Public Participation Law (UA0034)

Developing and submitting to the Cabinet of Ministers of Ukraine in due course a draft law on public participation in state policy making and implementation as well as in addressing local-level issues

1. Improve government rules on CSO involvement

Commitment Text: Preparing and submitting to the Cabinet of Ministers of Ukraine proposals on amending the Cabinet of Ministers resolutions that govern the procedure of interaction with civil society institutions as regards public consultations, establishment and operation of public councils under executive authorities, facilitation of public expert evaluations of executive authorities’ activities.

Expected result: relevant resolution adopted by the Cabinet of Ministers of Ukraine.

4. Public Participation Law

Commitment Text: Developing and submitting to the Cabinet of Ministers of Ukraine in due course of a draft law on public participation in state policy making and implementation as well as in addressing local-level issues.

Expected result: relevant draft law endorsed by the Cabinet of Ministers of Ukraine, submitted to the Verkhovna Rada of Ukraine, and followed up until adoption.

Editorial Note: The IRM researcher grouped these two commitments together, since both are related to public participation in policy making.

Responsible institution(s): Ministry of Justice

Supporting institution(s): United Nations Development Programme (UNDP), unspecified NGOs and international organisations (commitment 1); Ministry of Regional Development, State Agency for E-Governance, Administration of the State Service for Special Communications and Information Protection, NGO "Ukrainian Independent Centre for Political Research," UNDP, non-specified NGOs and international organisations (Commitment 4)

Start Date: Not specified .............. End Date: May 2015

Commitment aim

Both commitments aimed to improve civil society participation in the development and implementation of public policy by establishing new formal procedures and structures or refining existing ones. Civil society engagement is crucial for effective participatory democracy, especially in Ukraine, where the legacy of state monopoly over public policy is still strong. Commitment 1 focused on improving government rules to better facilitate public consultation in policymaking. Commitment 4 sought to draft and, ultimately, adopt a law on public participation. If implemented, this would be a major step forward in improving citizen engagement in decision making.

Status

1. Improving government rules on CSO involvement

Midterm: Complete

The government adopted several regulations with regard to CSOs involvement in the policy making process: Procedure for Consultations with the Public on Policy Development and Implementation, and Model Regulations on Public Councils to the Executive Authorities (both adopted in 2010), as well as Procedure for Facilitating Public Examination of the Executive Authorities (adopted in 2008). For a long time, CSOs advocated for revision of the above regulations to streamline and make them more effective. The first commitment was fully implemented. The Ministry of Justice set up a working group to develop amendments, and held public consultations on the draft proposals in December 2014. Draft amendments were published on the ministry’s website and the government’s web portal, “Civil Society and Authorities.” The government enacted relevant amendments to its own regulations in April 2015. Civil society groups reported that the ministry developed the draft amendments in an open and inclusive manner, and that they (the amendments) are generally positive and significantly improve relevant procedures. The changes include simplifying and improving consultation methods, making consultations more open and inclusive, and setting clear lists of issues that require mandatory public consultation. In addition, regulations were strengthened for an accountability mechanism that allows public examination of authorities.^{[Note 1: Independent Reporting Mechanism (IRM) Progress Report 2014-15: Ukraine, 24, http://www.opengovpartnership.org/wp-content/uploads/2001/01/Ukraine_Second_IRM_Report_PublicComment_ENG.pdf]}

4. Public Participation Law

Midterm: Limited

The government’s plan for many years included the development of a  law on public participation in policy formulation and implementation. According to the government’s self-assessment, the Ministry of Justice set up a working group to develop the draft law. It included representatives of CSOs and, in March 2015, the Government’s Secretariat and the Ministry of Justice held public consultations on the topic. The Ministry of Justice, together with the Organisation for Security and Cooperation in Europe (OSCE) Project Coordinator’s Office and the Government’s Secretariat, organised six regional discussions in June and September 2015. The working group prepared a compendium of best practices and international standards in this area, and published it on the government’s website. Comments on the draft law proposals were also solicited through an online form. Eventually, the scope of the draft law was narrowed to focus on “public consultations,” which made it more tangible and realistic.^{[Note 2: Ibid, 25.]}

End of term: Substantial

Based on the preliminary discussions, the Ministry of Justice prepared a draft law on public consultations. This was published for consultation on the websites of both the ministry and government in July-August 2016. On 31 October 2016, the ministry put out a report on the results of the consultations.^{[Note 3: http://bit.ly/2glgW3s. ]} The report described the latest consultation exercise, as well as previous discussions, and explained which proposals were taken into account and which were not. The Ministry of Justice also requested OSCE/ODIHR to examine the draft law. The OSCE/ODIHR evaluations were delivered in September 2016.^{[Note 4: http://bit.ly/2hkz6A7. ]} As of December 2016, the draft law had not yet been submitted to Parliament.

Did it open government?

1. Improving government rules on CSO involvement

   Civic participation: Marginal

   Public accountability: Marginal

The commitment aimed to improve a set of formal rules for civic participation and oversight of government decision making. Its potential was moderate, as it aimed to streamline the rules and procedures put in place between 2008 and 2010. In completing this commitment, the Ministry of Justice worked with civil society to amend three regulations: the Procedure for Consultations with the Public on Policy Development and Implementation; Model Regulations on Public Councils to the Executive Authorities; and Procedures for Facilitating Public Examination of the Executive Authorities. As reported at the midterm, the changes were brought about through an inclusive consultation process between the ministry and civil soceity. The activities included simplifying the consultation process and strengthening an accountability mechanism to allow public examination of authorities. However, as implemented, the commitment had only a marginal impact on changing government practice. The government used the adopted changes in the rules to re-launch civic councils that had been discredited due to their collaboration with the previous government. The new regulations attempted to address deficiencies in the older versions; the latter allowed civic participation structures to be hijacked by fake or government-affiliated NGOs (GONGOs), thereby undermining their watchdog function. Nevertheless, the changes implemented to replace the old procedures and structures did not improve their effectiveness. While this commitment marginally improved civic participation and public accountability by modernising some formal procedures of cooperation, the effect on open government was limited. This can be explained by outdated procedures and structures, for example, civic councils, whose role — to ensure collaboration with civil society and public oversight — declined further.^{[Note 5: Maksym Latsyba, NGO Ukrainian Independent Center for Political Research, interview with the IRM researcher, 29 September 2015.]}

4. Public Participation Law

Civic participation: Marginal

Public accountability: Did not change

The commitment aimed to develop a new mechanism for involving civil society in the government decision-making process. If it provides for detailed and meaningful consultation procedures, the draft law could have a moderate impact on public engagement. However, as noted in the midterm report, the drafting process would have benefited from an analysis of the reasons behind poor enforcement of the current regulations on public consultations to identify more effective tools to address this problem. The government has yet to complete this commitment. Still, its consultation process vis-a-vis this draft law was more open than that of many other policy decisions or draft laws. This marginally opened the government with regard to civic participation.

Carried forward?

The first commitment on improving government rules vis-a-vis CSO involvement was not carried over to the new action plan. The fourth commitment on the Public Participation Law was included in the new plan. The Ministry of Justice, together with non-governmental partners, is to lead the development of a draft law on public consultations and submit it to the government. The commitment no longer includes the task of submitting the draft law to Parliament and following it to adoption.