Module 4:
Public Participation in National Governmental Decisionmaking

Purpose

Objectives

• direct and indirect public participation in parliamentary practices, through legal initiatives, Parliamentary Commissions and Parliamentary asking;
• requesting information from the Council of Ministers and from individual Ministries;
• influencing decisionmaking processes on specific issues;
• lobbying the government;
• influencing the permitting process.

Contents: Public Participation in National Decisionmaking

Introduction

4.1 Public Participation in Parliamentary Practices Generally speaking, Bulgarian citizens -- whether affiliated with businesses or NGOs -- can take part in the Parliamentary decisionmaking processes in two ways: Direct Participation: Directly, citizens can take part via their rights as citizens. Indirect Participation: Indirectly, citizens may take part through rights belonging to other entities (i.e. groups of deputies, trade unions, state authorities, etc.). 4.1.1 Direct Participation There is, however, no possibility currently in Bulgaria for direct public participation in parliamentary practices, so this module focuses on introducing participants to a number of indirect tools for public participation in the work of the Parliament. 4.1.2 Indirect Participation Within the parameters of indirect participation, interested parties can only request entities endowed with the respective rights to act in one or another way on their behalf. Indirect public participation implies that the interested parties would utilize nonformal tools of involvement: lobbying, protest actions, petitions, etc. rather than legal methods used for direct participation.
a. Legal Initiatives Legal initiative, according to the Bulgarian Constitution, belongs to the Council of Ministers and to elected MPs. Interested parties may prepare drafts of laws (see example, right) and may try to suggest the introduction of these drafts in the Parliamentary Commissions for discussion and finally for adoption as laws by the Parliament. Interested parties can also submit written opinions on prepared drafts of laws which are already in course of discussion in the parliamentary commissions. Another very interesting possibility for action is the help that interested parties can offer to MPs in their work in Commissions, either through expert advice (see example, right) and specialist help or through some form of activist support. The business sector in Bulgaria normally influences the work of Parliamentary Commissions through specialists -- both MPs and members of business managing bodies. Smaller businesses typically create associations and try to influence the commission's work through the same channels used by environmental NGOs.	Case 4.1 An example of public participation in the preparation of the legislation is that of the work conducted by the Ecoglasnost team of experts in 1991 in the preparation of the new Environmental Protection Law in Bulgaria. An example of expert support offered to an MP is that of Professor Ivan Uzunov, a specialist in nuclear energy, to the Ecoglasnost MPs, regarding the position of the MPs in the Parliamentary Commission for Energy. Ecoglasnost struggled against the inclusion of elements of the Vienna Convention in Bulgarian legislation since it provided little protection in case of nuclear accident. What examples do you know?
b. Participation in the Work of Parliamentary Commissions The work of Parliamentary Commissions sometimes includes the resolving of problems which are not entirely "ecological," by nature, but involve more or less ecological issues. Public participation in these cases can include some specialist or public support to advise the Commission on accepting a position which may be more "ecological" in approach whether in the short or long term. c. Direct Involvement in the Work of Parliamentary Commissions This form of public participation supposes that there are not MPs that are enclined to support the cause of participation, and thus the interested parties must find their own way for collecting information and for access to the sessions of Commissions. Article 27 of the Regulation on the Activity of the National Assembly (RANA) states that the sessions of Parliamentary Commissions are to be announced at least 24 hours before the sessions. NOTE: In the lobby outside the chamber where MPs hold their Commission sessions in Sofia at Blvd. Donducov, No. 4, a list is posted of the parliamentary Commission sessions. Interested parties can ask to know the agenda of the sessions. Article 26 of the RANA states that the sessions of the Parliamentary Commissions are open. So the interested party can ask to be present at the sessions. One problem, however, is that this right comes with no legal guarantees. Interested parties have to also be allowed to enter the room where the sessions are held. The right to be present at Commissions' sessions exist and interested parties can ask to be allowed to follow the sessions. A Parliamentarian's willingness and openness too participation is one good criteria for assessing the quality of his/her work. The third suggestion concerning the direct involvment of the public in the decisionmaking processes of the Parliament would be to ask for and find the statutes of the different parliamentary groups. Any parliamentary group has it's own statute which regulates the relations between the parliamentarians and other persons and institutions. If within these statutes are included provisions about the relations with the public, these provisions can be used by the interested parties as a basis for involvement.	Case 4.2 An example of of public participation in the work of a Commission is that of the suggestion made by Ecoglasnost members for the creation of a subcommission for the Environment. Ecoglasnost members proposed the subcommission in order to address Sofia's water problems at a time when the Commission for the Environment was deliberating the Government's proposed ammendment of Article 23 D of the EPL. This article has since been adopted, stating that for some development projects there can be no EIA study. The Ecoglasnost suggestion for a subcommission was intended to guarantee that a report would be submitted, illustrating that the Sofia water problem could be resolved in the framework of the actual legislation and without the then promoted government project "Djerman-Skakavitza." The final goal of the report was to show that there was no possibility of changing the EIA law. Unfortunately, the report has not been taken into account and the amendment was accepted by a parliamentary majority. What examples do you know?
d. Parliamentary Asking Parliamentary asking is one form of indirect involvment in the decisionmaking process of the Parliament. The MPs can ask both the Council of Ministers and Ministers for responses to questions as is guaranteed under Article 90, Line 1 of the Constitution. Interested parties can approach individual MPs and request them to ask such questions of other decisionmakers and bodies. Obviously the personnal attachment of an MP in question to environmental issues should be taken into account. In order to support such allies, interested parties can lobby different MPs in order to help them with the necessary materials and the necessary motivation for asking relevent questions.	Case 4.3 An example of such Parliamentary asking in the environmental field is the question asked by the UDF MP, Edvin Sugarev, regarding the construction of the water supply system "Rila-Skakavitza." What examples do you know?

4.2 Public Participation in the Governmental Decisionmaking Process a. General Rules and Principles There are no special rules for public participation in the governmental decisionmaking process in Bulgaria, so here we can only mention some general rules and principles. Interested parties can first ask for information about what is being prepared in the Council of Ministers (CM) or in any of the Ministries. This information can be asked for on the legal basis provided by Article 8, Paragraph 3 of the EPL: "The information about the state of the environment includes: (Paragraph 3): data about the activities and the actions, undertaken in order to protect and to recover the state of the environment." Interested parties can then analyze the content of official governmental documents and prepare alternatives, suggestions or comments to these documents, declaring a position on the issue. Parties can then submit the documents to the government and an action for supporting (or challenging) the governmental action can be organized.	Case 4.4 An example of such public action for challenging a governmental decision in Bulgaria is the protest action taken against the government for it's decision to propose the amendment of the EPL to exclud some projects from the EIA procedure. Ecoglasnost, The Green Patrols, the Green Parliament and other NGOs protested the proposal and later the amendment, when the proposal was voted by the Parliament. What examples do you know?
b. Influencing Specific Issues Interested parties can also exert influence on the central government in connection with specific, concrete issues. According to Article 107 of the Constitution, the CM abolishes those acts of the Ministers which are not right or which are not legally correct. The CM is the main governing body in Bulgaria, which has the task of bringing into reality the laws and the Constitution. Therefore, when interested parties come across a ministerial action which is not in conformity with the law or with the Constitution, there is an option for asking the CM to cease the illegal activity. It is important also to mention the power of the Minister of the Environment to stop the acts of the Ministries and the Minicipalities that are contrary to the EPL as stated in Article 28, Line 2 of the EPL. At the time of this writing, however, this legislative option has never been used by the Minister of the Environment. Interested parties can collect information about illegal activities either through official procedures for collecting information, as described in Articles 8 - 14 of the EPL, or through less formal ways (i.e. documents, issued on other occasions, witnesses and others). A good example to illustrate the use of documents issued on other occasions is the following situation: if, for example, we are interested in the quantity of toxic waste imported in a certain shipment into Bulgaria, we can ask information about the declared quantities of toxic waste and the permit to import such toxic waste. This would be the official information asked through the mechanism, provided in Articles 8 - 14 of the EPL. Interested parties can also get information about the imported toxic waste through invoices, issued for payment (in which the quantity of the "goods" might be mentioned) or through the witnesses of the drivers who have transported the toxic waste; or through the witnesses of the personel who have disloaded the toxic waste; or through the customs declarations submitted by the importer of the toxic waste. In discussing these actions, it is important to say that interested parties must research and understand thoroughly the powers of different ministries (see Box 4.1). Since it is impossible to know every field of activity on which interested parties will wish to focus, we suggest that interested parties study profoundly the prerogatives of the Minister of the Environment and of the Regional Inspectorates for Environment as outlined in Articles 24 - 27 of the EPL. It will be important also to know the prerogatives of the Minister of the Health - Article 15 - 22 of the Law on Public Health (LPH). It may also be wise to consult a lawyer. The best way for proceeding would be to: inform the empowered minister (or agency) about the illegal situation and to ask for intervention by the authorities; inform the CM and to ask that the illegal ministerial act be abolished. Paying close attention to the ministerial acts and identifying the most appropriate information sources are the two best ways to monitor and exert control over the administration's activity. Due to the difference in timing of passing the EPL and LPH law, and the lack of practice, there is also some confusion about the division of powers between the different ministries. Thus it is unclear whether the MoE can have more power than the Forest Committee in the protection of biodiversity in the forests.	Case 4.5 A good example of how the CM can be provoked to act is the case of the Green Patrols' discovery of illegal timbering activities in the Rhodopes region. The Green Patrols obtained a copy of the local plan for timbering, which has the force of a law about the timbering. With the help of witnesses, the Patrols were able to prove the existance of illegal timbering. They also obtained documents, signed by the director of the local timbering agency, which explicitely prescribe the illegal timbering. The CM was informed about the activity and issued an order to stop it. Another example, again from the practice of the Green Patrols, was the action to stop illegal waste disposal in the region of Etropole, in Northern Bulgaria. The protest action was backed by a journalist, who prepared and aired a short piece on TV about the illegal waste disposal. After the airring, the CM intervened and the illegal waste disposal was closed. What examples do you know? Box 4.1 Primary ministries with some authorities in environmental decisionmaking: - Ministry of Environment (MoE) - Ministry of Health (MoH) - Ministry of Agriculture (MoA) - Ministry of Industry (MoI)
c. Lobbying the Government Interested parties may also directly and actively lobby the government to advocate certain issues or processes that are not explicitly provided as prerogatives of the government but that may have profound "ecological" effects. The lobbying itself can be done in a variety of ways. Lobbying can also be done through nonformal approaches, many of which are within the reach of most all citizens. Lobbying can be indirect and utilize very creative methods to reach the broader public and decisionmakers. Lobbying can be made through cultural or sporting events, for example, using celebrety football players or performers to catch the attention and send a message to the public and to policymakers about environmentally friendly positions. Interested parties should utilize whatever connections they have, whether direct or indirect, to reach key policymakers, including relatives, friends, colleauges or acquantences. Module 9 addresses additional methods for challenging decisions and decisionmaking processes of public and private institutions.	Case 4.6 An example of "lobbying" to influence governmental decisionmaking in Bulgaria would be the success of a group of scientists which asked and succeeded to have a meeting with President Jelev. During the meeting, the scientists presented their position against the construction of the nuclear power station near Belene. What examples do you know?

4.3 Governmental Permitting Process* * The procedure for issuing the EIA act is discussed separately in Module 7. In the environmental field, there is only one Act other than EIA legislation to which we can say interested parties can appeal -- the Land Use Plan (LUP). Generally speaking, the LUP contains provisions about what facilities/houses, blocks of flats, or industrial facilities will be constructed in a given area and in what volume (for example: blocks of flats, maximum 15 meters high). The LUP generally defines the proportions of how much industry, residential (houses and blocks of flats) and green areas there should be in a given part of the city. The peculiarity of this plan is that once it is adopted, it becomes the "local rule" for the use of land; and this local rule is applied parallel with the centrally adopted laws and regulations. For the procedure of the preparation and the enactment of the LUP, there is an explicitly stated possibility for appeal. The LUP can be appealed if it does not conform with the legal provisions of other laws. A procedural question remains, however, for using the LUP as a tool for increased public participation, due to the fact that there have not as yet been any cases within Bulgaria utilizing this method. It therefore remains uncertain whether the LUP can be appealed by an NGO. 4.3.1 Participation in LUP Discussions It is possible to suggest to interested parties the idea of taking part in public discussions about the LUP, if such discussions are held. Such discussions are provided by the Construction Law (CL). Previous experience illustrates that authorities prefer to avoid holding these public discussions, due most probably to the fact that there is no practice of sanctioning for not holding these discussions. Holding public discussions is not a requirement of the LUP procedure, so omitting such open dialogue is not considered legal ground for delaying the whole LUP. In the other matters regarding permits, there is no available information about attempts of NGO or citizens to take part in the permitting process and to appeal permits. We therefore cannot make any guarantees to interested parties that taking part in the permitting process will be successful. Interested parties should therefore measure the risks of such a method against potential benefits from other approaches. The expense of money and energy to take part in the permitting process with no real guarantees for success may not be the most worthwhile approach. Generally, the priority of the business sector is focused on obtaining the permit. Therefore, unless there is a special, particular interest on the part of business to involve the public involved in the permitting process (i.e. in order to get additional information), businesses are not likely to be supportive of involving the public in the permitting process since they are under no real obligation to do so. Interested parties must decide for themselves whether the likelihood of success is enough to invest the necessary time and energy in the process to challenge this position. One suggestion would be to try to focus on a single field of environmental protection (for example the water use permits) and encourage interested parties (both businesses and NGOs) to seek information about the permitting process. This matter is regulated by Articles 8, 9 and 10 of the Water Use Law. Public Participation is not explicitly provided in the law, but interested parties can use the constitutional rule that all administrative decisions are appealable, unless the opposite is stated by the law. As nothing is stated in the Water Use Law, the legally correct conclusion would be that water use permits are appealable. Interested parties can try to obtain information about the water use permits and the conditions under which authorities issued the different permits. For doing this, interested parties must know which authorities issue which types of permits (see Box 4.2, right).

Box 4.2 Who Issues Permits? - Permits for drinking water and hot mineral water? The local administration and the MoH. - Permits for drinking mineral water? The MoH. - Permits for deep ground water? The MoI. - Permits for all other types of water? The National Water Council.

4.3.2 Cancellation of Permits Another possibility for interested parties is to try to obtain a cancellation of a water use permit in case the conditions of the permit are not regarded. Article 9 of the Water Use Law (WUL) provides that the permit is cancelled if the person to which it is given does not comply with the conditions under which it was issued. Interested parties must have some proof (i.e. documentation or witnesses) about the violation of the permit. With such proof, interested parties can: ask the authority to cancel the permit and, according to the Law on the Administrative Procedure; ask the court to issue the abolishing administrative act, if the administration does not issue the act itself. In other environmental fields, the procedure has less legal guarantees for public participation than those procedures for merely asking for information.