Public Participation in Law Making Process

Public participation is a political principle or practice, and may also be recognized as a right (right to public participation). The terms public participation may be used interchangeably with the concept or practice of stakeholder engagement and/or popular participation. Generally public participation seeks and facilitates the involvement of those potentially affected by or interested in a decision.

The principle of public participation holds that those who are affected by a decision have a right to be involved in the decision-making process. Public participation implies that the public’s contribution will influence the decision. Public participation may be regarded as a way of empowerment and as vital part of democratic governance.

In the context of knowledge management the establishment of ongoing participatory processes is seen by some in the facilitator of collective intelligence and inclusiveness, shaped by the desire for the participation of the whole community or society. Public participation is part of “people centered” or “human centric” principles, which have emerged in Western culture over the last thirty years, and has had some bearings of education, business, public policy and international relief and development programs. Public participation is advanced as part of a “people first” paradigm shift. In this respect public participation may challenge the concept that “big is better” and the logic of centralized hierarchies, advancing alternative concepts of “more heads are better than one” and arguing that public participation can sustain productive and durable change

The success of public policy is largely dependent on the effective response of civil society. The capacity of civil society in turn depends on the investment in learning and adaptation. Unfortunately, much of public policy assumes society to be a passive object of intervention. The strength of civil society initiatives is the embedded nature of action based on critical consciousness and mobilization of the active segments. While there may be questions on the extent to which objectives of civil society initiatives converge with public policy priorities, this factor has an important bearing
on the speed with which effective internalization of change can take place.

In some countries public participation has become a central principle of public policy making. In some cases, all levels of government attempt to build citizen and stakeholder engagement into their policy-making processes. This may involve large-scale consultations, focus group research, online discussion forums, or deliberative citizens’ juries. There are many different public participation mechanisms, although these often share common features.

Public participation is viewed as a tool, intended to inform planning, organizing or funding of activities. Public participation may also be used to measure attainable objectives, evaluate impact, and identify lessons for future practice. In some jurisdictions, public participation in administrative rulemaking refers to the process by which proposed rules are subject to public comment for a specified period of time. Statutes or agency policies may mandate public hearings during this period. In some jurisdictions the right to public participation is enshrined by law. The right to public participation may also be conceived of as human right, or as manifestation of the right to freedom of association and freedom of assembly.

Democracy and public participation are closely connected democratic societies have incorporated public participation rights into their laws for centuries. For example, in the US the right to petition has been part of the first Amendment of the US constitution since 1791. More recently, since the 1970s in New Zealand numerous laws (e.g.: health, local government, environmental management) require government officials to “consult” those affected by a matter and take their views into consideration when making decisions.

Effective public participation depends on the public having access to accurate and comprehensive information. Hence laws regarding public participation often deal with the issue of the right to know, access of information and freedom of information. The right to participation may also be advanced in the context of equality and group rights, meant to ensure equal and full participation of a designated group in society ,for example in the context of disabled people.

The relationship between public law and public policy is that they are dependent on each other. In other words, they supplement each other. If public policy and law are in harmony, effects or results are better. On the other hand, if these are contrary to each other, it is not good for the public. The public policies also form the basis of many laws. Also, the deficiency of laws can be overcome through sound public policies. Policy is essentially preferred course of action; law is action government has to take whether preferred or not. Law and public policy contain and complement each other. In the first place, law is a part of public policy. This means that obeying law and helping in its effective functioning is the duty of the people in the society.

Law can play its part only when people obey it or realize its efficacy in giving them the service they need. People expect from the state a “full extent of the legal guarantee of freedom of expression … of a right to life, liberty and security … and equal treatment …”. In this sense, respecting the natural rights of citizens and guaranteeing impartiality in its treatment are at the root of a state’s public policy. Moreover, the state has the duty to enforce morality as a part of its policy. As stated earlier, the cultural values of a community in majority have an influence in the mechanism of the state, and it has the obligation to protect and respect these values.

Apart from being the savior of cultural practices, the law is entitled to enhance the political norms of the state. In a democratic event like an election or a referendum people do not usually make inquiry into the “objective soundness of the winning side” provided the victory follows fairness, because the fact that “the side secured the majority is sufficient”. This is possible because people respect the policy of the state and give utmost value to the results of processes in which they are directly involved.

The public policy of the state authority — both administrative and judicial — is to act as a legal guardian of all the citizens. The first duty of the state is to make citizens aware of the law itself. The famous maxim “Ignorance of the law is no excuse” maintains that citizens should be aware of the law. With this view, the governments print books of law and make them available to the public, or make law a part of higher education. In addition, authorities run awareness campaigns through the media with a message that every adult citizen, because law influences their everyday life, should have minimum orientation on their country’s legal system.

For instance, Nepal Bar Association publicized its awareness programs through television and radio channels in order to provide legal assistance to the needy Nepalis. As a result of such campaigns, people take it as a requirement to know about the uses of law in their lives, and refrain from violating law and disturbing the values of the society. Moreover, as a guardian, the state has the responsibility to protect the citizens’ rights to observe traditions related to birth, marriage and death, and equally to prevent unpractical and collectively harmful traditions from taking place. This is why the practices like early marriages, forced marriages, desecration of graves, mutilation of human body and ethnic/racial discrimination are made illegal in all countries.

Public policy is also an important source of law. Certain laws emerge out of the policy of the contracts. This means the state allows citizens to enter into individual contracts. Because of this provision, many social issues do not reach the legal court for an official settlement. For example, individuals run monetary transactions and buy and sell properties without law interfering in these affairs. Even many of the disputes and anomalies related to these contracts are settled within the society itself. But, when these issues reach the court, they may form a basis for a law. They are settled with reference to an existing provision. New cases, on the other hand, evolve new policies which later get incorporated in the legal system. Both positivist and realist schools of thought commonly value these real social conventions as the reliable grounds for law to evolve and operate.