In the meantime, the country is using a temporary constitutional framework consisting of an initial law, On the Main Constitutional Dispositions, (Law no. 7491, 1991), and various subsequent modifications and additions, including notably a 1993 law (Law no. 7692), which added to the original law a chapter entitled, Fundamental Freedoms and Human Rights. This temporary framework constitutionally guarantees several basic rights for public participation.
The human rights chapter establishes several individual rights for public participation:
Art.2 guarantees freedom of expression in speech and mass media. In practice, however, a persistent climate of fear of retribution, as can still be found in some of the countries in the region, prevents the free exercise of this basic right.
Art. 2 also guarantees freedom of information, but this right is not elaborated upon in constitutional law, and there is no generally applicable law concerning provision of information. In practice, as discussed below, mechanisms for providing information are so underdeveloped as to render this right almost meaningless.
The human rights chapter also guarantees the basic rights of freedom of association (Art.20) and the right of both individuals and groups to petition the government (Art.37). While NGOs and citizens do sometimes write to or meet with governmental officials concerning environmental problems, as discussed below, there is still considerable fear of reprisal even for as mild a protest against the government as a letter to a Member of Parliament.
Art.21 of this chapter guarantees another basic freedom, the right to assembly, but in practice this right is sometimes impossible to exercise. In at least one instance, Tirana local police claimed to be too busy to patrol an area and refused to grant a major national NGO permission to hold a public protest against the city's litter problem.
In addition to the above general rights granted in the human rights chapter, the temporary constitutional framework also establishes a general governmental duty to ensure environmental and health protection (Art.36 of the 1991 law). A healthy environment is not mentioned as a specific right belonging to the people, however.
The law uses the term "referendum" in a vague and apparently contradictory manner, referring at one point to the parliament's power to make decisions on the referenda of the people (Art.16) and at another granting the president the power to propose referenda for the parliament to consider (Art.28). In any case, the popular right of referendum, as it is commonly known, does not appear to exist.
The legal framework establishes virtually no formal opportunities for public participation in governmental and parliamentary decisionmaking. The 1991 Constitutional Law does designate parliamentary sessions as open, though the parliament may close meetings in undefined special circumstances (Art.19). In practice, the public must obtain some kind of invitation or pass from parliamentary staff to attend a parliamentary session, but the necessary permission is apparently readily granted. It is unclear, though, how much the public actually exercises this right, and citizens are not allowed access to members of parliament during the sessions, so opportunities for participation are limited to observation of debate.
The 1991 law also requires parliamentary commissions to consider the draft laws the president proposes, but does not mention opportunities for public participation in commission proceedings or even specify procedures for commissions to consider legislation (Art.20). In practice, parliamentary commission meetings are not publicly noticed and are closed to the public.
The constitutional laws do not provide any specific rights for formal public participation in national governmental decisionmaking, either. In practice, though there is some significant public participation in governmental decisionmaking at both national and local levels and, to a lesser extent, in parliamentary decisionmaking as well, but virtually all real public participation occurs through non-formal means and is discussed in Part II.
At the local government level, constitutional laws do not guarantee any formal opportunities for public participation beyond the right to vote for local officials. Art.33, Chapter V, of the amended 1991 constitutional law asserts the independent and decentralized nature of local governments, but in practice local governments do not appear to make any environmental decisions, except for licensing decisions, and even then their authority versus that of the national government is somewhat vague.
A 1992 supplement to the original 1991 constitutional law defines the role of the Constitutional Court as the final and independent arbiter of constitutional questions (Law no.7561; April, 1992), and Art.39 of the 1993 human rights chapter guarantees judicial enforcement of constitutional rights. Art. 25 of the constitutional law, as added to by the 1992 supplement, permits individuals who feel their constitutional rights have been infringed to address the constitutional court. According to one high-level government official, NGOs may also address the court on behalf of individuals, though the law does not appear to make specific provisions for such representation. In practice, in any case, there is considerable reluctance to address the constitutional court in cases of governmental infringement of constitutional rights, because the court is considered simply a puppet of the president. No environmental cases have yet been brought before the constitutional court.
Obtaining standing in the court system does not appear to be a significant obstacle for either individuals or NGOs seeking to represent individuals, but since there have been no environmental cases in any courts and since procedures for civil and administrative cases have yet to be defined, it is difficult to determine whether standing will present a problem in future cases involving environmental issues.
As with the Constitutional Court, the independence of the regular courts is in serious question.
A working group of governmental and parliamentary officials is currently drafting a generally applicable administrative code. While this code is still in preliminary form and is unlikely to be approved for some time because adoption of a new civil procedure code is of higher priority, a preliminary outline has been established. The current plan is not to establish a separate administrative court system, but rather to create special sections within the district and appellate courts to consider administrative cases.
In practice, procedures for providing information are highly undeveloped, and there is no enforcement of the right of information. Even the most basic legal information about the legal system is extraordinarily difficult to obtain. Many officials, including judges, simply do not have or know the current laws, especially in outlying areas. Even in the capital, it is extremely difficult to determine exactly what legal provisions apply in a given situation because even official publications of laws are frequently incomplete. Finally, the actual laws tend to be extremely confusing, even to lawyers.
It is difficult to determine whether the lack of procedures for disseminating information and the incompleteness of provided information are due to negligence and habit or to a more willful intent to conceal information from, and confuse, the public in order to preserve the ability to interpret laws and exercise authority arbitrarily. All of these factors, though, probably operate to some extent in varying situations.
The 1993 Law on Environmental Protection (Law no.7664) contains some provisions on access to environmental information, but these provisions are also rather general and are not very effective in practice. In addition to certain provisions regarding information about environmental impact assessments (discussed below), this framework environmental law requires governmental reporting of environmental conditions.
Art.32-35 require the Ministry of Health and Environmental Protection's Committee of Environmental Protection (CEP), formerly known as the Committee of Environmental Protection and Preservation (CEPP), as well as ministries and regional and local governments, to collect and make public data concerning changes in environmental conditions, likely effects of potentially harmful activities, and environmental protection measures being undertaken. The information is supposed to include advice to citizens about measures individuals can take to protect their health. Persons whose activities affect the environment are supposed to report, and the relevant governmental bodies are supposed to collect, this information in accordance with procedures set by the Minister of Health and Environmental Protection, but the responsibilities of the various levels of government are not clearly defined in the law. The methods of disseminating collected information are not clearly defined, either; the authorities are directed only to publicize such information in an accessible form such as mass media (Art.34).
The ministry does not appear to have established any more specific rules about either collection or dissemination of information, and in practice, it appears that CEP is the only agency that does provide environmental information to the public. Its formal information dissemination is limited to a required annual report on environmental conditions. The requirement for an annual report, to be approved by the parliament and then published, is the most explicit information responsibility set forth in the environmental protection law (Art.38). In practice, even the annual reports are not published in a timely fashion. The Ministry for Health and Environmental Protection must first submit the reports to the ministerial council for approval before the document can be approved by parliament for official publication. Only the first of these reports, covering environmental conditions in 1993, has been published, and the 1994 report is still awaiting approval of the prime minister.
In addition to the governmental publication of information, the 1993 Environmental Law nominally requires people selling potentially harmful products and services to inform customers about potential adverse environmental and health effects, but since this information can be provided orally instead of in written form, this provision would be virtually impossible to enforce in practice, and there do not appear to be any attempts to do so (Art.36).
Another law containing some public information requirements is the new law regulating the electric power industry (Law no. 7970). This law establishes an independent consortium (EAC) to issue licenses for the production, transmission, and distribution of energy and requires this organization to maintain publicly accessible files about the permitted activities. It is too early to judge whether these information requirements will be implemented effectively, however, since the law was just passed in July of 1995.
Art.29, for example, directs the MoE (CEP) to regulate pollution at the request of either affected or potentially affected individuals or environmental organizations. This broad right of public participation in environmental regulation lacks any effectiveness in practice, though, because CEP currently lacks resources to regulate pollution at all and focuses its activities on studies, public education, and profit-making licensing activities. The central government clearly views environmental regulation as a far lesser priority than promoting industry, and prospects for regulation in the near future appear very slim.
Finally, the 1993 law provides one other general opportunity for public participation in environmental issues. Art. 40 requires CEP to conduct activities to promote public environmental education and participation, but this requirement is not elaborated upon in a formal way, except by a direction to the agency to maintain and publicize a current collection of scientific environmental publications. CEP does maintain a library for the use of NGOs or citizens in accordance with this provision, and it also conducts or supports a significant amount of environmental education. Because the law itself is so vague about what environmental education activities are required, though, CEP's activities in this area can be considered non-formal mechanisms (the agency certainly views them as such, rather than as legal requirements).
The law does not provide the public any opportunity to influence decisions about whether to require an EIA for a particular activity, other than through non-formal pressure on local or national government, but the law does technically guarantee some degree of public participation once the decision to require an EIA has been reached. Art.12 gives concerned persons a general right to participate in EIA decisions, and the provision, together with Art.42 in a later chapter of the 1993 environmental law, requires local and regional governments to notify such persons about an upcoming EIA through mass media or other suitable methods at least one month before the EIA begins. Finally, because approved projects are subject to new EIA's at least once every five years, the law provides some opportunity for continuing public participation even after initial approval for a project has been granted (Art.10).
In practice, though, implementation of the law is so lax that there are no standards for EIA proceedings at all, much less formal opportunities for public participation in those proceedings. CEP has prepared draft EIA regulations which reportedly do include specific provisions for public participation, in both the scoping phase and the final EIA assessment, but these regulations have not been approved by the ministerial council, and in the meantime there are no clearly defined procedures for determining which activities must be subjected to EIAs or how EIAs are to be conducted. While CEP does appear to conduct EIAs for large-scale construction projects and for major economic activities, such as large factory operations, it is not clear that these assessments are done according to any standard procedures. Local governments also conduct EIAs, but again, since there are no formal regulations, their assessments are applied less regularly and seem to be considerably less formal and standardized than traditional EIAs.
The new penal code adopted in January, 1995, classifies a number of environmentally harmful activities as criminally punishable and provides punishments, which vary but include substantial fines and up to 15 years imprisonment (Art. 201-207). Many of the definitions of criminal acts against the environment appear too vague to be useful in the current legal framework, however. Air pollution, for example, is classified as criminal when it exceeds permissible levels and when it is not an administrative violation. Since regulations governing pollution are essentially non-existent and since there is no administrative law system, determining what kinds of air pollution activities are criminal appears impossible in practice.
The law does classify some activities as clearly criminal, however, including importation of toxic waste into Albania and use of explosives or poisons in fishing. As in the administrative and civil arenas, though, there are significant practical obstacles to judicial remedy for even the clearest environmental crimes. Many judges do not yet even have a copy of the new criminal procedure code, which was adopted in August, 1995, so procedures for conducting criminal cases remain unknown in practice. There have not been any criminal environmental court cases to date.
Secondary, but also very important needs, include a systematic and mandatory process for incorporating public input into decisionmaking at the governmental and parliamentary levels. At lower levels of environmental decisionmaking, such as environmental impact assessments, the 1993 environmental law has set forth a promising framework, but again, the lack of procedures renders this tool for public participation still ineffective.
Reluctance to challenge the government in court is certainly justified given the practical obstacles to addressing the court system. Nevertheless, it is clear, it will take increased public willingness to challenge the government through the court system as well as governmental action to respect and improve that system, in order to make the legal framework a more effective tool for public participation in environmental protection.
The overall number of environmental NGOs has increased from about five in Tirana in 1993, to approximately 10 in Tirana and 20 in the country as a whole in the fall of 1995, and the number of groups continues to increase at a rapid rate. Current growth is almost exclusively in towns outside the capital. In addition, approximately a dozen scientific organizations, such as the geologists' association, work on certain environmental issues from a specialist perspective. Grassroots organization among all the NGOs is still apparently rather weak. The Albanian Ecological Club, which formed independently of the university community and is a somewhat more grassroots organization, has established local branches but is apparently less active than the other national NGOs.
Cooperation with environmental NGOs in neighboring countries is just beginning. In each of the past two years, representatives of Albanian NGOs have exchanged visits with Greek and Macedonian NGOs, and the NGO community expects to increase the extent of such international cooperation. In addition, Albanian NGOs are currently collaborating with a group of German and Czech NGOs in drafting a law on nature conservation.
In general, though, the NGO community enjoys good relations with the MoE(CEP) compared to relations with other national governmental agencies. Illustrative of the nature of the relationship is the fact that CEP frequently provides invaluable assistance to NGO representatives in obtaining necessary visas when they are invited to attend international conferences. CEP's trend appears to be towards strengthening relations with NGOs through various means of non-formal cooperation and through some financial support, as discussed below.
Current relations between government and NGOs on the one hand, and the general public, on the other hand, do not appear to be particularly strong, but this situation may improve as both NGOs and the environmental ministry have initiated efforts to increase outreach to the public through various educational programs and as local NGOs have begun to form separate from the university-dominated national organizations. Local government relations with the public appear somewhat stronger than those of the national government, and there is some significant public participation initiated by citizens to enforce environmental protection at the local level, as discussed below.
Ad hoc opportunities initiated by government are somewhat more extensive. The MoE (CEP), in particular, occasionally has informal meetings with NGO representatives to discuss drafts of legislation or decisions. More frequently, the ministry requests the largest and most active environmental NGOs to submit written comments on drafts, and in fact, this practice, though not required by law, is now becoming standard.
During the development of the 1993 framework Environmental Protection Law, for example, CEP requested comment from PPNEA, which was the most significant environmental group organized at the time. CEP incorporated some of PPNEA's suggestions into the draft before submitting it to the ministerial council. Interestingly, though, CEP does not generally ask for comments on legislation it initiates until a first draft is complete. The ministry also has consulted NGOs and incorporated their comments into the 1993 and (not yet final) 1994 annual environmental reports and a draft national environmental action plan.
Finally, CEP generally invites NGOs to participate in special seminars it organizes for experts (not the general public) on particular environmental issues, and the NGOs reciprocate in inviting CEP representatives to their own similar seminars. In 1994, for example, CEP worked with environmental groups to organize a seminar on wetlands conservation in the Karavasta region, and in 1995 NGOs and CEP conducted a joint seminar, entitled "Towards a National Strategy for Nature Conservation and Biodiversity," held in the CEP offices.
Outside the MoE, ad hoc fora initiated by government or parliament appear to be extremely rare. Above the level of CEP, the government has not initiated any opportunities for public participation in environmental protection. The ministerial council, which considers individual ministries' draft legislation before submitting it to parliament, does not hold open meetings. Council rules now permit the prime minister to invite NGO representatives to council meetings in special situations, but he has not yet done so for any environmental discussions.
At parliamentary level, individual MPs do not appear to seek input from their constituents or NGOs. Parliamentary commissions have occasionally invited comment from NGOs on issues such as urban waste and forest preservation, but their reliance on NGOs is much less extensive than CEP's. When representatives of NGOs are consulted at the parliamentary level, it is in their capacity as technical experts rather than as representatives of the public interest.
Local governments sometimes do request comment from NGOs during their EIAs for licensing construction projects, but, as noted earlier, EIAs are not performed for all projects, and consultation with NGOs on actual proceedings occurs only when the local government chooses to seek it. Local governments do not typically initiate any other form of public participation in decisionmaking.
Most recently, in 1995, a small group of environmental journalists organized a "Media and Environment" NGO. With funding supplied by REC, the group plans to prepare a series of 30-40 second public service environmental education announcements focusing on subjects such as combating litter.
In the printed media, one notable effort is the country's first environmental periodical, a magazine entitled, We and the Environment. PPNEA began to publish the magazine in 1994 with financial support from a PHARE grant. The magazine, which is now funded at least partially by CEP, addresses various environmental problems in Albania, promotes appreciation of the country's natural beauty, and provides information about environmental groups. Other NGOs may submit contributions to the publication, which is distributed to schools and is also available in stores.
In addition to its efforts to increase awareness through the mass media, the NGO community is undertaking a variety of other environmental education projects, often with financial or other support from CEP. In 1994, for example, an NGO called PERLA held a public seminar in Karavasta to educate local residents about the need to protect the area's vital wetlands. In another project, the Albanian Ecological Club prepared general environmental education leaflets for public distribution in 1994. In both of these cases, CEP provided financial support in the form of direct grants.
In 1995, PERLA and CEP collaborated on a more targeted environmental education effort. At PERLA's suggestion, the NGO and the ministry developed a joint PERLA-CEP environmental education newsletter, Environmental Window, for distribution in the country's middle schools. In addition to writing and producing the newsletter with PERLA, CEP contributed funding for this project as well.
At the level of raising issues to authorities and pressuring them to take action, NGOs and informal groups of citizens have some success at both local and national levels, usually through non-formal means as letters and protests and occasionally through non-formal meetings.
At the local government level, the public is sometimes able to pressure authorities into enforcing environmental requirements such as licensing for construction projects or business activities. Citizens representing residents of particular apartment buildings, for example, frequently write to or meet with the head of the Tirana municipal environmental office to complain about unlicensed businesses such as bakeries creating excessive noise or air pollution in the neighborhood. Officials from the environmental office typically go to the site to meet with citizens after receiving a complaint and then ask the business owner to submit documents for an EIA to determine whether or not the business should receive a license and on what conditions. This input at local government level appears to be limited to the pressure for initial action, though, as the environmental office does not appear to consult the citizens in the actual EIA procedure for smaller economic activities.
In another case, citizens' written complaints to the Tirana mayor, the prime minister, and the health and environmental minister about a landfill located near a residential area have resulted in the government creating a task force of local and national officials working to find a suitable site for a replacement landfill, but again, it is unclear whether public participation will extend beyond the initial pressure for action.
At the central governmental level, public participation often extends beyond the pressure for action to some degree of influence over the government's decision. In 1994, for example, the new environmental NGO forum wrote a joint letter to the prime minister, agricultural minister, and president, as the government was preparing the new forestry law. In addition to raising the issue of the seriousness of deforestation and pressuring the government to pass the law more quickly, in this instance the NGO effort was actually successful in convincing the government to alter the substantive thrust of the legislation from a clear emphasis on natural resource exploitation towards greater protection for the forests through increased cutting fees and other provisions.
In addition to providing requested or unsolicited comments on the government's proposed environmental legislation, NGOs sometimes actually initiate legislation informally by drafting a bill on their own and then giving it to CEP to review and submit to the parliament if it approves the idea. This high level of participation appears to be effective in some cases. One NGO, for example, drafted legislation addressing protection of the country's caves and then submitted it to CEP. The government accepted the proposal and submitted it to the parliament, which passed it into law. In another case, as mentioned earlier, an Albanian NGO is working with Czech and German NGOs to develop draft legislation on conservation of national parks and preservation of biodiversity, and the CEP is expected to consider the proposal once it is completed.
These contributions of legislative proposals are probably the highest level of participation in decisionmaking that the public reaches. Final decisions about whether to accept these proposals or any other contributions of NGOs remain entirely the government's prerogative. Methods such as consultations and public hearings are not used in practice and there do not appear to be any mechanisms for joint decisionmaking or transfer of power to decide.
CEP also makes considerable in-kind financial contributions to NGO activity. CEP provides rooms for joint seminars and other meetings, for example, and in a country where office equipment is still quite scarce, the ministry offers NGOs critical support in the form of free use of its telephones, facsimile machines, printers, and copy equipment.
The business community is not yet a significant source of support for environmental NGOs. The entire concept of "green businesses" has not generally been developed. In 1994, an Albanian-Italian newspaper joined the SOROS Foundation in sponsoring a beach cleanup organized by a youth environmental organization, but this appears to be the only example of business support for environmental activities to date.
The main failure of the non-formal public participation system is an obvious one. Because the opportunities it offers to influence decisionmaking are by definition not ones guaranteed by law, it is difficult for the system to function effectively in instances when the government resists public opinion. In one case, for example, two NGOs submitted written comments protesting the construction of a new hotel in Tirana near a large park and the procedures followed in granting the construction permit, and the government simply ignored them.
The most fundamental practical obstacle to legal forms of participation, then, is the inability of the court system to provide ultimate enforcement of the legal framework for such participation when that governmental goodwill is lacking at any level. There are enormous practical obstacles to accessing the courts, such as the lack of an administrative court system and a new civil procedure code. A more basic but more difficult obstacle to overcome politically is the lack of true independence of the judiciary.
Though opportunities for public participation through the non-formal framework are much greater than those currently available through the legal framework, there are significant problems with the non-formal framework, too. Although protests and other self-initiated forms of non-formal participation allow NGOs and citizens a certain amount of power to influence reluctant or hostile authorities, the public has not yet developed aggressive enough methods to influence decisionmaking in the face of strong resistance. Like the legal framework for public participation, the non-formal framework is still too reliant on the goodwill of authorities to be effective in such cases.
While creating the practical means for taking cases to court and ensuring judicial independence are clearly preconditions for an effectively functioning court system, though, perhaps even more difficult will be building public confidence in that institution as a viable means of enforcing constitutional and other laws, especially as an independent means of redress against abuse of those laws by the government.
One possible avenue for encouraging the development of a tradition of using the legal system to promote public participation in environmental protection is close collaboration between NGOs and the new generation of young law professionals, the first generation to begin their careers under the new system of government, who themselves are eager to develop the court system. Environmental NGOs have already reached an agreement with the student law association, ELSA, to work together on legal issues. If this cooperation leads to citizens and NGOs using the judicial branch to challenge the government to uphold constitutional rights and environmental laws, it will be a significant step not only towards effective public participation in environmental protection specifically, but also towards building a new and critical democratic tradition.
Within the non-formal framework, too, the most pressing need is to develop practices to ensure that authorities take public opinion into consideration in decisionmaking consistently, not just when they want to. The most important vehicle for developing and carrying out such practices may be active and skilled grassroots organizations, which are currently missing in the NGO community. If a concentrated effort is made to build these institutions, the environmental movement will have a much broader base with which to organize the kinds of persistent and assertive protests necessary to ensure its voice is both heard and heeded.