Court decision (Official Gazette RS, no. 60/13), online: https://globalfreedomofexpression.columbia.edu/cases/serb-law-on-electronic-communications-articles-128-1-128-5-129-4-2013/.

[14] Global Information Society Watch, “Serbia,” 2014, online: https://www.giswatch.org/en/country-report/communications-surveillance/serbia.

[15] EDRi, “Will Serbia Adjust its Data Protection Framework to GDPR,” 2019, online: https://edri.org/will-serbia-adjust-its-data-protection-framework-to-gdpr/.

[16] See Allan Thompson, The Media and the Rwanda Genocide (London: Pluto Press, 2007).

[17] See discussion in Arnaud Kurze, “Time for Change: Aid, NGOs, and Transitional Justice in Bosnia-Herzegovina,” (2017) 1:5 Transitional Justice Review.

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