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Salus populi suprema lex . Marcus Tullius Cicero

Regulations on public councils to governmental authorities
Wednesday, 17 August 2011 19:00

Typical regulation of the public councils was approved by the Regulation of the Cabinet of Ministers of Ukraine № 996 from 03.11.10 "On the public participation in the formulation and implementation of public policy".

Thus, after the approval of the Regulation of the Cabinet of Ministers mentioned above, the process of formation of new public councils to governmental agencies started in Ukraine. One of the first steps of newly created public councils was the adoption of new Regulation on specific public council.

Under the Typical regulation of the public council Regulation on specific public council should be agreed with the executive body in which it is formed and approved at its (public council’s) meeting.

It should be noted that the existing Typical (model) regulation, approved by the Cabinet of Ministers of Ukraine, has number of gaps that can block and create preconditions for the inefficient operation of public councils. However, public still have the opportunity to improve existing standards of a Typical regulation, making certain amendments, provided that they do not contradict the current legislation of Ukraine and Typical regulation approved by the Cabinet of Ministers.

Expert Advisory Center "Legal Analytics" (EACLA) has experience in preparing amendments to the Typical regulation of the public councils during the developing of the Regulation of the Public Council to the State Environmental Investment Agency of Ukraine. Unfortunately, talking about the real possibility of amending the Typical regulation and its improvement, practice has shown that much of the public representatives in Ukraine, who are members of public councils, are not interested in the improvement of the Typical Regulations of the public council during adopting a specific Regulation - which is a negative tendency from the point of view of the EACLA.

Some members of public have common position on the impossibility of amending and revising of the Typical regulation of public councils. According to EACLA this position is not logical, because as Cabinet of Ministers stated the Regulation of the specific public council requires approval by public council (and previous approval by the governmental body). EACLA defends the position that the Typical regulation of public council needs to be improved to optimize performance of public councils.

Issue of amendment of the Typical regulation of the public council

When it comes to the possibility or impossibility of amending the Typical regulations and its subsequent approval, it is worth to clarify what the word "typical" means. Word "typical" means something which is desirable to be taken as a basis. Typical - is one that is a model, the standard for a number of phenomena, cases; peculiar to a certain type of phenomena.

By analogy, we can look at the meaning and interpretation of the standard contract, which is defined as a document containing a list of issues and conditions that must be considered when concluding agreements (contracts). The model agreement is also approved by the relevant government institution and serves as the basis of contractual relations. The same approach is applied in the Civil Code of Ukraine which indicates that agreement may contain conditions not foreseen by a typical contract.

Therefore, based on the above, the typical (model) provisions (regulations) can be added, if members of the public council wish to do so. Regulation, which is approved by public council, can not contradict the typical regulation and provisions of current legislation of Ukraine.

Refusal of the authorities to agree with the Regulation of specific public council must be also based on the current legislation of Ukraine.

Propositions of the EACLA on the amending of the Typical Regulation of public council were related to the following aspects:

1) Admission of new members to the public council after the constituent assembly

- Admission of new members to the public council applying for membership after the constituent meeting of the newly created public council is not prohibited by the Typical regulation. At the same time, this possibility remains generally not regulated, which creates the gap in the current regulations, and may be the cause and conditions of the various positions among the members of the public council when a new member of the institute of the civil society decides to become a member of the Public council after the constituent assembly.

- EACLA proposed to eliminate this gap, and clearly provide for the institutions of civil society the right to join the public council at any time;

- As Typical regulation of public council does not provide opportunities to join the public council for new members after the constituent meeting of public council, EACLA stands up for the position that this situation is unacceptable and creates obstacles for representatives of civil society to participate in the public councils and in decisions making process.

2) Exclusion from the public council membership in the case of systematic absence on the meetings of the Public council

- The Typical regulation of public council foresees the ability to exclude organizations from the members of the public council in the case of a systematic absence during public council meetings without valid reason. But it said that the public council in this case "may" (not "must") decide on this issue, which creates the situation (possibility) when certain members of public will be excluded from the members of public council, and the others won’t.

- To avoid this situation, lawyers of EACLA proposed amendments to unify the rules for all members of the public council.

3) The completeness of the protocols of the public council

- The problem in this aspect lies in the area of objectivity of the protocols of public councils that reflect the real situation when the views of the members of public council differ.

- EACLA suggested to establish rules that the Public council’s protocols must be complete, as short form of protocols usually reflect only a matter for discussion, decisions, and do not reflect the nature and content of the discussions and opinions of individual members of public council, especially concerning controversial issues. That is why it is important that minutes (protocols) of the public meetings reflect different, even radically opposing positions, as reflected in the records will be made public.

4) Secret process of voting during decision-making

- Open process of voting, which is foreseen by the Typical regulation of public council sometimes creates an obstacles to expressing free will and not always objectively reflects the real position of the members of public.

- EACLA proposed to envisage the possibility of secret voting on the proposal of the members of the public council. This proposal was rejected as inappropriate.

5) The question of collective decision-making by the state authority in the case of distinction of the positions of public council and governmental agency

- It should be noted that this issue is not regulated in the Typical regulation of the public council. There are provisions of international agreements that the results of public participation in decision making process should be considered in the highest degree. But the explanation and practical implementation of this rule is not envisaged in the current legislation of Ukraine. The actions of the government in case of distinctive public and governmental positions are not defined by law. This issue does not find its own solution in the Typical regulation of public council either.

- EACLA proposed in case of conflict positions to make the issue open for the discussion on the Interministerial Commission on Climate Change, which operates in Ukraine and includes representatives of various ministries, including members of the public. But this proposal was seen as unrealistic by the governmental agency and some members of public who explained their position by noting that the question of gathering the Interministerial Commission on Climate Change is complex and costly in time relation.

6) Participation in the meeting of the Public council of representatives of governmental authority responsible for decision making

- Public council meetings often do not provide public influence on decision making, and do not reflect and aim at real dialogue between civil society and governmental authorities. To avoid this situation, to assure the effectiveness of public council meetings, representatives of government, responsible for making decisions, like heads of departments, divisions, etc. should play very important role during the public council meetings and should participate at the meeting. This proposition of the EACLA was overturned as purposeless because from the point of view of the majority of civil society representatives, governmental officials will participate in the public council meetings anyway.

7) Initiation of issues for discussion at meetings of public council

- EACLA offered to develop a rule: who and how can propose the issues for the agenda discussion for public council meetings. Members of the public disagreed with the need to predict such procedures, noting that all members of public council have the right to be engaged in the agenda development, and there is no necessity in separate prescription of such opportunity.

8) Access to information on climate change.

- The Typical regulation does not include provisions on access to information related to specific issues. Of course there is legislation on access to public information and there is no necessity to duplicate the content of its provisions in the Regulation of the public council, but there are specific types of information on climate change, public access to which should be guaranteed by the provisions of the Regulation of the public council to assure opportunities for the public council to operate and implement their rights and interests.

- Suggestion of the EACLA: To foresee certain types of information (on climate protection policy, implementations of the Kyoto flexible mechanisms, international negotiations on climate change, etc.) access to which cannot be denied, to establish clearly that such list of types of information that is opened to public is not exhaustive in the Regulation of public council.

- Motives of EACLA for this proposition are connected with the fact that information on climate change is very specific, and provision on access to information is often general, thus the set types of information on climate change, which should be available to members of the public council, should be established.

Conclusions:

The question of public participation in decision making process.

The process of public participation in decision making is not clearly regulated by the legislation of Ukraine. There are general provisions which are not always implemented, there is no responsibility for making decisions without public discussion process, and there are no mechanisms of controlling procedures during the public involvement in decision-making process. To defend the rights on public participation in decision making process the members of public often have to go to courts. And of course litigation cases are very time consuming and not always effective to protect the right to public participation in decision making process which lasts not longer than few months if litigations may last for years.

 

As EACLA have experienced during the development of Regulation on public council, a number of proposals are rejected being appropriate, because they can be realized in practice without prescription of specific rules in the Regulation on public council. That is why majority of the members of Public council to the State Environmental Investments Agency think there is no need to regulate in details the procedures of the public council participation in decision making process, to foresee specific types (categories) of information which should be opened to public etc. This situation is a negative tendency, because in practical terms it is not novelty that the problems with access to information is very relevant for Ukraine, including, if it concerns access to environmental information, information on performance or breach of certain norms of international obligations, etc. Procedures of public participation in decision-making in Ukraine cannot be described as effective. Very often decisions that require public participation do not involve civil society and there are no effective legal means for overcoming such problems. However, experience has shown that most members of the public council decided that there is no need to improve the Typical regulation of public council, and this was the situation in developing and deciding on the addition and improvement of the Regulation of the public council to State Environmental Investment Agency of Ukraine.