Montserrat Madariaga Gómez de Cuenca, lawyer and researcher at the Center for the Law of the Sea at Pontificia Universidad Católica de Valparaíso.
Citizen participation: a right and a duty of the State
Citizen participation comprises different levels and forms of citizen influence in public management. It can range from a very basic level of advocacy, such as citizen consultation, to a very high level, such as the co-creation of public decisions.
Citizen participation is a right. When it is reduced to the lowest levels of influence, limiting it to a role of merely providing information or citizen consultation, it is violated. On the other hand, the right to participate implies a duty for the State, which is to ensure its full exercise and allowing citizens to effectively influence the management of public affairs.
Citizen participation in the Climate Change Framework Bill
The draft bill for the Climate Change Framework Law (LMCC for its acronym in Spanish) recognizes the right to citizen participation. Its Article 31 establishes this for: “the drafting, revision and updating of climate change management instruments.” Yet, this legislative recognition is devoid of any material content. The bill does not establish the minimum forms or levels of citizen participation. For example, in one of the management instruments, contained in its Article 13 (emissions standard), regulation and control over citizen participation is entirely delegated to regulations.
Other references to citizen participation in the bill are purely programmatic rules. Thus, the announcement of a principle of transversality (Article 2) establishes a state duty to “promote (…) the participation of the private sector, academia and civil society.” On the other hand, Article 13(3) establishes the duty to have “special consideration for the most vulnerable sectors, applying a gender perspective and seeking to facilitate the participation of those sectors.” Both rules lack a minimum regulatory content or a specific obligation that would allow for verifying their fulfillment.
The processing of the Climate Change Framework Bill: an example of the precariousness of the right to citizen participation
The executive branch has indicated that our current regulations already contain the control and regulation of public participation as set forth in the Escazú Agreement. Various arguments refute this. One way to prove the falsity of such assertion is to observe the citizen engagement that took place during the development of the LMCC bill itself.
According to the message submitted with the draft bill, the bill was developed with a very broad and unprecedented early citizen participation. Far from being so, this participation consisted simply of informational workshops prior to the drafting of the bill and informational workshops to present it. On the other hand, a period of citizen consultation was opened to allow for comments on the bill to be posted on the Ministry of the Environment’ website. To date, the specific impact of these comments is unknown. In fact, the lack of traceability of participation and its impact on the decision-making process does not allow for adequately guaranteeing the right to citizen participation. The literature calls these consultation mechanisms the “illusion of citizen participation” (Few et al, 2007), especially when – as in this case – they are limited to being instances for expressing some ideas within a very short timeframe; there is not even a record and tabulation of the observations made to generate any measurable indices of these. Such actions embody the lowest levels of relationship with citizens. For this same reason, some social organizations refused to participate since it implied validating a process that openly violated the exercise of this right. On the other hand, the Escazú Agreement regulates both early participation and the mechanism of citizen consultation in greater depth, reinforcing aspects such as transparency, language facilitation, recording and handling observations, among others that are essential when speaking of real citizen participation.
From the point of view of the treatment of the stakeholders, the process was also deficient. First, social organizations were not specifically invited to participate, either in the workshops or in the compilation of observations; collective action was not encouraged, as required by the aforementioned Escazú Agreement; and finally, there is a complete absence of an indigenous consultation in open violation of the provisions of the Escazú Agreement and ILO Convention No. 169.
Conclusions
- Regulation of citizen participation in the LMCC bill is practically non-existent. It is limited to recognizing this right, without establishing minimum conditions or basic levels for its exercise.
- The current legal framework is lacking in terms of guaranteeing the right to citizen participation, and does not include certain minimum requirements for public participation regulated in the Escazú Agreement, as demonstrated in the processing itself of the Climate Change Framework Bill.
- It seems that the intention is to equate the right to citizen participation with information or citizen consultation actions, which are not sufficient to guarantee this right.
References
ROGER FEW , KATRINA BROWN & EMMA L. TOMPKINS (2007) Public participation and climate change adaptation: avoiding the illusion of inclusion, Climate Policy, 7:1, 46-59
