Principle 10 of the Rio Declaration on Environment and Development in 1992, establishs that: " States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided"
Platonian concept on freedom of speech, assembly, voting, and equal representation, etc.
Article 150 of Albanian Constitution says: "The people, through 50 thousand citizens who enjoy the right to vote, have the right to a referendum for the abrogation of a law, as well as to request the President of the Republic to hold a referendum about issues of special importance."
e.g. Hungary, Lithuania, Poland, Slovakia and Slovenia
Local referendums on environmental issues have been held rather often in Hungary, Poland and Slovakia.
Following is a list of examples:
The Constitution of the Federal Republic of Brazil (1988) Art.5, inc.LXXIII
The Constitution of the Republic of Costa Rica (1994) Art.50
The Political Constitution of Portugal (1976) Art.66, inc.3
The Code of Environmental and Natural Resources of Peru (1990) Art.
For example: Italy and Denmark only grant legal standing to a limited number of organizations, defined specifically in a legislative act; whereas in Peru, the legislation has a much broader definition, conceding legal standing to NGOs whose general objectives are to protect the environment.
Sartori, Giovanni. 1998 "C'eshte demokracia", Tirane; Dituria, fq.45
Topic selected:
PUBLIC PARTICIPATION AS IMPORTANT TOOL TO PROMOTE SUSTAINABLE DEVELOPMENT
Author: Adv.Blendi Dibra,
Master in Public Law/ PhD Candidate
Address: L:Q. Stafa, Rr D. Borici, 874, Shkoder
Email:
[email protected] Cel: 0682065568
Abstract
This paper will present basic concepts of Public Participation as an important instrument for sustainable development. Modern democratic life requires an active role from the population and needs participation from members of the community. Participation transforms the democratic system, creating a permanent connection between the governed and those who govern. Public participation in decisions about development is an important tool to achieve possible solutions which promotes sustainable development. The challenge of a development pattern striving to harmonize economics with social and environmental needs requires active citizen participation in public issues. The concept of democracy is connected to the idea of public participation because it allows government actions to become transparent and effective by avoiding corrupt behaviors. In order to build a participatory democracy, it is necessary to provide citizens with an institutional framework that will allow for effective participation in public issues. Numerous international documents have expressed the importance of public participation and the need to institutionalize it to move towards sustainable development. Facilitating the acces to information by spreading using most important instruments of communication encourage public awareness and participation. States shall provide an effective access to judicial and administrative proceedings, including redress and remedy. The main arguments in this paper, stress the fact that for an effective way of public participation it's important to ensure the access to the decision making process, to the public information and to the justice.
Key words: public participation, government, governance, decision-making, sustainable development
Overview
The challenge of a development pattern striving to harmonize economics with social and environmental needs requires active citizen participation in public issues. Public participation in decisions about development is fundamental to achieving lasting and possible solutions. Modern democratic life requires an active role from the population and needs participation from members of the community. It should no longer be the case that those who are governed act only to elect and then, whatever the outcome, are governed without there existing opportunities to interact with their representatives. It is time to add the idea of participation to the concept of representative democracy. Participation transforms the democratic system, energizing it, by creating a permanent connection between the governed and those who govern. The joint venture permits more reasoned decisions (being these the product of a higher consensus), enables a better understanding of the problems that preoccupy a society, and allows the two parties to work cooperatively towards possible solutions. Public participation allows government actions to become transparent, effectively avoiding corrupt behaviors. It also clarifies responsibilities and facilitates the eventual application of sanctions, in case of reproachable conducts. In order to build a participatory democracy, it is necessary to provide citizens with an institutional framework that will allow for effective participation in public issues. Numerous international documents have expressed the importance of public participation and the need to institutionalize it to move towards sustainable development. The main principles in the Rio Declaration outline some basic components that must be present in all participatory democracies. Therefore, to participate in an effective way, people must have:
Access to decision making 2) Access to public information 3) Access to justice
1) Access to decision making processes
Democracy its indirect when people decide exclusively through their representatives in governmental bodies; while a direct democracy is when all the citizens are assembled to decide. This kind of democracy existed in some cities of ancient Greece.
As an important tool of democracy in our days we are faced with the development of the concept of active citizenship and public participation in the decision making processes. This is why its so important to work with citizens to be active in the daily life and participate in governance and at the other side government shall be aware to share their responsabilities among citizens and invite them in the decision making processes. The decision-making processes will likely lead to failure if citizen's participation will be not guaranteed.
Public participation before and after decision-making it's fundamental to improve the quality of the decisions which affects quality of life. It's important that authorities are informed about citizens needs and to do that they should deal with technical issues which guarantee citizens participation before making decisions. With participation prior to decision-making, authorities can better reflect on public opinion inputs when making their decisions. After decision-making, the public can participate by controlling the means for enforcement and in the joint management of the decision. Public participation consists of different mechanisms of civic action within a democratic system. Citizens can participate in the following ways:
- before authorities make decisions: giving advice, participating in consultations, and promoting projects.
- after decisions are made, by acting in the execution of such decisions or by controlling their execution.
There are different forms and institutional mechanisms of participation. Each mechanism has its particular characteristics, its strengths and weaknesses. It is difficult to state whether certain forms of participation are better than others; in general, viability and efficiency of any form or mechanism depends on the political, social, economic and cultural context where it is developed. In brief some of the participation mechanisms are: a) public hearings, b) participatory budget processes c) referendums.
a) Public hearing
The objective of the public hearing is to promote and facilitate communication between government authorities and the public. In this way information, opinions or objections expressed by the public are taken into account by the authorities at the decision-making moment, thereby strengthening the decision. From a legal perspective, public hearings are not binding; comments and remarks expressed by the public do not force authorities to act a specific way. In some cases, authorities are obligated to justify their decisions and provide an explanation if they did not follow public opinion.
Usually a pubic hearing is a formal meeting between citizens and government authorities in order to discuss a particular subject, or any other type of decision to be made by the government. These meetings are carried out during the decision-making process. In general public hearings occur at both legislative and executive levels.
b) Participatory budget processes
One of the revolutionary public participation processes it's participatory budget which guarantee public accountability instrument whereby people have the opportunity to participate in the elaboration and control of the State budget used actually quite often in Albania mainly at the Municipality level. Normally at the city town councils halls, authorities and the public meet to reach an agreement on how to transfer public priorities into public policy agendas. A participatory budget provides citizens with a mechanism for controlling or influencing the government´s use of public resources. Some of the main identified criterias needed in the implementation of the public participation tool are:
Citizen participation must be guaranteed, without needing to belong to any particular organization or association.
The participation process must be open and deal with broad-based issues, from the way the state spends financial resources to different forms of financing expenditures
Public participation must also include management control and accountability.
In principle, opinions given in the participatory budget process are not binding;
c) Referendum
This kind of public participation has a binding effect. Public officials should be forced if citizens request that or address the issue to the citizen's choice to be decided by majority of votes through a wide participation process in decision making. Government authorities must accept and implement citizens' decisions. A referendum is a widespread kind of semi-direct form of democracy. Citizens vote in favour of or against a proposal to establish a new norm or to modify or revoke an existing one. It is important to distinguish this kind of participation from others that are not binding, such as public hearings. Countries that use referendums establish the legal criteria, forms and topics that can be involved in this kind of participation on a case-by-case basis. There are several Central and Eastern European countries where public participation in environmental decisionmaking is based on the constitutional right to launch a referendum or legislative initiative.
2. Access to public information
The public should have access to the meetings at community level and notifications are required by law to be posted prior to the meetings. That's important to ensure the opportunity of citizens to provide their inputs on local decisions before they go into effect. Citizens need access to information in order to choose the most viable mechanism to deal with the problem at hand. Due to this, most modern democracies have institutionalized mechanisms related to specific ways to access information.
The effectiveness of public participation is directly related to the information available. In several cases public officials intentionally neglect to engage the public by not informing them regarding the decision-making process. Lack of information or misinformation substantially affects the quality of public participation. The existence of tools for public participation and citizen control are not enough.
To assess the impact of new laws in some countries such as Canada, Finland and Japan, the government is required to consult with citizens. Indeed the process of discussion should be as soon as possible in the point of view of making laws applicable and acceptable. During the preparations of the Freedom of Information Law, passed in 2000, the United Kingdom Government conducted extensive public consultations where parliament received 2 248 comments on the bill.Today, is going to be developed rapidly so called e-government where the activity of government is provided online. Through online platforms are promoted and developed online debates, consultations, although it presents several limitations as far as not everyone have the possibility of using the Internet in due time.
However, governments everywhere have been criticized for creating distance with people, for their lack of sensitivities regarding civic concerns, leaving them out from governance. There is a need for a greater government transparency and accountability, especially by promoting public media scrutiny of government actions. In several cases such tasks public officials intentionally neglect to engage the public by not informing them regarding the decision-making process.
To effectively respond to citizen needs, is necessary to start listening to what citizens are saying and recruit their assistance in crafting effective policies and decisions. Free access to information is a right by which any person can access the information wanted. Free access to information allows any person access to the documentation of public records, meeting minutes, correspondence, technical reports, scientific surveys or any other documentation financed by public budgets. It also comprises information about policies, programs, plans and projects; information about various decision-making petitions, opportunities to make oral or written comments, and public and technical organizations´ opinions.
The theoretical ground to freely access information is based on the nature of it being public. It deals with relevant information regarding life and decisions affecting the community as a whole. Generally, this right draws on access to information administered by the State. Access to information involves the right to select documentation from the moment of its existence as part of a record. That is to say, it lets any person select the aimed document without any previous justification. A requisition is enough to receive the information. There are some restrictions on the right to freely access information:
- This right does not include preliminary drafts of documents.
- This right is limited by the protection of other rights or collective values: privacy protection, commercial and industrial confidentiality, national defense, international negotiation, etc.
- In the case of a legal process, the restrictions on public access to information are determined in order to guarantee due process.
- Generally, the legislation that institutionalizes and regulates access to information establishes a detailed regime of exceptions.
3. Access to justice
Access to justice is one of the ways citizens can enforce legislation. While participation results in social, cultural and other effects, we will refer only to the legal effects of public participation. Citizens are required to use all legal areas to increase their participation as far as public opinion about important issues increase transparency as necessary to guarantee the exercise of a balanced power oriented to civic concerns. In this way, individuals can bring forward legal actions or go through administrative proceedings to defend their right. Legal standing is the ability of a person to show a sufficient legal interest in a matter to allow him or her to bring a case to court. When defending individual rights, such as the right to life, to dignity, to liberty, property, etc., the individual must prove that their value or good (life, dignity, liberty, property, etc.) is being threatened or damaged. In this sense, the individual is considered to have just and sufficient cause for defending their right. In the case of defending third generation rights (such as the right to a healthy environment, the right to peace, the right to non-discrimination, etc.) it is necessary to revise the traditional criteria of legal recourse, namely those granted to individual rights. Without redefining these legal rights, a judge, for example, who is faced with a citizen´s demand to preserve a native forest, might reject the case because the citizen can not demonstrate an exclusive and immediate individual interest that brings just cause to save the forest. These third generation rights are characterized, in some respects, by their collective nature. Thus, in the case of environmental rights, people do not hold individual, immediate or exclusive interests in the environment; the relationship of people with respect to the "environment" that they wish to protect, is one of co-ownership. This signifies that individuals only have a portion of the environmental right, non-exclusive and identical to the rights and interests of other members of the community. These are known as collective rights. Given this collective nature, access to justice is complicated in environmental matters. In response to this legal dilemma in environmental law, various judicial mechanisms have been implemented.
- Public Interest Action
A public interest action is a type of judicial action that grants legal standing to all State residents in defence of certain collective rights or interests, such as the protection of the environment, the protection of national heritage, etc. In this way, the need to prove personal and direct interests in the good is exempted from the claim to legal protection. Legislations from different countries demonstrate diverse methods of public interest action for the legal protection of the rights of the common good.
- Legal standing of government agencies
Traditionally, the State has assumed the role to defend and protect the general interests of society through government officers, such as the long-established Attorney General and more recently the Ombudsman. Currently legislation in different countries has amplified the scope of power and responsibilities of these sectors for the protection of the collective good, such as the right to a healthy environment, consumer rights, etc.
- Legal Standing of Non-Governmental Organizations (NGOs)
A number of states recognize the right to legal action by non-governmental organizations or associations whose objectives are to protect and conserve the environment. In some cases, the legislation differs with respect to formal requests demanded by NGOs to act as authorized claimants. Argentina, Spain, Brazil, Germany and others are among states that recognize legal standing in favour of organizations that defend collective rights. As mentioned briefly above, these judicial mechanisms differ from country to country. Below we will highlight a few country-specific mechanisms and outline how various countries have defined legal standing for individuals and NGOs with regards to the right to a clean and healthy environment.
Conclusions and recomandations:
As analysied briefly in this paper it's important to guarantee public participation as important tool to promote sustainable development. The three main components were mentioned as important to strength citizen's participation such as access to decision making, to public information and to justice. Doing that its important to develop and support institutional structures, policies, and procedures that promote and facilitate, within all levels of government and civil society, interaction in sustainable development decisions, and encourage change within existing institutions to pursue a basis for longterm direct dialogue and innovative solutions. Where necessary, institutions should strengthen and develop management mechanisms to expand and incorporate participatory practices and techniques in project design, implementation, and evaluation. The creation of partnerships between government and civil society, including all stakeholders, should be encouraged. During this process its important to ensure creation and strengthening of existing formal and informal communication mechanisms which encourage information sharing, collaboration, and cooperation within and among civil society groups, within and between levels of government, and between all levels of government and civil society. Clear and accessible mechanisms that enable government and civil society to provide and obtain relevant information on policies, projects, and programs in a timely manner are essential for effective public participation. Special efforts must be made to use information and means of communication that will reflect and respect cultural, ethnic, religious, social, linguistic, and economic diversity in order to engage all stakeholders. Efforts should be made to give mass communications an effective role in the communication between governments and all sectors of civil society. Meaningful public participation in decision-making processes on sustainable development depends on laws and regulations that will ensure access to relevant and timely information, access to the decision-making process, and access to the justice system. This is why it's so important to enforce implementation of legal and regulatory frameworks that ensure participation of civil society in sustainable development decisions. In addition, legal frameworks should clarify and expand the legal standing of those persons and communities affected by development decisions, seek a reasonable balance in the roles and joint responsibilities of the various levels of government and civil society, and be adapted continuously to respond to changing reality or when they constitute an obstacle to public participation. Democracy theorists have argued that the entire edifice of democracy rests in the final analysis, of the public opinion .
Beside the component mentioned above to ensure public participation its important as well to Create, strengthen, and support formal and informal opportunities and mechanisms for public participation in which sustainable development activities are discussed and decided upon. Strengthening and, where necessary, creating new opportunities and mechanisms for consultation and agreement that include stakeholders from all sectors of society are essential for the participation process. Partnerships between and among government institutions and diverse sectors of civil society in decision-making should be encouraged, and existing opportunities for them be made use of and replicated. These mechanisms should also ensure that the results of the participatory process are made known to all stakeholders.
References:
Çela, Erisa & Ismaili, Valmir & Hafner, Tanja. 2008. "Praktikat e mira rajonale mbi pjesmarrjen komunitare ne qeverisjen vendore", Tirane; Instituti per Demokraci dhe Ndermjetesim
Kval Mellbye & Trafoy. 2006. "Politika dhe demokracia", Tirane: Onufri.
Meidani, Rexhep. 2009. "Mbi qeverisjen", Tiranë: Dudaj
Omari, Luan. 2011. "Ndarja e pushteteve dhe pavaresia e institucioneve kushtetuese", Tiranë: Elena Gjika
Popper, Karl. 2009. "Për filozofinë dhe shkencën", Tiranë: Shtëpia botuese "Fan Noli"
Schmidt, V. 2006. "Democracy in Europe. The EU and National Polities",
Oxford: Oxford University Press.
Sartori, Giovanni. 1998 "C'eshte demokracia", Tirane; Dituria
Sokoli, Lekë. 2008. "Refleksione sociologjike", Tiranë: Instituti i Sociologjisë
Sokoli, Lekë. 2006. "Komunitarizmi, rasti i Shqiperise", Tirana Observer, 28 Shtator
Zakaria, Fareed. 2004. "E ardhmja e lirise", Tiranë: Instituti i Dialogut dhe Komunikimit
Weber, Max. 2009. "Politika si profesion, Shkenca si profesion, Tre tipat e pastër të sundimit legjitim", Tiranë: Shtëpia botuese "Fan Noli"
Resources on internet
- The Aarhus Convention
www.unece.org/env/pp/
- Agenda 21
www.un.org/esa/sustdev/agenda21.htm
- American Convention of Human Rights. San Jose Agreement of Costa Rica.
www.oas.org/cidh/básicos/basicos3.htm
- American Declaration of the Rights and Duties of Man.
www.cidh.oas.org/Básicos/Basic Documents/enbas2.htm
- Dublin Declaration on Access to Environmental Information
www.unep.org/infoterra/infoterra2000/report1.htm
- International Covenant on Civil and Political Rights
www.unhchr.ch/html/menu3/b/a_ccpr.htm
- International Covenant on Economic, Social and Cultural Rights
www.unhchr.ch/html/menu3/b/a_cescr.htm
- ISP: Inter-American Strategy for the Promotion of Public Participation in
Decision Making for Sustainable Development
www.ispnet.org/Documents/INDICE.html
- Resolution on Access to Information, Public Participation in Decision-Making
and Access to Justice In Environmental Matters
www.mem.dk/aarhus-conference/issues/public-participation/inforesolution43-add1-
rev.htm
- Universal Declaration of Human Rights
www.un.org/spanish/aboutun/hrights.htm
