Democracy and Rights of Access and Public Participation: Worldwide Trends

John E. Bonine, Professor of Law

The Kingdom of Thailand, in working on a Public Consultation Act, along with its existing laws, must be congratulated and praised for its work toward building a solid and modern democracy incorporating principles of public participation. The final result may establish Thailand as an important leader in this kind of work. There is competition, of course, for the title of leadership in this effort. Other countries in Asia, Africa, the Americas, and Europe, are all modifying legislation to bring the public into the process of governing on a continual basis. But it is a friendly competition, as all strive to build the best kind of society for their peoples.

Everywhere in the world, "participatory democracy" is on the march-not in the streets (either as political protest or hooliganism) but as an alternative to meeting the public only on the street or on election day. "Election-day democracy" may be considered the half­way point of democratic development. Many countries are working hard to move past this half-way point to full "participatory democracy." With the Public Consultation Act that is being drafted here, Thailand has the opportunity to become a model for democracy in Asia and for other parts of the world as well.

I will try to establish a broad context for the regional presentations of the distinguished international experts who have answered the call from the Council of State to come to Bangkok and share their own knowledge and ideas about public consultation and participatory democracy.

I. Some "Teasers" About How Participatory Democracy Can Work

Public participation can work for small projects and major policies. It can be organized into public hearings, written comments from the public, or inclusion of members of the public into the membership of committees that are given important responsibilities. Here are two interesting examples showing the range of possibilities, and showing how it can be managed even on issues of great public concern and importance.

A. USA, Forest Planning

The United States Forest Service in 2000 proposed a policy of no longer building new logging roads in those areas of national forest that had not yet been entered for logging activity. The policy received more comments than any other in the history of the forest planning process, more than 1.6 million.

According to the Forest Service:

The agency's notice of intent to prepare an environmental impact statement drew about 16,000 people to 187 public meetings and elicited more than 517,000 responses.

The Forest Service hosted two cycles of meetings during the comment period on the DEIS and proposed rule-one for information sharing and discussion and the other to collect oral comments. Written comments were collected at both meetings. About 430 public meetings were held-about 230 for information sharing and written comments and about 200 for collecting oral and written comments. Every national forest and grassland hosted at least two meetings. These meetings drew over 23,000 people nationwide.

By the close of the comment period, the agency received over one million postcards or other form letters; 60,000 original letters; 90,000 electronic mail messages; and several thousand telefaxes (FEIS Vol. 1, 1-7). The Forest Service's Content Analysis Enterprise

Team in Salt Lake City, Utah, organized and analyzed the comments on the proposal.¹

The scale of this public participation opportunity was enormous by any measurement. Yet it is apparent from this example that a well-organized process can make thousands of citizens feel directly involved in their governments.

B. Porto Alegro, Brazil: "Participative Budgeting and 'participao popular' (popular participation)"

In Porto Alegro a Brazilian town with a population of about 1.2 million people, in the state of Rio Grande do Sul, a remarkable process of "orcamento parti cipativo," or "direct democratic budgeting" has been used since 1999. Each of 16 regions in the town has a "general assembly" with a theatrical nature (videos, speeches by ordinary citizens including ones critical of past budgets, a presentation by the mayor), designed to attract individuals to participate. Then neighborhood meetings are held where citizens draw up budget priorities for their areas. A second round of regional assemblies and assemblies on specific themes is held in June, after which priorities are presented to the central administration. Each forum elects a Forum of Delegates, and in addition the citizens elect representatives to sit on the city-wide Municipal Budget Council, which coordinates the demands made in each of the regional and thematic forums in order to produce the city's annual budget.²

The results of this participating budgeting have been remarkable:

Before the introduction of the or9amento participative, the largest amount of sewer line constructed was 17 kilometers, in 1987. From 1990 to 1994, the figure raised to 46 kilometers of sewer line annually. As a result, from 1989 to 1996, the portion of the population with access to sewer lines rose from 46% to 95%. During the three

¹  Federal Register: January 12, 2001 (Volume 66, Number 9)] [Rules and
Regulations] [Page 3243-3273] http://www.wminteractive.org/Articles/frl-12
(2).htm

²  Or?amento Participative; The remarkable experience of direct democracy in
a Brazilian town, http://www.ping.be/jvwitydirectdemorcamento.html.

years previous to the PT administration, four kilometers of street were paved each year; after 1990, 20 kilometers of road were paved annually, and the quality of this pavement rose dramatically. Extended favelas, that had only mud roads and tracks, became accessible for buses, garbage trucks, and ambulances and police cars.³

The participative budgeting also has led to better tax payments because the citizens feel a sense of "ownership" of their government decisions. After 1992, property tax rates were reduced, but city revenues continued to climb as tax evasion fell.

II. Evolution of Democracy

It is reasonable to say, I believe, that governments and societies have gone through three periods of governing, and that democracy, where it has existed, has evolved from the first period to the second, and now into the third. I know that this is an oversimplification, but it helps to categorize and understand the situation and modern developments.

A. Three Phases of Democracy

In this view of history, there have been three periods, and we are beginning the third. They are:

1.     Simple Society and Direct Democracy

2.     More    Complex,    Pre-Industrial    Society    and    Representative
Democracy

3.  Highly Complex,  Industrial- and Information-Age  Society,  and
Participatory Democracy

1. Simple Society and Direct Democracy

In the first phase, for example in ancient Athens, it was fairly easy for all the males who were considered to be citizens, to participate.

Id.

Athens was a city-state with a population of 250,000, however only about 40,000 males were considered citizens and had the right to vote (i.e. no women, children or slaves).

All citizens had the right to attend an assembly held more than 40 times a year. The assembly made major decisions and every citizen could speak and vote. Therefore each citizen could directly affect the decision-making process. The system also included councils, which drew up the agenda of the assemblies and were made up of citizens that were drawn by lots and served on each council for a year. Thus there was direct participation in decisions.⁴

2. More Complex, Pre-Industrial Society, and Representative
Democracy

By the 1700s, society had become both more complex and more populous. Parliaments had been established, whereby representatives elected by the citizens made governmental decisions. Although the direct democracy had been replaced by representative democracy, citizens could still speak directly to a member of parliament, who made the important decisions. Thus there was indirect participation, through influencing elected decision makers. This election-based and representative version of democracy, including contact with legislative decision makers, provided some reasonable amount of accountability to the people at the time and in the conditions then prevailing.

3. Highly Complex, Industrial- and Information-Age Society, and
Participatory Democracy

By the 1900s, societies had started to become extremely complex, with governments struggling to control the effects of large industrial organizations, cities with mass transit, and social security systems. Elected representatives no longer made some of the important governmental decisions. Instead, these tasks were delegated to bureaucracies of specialized agencies. Today, we live in an age when a good deal of important governmental decision-making takes

place primarily outside parliaments and legislatures. Thousands of civil servants with little direct accountability to the people work in hundreds of governmental bodies. These civil servants make crucial policy and implementation decisions, which are then approved often by unelected department heads. Endorsement of policies on election day has become increasingly theoretical, while communication with legislators can be seen as contacting the wrong people to affect policymaking.

This kind of development threatens to complete the disconnection between the rulers and the ruled. The answer being developed all over the world is public participation, through influencing the unelected and elected decision makers.

B. The Example of the USA

When the USA threw off British colonial rule our Constitution did begin with the words "We the people." But in truth we did not give the vote to women, to black slaves, or in many cases to ordinary people. There were property qualifications for voting in some states. It took a Civil War in the 1860s to correct this mistake about other races and ethnic groups, and demonstrations by women in the early 1900s to correct this mistake regarding denying the vote to the half of the society that is female.

Nevertheless, we did at least have the ideal of "We the people" and it was a beginning. In some places a tradition of public participation began that persists even to today in the State of Vermont, of "town meetings," where all the citizens of the town can come together and vote on matters directly once a year, in the manner of ancient Greece.

Mostly what we created 225 years ago was not a direct democracy, and not a participatory democracy, but a representative democracy, as I have described. But in the 20^th century, our representative (or "election-day") democracy began to be supplemented with a new vision: "participatory democracy." As an early example, in 1933 under President Franklin Roosevelt's "New

Deal" era, farmers were involved in government planning of crop allocations.⁵

Public participation really became a central theme of our national governmental policy during the administration of President Harry Truman, with the adoption of our Administrative Procedure Act, in 1946. This law, which we call the "APA," governs federal government decisions that prescribe or implement policies through rulemakings⁶ and permit issuance and denial.⁷ It provides for participation in all such processes.

Under President Dwight Eisenhower, the term "citizen participation" appears to have first appeared, introduced in 1954 by the Urban Renewal Administration.⁸ By the mid-1960s, under President Lyndon Johnson's Great Society, the Office of Economic Opportunity was requiring the involvement of the poor on government boards, as well as community meetings to discuss planned government actions.⁹

The adoption of the Freedom of Information Act in 1966¹⁰ as a new section of the APA added an "access to information" pillar. The

⁵ Vincent Mathews. "Citizen Participation: An Analytical Study of the Literature," Prepared for the Community Relations Service by Dr. Vincent Mathews, Professor, Catholic University of America, June, 1968, at 38, cited in John Dewey's Theory of Citizenship and Community in the Developing American Democracy as Seen Through the Philosophy of Pragmatism as a Public Administration Model for the Citizen's Role in Public Governance, Ph. D. thesis, Elaine Andrews Lailas, <http://scholar.lib.vt.edu/theses/ available/etd-031599-173954/unrestricted/etd3.pdf> text at 150 (hereinafter Lailas).

⁶5U.S.C.sec. 553. ⁷ 5 U.S.C. sec. 554.

^g Edgar S. Cahn and Barry A. Passett., Editors, Citizen Participation: Effecting Community Change. Published in cooperation with the New Jersey Community Action Training Institute, New York: Praeger Publishers, 1971 (hereinafter Cahn and Passett) at 45, cited in Lailas in 151.

⁹  Cahn and Passett at 103, cited in Lailas at 150.

¹⁰     5 U.S.C. sec. 552.

loosening of legal restrictions on access to courts in the early 1970s added an "access to justice" pillar.¹¹

The adoption of the National Environmental Policy Act¹² (NEPA) in 1969, along with the Clean Air Act¹³ (CAA) and Clean Water Act¹⁴ (CWA) in 1970 and 1972, began the process of writing public participation and access to justice provisions squarely into the new wave of environmental laws that the U.S. Congress adopted in the 1970s. NEPA and its implementing regulations have led to a regime of draft documents about environmental impacts, a robust commenting process, and the obligation of U.S. agencies to discuss and respond to the major points raised during preparation of an environmental impact statement.¹⁵

" Cf. Assoc. of Data Processing Org. v. Camp, 397 U.S. 150 (1970) (interpretation of the Administrative Procedure Act to allow "injury in fact" to stand as an adequate token for being "aggrieved," for the purpose of legislatively conferred standing to sue); Sierra Club v. Morton, 405 U.S. 727 (1970) (recognizing that injury to aesthetic, recreational, and environmental interests are sufficient forms of injury to confer standing, if the litigant "uses" the area in question); Students Contesting Regulatory Agency Procedures (SCRAP) v. Interstate Commerce Commission, 412 U.S. 669 (1973) (holding remote aesthetic injury to be sufficient grounds for "injury in fact"). In 1992, a more conservative Supreme Court imposed restrictions on the U.S. Congress' own attempts to liberalize the standing aspects of access to justice, in Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992). More recent cases, however, appear to give Congress the right to broaden standing if it wants to do so. See Friends of the Earth v. Laidlaw Environmental Services, 120 S.Ct. 693 (Jan 12. 2000) and Vermont Agency of Natural Resources v. United States ex rel. Stevens, 120 S.Ct. 1858 (May 22, 2000).

¹²42U.S.C. §4321,etseq. ^I342US.C. §7401 etseq. ^I433U.S.C. § 1251 etseq. ¹⁵40C.F.R. §1501, etseq.

III. Three "Pillars" and the Spirit of Democracy

This new kind of democracy-"participatory democracy" has often been said to consist of three elements: participation, information, and justice.

Environmental protection has been on the international agenda for at least 30 years, since the Stockholm Conference on the Human Environment in 1972. After Stockholm, many countries worked to adapt their legislation to the needs of the environment, adopting new legislation on environmental impact assessment, and drafting new Constitutions that affirmed the public's right to a safe and healthy environment.

Both of these had implications for public participation-because the new EIA laws usually required some sort of public participation on individual development projects, and the new Constitutions focused on the rights of the public to protect their environment-not only the duties of governments.

hi 1992 most countries of the world came together again, this time in Rio de Janeiro, Brazil, in the Earth Summit (United Nations Conference on Environment and Development). A significant result of the Earth Summit was the signing of the Rio Declaration, and a significant part of that is Principle 10. It reads:

"Environmental issues are best handled with participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available.

10

Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided."¹⁶

Let us break this down into parts:

1.  Public Participation in Decisions: "Each individual shall have ...
the opportunity to participate in decision-making processes

2.        Access to Information: "Each individual shall have appropriate
access to information ..."

3.         Access to Justice: "Effective access to judicial and administrative
proceedings, including redress and remedy, shall be provided."

These three essential elements have been called the "three pillars" of the house of participatory democracy.

It is important to remind ourselves that the Rio Declaration did not come from the North, however. In fact, the Rio Declaration came as much from the countries of the South as from the North. Ten years later, the same three pillars can be found under discussion in the Preparatory Committee for the World Summit on Sustainable Development, which will be held in Johannesburg in summer 2002. In other words, the so-called "three pillars" are now internationally recognized wherever public participation is on the agenda.

IV. Conclusion

Let us to imagine a world in which a society came together in consensus on the best ways of managing its affairs-of having the benefits of material progress, the benefits of a healthy and safe environment for their children and future generations, and the benefits of peace and social stability that come with participation.

To achieve such a society will be difficult-difficult in Thailand, difficult in Latin America, difficult in Africa and Europe, and even difficult in the USA as well. We must not only create excellent

¹     The   Rio   Declaration,   http://sedac.ciesin.org/pidb/texts/rio.declaration. 1992.html (emphasis added).

legislation. We must educate our publics to exercise their powers

wisely.

This point was seen 181 years ago by one of our own famous

leaders, Thomas Jefferson:

"I know of no safe depository of the ultimate power of society but the people themselves, and if we think them not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them, but to inform their discretion by education."¹⁷

We must all work to repose the ultimate power of important government decisions in the hands of the people. This requires wise legislation, a strong willingness to listen before decisions are made and change policies in response, and support for disparate voices.

In the end, the test of a successful democracy is not necessarily that everyone accepts policies of the government. The proof of success is that those who disagree with the policies can say, "They listened to me, and next time, maybe their listening will make a bigger difference, because I know that they do sometimes act as a result of that listening."

Those who disagree with the government are able to say, "I have a system where the government listens. I don't want to lose such a valuable governmental system, so I support that system even when I think the current officials are wrong."

To create such societies is, I believe, our exciting challenge.