"What good is the perfect scientific solution if nobody is happy with it?"
-- Gomichiy Potemkin, 1984.
That has been the dilemma facing decisionmakers in Central and Eastern Europe during the historical period following World War II up to the immediate past. No one can deny the real accomplishments of the Eastern Bloc in terms of building an infrastructure in the wake of a devastating war, providing the basic needs of millions of people, and suppressing deep-seated nationalistic conflict. Yet the strongmen who led the people through such a difficult period could not manage such accomplishments according to Marxist-Leninist theory, which envisioned an almost spontaneous manifestation of the will of the people. Instead, the leaders resorted to blackmail, intimidation and the use of force to impose the "will of the people" on the people themselves. What went wrong? They fell victim to a commonplace in science -- they rigged the experiment to produce the desired results. If communist theory were to work, the results of the radical social experiment would necessarily be challenging and discomforting to those in power -- in short, unacceptable. Thus, even as real things were being accomplished in previously unimagined ways, the system produced shams, scapegoats and humiliations with equal innovation in order for those in power to preserve the status quo. The hypocrisy was increasingly palpable to a public which began to view the decision-making process as inherently suspect, regardless of how frequently rational were the programs offered by scientific socialism. After the region's dominant neighbor experienced the watershed revelations of perestroika and the calamity of Chernobyl, the ideology was so discredited as to preclude the acceptance of any decisions; the apparatus of the state was undermined. To paraphrase, the means sabotaged the ends.
In the West, a different post-war top-down approach met with similar resistance, culminating in analogous blackmail, intimidation and the use of force by the "establishment" against citizens in the tumultuous sixties. But, whether as a result of an inherent belief in natural rights, fairness and the rule of law, frontier individualism and a "question authority" ethic, or something as basic as demographics, the West, and especially the United States, began to respond to the forces at work by changing society's rules -- through developing legal procedures and practices to enfranchise the citizenry in decisionmaking. This development is both imperfect and uneven, but it provides some laboratory of experience as a basis for further work in building institutions for reconciling conflicting societal interests.
The nations of Central and Eastern Europe, returning to their traditional geopolitical position, are stuck in the middle, walking a tightrope. Coming from traditions of civil and socialist law, forces inside and outside their societies are pushing for new institutions to help achieve the new ideals of open societies, market economies and participatory democracies. At the same time, the inexperienced new leaders in the region are learning to be careful not to let the pendulum swing too far in the direction of rapid and disruptive change. The recent parliamentary elections in Poland, Lithuania and the Russian Federation are merely the most obvious examples of the reaction to the disorder brought on by a too literal deference to the invisible hand. Outside the region, in the rest of Europe, a deep and prolonged recession has given resurgent societal power to extremists, both left and right, whose influence flows eastward. Looming above all else, global tensions are increasingly focused on the smoldering war in the former Yugoslavia, threatening to override all other considerations for the foreseeable future.
The countries in the region are as different from one another as their varied histories, cultural traditions and ethnic mixes would indicate. It is almost startling, therefore, to hear that, by and large, they all define their future in similar terms, including European Union and Council of Europe membership, Western security guarantees, free market economies, and constitutionalism and the rule of law. The paths of transformation, if indeed they will be realized as events are rapidly taking shape, are unique for each nation. Some notion of public participation, primarily to concretize basic human rights requirements, is necessarily one step along the way. As in the West, environmental protection is a driving force behind the development of public participation in the region. In the same way that the environmental and politico-cultural states of the countries differ, so do the problems facing them on their paths to adopting meaningful public participation procedures. Nonetheless, some generalizations can be made.
The first and most obvious problem is the failure to define the public. In most debates about institutionalizing public participation in a given legal regime, this problem is all too easily glossed over. It only becomes evident at the end of the conversation, after seeming agreement on nearly all points, when some key player raises the inevitable question -- "But how do we prevent foolish people from speaking?" The debate, one not unfamiliar within the West where the Anglo-American viewpoint is not in complete agreement with the civil European tradition, is between public participation as a mechanism for the exercise of individual rights, versus public participation as an aid to the functioning of government. Further at the root of the argument is whether the common sense of ordinary folk with basic human interest in a local problem should be valued equal to the rigorously trained, highly specialized product of the European university system. Europe has yet to experience the debate underway in the United States over eurocentric curricula, academic myopia, entrenchment of the status quo (or antiterrorism against radical reformists), and unfairnesses in selection of teachers and students. Consequently, the assumption that the statements of trained specialists and so-called experts are more "valid" than those of layperson is difficult to dissuade. A recurring theme throughout the region is the need to distinguish between "good" public and "bad" public. An intelligent layperson with a good point finds he or she must jump several hurdles in order to be heard, whereas a politically-connected idiot with a university degree need only whisper.
In some countries, reforms can be based upon the Anglo-American legal tradition. In Macedonia, for example, whose population is strongly divided along religious, ethnic, socioeconomic and linguistic lines, some legal experts are sure that the civil law system is not perfect for their country. They feel that their position at the crossroads of civilizations requires a more flexible, less monolithic decisionmaking process, not so definitely in the European mainstream, to reconcile the conflicting interests of society. In such a society, granting strong rights to citizens, limiting the powers of the authorities, and developing fair and open adversarial-type procedures may offer some hope of avoiding the catastrophes suffered in other former Yugoslav republics with diverse populations.
A more significant problem, however, is the lack of a participatory democratic tradition. This point may be more simply stated as the lack of a culture for the exercise of constitutional rights of expression and of association. In spite of the films made over the last half century which show seriously engaged workers using democratic initiative to overcome the imperfections of the workplace, neither citizens who are interested in environmental protection nor officials who are charged with decision-making are accustomed to a participatory, multi-interested approach to problem-solving. The recent past gave lip-service to citizen participation through committees, commissions, cadres and the like, while achieving consensus through a sort of exorcism of differing views. Where there was a single ideological solution to a problem, there was no need to build a consensus, only to "convince" dissenters. This perception persists. For citizens, the pervading realism is the futility of raising their voices, since they have no hope that they will be heard. For decisionmakers, the few citizens who do try to participate are viewed as obstacles to their work. For example, the mayor of one of the larger Romanian cities has reportedly declared that if an organization is "non-governmental," then it is "anti-governmental." In the same vein, many environmentalists view dialogue with governmental authorities as fraternizing with the enemy.
Another holdover from the recent past can only be described as self-perpetuating mass denial. Legal experts and scholars in the region now describe the mentality of the previous regimes as "utopian." During those times, to contend that there were serious flaws in the system was inconceivable, since to do so would threaten to unravel the entire fabric of society. Therefore, in spite of extraordinary evidence to the contrary, there simply were no environmental problems, at least not recognizable ones. Of course this hard line began to soften significantly during the 1980s, after perestroika and Chernobyl, and it should also be noted that some countries did honestly address environmental problems even before then. Nevertheless, the widespread refusal of the authorities to acknowledge the disastrous state of affairs had repercussions throughout society. At the extreme, citizens could risk retribution of the most terminal kind for focusing too much attention on the imperfections of the system -- the chilling effect on criticism is obvious. Yet the silencing of citizen involvement worked in infinite mundane and banal ways as well. For a lawyer considering how the laws on the books could so drastically differ from reality, one detail of the administrative law can serve as an example. Even where laws required taking into account environmental considerations in planning, the politics of denial made it virtually impossible for a citizen to participate in any approval proceeding since, without official recognition of environmental problems, he or she could not prove a legal interest. Without a legal interest, moreover, he or she could not demand and receive information, or appeal the final decision. This administrative mindset lingers on today and represents perhaps one of the most significant needs for reform.
The need for full and timely information in order for public participation to be effective highlights one of the pitfalls in the development of participatory democracy in Central and Eastern Europe today. In several countries of the region one of the major contemporary debates is over control over and access to information. Threatened by changes in the political winds, governments are clinging to power through the control of the flow of information. Recent months have seen the governments of both Hungary and Albania taking steps to silence opposing views in the face of challenges to their authority. In Albania the government has banned press reports critical of the government. In Hungary pro-government forces have orchestrated a purge of broadcast media personnel sympathetic to the opposition. To be sure, under central planning the authorities really did have a better idea than members of the public about what was going on, since they had all the information and weren't giving it out. It was naturally difficult for the average citizen, therefore, to feel that he or she had a role in helping the state to gather information and to make reasoned decisions. But as more and more pieces of the puzzle are falling out of the control of central planning and into the hands of private actors with very different interests one from another, the notion that the central authorities can manage the whole economy without help from its citizens is increasingly anachronistic. One West European observer has likened the fear authorities have of accepting participation of the public as "burning their fingers on cold water." Meanwhile, it is difficult for the public to get the information it needs in order to contribute effectively to decisionmaking processes, and thereby to begin to build a record of successes to break down barriers against the free flow of information and to build institutions of participatory democracy.
Besides the lack of a participatory democratic tradition, the public also in recent history lacks a tradition of the supremacy of law administered by a fair, professional, independent judiciary. Consequently, the public is reluctant to use legal public participation mechanisms, even when such mechanisms are provided. The tendency of the public in some new nations is to have naive expectations about their responsibilities as citizens -- they simply vote in an election and wait for miracles to happen. Furthermore, those few individuals with extensive experience in dissidence and protest are no longer outsiders, but have been co-opted into the political arena. Thus the ironic situation exists where the public that remains is less experienced in public participation than their leaders. There is a distinct shortage of individuals who are willing to become actively engaged as public watchdogs over elected officials. This pervasive misconception about the role of the individual in a participatory democracy will hopefully erode over time.
Of course learning to tolerate old viewpoints while building confidence in new institutions takes time and practice. A logical first step is to build the institutions themselves. The constitution of the Republic of Slovenia, for example, dates from 1991, the year of independence. As one Slovenian legal expert says, the short period of time since then is only long enough to adopt the legislation which is most urgent to establish a functioning independent state. Thus, matters such as foreign policy, national security, restitution and privatization, and state administration on the national level have taken priority over environmental and nature protection, correcting impacts of transition, and local decisionmaking.
On the positive side, the region has seen a huge initial burst of decentralization, putting power over local matters back in the hands of those persons most affected. Although there are many cases where old party functionaries have retained power under the new regimes, to their credit the majority of local governments established under new local government laws have been responsible advocates for the interests of local citizens. Up to now, genuine public participation has developed to the extent it has due to the impetus of change on the local level challenging earnest, hard-working young administrators, who are willing to listen to the public to help them learn their new jobs. This new generation of public administrators recognizes more than anyone else the contrast between the old process -- one less formal, which built consensus through "educating" and informing the public based upon an unquestioned party line -- and the new process -- more formal, admitting of the multiplicity of society, better able to resolve competing interests in an increasingly complex world.
Finally, inextricably linked together with all the other problems and characteristics mentioned above, are the decisionmakers themselves. They still have the image of functionaries in a paternalistic state. This gives them the opportunity to be both condescending and unaccountable towards the public. Increasing institutionalizing of reforms has resulted in a perceptible region-wide increase in the concept of the civil servant, however, and the momentum of this transformation will only be increased by the development of citizens as taxpayers rather than clients of the state. Consequently a new role of the bureaucrats -- to manage full, fair and open public participation in decisionmaking, through education, information, securing conditions -- in effect, managing the free flow of information while minimizing the injection of political content -- is slowly developing.
"We try to include the whole public in the process" -- this quote from a decisionmaker faced with the task of implementing public participation requirements in land use planning highlights the problem of hidden social agendas and social values that will creep into the process if it is left up to the authorities, rather than treating public participation as a right enforced by the courts. More than a question of basic human rights, the legal mechanism of rights and obligations reflected in modern participatory democracies is a recognition of increased diversification in society. Whatever the future holds for our current notions of political, economic and ideological distinctions (provided we can control nationalism), it's clear that nations are members of an increasingly global community, interests must be reconciled, and the old methods and values are insufficient to the task.