Issues - Open Legislation

A convoluted process and an extremely difficult jargon. These two main problems make access to open legislation very hard for the public at large who has to respect and obey the rigors of the law but oftentimes knows very little about them. What follows is a list of all the main blockages inn the field of open access to legislation in Romania.

Problem #1

Lack of easy access to legislation

In order to comply with the law, citizens need to know it. This implies the need for the legislation to be accessible to any citizen. If at national level there are some forms of consultation of legal texts, most of them inefficient, at local level the situation is very difficult for the population, because most of the local administrations do not publish the legislation in free digital format.

Digital access to the consolidated legislation in Romania is made through the legislation platform, a search portal that helps citizens find those texts of national laws that directly interest them. However, there is no attempt to explain the text of the law or guides to help people navigate through documents. Furthermore, delays in the publication of normative acts have been reported over time, and the Official Gazette, the place where all the legislation in force is published, is available for a fee. This has favored the emergence of an entire business segment that deals with the development of software for the accessibility of the legislation, services offered together with legal advice for understanding the text of the law, all, obviously, available for a fee. For an ordinary citizen such costs are not justified, and for small companies, the payment of these services means an expense that they cannot always afford.

Problem #2

Specialized jargon in the legislative field is difficult to understand for the general public

Legislative terminology is difficult to decipher anywhere in the world. The complexity of the jargon, as well as the context in which it is used, amplified by the rigors of drafting the legal texts, transforms these documents into challenges of understanding for an ordinary citizen. In states where institutions pay greater attention to transparency and accessibility of legislation, the standard is that, regardless of the type of document an institution disseminates, it can be easily understood and assimilated by anyone who has completed an eight-grade school cycle. In Romania, not only the legal jargon is extremely cumbersome, but also any adjacent communication, which theoretically is meant to simplify it (for example: institutional press releases regarding laws, articles and announcements published on the institutional websites etc.) is written in the same language.

The divide between the usual vocabulary of citizens and the texts present in the legislation and on the platforms belonging to the administration is a problem that is not addressed with the due attention by any institutional actor, although the expectation of the state from its citizens is to know and respect the law. In the nongovernmental sector, the only notable project trying to draw attention to the difficulty of reading the legal texts by the general public was the Legalese Dictionary of the “Onorată Instanță” project, launched in 2014, a program concluded due to the lack of funds needed for its continuation. Important to mention is that the Legalese Dictionary was not a project with the role of educating the public, but a platform which, through humor and with the support of a communication campaign, aimed to bring to the public's attention the problem of lack of understanding. the language from the legal texts. Other efforts to familiarize some audience categories with the legislation are supported by organizations such as LiderJust or VeDemJust, which have run legal education programs in high schools in recent years, but which mainly focus on young people's relationship with the state and the rights and obligations of students, in addition to assimilating some basic legal notions.

Problem #3

Public institutions do not have access to well-trained personnel in the elaboration of normative acts

As a result of the very high competition in the labor market in the legal sector, in conjunction with the high salary level in the private sector, but also with the tendency of the specialists in the field to migrate to prestigious positions in the judiciary, the best trained law graduates do not go towards a career in public institutions. This problem is even more strongly felt at the level of the local administration, which not only does not have the capacity to remunerate this human resource at the market level, but also would not have the opportunity to recruit it, because these professionals do not exist in their cities. .

The lack of specialized human resources in the elaboration of legislative proposals contributes to the problem of the reduced accessibility of the text of law for the ordinary citizen. Furthermore, the lack of digitized archives for local law, for example, often causes a new legislative proposal to conflict with a previous one, which leads to difficulties in law enforcement.

Another aspect that is strongly influenced by the lack of digitization and the ease of navigating and consulting proposed or consolidated legislation is the multitude of non-synchronized definitions for the same elements. A simple example of this situation is the definition of harassment which can be found in several normative acts. According to Articles

4.c), 4.d) and 4.d-1) of Law 202 / 19.04.2002, harassment is defined as such ”c) harassment means the situation in which an unwanted behavior is manifested, related to the sex of the person , having as its object or effect the harm of the dignity of the person concerned and the creation of an intimidating, hostile, degrading, humiliating or offensive environment; d) sexual harassment means the situation in which an unwanted behavior with a sexual connotation is manifested, expressed physically, verbally or nonverbal, having as object or effect the injury of a person's dignity and, in particular, the creation of an intimidating, hostile, degrading environment , humiliating or offensive; d ^ 1) psychological harassment means any inappropriate behavior that occurs in a period, is repetitive or systematic and involves physical behavior, oral or written language, gestures or other intentional acts and which could affect personality, dignity or integrity physical or psychological of a person; ”.

At the same time, in the Penal Code, in Chapter VI, Article 208 harassment is defined as "(1) The act of one who repeatedly pursues, without right or without legitimate interest, a person or supervises their home, workplace or other places frequented by that person, thus causing a state of fear, is punishable s with imprisonment from 3 to 6 months or with a fine. (2) Making telephone calls or communicating by means of distance transmission, which, by frequency or content, causes fear for a person, is punishable with imprisonment from one month to 3 months or with a fine, if the deed does not constitute a more serious crime. (3) The criminal action is initiated on the complaint of the injured person."

To these situations are added those in which the transposition of the European legislation into the national legislation is carried out where adaptation to the specific context, a very difficult process, is essential and where the human resources involved need a high level of knowledge of the norms of legislative technique and of the process of drafting legislation. In Romania, the norms of legislative technique - those referring to the systematization, unification and coordination of the legislation, as well as to the content and legal form appropriate for each normative act - are stipulated in the law 24 / 27.03.2000. But, beyond the observance of these norms, it is a matter of the capacity to understand the relationship between the actors and the normative acts that involve them in order to be able to make a correct adaptation of these normative acts. An example of this would be the case of the transposition of the European Union Regulation on the protection of natural persons with regard to the processing of personal data (GDPR), which, in the national legislation - in the transposed form – would have blocked the statistical processing of personal data and render useless the whole activity of the National Institute of Statistics, a body that initiated a draft amending the Regulation, to correct this situation.

Problem #4

Drafting a law is a difficult process

The process of drafting a law is cumbersome, complicated and involves an in-depth knowledge of the entire legislative process, the approval cycles, the route of a legislative proposal through the decision-making chambers and beyond, as well as the role of each actor in the entire process. The problem of opacity and the complicated nature of the law-making process is even more pronounced at the level of the local administration, which, although it has simpler procedures, also benefits from less qualified personnel for the administration of the process and even fewer resources. The lack of understanding of the process at the level of those who elaborate the normative acts, frequently leads to violations of the procedures and the good practices in the field.

The process is a very complex one because of the very large number of rules and actors involved in the legislative process, so complicated that it is almost impossible for a single official to be able to follow it step by step in its entirety. This leads to situations in which the legislative proposals are not submitted to the appropriate chambers, the procedure is interrupted as a result of synchronization between the necessary actions by several groups in relation to the same normative act, etc. Such a broad process that is difficult to follow even for people who come into contact with it every day is inaccessible to an ordinary citizen.

The problem of opacity and the complicated nature of the law-making process is even more pronounced at the level of the local administration, which, although it has simpler procedures, also employs less qualified personnel for the administration of the process and even fewer resources. The lack of understanding of the process at the level of those who elaborate the normative acts frequently leads to violations of the procedures and the good practices in the field.

Problem #5

There is no easy way to track the process of drafting a law

As a consequence, the pursuit of a legislative proposal from its creation until it is published in the Official Gazette, is a procedure not at all accessible to an ordinary citizen who, in order to achieve this, should understand in detail:

(1) who can initiate a legislative proposal and under what conditions,

(2) how, where and when the legislative proposals for each initiator are published

(3) what kind of supporting documents a legislative document needs (for example, an impact study / analysis regarding the consequences of implementing that legislative proposal)

(4) to which group a legislative proposal must go next, following the normal procedure

(5) what can happen at each stage and which of the stages are cyclical and how they can be repeated

(6) when the public consultation takes place

(7) where they can follow a proposal throughout the entire process, etc

Added to this multitude of information is a technical constraint - that is, that a legislative proposal does not retain the same unique indicator when passing from the initiator or from an institution in Parliament. Which means that for the ordinary user to follow the law, there is a manual procedure of daily checking of the online platforms of the Chamber of Deputies and/or the Senate in order to be able to identify whether a proposal has arrived in Parliament or not and where it is at any given time.

In Romania, there were over 50 sites on which legislative proposals are published, which means that, for an interested person, it would be absolutely impossible to keep track of what is happening daily from a legislative point of view, not even at the level of a single domain or several institutions. . The situation, as in many other cases is even more acute locally.

Problem #6

The public consultation process is, in most cases, conducted in a non-professional way.

The observance of the law on public consultation does not necessarily mean that the process is also an efficient one or carried out under the right conditions to achieve its objectives. Announcements for public consultation on legislative proposals when published are not properly communicated. According to the law, the announcement of the consultation is mandatory, but because there are no real penalties for the way it is made, the institutions do not pay sufficient attention to it.

Referring in particular to public consultation through digital platforms, we find several disparate efforts to configure such tools, either at the local or national level.

Often, the actions are carried out exclusively offline, thus limiting the options of citizens who cannot physically move to the announced meetings, and when there is a mixed consultation, the feedback resulting from the two consultation modalities is not centralized and the consolidated form of the document, revised following the consultations, never reaches the public or at least the active participants in the debate. The lack of clarity regarding the form and the medium of dissemination of the consultation sessions or of the messages and opinions collected digitally leaves a wide margin for interpretation on how the law can be enforced, with minimum effort and without focusing on increasing the degree of citizen participation. Also, the lack of a set of best practices contributes to the low quality of public consultations, because even those who want to organize a public consultation in good faith do not know how to implement the whole process.

The E-consultare (e-consultation) platform, which was built and launched by the General Secretariat of the Government, is a way by which the state institutions consult with its citizens. Although, in theory, this platform facilitates the transmission of comments, suggestions and notifications to the initiators of a legislative proposal, it actually has some aspects that contribute to the inefficiency of the process. For example, according to the description of the platform, “

the General Secretariat of the Government updates the information by manually scanning the websites of the indicated initiating public authorities weekly, publishing in a complete and exclusive form the draft normative acts launched in public consultation and published on their respective websites at the date of the periodic update of the E-Consultation platform”. This means that there will always be delays and reductions in the consultation period through this platform, due to the time lost between publishing the documents on the websites of the initiating institutions and publishing them in the E-Consultare portal.

Another problem is the lack of a feedback mechanism regarding the information or opinions transmitted by citizens. If the participants in the consultation want to pursue their integration in the legislative proposal document, the citizens must return to the originating institution of the document to verify that a new form of the proposal has been drafted, published and if it is different from the original one. If the initiating institution does not publish this new form, but only submits it to the next decision-making group, it is very difficult for the citizen to identify this new group and find the legislative proposal. In addition, there is no coordination between online and offline public consultation that is conducted through open consultation sessions.

Problem #7

The process of consulting with expert groups is very cumbersome

In the elaboration of legislative proposals, the state institutions have the obligation to accompany the document with a series of other supporting notes, including "consultations carried out in order to elaborate the draft normative act, organizations and specialists consulted, the essence of the received recommendations". This consultation with specialists is carried out as follows: the institution sends the legislative proposal document to the expert group and asks them to send feedback on the legal text in a consolidated form. It is up to the expert group to choose whether to involve their entire community in the consultation or even to open the consultation to the wider public that follows them. This type of consultation usually lasts between 15 and 30 days, which includes the bureaucratic and administrative effort of transmission, collection and centralization of responses, as well as the drafting of the legislative proposal with integrated expert feedback.

In most cases, the expert group puts together a committee responsible for a consultation round. This committee has the responsibility to (1) transmit the legislative proposal document to the members of the group, (2) collect feedback from each person, (3) consolidate this feedback after evaluating it in terms of relevance, and ( 4) relay back to the ministry the new form of the legislative proposal with their integrated comments. All these actions are time-consuming and considerably reduce the actual consultation period. Moreover, the lack of standard communication channels and clear consultation procedures within these groups make consolidation an unnecessarily difficult process. Most often the consultation takes place in parallel on email or on closed or open groups of Facebook and / or WhatsApp, the latter being channels not adapted to the needs of debate and which are at the border between the professional and personal space.

A third aspect is the impossibility of accessing some digitized and interconnected archives of legal documents related to the proposal under consultation. Thus, if - for example - the expert group of the Order of Architects of Romania has a legislative proposal in consultation, and that proposal refers to other laws, regulations or related studies, it is the responsibility of each expert consulted to find, access and analyze them to give concrete feedback, with all the necessary information available. The lack of this indexable database, with related documents, easily accessible to all experts participating in the consultation often renders the feedback received useless or incomplete. Moreover, the verification of incompatibilities between the legal documents (for example, a proposal for a law that does not define a term in the same way as a related law or an application rule that contradicts another, thus making it impossible for a citizen to comply with both) is almost impossible.

Last but not least, we cannot ignore the need for cyclicality in this expert consultation. At this time, there is no process by which all experts who contribute with feedback and comments to a legislative proposal are kept up to date with information on its course. Thus, a participant in the debate is not notified if his comments really reach the consolidated form transmitted to the public institution and if it  becomes part of the legislative proposal that goes further to the decision-making bodies.

Problem #8

There is very little investment in developing impact studies and understanding the real effects of the legislation

According to Article 33 of Law 24/2000 on the legislative technical norms for the elaboration of the normative acts, any law requires an impact analysis with the "Purpose to estimate the costs and benefits brought economically and socially by adopting the draft law, as well as highlighting the difficulties that could arise in the process of implementing the proposed regulations "with express reference to" f) evaluating the costs imposed by the adoption of the draft law and the possible budgetary savings generated by it, to the reasons underlying this evaluation, as well as how to calculate costs and savings; g) to the benefits resulting from the implementation of the draft law, other than those of an economic nature; h) the comparative analysis of the costs and benefits of the draft law, showing whether the benefits are justified by the costs ”.

Compared to other states, in Romania there are very few impact studies and cost-benefit analyzes, which makes the debate on a draft law very difficult. In practice, the documents that come to substantiate the need for a legislative proposal are often constructed and presented as the groups that come in contact with it report their lack and demand their existence in order to make informed decisions. We can take as an example the 2019 project of modifying the plan of the Cișmigiu Garden in Bucharest, a project elaborated without impact study, document that was later requested after a notification from a group of urban planners. The elaboration of such studies is imperative to help the administration build and implement regulations and laws based on real arguments and estimates of their consequences. The  existence of an accessible archive of all impact analyzes would also be useful.

Problem #9

Access to existing impact studies is restricted

As mentioned above, the law stipulates the obligation to elaborate analyzes and impact studies before submitting proposals for normative acts. Such documents have existed over time, but the problem is that they are no longer available at this time. In the absence of recent analyzes, a minimal database with - at least -the existing studies is not available, a tiny part of them being found on the website of the General Secretariat of the Government, where there are several tens of such analyzes, not all of them in Romanian. There is no archive within the reach of the citizen, easily reachable by a simple search or by accessing links from other platforms that publish legislation under debate or consolidated legislation.

Problem #10

Citizens are not aware of the impact of legislation on their daily lives

The low degree of involvement of citizens in the legislative process, the lack of interest for the normative acts as well as the disinterest of the majority regarding the importance of events such as elections of any kind, the small degree of participation in public consultation sessions or other events related to the legislative process is due to a misunderstanding of how all of the above directly impact the daily life of the citizen. After a simple analysis of the interviews conducted by the media on topics related to normative acts with representatives of the general public and following the direct observation of a considerable number of conversations on social networks, one can notice a lack of understanding of the roles of the various actors in the Romanian state, of the application of the law both at local and national level and a low level of availability of assimilating legal knowledge, not because of lack of interest, but because of complexity.

Problem #11

Romania faces a high level of legal illiteracy

Another reality we face is the legal illiteracy of Romanians. The lack of formal legal education in the compulsory education cycles produces adults who do not understand their role in relation to the law. With the exception of citizens who attend a specialized university, the level of understanding of the legal universe is a very low one – a universe which, in time, has not become simpler to decipher, on the contrary. An audience that does not know the legislative processes and the specific vocabulary and cannot "translate" the text of the law in layman’s terms cannot fully comply with it. We can go as far as saying that, taking all the above into account, Romania has a generally dysfunctional population from a citizenship point of view.