Art.16 establishes the free right of expression without censorship and additionally guarantees the right to information. The Law on the Government of former Yugoslav Republic of Macedonia (sluz. vesnik 38/90, 27/91) reiterates that the work of the government is public but allows broad exceptions for protection of state, military, official, business and other secrets. In practice, freedom of speech and information have been seriously compromised by recent governmental actions. The national government has forbidden broadcasts from all the private radio and television channels in the country, citing the need to wait for passage of a new law on broadcasting before granting licenses to private stations. The public has been surprised and confused by this decision, which was unaccompanied by legal explanation and is currently being challenged in the Constitutional Court.
In addition to establishing the right to information, Art.16 also provides for the formation of institutions to provide information to the public, but the operative laws governing such institutions, including the old broadcasting law, have not yet been updated to conform to the new Constitution and allow public participation in licensing decisions. A new broadcasting law has been drafted but has not yet been voted on by the parliament.
Art.21 guarantees another critical public participation right, the right of assembly.
Art.20 guarantees freedom of association for political, economic, social, cultural, and other purposes. In practice, the old Law on Social Organizations and Associations of Citizens (sl.vesnik 13/90), which sets guidelines for the establishment and operation of NGOs, is still in effect and governs the formation of all new NGOs. Art.2 of this statute specifies that citizens may freely and voluntarily form social organizations and associations of citizens in order to pursue political, cultural, scientific, educational, humanitarian and other interests. Art.10 of this law requires NGOs to make provisions for informing the public about their activities. The government is currently preparing a new law on NGOs which will harmonize requirements for organizations with provisions of the current Constitution and other legislation.
The Constitution also guarantees not only the right to petition authorities without penalty but also the right of reply from such authorities. Conditions for replies, such as the form and deadline for responding to a petition, are not elaborated upon, however.
Art.8 of the Constitution defines one of the goals of the state as development planning that fosters a livable human environment as well as an ecologically sound one. Art.43 specifically establishes a public right to a healthy environment and also establishes a general obligation for citizens to protect the environment. Finally, Art.56 guarantees protection for the country's natural resources, including its biological diversity.
To date, there have not been any attempts to base legal environmental action on the constitutional right to a healthy environment. Given the fact that environmental legislation is dispersed in over 100 rules and regulations, though, the basic constitutional right may hold promise for serving as a concise basis for future court cases.
Art.73 establishes the right of referendum at national level. Parliament is required to call a national referendum at the request of 150,000 voters. Again, the right of referendum does not yet exist at the local level but is expected to be approved this year.
This right also includes the opportunity to request modifications of existing rules as well as the opportunity to petition for new ones. If the petition for rulemaking is denied it is not required for the authorities to give the public written explanation of its reasons for doing so. Against the decision for denying the petition for rulemaking, it is not allowed to seek for court review.
Beyond the rights of initiative and referendum, though, there are few rights for public participation in the legislative process. At the governmental level, there are no legal requirements for ministries to take public comments on draft laws into account.
At the governmental level, Art.70 of the Constitution provides for open parliamentary sessions (unless 2/3 of the deputies vote to close a meeting), but there are no provisions for public participation in meetings of parliamentary committees. The parliamentary working regulations in effect during 1994 called for representatives of the public (usually NGOs and experts) to serve on parliamentary committees with Members of Parliament, but these rules have been changed in 1995 and committees are now made up solely of parliamentary deputies.
There are no constitutional or legal provisions for public participation in the rulemaking process through publication of proposed rules, official comment periods or even official notice that a rulemaking procedure is in progress. In practice, the government sometimes provides opportunity for NGOs to comment on proposed rules, but this participation is not required by law and is discussed in Part II. Citizens may, of course, initiate petitions appealing for changes in rules or for adoption of new rules, but there is no legal obligation for authorities to justify refusing such requests.
Because many old laws and regulations have not yet been modified to conform with the new Constitution, many decisions made by both national and local governmental authorities under the existing laws are open to constitutional challenge. In practice, citizens frequently petition the court to challenge the constitutionality of both governmental decisions and court decrees made under the old laws, particularly decisions involving basic rights and land use regulation and planning. As a result, the Constitutional Court is considerably overburdened and is likely to remain so until the slow process of revising the old laws and regulations is complete.
The Constitution establishes the institution of a parliamentary elected Ombudsman to defend citizens' constitutional and legal rights against governmental abuse. In practice, though, the parliament has yet to elect this official, so the institution currently exists only on paper. There is an institution with the title of "Public Ombudsman," but this institution is a holdover from the communist era and bears no resemblance to the ombudsman institution used in other parliamentary systems and envisioned in the new Macedonian Constitution. The new Constitution does not provide for a parliamentary commissioner.
Civil procedure restricts the right to go to court in civil cases to individuals who can provide evidence of direct damage, and there are similar requirements for those seeking to bring an administrative case. In practice, it can be difficult for NGOs to initiate proceedings because of these requirements, so they more often use non-formal methods of participation. The most frequent tool NGOs use to try to initiate legal action is submission of a "denunciation," but authorities are not obliged to initiate administrative or court proceedings on the basis of a denunciation, and citizens cannot appeal a decision to ignore a denunciation.
The situation of the courts is expected to improve now that a new Law on Courts has replaced the old Law on Courts ( sl.vesnik 17/79). The new Law on Courts, or Court Constitution, as it is called, establishes the legal independence and impartiality of the judiciary. The law provides for a standard organization of regular and appellate courts and a supreme court. The Constitution establishes the Constitutional Court as a separate institution.
Administrative cases are considered first by public administrative authorities rather than by the courts. Citizens have the right to file comments through their local governments if they are dissatisfied with the actions of a particular administrative authority, and Art.39 of the Law on Administrative Bodies (sl.vesnik 40/90) requires the relevant authority to reply to these comments within 30 days. This provision does not make sense because there is no possibility to apply for review against the decision of submitted remarks.
Citizens or NGOs acting on behalf of citizens can invoke an official administrative procedure to appeal a particular decision by filing a written request with the relevant administrative authority, which must issue a decision within 15 days. The filing parties have the right to appeal the decision to the relevant governmental commission and then to the Supreme Court, but administrative decisions are not stayed during Supreme Court consideration of a case.
According to the civil procedure law, civil cases must be initiated by a person filing a specific complaint accompanied by evidence of legal violations. Citizens can sue for financial compensation for damages in civil cases. There are no specific legal provisions for claiming environmental damages.
Art.206 of the civil procedure law gives persons with a legal interest in a civil case the opportunity to apply to be a joint party to the case up until the court's decision is made. Each party in the case may object to the addition, though, and the court makes a final decision as to whether to accord a third party joint status.
Criminal court proceedings are generally open, in accordance with Art.287 of the criminal procedure law, unless the court closes the session for special purposes such as protecting children (sl.vesnik 14/77).
The administrative code allows organizations representing the public to participate in administrative cases, and obtaining standing in both administrative and civil cases does not appear to be a significant obstacle to public participation through the court system in principle. In practice, though, the requirements for proving direct damages may prevent NGOs from being able to initiate legal proceedings.
Administrative authorities are legally required to inform the public about their actions, but as mentioned earlier, there are no specific provisions governing notification or comment periods, and administrative authorities are not obliged to take public participation into account in formulating regulations.
Art.8 of the Law on the Government of former Yugoslav Republic of Macedonia (sluz.vesnik 38/90, 27/91 ) establishes a governmental minister of information, called Portparol, who is required to inform the public about the work of the government. The government provides weekly information about its activities through the media. The information provided from these sources usually covers only meetings of the central government, however, so there is no public dissemination of information regarding the work of individual ministries.
Art.83 of the constitutional court procedures does provide somewhat more specific requirements for public information to be provided by the court. The court publishes a bulletin and a permanent collection of decisions as resources for the public. The public is also to be kept informed through the media and by the presence of NGOs, individuals, and media during Constitutional Court proceedings.
The law governing protection of personal information provides strict procedures for those who ask information from private individuals. According to this law, no person can be required to divulge personal or trade secret information except as part of a court proceeding. Individuals are supposed to be able to obtain access to private information regarding pollution, for example, but they must sign written statements promising not to publish this information. It is not clear how these provisions work in practice.
In general, all of these proposed environmental laws lack significant provisions for public participation, such as EIA requirements, procedures for incorporating public input in laws and regulations, more specific provision of public information, and inclusion of NGOs in environmental inspections.
Discussion of a proposed project occurs on two levels during the EIA process. First, governmental authorities and NGOs organize a debate on the project. Individual citizens and groups who are not formally organized are not allowed to participate in this debate. The second level of discussion, though, is a debate among affected citizens, usually organized by a local environmental official. There is no specified timeframe for completion of these debates.
The relevant governmental authority, which is not the MoE, considers the results of both of these discussions, which are submitted as reports by the discussion organizers, and any comments of the environmental ministry in making its final decision. Final decisions must be published in the government's official journal.
Individuals or NGOs representing one of their members (with the member's permission) may be parties to the administrative procedure in the permitting process. Permit decisions must be made within 30 days (60 days if another agency must be consulted), and citizens may appeal a decision or appeal for action if a decision is not made within the specified timeframe. There are no provisions for including participation in permitting proceedings by citizens other than the parties filing for the permit.
Environmental permits are also issued for water and timber use, but there are no provisions for public participation in these proceedings. Most environmental permits are issued by local governments, though, whose authority is still unclear pending passage of a new law on local governments. Possibilities for increased public participation in permitting and other local governmental activities may develop when the new law is adopted and as local governments become more independent.
There are few provisions for formal public participation in other Macedonian laws. Article 14 of the law governing use of agricultural land provides the legal opportunity for farmers to comment on agricultural land-use plans, but it is unclear how effective this provision is in practice.
A similar provision in the law on physical and urban planning (Art.30, sl.vesnik 20/78) requires that physical and urban plans must be presented to the public and that there be public hearings on the plans. Local governments are directed to establish procedures for informing the public. These provisions have proven an effective legal tool for public participation. In the first real success of the NGO community in using legal methods for public participation in environmental decisions, an attorney with the Skopje-based NGO OPSTANOK successfully argued before the constitutional court that the permit for a business center which was to be built in a park in the center of Skopje should be invalidated because the government had not followed the law's requirements for public hearings on proposed changes to urban plans. In another case, a citizen used the public notification and hearing requirements to challenge changes to the urban plan of the city of Bitola, and citizens have also used the urban planning law to challenge permits for a gas station and a refugee shelter, and in each case the constitutional court has annulled the permit.
At a more basic level, the lack of a freedom of information law or specific procedures for providing public information is an important obstacle preventing both legal and non-formal public participation. Despite constitutional guarantees of freedom of information, the widespread perception among NGOs as well as private citizens is that governmental activity is still conducted in secret, and NGOs have difficulty gaining access to accurate legal information. In addition to procedures for providing the public with governmental information, pollution reporting requirements of industry are needed to give the public accurate and accessible information concerning the state of the environment.
Finally, a new local government law is particularly needed to clarify local authority in the new constitutional context. Ideally, this law should provide specific opportunities for public participation in local decisionmaking, which NGOs will have to learn to exercise. Until such a law is passed, though, opportunities to influence local government are highly uncertain due to the uncertainty of the role of local governments themselves.
In addition, NGOs have also been able to use the legal right of denunciation to initiate court proceedings, though the law does not require courts to act upon a denunciation. The courts ruled favorably to NGOs, for example, when the NGO Opstanok submitted to the Macedonian Prosecutor denunciations against the weekly "Puls" and the daily newspaper "Nova Makedonija" for violating a law forbidding advertising cigarettes in the media.
Another positive example of use of legal methods is the current Constitutional Court challenge to the governmental decision to prohibit media broadcasts pending passage of the new broadcasting law. In general, it appears that the public is able to challenge unconstitutional environmental laws and decisions fairly readily, but because lawyers are often reluctant to take on time-consuming and low-profit environmental cases and because smaller NGOs lack in-house legal expertise, only the largest NGOs have been successful in initiating court action.
The governmental delay in passing new laws to conform with the new constitutional order has created an inordinate number of constitutional conflicts, and as a result, the Constitutional Court is now considerably overburdened with legal disputes that should not arise in a coherent legal system. Completion of the new set of laws to conform to the new Constitution should alleviate the need for both the public and the Constitutional Court to settle environmental and other decisions at the constitutional court level on a regular basis and should clarify laws and simplify their observation.
Relations between NGOs and businesses are not particularly strong. Businesses seldom volunteer to cooperate with NGOs, though they occasionally sponsor NGO activities, and they never voluntarily report on their emissions or other environmental impacts. Some companies have started green labeling as a marketing device, but NGOs do not actively promote green consumerism. Businesses do sometimes seek NGO support for permit applications.
At the governmental level, ministries occasionally ask environmental NGOs to comment on draft legislation such as the national environmental action plan, but this does not appear to be a regular practice, and in any case, the government consults NGOs only after an initial draft is complete. Up until that point, most NGOs are usually unaware of the details of a developing proposal, so even if they are consulted, they may not have time to prepare considered comments.
In addition, the NGOs Dem and Opstanok have established the country's first environmental periodical, the Ecological Review. The Review is published every two months and covers a variety of environmental news and provides general environmental information. The publication willingly accepts submissions from other groups or citizens. The Review has become quite popular and is respected as a serious publication. It appears to be quite successful in raising public environmental awareness.
As discussed above, the Ecological Review is perhaps the most successful environmental education project of the environmental NGO community. Both teachers and students in primary and secondary schools use the publication, which they receive at a discount. Next year, the Review's editorial board plans to target environmental awareness among young people through increasing cooperation on environmental education with schools and other educational institutions and through adopting environmental educational texts.
Besides media and environmental education efforts, the public participation tools that NGOs use most frequently are public meetings and demonstrations to protest environmental conditions.
Currently, few environmental NGOs in former Yugoslav Republic of Macedonia effectively use methods to promote public participation above the level of public protest to achieve actual influence over policies. The most active NGOs, though, are making significant and increasing efforts to increase their level of participation to influence environmental legislation. They are increasing communication with legislators by initiating meetings with Members of Parliament and inviting MPs to NGO workshops on environmental issues. They are also putting increasing pressure on both national and local governments to allow them to be present in decisionmaking meetings and have finally received permission in practice, if not in law, to attend Skopje city council meetings.
Finally, NGOs are also enjoying some success at a relatively high level of participation, that of writing their own draft legislation and submitting it in a non-formal way (as opposed to the legal process of initiative) to the national or local government for consideration. For example, an environmental NGO called Studencica, in the western Macedonian city of Kicevo prepared its own local environmental protection plan and initiated meetings with the local government to discuss the proposal, and the city council recently adopted the NGO-drafted plan.
Two Skopje NGOs, Opstanok and the Board Against Smoking, prepared draft legislation restricting smoking cigarettes in public places at national level and submitted it to the MoE for consideration and possible submission to parliament. The ministry did present the proposal to parliament, and the relevant parliamentary committee approved the proposal with only minor modifications. Parliament is now expected to vote on the legislation much as it was originally proposed by the NGO coalition. The NGOs have also made an effort to raise public support for the proposal by publicizing it on the few "green" television shows and have also accepted comments on the proposal from many citizens.
Situations such as these, in which NGOs initiate a legislative proposal and submit it to the local or national government for consideration, represent the highest level of public participation NGOs currently achieve in environmental decisionmaking in Macedonia. There is no real joint decisionmaking or transfer of power to decide.
At a much higher level of decisionmaking, the success of NGOs in developing laws at both the national and local levels through submitting draft legislation on their own, non-formal initiative, is an excellent example of non-formal public participation tools being used to their utmost effectiveness.
The most significant accomplishments of non-formal public participation include the development of many new environmental NGOs and, as mentioned above, successful public education efforts and non-formal legislative initiatives.
In addition, the lack of formal procedures for providing public information and for incorporating public input into legislative and regulatory decisionmaking make public participation too heavily reliant on non-formal tools and the goodwill of the government.
Probably the most significant problem with the non-formal framework for public participation is an over-dependence on one NGO, DEM, by all the environmental NGOs in the country. While cooperation among the various NGOs and their joint efforts through DEM are positive practices, the fact that other NGOs, and especially local ones, depend almost exclusively on DEM to communicate with the government, seek financial support, establish international contacts, and obtain media coverage is a sign of weakness that threatens the viability of the greater environmental NGO community.
In the non-formal arena, the most significant need is to build the capacity of NGOs other than DEM, especially local NGOs, to implement public participation methods. A broader base of experienced, trained NGOs would be especially useful in promoting public participation at the local level of government, which should become an exciting area when the expected new law on local government clarifies the authority and independence of local governments in the new constitutional order.