ICNL logo

The International Journal
of Not-for-Profit Law

Volume 12, Issue 4, November 2010

A publication of the International Center for Not-for-Profit Law

Table of Contents

Letter from the Editor

Counterterrorism and Civil Society

NGO Responses to Counterterrorism Regulations after September 11th
Elizabeth A. Bloodgood and joannie Tremblay-Boire

Civil Society, Aid, and Security Post - 9/11
Jude Howell

Thirty Years of Women's Activism in Sudan
Frank van Lierde

Articles

Doing Good and the Law: Questions of Control, Paternalism, and Partnership - An Organizational Perspective
David Z. Nowell

An Enabling Framework for Citizen Participation in Public Policy: An Outline of Some of the Major Issues Involved
Dragan Golubovic

Reflections on the Legislative Environment for Nongovernmental Organizations in Botswana
Zein Kebonang and Kabelo Kenneth Lebotse

Developing Standards and Mechanisms for Public Financing of NGOs in Croatia
Igor Vidacak

Lottery Proceeds as a Tool for Support of Good Causes and Civil Society Organizations: A Fate or a Planned Concept?
Katerina Hadzi-Miceva

Country Report: Moldovo
Hanna Asipovich

- - - - - - - - - -

PDF Download this issue (PDF)

Editorial Board

An Enabling Framework for Citizen Participation in Public Policy: An Outline of Some of the Major Issues Involved

By Dragan Golubovic*

INTRODUCTION

This article examines different frameworks of citizen participation in public policy (hereinafter also referred to as public participation), with particular emphasis on participation in legislative processes. Citizen participation in legislative processes is an important part of an overall institutional framework of cooperation between the government and civil society organizations (CSOs), given that laws (statutes) and other general regulations are oftentimes the primary instruments of articulation and implementation of public policies.

The article discusses frameworks of citizen participation in the European countries and the European Union. Thus far, few countries have adopted comprehensive mechanism for citizen participation. Examples include Romania, Hungary, Bosnia and Herzegovina, the United Kingdom, Croatia, and Austria. In some countries, citizen participation is governed by custom law (e.g., Sweden, Denmark, and Norway), while in others this issue is addressed in a constitution, albeit in a fairly general fashion. For example, the Constitution of Switzerland imposes general obligation on the government to consult with citizens on a narrowly defined scope of issues (see also Hungary, infra 4).

The article seeks to expose key stakeholders (government officials, policy makers, and CSOs) to some of the critical issues pertinent to an enabling legal and institutional framework for citizen participation. It does not provide a detailed account of frameworks and practices in various countries, but rather outlines major features and challenges thereof. For clarity, references to the literature and materials used herein are omitted from the text.

CITIZEN PARTICIPATION: ITS RATIONALE AND THE ROLE OF CSOs

Citizen participation in shaping and implementing public policies is regarded as a critical ingredient of participatory democracy. It is noteworthy that the underlying role of participatory democracy is not to replace representative democracy, which is based on the separation of powers, multi-party system, and free elections, but rather to supplement it and make it better functioning. To that end, citizen participation serves several important functions: (1) It provides an opportunity and creates conditions necessary for citizens to engage in political life regularly—and not only during elections. (2) It creates a framework for citizens to advocate for their legitimate interests and thus contributes to the development of a vibrant democratic society. (3) It makes the work of public authorities more transparent and closer to their constituencies. (4) It contributes to the quality of adopted public policy and its smooth implementation. If all stakeholders participate in the process, their legitimate interests will presumably be protected and the costs of implementation of such a policy will be reduced, as they will be less inclined to resort to judiciary and other remedies to protect their interests. A study referenced in the Public Hearings Manual, which is published by the Organization for Security and Co-operation in Europe (OSCE), suggests that citizens are more inclined to embrace public policy if they have an opportunity to participate in the process of its shaping, even if their proposals are not favorably met. (5) It facilitates CSOs' watchdog role in the implementation of adopted policies.

As for CSOs, they play a twofold role in this process. On the one hand, CSOs are a suitable institutional tool, which facilitates citizen participation in public policy. They allow citizens to organize themselves and express and advocate for their legitimate interests more effectively—as well as making the entire process of participation more transparent. On the other hand, CSOs are also a legitimate party to this process—at least insofar as some of the human rights from which the right of citizen participation is derived are also extended to CSOs (e.g., freedom of speech, freedom of association, freedom of free access to information, infra 4).

The significance of citizen participation in public policy processes has been acknowledged not only at the national but also at the international level. Thus various forms of consultations involving CSOs have become a standard practice of major multilateral, intergovernmental organizations, including the United Nations, the World Bank, the Council of Europe (CoE), and the European Union (albeit with varying success). For example, the Council of Europe's Recommendation on the Legal Status of Non-Governmental Organizations in Europe specifically calls on member states to create an enabling institutional environment for citizen participation in public policy.

Recommendation 76: "Governmental and quasi-governmental mechanisms at all levels should ensure the effective participation of NGOs without discrimination in dialogue and consultation on public policy objectives and decisions. Such participation should ensure the free expression of the diversity of people's opinions as to the functioning of society. This participation and co-operation should be facilitated by ensuring appropriate disclosure or access to official information."

Recommendation 77: "NGOs should be consulted during the drafting of primary and secondary legislation which affects their status, financing or spheres of operation."

Recommendation CM/RC(2007)14 of the Committee of Ministers to members states on the legal status of non-governmental organizations in Europe

As a follow-up step, the Conference of International NGOs, which is the "voice of civil society" with the Council of Europe, adopted the Code of Good Practice for Civil Participation in the Decision-Making Process (CONF/PLE(2009)CODE1), which was confirmed by the Declaration of the Council of Ministers of CoE on October 21, 2009. The Code provides an analytical framework and identifies actors and steps in the process of consultation that need to be observed in order to facilitate interaction between citizens, CSOs and public authorities.

At the European Union (EU) level, in 2001 the European Commission published the White Paper on European Governance, which contains recommendations put forward in order to make the functioning of EU institutions more transparent, accountable, participatory, and effective. Among others, the Commission proposed a greater involvement of CSOs in the EU decision-making process in recognition of the important role they play in modern democracies, as well as the need to develop general principles and minimum standards for consultations with the Commission (infra, 4).

PROPOSALS FOR CHANGE

The Union must renew the Community method by following a less top-down approach and complementing its policy tools more effectively with non-legislative instruments.

Better involvement and more openness

No matter how EU policy is prepared and adopted, the way this is done must be more open and easier to follow and understand. The Commission will provide:

  • Up-to-date, on-line information on preparation of policy through all stages of decision-making.
  • There needs to be a stronger interaction with regional and local governments and civil society. Member States bear the principal responsibility for achieving this. But the Commission for its part will:

  • Establish a more systematic dialogue with representatives of regional and local governments through national and European associations at an early stage in shaping policy.
  • Bring greater flexibility into how Community legislation can be implemented in a way which takes account of regional and local conditions.
  • Establish and publish minimum standards for consultation on EU policy.
  • Establish partnership agreements going beyond the minimum standards in selected areas committing the Commission to additional consultation in return for more guarantees of the openness and representation of the organizations consulted.
  • European Governance: A White Paper, Commission of the European Communities (2001)

    Citizen participation also features prominently in the Lisbon Treaty of the EU. Title II of the Treaty (Democratic Principles) underscores the principle of representative and participatory democracy (i.e., the role of political parties and citizens, respectively) in the function of the Union. With regard to the latter, it obliges the EU institutions to engage in consultations and maintain open and transparent dialogue with citizens. The Treaty imposes particular responsibility on the European Commission in this respect.[2]

    Article 10

    • 1. The functioning of the Union shall be founded on representative democracy.
    • 2. Citizens are directly represented at Union level in the European Parliament.
    • Member States are represented in the European Council by their Heads of State or Government and in the Council by their governments, themselves democratically accountable either to their national Parliaments, or to their citizens.
    • 3. Every citizen shall have the right to participate in the democratic life of the Union. Decisions shall be taken as openly and as closely as possible to the citizen.
    • 4. Political parties at European level contribute to forming European political awareness and to expressing the will of citizens of the Union.
    • Article 11

    • 1.The institutions shall, by appropriate means, give citizens and representative associations the opportunity to make known and publicly exchange their views in all areas of Union action.
    • 2.The institutions shall maintain an open, transparent and regular dialogue with representative associations and civil society.
    • Member States are represented in the European Council by their Heads of State or Government and in the Council by their governments, themselves democratically accountable either to their national Parliaments, or to their citizens.
    • 3. The European Commission shall carry out broad consultations with parties concerned in order to ensure that the Union's actions are coherent and transparent.
    • 4. Not less than one million citizens who are nationals of a significant number of Member States may take the initiative of inviting the European Commission, within the framework of its powers, to submit any appropriate proposal on matters

    Furthermore, some international conventions specifically envisage the obligation of signatory states to create a mechanism for citizen participation with respect to the subject matter of a convention. Perhaps the most notable example in this respect is the United Nations' Convention on Access to Information, Public Participation in Decision Making and Access to Justice Matters (the so called Aarhus Convention), which has been ratified thus far by 40 countries as well as the EU.[2]

    Article 10

    Objective

    In order to contribute to the protection of the right of every person of present and future generations to live in an environment adequate to his or her health and well-being, each Party shall guarantee the rights of access to information, public participation in decision-making, and access to justice in environmental matters in accordance with the provisions of this Convention.

    Article 2 (extract)

    Defnitions

    For the purposes of this Convention,

    • 5. "The public" means one or more natural or legal persons, and, in accordance with national legislation or practice, their associations, organizations or groups;
    • 6. "The public concerned" means the public affected or likely to be affected by, or having an interest in, the environmental decision-making; for the purposes of this definition, civil society organizations promoting environmental protection and meeting requirements under national law shall be deemed to have an interest.

    Aarhaus Convention (1998)

    Finally, citizen participation also features prominently in policy documents on civil society, which some countries have developed. For example, the National Strategy for the Creation of an Enabling Environment for Civil Society (2006-2011), which was adopted by the Croatia Government in 2006, states that Croatia is a vibrant, pluralistic society based on participatory democracy, which enables citizens to play an active role in social and political life. In addition, the Strategy points to the fact that a vibrant civil society needs effective instruments that will ensure citizen participation (either directly or through various forms of CSOs) in all stages of public policy processes, including the implementation thereof.

    MODELS OF COOPERATION BETWEEN CSOs AND PUBLIC BODIES

    The handbook of the Organization for Economic Cooperation and Development (OECD), Citizens as Partners: OECD Guide to Information, Consultation and Public Participation in Policy-Making, distinguishes three levels of cooperation between citizens and public bodies:

    Information—A one-way relationship in which information flows in one direction, from the government to citizens. The government informs citizens about its decisions and initiatives as it sees fit, or citizens extract information at their own initiative. An example of this relationship is public access to documents of public significance, an official gazette, and the government's Internet pages.

    Consultation—The government seeks feedback from citizens in the process of shaping public policy. It is a two-way relationship in which the government determines participants, in order to receive sound feedback. The government ensures that citizens are provided with pertinent information in advance. An example of this type of relationship is comments to draft laws.

    Active participation—A higher degree of a two-way relationship in which citizens are actively involved in shaping public policies, such as through membership in working groups commissioned to prepare a draft law. The improved collaboration with citizens and other social actors does not release the government from its ultimate responsibility to choose and implement a particular pubic policy.

    THE LEGAL NATURE OF THE RIGHT TO PARTICIPATE IN PUBLIC POLICY

    One of the first challenges the policy-makers need to confront in developing the mechanism for citizen participation is to make sure they understand where exactly the right to citizen participation/consultation fits into their respective legal systems. Is it a constitutional right per se, or a right derived from some other rights that enjoy direct constitutional protection? Is it a declaratory right that cannot be enforced, or a right whose breach is effectively sanctioned? As the tables below indicate (infra, Appendix I), governments provide various responses to the foregoing issues. Nevertheless, it should be noted that citizen participation is generally not regarded as a distinct constitutional right.

    Hungary is among few notable exceptions in this respect. The Constitution of Hungary obliges the government to cooperate with CSOs in carrying out its duties and responsibilities. However, it also grants the government discretion to choose the model of cooperation it deems appropriate. With regard to consultations in legislative processes, the constitutional obligation for consultations is further elaborated in the Law on Legislative Procedures (1987). Article 20 of the Law stipulates that CSOs shall be involved in the drafting of regulations that impact social conditions and those interests they represent and protect. However, the Law does not envisage any sanctions for the violation of its provisions. In 2009, the Constitutional Court repealed some of the Law's provisions with effect pro futuro—31 December 2010. As a result, the Government has prepared a new law on legislative procedures, as well as a separate law on public participation in legislative procedures, which are expected to be enacted shortly.[3] In several cases involving the Law's alleged violation, the Constitutional Court ruled that consultation provisions set forth in the Constitution and the Law were "methodological instruction" rather than enforceable right. In the Court's opinion, the exercise of legislative and executive power may not be contingent upon consultations with representatives of various private interests – unless they are granted specific power to participate (i.e., express their opinion) in a decision-making process. In another case, the Court qualified the Law as lex imperfecta: violation of the consultation procedure prescribed by the Law does not amount to violation of the Constitution per se, but may, rather, result in political or disciplinary liability of state officials responsible for the implementation of the Law. As a general rule, the Court shall review a case on its merits only if there is reasonable doubt that provisions of the law are per se unconstitutional. In (rare) cases where, despite the violation of the Law, the right to consultation was nevertheless enforced, the Court in fact ruled the violation of some of the rights that are directly protected and guaranteed by the Constitution, such as the right to free access to information, the right to healthy environment, freedom of association, or the right to file a petition with the government. Following enactment of the Law on Access to Public Information in Electronic Form in 2005, citizens and CSOs are provided with an additional legal tool to exercise their right to consultation. In addition to obliging all bodies performing public duties to make available on their Internet sites the data of public interest, it also obliges state authorities to post draft laws and decrees on the Internet, along with explanatory notes to the draft and other necessary materials and documents.[4]

    Romania has chosen to address the consultation procedure in a separate law, the Law on Transparent Decision-Making by State Bodies and Local Governments (2003), the so-called "Sunshine Law." The Law obliges state administration and local governments to consult with "citizens and their associations" in the course of adopting general legal acts within their respective purviews. The Law defines the right to consultation as an enforceable rather than declaratory right, pursuant to the rules governing the administrative procedure. However, it appears that the scope of this protection is somewhat limited, as it is very likely that the process of consultation will be brought to a conclusion before the administrative procedure for the alleged violation of the Law is brought to a conclusion. State and municipality officials that breach provisions of the Law are subject to disciplinary liability, pursuant to the labor law and regulations governing civil servants.

    In Bosnia-Herzegovina (BiH), citizen participation is governed by the Rules on Consultations in Policy Making (2006). The Rules govern the enactment of general legal acts which are adopted by the BiH Council of Ministers and other institutions at the state level. The Rules prescribe the minimum level of consultations between those bodies and "the public, legal entities, and groups of citizens which do not belong to the government structure" (infra, table VIII). Minimum consultations include the obligation of a relevant body to post a draft of regulations on the Internet page, the possibility of providing comments to a draft by interested parties via the Internet, as well as solicitation of comments by persons who are on the consultation list of the relevant institution. Significantly, the obligation for minimum consultation is not subject to any exceptions. However, the Rules do not envisage any specific sanctions for violation of the consultation procedure. In such cases, the Council of Ministers may (but is not obliged to) refuse to put a draft on its agenda. If so, the Council's Chief Secretary shall return a draft to a responsible body and request that it complete the process of consultation within a prescribed deadline, before the draft is reintroduced to the Council for its consideration.

    In the United Kingdom citizen participation is governed by the Code on Practice on Consultation (2004). The Code is a further elaboration of one of the five compacts, the Compact Code of Good Practice on Consultation and Policy Appraisal, that were signed following the adoption of the Compact on Government's Relations with the Voluntary and Community Sector. It proclaims six principles that the state administration bodies must observe in the process of public policy consultations. These principles apply accordingly with regard to consultations that take place before the government takes its position on the EU draft directives. As stated in the introduction of the Code, it is a document that is not legally binding and therefore may not derogate (domestic) laws and other binding legal instruments, as well as the EU acquis communautaire. As a result, citizens may not enforce their right to consultation. However, similar to Hungary, the right to consultation may nevertheless be enforced if the court in particular instances finds violation of some other rights that enjoy direct legal protection, such as freedom of expression, the right to free access to information, or the prohibition of discrimination. On the other hand, the Code is considered generally binding for state administration bodies. This means that the violation of the Code may result in political or disciplinary liability of the heads and employees of the state administration bodies.

    The issue of citizen participation has somewhat different connotations at the European Union level, given the unique nature of the EU structure. Nevertheless, citizen participation is gaining in prominence with major EU political and legislative institutions, as part of comprehensive efforts to bring them closer to citizens. In 2003 the General Principles and Minimum Standards for Consultations of Interested Parties with the European Commission came into force. This is a comprehensive document that guides the Commission when consulting on major policy initiatives, without prejudice to more advanced practices developed by the Commission's departments – or, for that matter, any specific rules that are to be developed for certain policy areas. As a first step, the Commission is focused on applying the Principles to those initiatives that are subject to an extensive impact assessment. However, it does encourage Directorates-General to apply it to any other consultations they seek to engage in. The major objection raised against the Principles is that it is a political rather than a legally binding document (it was adopted in the form of the Commission's communication). The Commission was determined to avoid a legally binding instrument for two reasons: (1) the need to draw a clear-cut line between consultations launched by the Commission's own initiative prior to the adoption of a proposal by the Council of Ministers and the European Parliament, as part of the compulsory decision-making legislative process which is governed by the founding treaties; and (2) the risks associated with a possibility of the Principles being challenged by the European Court, which could significantly increase transactional costs of the enactment and implementation of the EU law. In addition, the Commission noted that it does have administrative and other means to ensure that all its departments duly apply the Principles.

    KEY STATE ACTORS AND INSTRUMENTS GOVERNING PUBLIC PARTICIPATION

    Regardless of the form of cooperation, any mechanism of citizen participation must identify not only key private stakeholders but also key state actors in the process along with their prerogatives and duties to that effect. Especially, it must respond to a question of whether the primary partner of citizens, CSOs, and other private actors in the process is the government (i.e., the executive branch of power) or parliament (i.e., the legislative branch of power). At least in countries with the Westminster model of governance, which is the model embraced in most European countries, it is critical to engage in participation at an early stage of preparation of laws and other instruments of public policy (the so called ex-ante participation). That will create a framework that will ensure that the government, rather than parliament, is the primary partner of private actors in the process of participation. This is because the distinctive feature of the Westminster model is the decisive role of the government not only in preparation of laws and other instruments of public policies, but also in their enactment, for the government in regular circumstances effectively controls the majority in parliament. Therefore, models of participation in those countries that focus on collaboration with the legislative rather than the executive branch are likely to limit the leverage of citizens/CSOs in the process.

    In addition, a mechanism of citizen participation needs to respond to a question of whether the framework of participation should apply to central level of governments, or whether local governments should be included in the process too. A response to that question will depend on a number of factors—including, the scope and the ambit of power of local authorities in a given country. However, as a matter of good democratic practice, a framework for citizen participation should pertain to both central and local public authorities (infra, Appendix I).

    Finally, a framework for citizen participation also needs to identify instruments governing citizen participation. In this respect, the experience thus far seems to suggest that legally binding instruments (such as the Romanian "Sunshine Law" and to a lesser extent BiH Regulations) do not necessarily provide for a more effective framework for citizen participation as compared to codes and other legally non-binding instruments (embraced by Great Britain, Croatia, Austria, etc.), in particular if their implementation requires high transactional costs.

    APPENDIX I:

    COMPARATIVE TABLES ON ISSUES PERTINENT TO PUBLIC PARTICIPATION

    TABLE I: FORMS OF PUBLIC CONSULTATIONS(ACCORDING TO THE OECD MODEL)

    BiH HUNGARY ROMANIA UNITED KINGDOM EUROPEAN UNION
    Consultation and active participation.[5] Consultation. Consultation. Consultation. Consultation.

    TABLE II: TYPES OF LEGAL INSTRUMENTS ENCOMPASSED BY PUBLIC CONSULTATIONS

    BiH HUNGARY ROMANIA UNITED KINGDOM EUROPEAN UNION
    Laws and other general regulations. Laws and other general regulations. Laws and other general regulations. Laws and other general regulations. Regulations initiated by the European Commission.

    TABLE III: LEVEL OF STATE ORGANIZATION AND BODIES ENCOMPASSED BY MANDATORY PUBLIC CONSULTATIONS

    BiH HUNGARY ROMANIA UNITED KINGDOM EUROPEAN UNION
    National: Council of Ministers of BiH and other state institutions. National: Government and governmental bodies. Pending reforms provide for consultations at local level as well. National: Government and governmental bodies; Local: municipality executive and representative bodies. National:Government and governmental bodies; local government is encouraged (but not obliged) to adhere to the Code. European:Commission.

    TABLE IV: PRIVATE ACTORS THAT MAY PARTICIPATE IN PUBLIC CONSULTATIONS

    BiH HUNGARY ROMANIA UNITED KINGDOM EUROPEAN UNION
    Groups of citizens, private legal entities (i.e., legal entities that are not part of the government's structure). "Anyone": Citizens, CSOs, and other private legal entities. Citizens and associations that have been established and operate in accordance with law. Citizens, CSOs, and other private legal entities. Special role of CSOs, but also citizens, companies, local and regional public bodies, etc.

    TABLE V: SCOPE OF PERSONS DIRECTLY ENCOMPASSED IN PUBLIC CONSULTATION PROCEDURES

    BiH HUNGARY ROMANIA UNITED KINGDOM EUROPEAN UNION
    Private legal entities and groups of citizens that are on the list of line ministry or other state institution. Customary practice: citizens, associations and other private legal entities that are on the list of line ministry. Association of employers and other associations established and organized pursuant to law, with regard to general regulations that may influence their position and legitimate interests. Citizens, associations and other private legal entities. Persons whose interests may be affected by a draft regulation; persons that shall participate in the implementation of a regulation, persons whose aims correlate directly to those a regulation seeks to accomplish.

    TABLE VI: PROCEDURE FOR PUBLIC CONSULTATIONS

    BiH HUNGARY ROMANIA UNITED KINGDOM EUROPEAN UNION
    Consultations in any stage of drafting a law or regulation. A draft is posted on the Internet page of the ministry or other relevant institution; all persons on the consultation list are called upon to submit their comments. Consultations in any stage of drafting a law or regulation; a draft is posted on the Internet page of the ministry or other responsible government bodies for comments. Public announcement of preparation of a draft is made by one or more ways as prescribed by law (Internet, announcement through local or national media, etc.). A draft is submitted to all persons that expressed interest. Consultations in early stages of development of public policy (implicitly includes preparation of draft laws); especially with persons whose interests may be affected and those who are expected to take a "proactive" stand in the process of shaping of public policy, developing draft laws, etc. Consultations in early stages of development of public policies and regulations.

    TABLE VII: DEADLINES FOR SUBMISSION OF COMMENTS

    BiH HUNGARY ROMANIA UNITED KINGDOM EUROPEAN UNION
    It appears that the deadline for submission of comments may not be shorter than 21 days (minimum consultation) or 30 days (legal provisions with a significant impact on the public). The Law on Access to Public Information in Electronic Form requires at least 15 days for consultations, barring extraordinary circumstances. The relevant administrative body issues an announcement on drafting at least 30 days before a draft is opened for public debate. The announcement must state a deadline for submission of comments in writing, which may not be shorter than 10 days. At least 12 weeks, in the stage of formulating a public policy or drafting a legal instrument; an administrative body may set a longer period for consultations—e.g., during summer holidays. Depending on circumstances. Standard period of consultations is eight weeks. In exceptional cases the deadline may be longer or shorter.

    TABLE VIII: SCOPE OF CONSULTATIONS (MINIMUM AND BROADER)

    BiH HUNGARY ROMANIA UNITED KINGDOM EUROPEAN UNION
    Minimum scope: publication of a draft on the Internet page of the Council of Ministers or other relevant institution; call for submission of comments by persons/entities on the Council's list; information as to where draft may be acquired. Broader scope (laws and regulation of particular significance): publication of a draft in public media, a draft directly submitted to "organizations and individuals," option for commissioning working groups including "experts and representatives of organizations" to prepare a draft law or regulation. No difference in scope of consultations. No difference in scope of consultations. No difference in scope of consultations. No difference in scope of consultations.

    TABLE IX: EXEMPTIONS FROM MANDATORY CONSULTATIONS

    BiH HUNGARY ROMANIA UNITED KINGDOM EUROPEAN UNION
    Only at instances of broader consultations: extraordinary circumstances, unforeseen international obligations or court's annulment of a law or part thereof. For reasons of defense and national security, perceived financial interest, foreign affairs, nature conservation or inheritance protection, interests of the government, or outstanding social interest which requires immediate legislative response. Extraordinary circumstances to which an expeditious promulgation procedure applies. Extraordinary circumstances, which include duties arising from membership in EU and other international organizations; duties arising from obligations to enact state budget; in order to protect public health and security, etc. No exemptions are envisaged.

    TABLE X: SANCTIONS FOR BREACH OF OBLIGATIONS FOR PUBLIC CONSULTATION

    BiH HUNGARY ROMANIA UNITED KINGDOM EUROPEAN UNION
    The Council of Ministers may refuse to consider a draft if rules on consultation were not heeded. Potential political and disciplinary sanctions for heads or employees in state administration. Political and disciplinary sanctions for heads and employees in state administration. Political and disciplinary sanctions for heads and employees in state administration. No sanctions have been prescribed; implicitly, disciplinary measures for civil servants in the Commission.

    APPENDIX II:

    INVENTORY OF GENERAL ISSUES THAT NEED PARTICULAR CONSIDERATION WITH REGARD TO REGULATORY FRAMEWORK FOR CITIZEN PARTICIPATION

    NOTES

    *Dr. Dragan Golubovic is Senior Legal Adviser with the European Center for Not-for-Profit Law in Budapest. The author is grateful to his colleagues from the office, Nilda Bullain and Eszter Hartay, for the useful feedback on the section of the article dealing with Hungary. An earlier version of this article appeared in 2008, under the title “Citizen Participation in Public Policy: A Short Excursion Through European Best Practices.”

    [1]The Lisbon Treaty (which is an abbreviated version of the failed EU Constitution) was signed in Lisbon on December 3, 2007, published in the Official Journal of the EU (C306-10, of December 12, 2007), and came into force on January 1, 2010, following its ratification in all member states.

    [2]The Convention was signed on June 25, 1998, and came into force on October 30, 2001.

    [3]The draft Law on Legislative Procedures and the draft Law on Public Participation in Legislative Procedures (Law on Public Participation) are posted on the web site of the line ministry as of September 2010. Ironically, the ministry set a nine-day deadline to receive feedback on the drafts from interested parties. The draft Law on Legislative Procedures does not set out detailed rules with respect to public participation. Rather, it contains a general provision that the authority responsible for drafting a regulation shall ensure that the draft regulation is prepared in conformity with the provisions of the (draft) Law on Public Participation, the major features of which include the following: 1) In order to ensure transparent and participatory legislative process, the government is obliged to make the legislation plan available to the public every six months, in conformity with the schedule for Parliament’s regular sessions. 2) Responsible ministers are obliged to publish on their respective web sites information concerning the title of a draft, the short summary and the impact assessment thereof, and the anticipated date of making a draft available to the public. 3) Public participation (which includes receiving comments on a draft posted on a web site, public discussion, as well as other forms) is mandatory for certain types of legislation. A ministry does have some latitude in choosing the form of participation. 4) The time frame for consultations is between 15 and 30 days, and only in exceptional cases may be shorter.

    [4]Because the draft Law on Public Participation basically incorporates provisions of Articles 9 and 10 of the Law of Access to Public Information in Electronic Form, the obligation to post the draft laws and decrees on the Internet will be repealed from the Law following the enactment of the Law on Public Participation (which envisages this to be a general obligation of public authority).

    [5]This does not mean that BiH is the only country which allows for active participation—i.e. participation of CSOs and the academic community in the working groups commissioned to prepare draft laws and other regulations. Quite to the contrary, it is a good European practice. However, BiH is the only country included in the survey that specifically regulates this form of participation.

     

     
    Copyright © 2012 The International Center for Not-for-Profit Law (ICNL)
    ISSN: 1556-5157