PUBLIC PARTICIPATION IN THE MANAGEMENT OF LOCAL GOVERNMENT IN VIETNAM:
A CASE STUDY OF PUBLIC PARTICIPATION IN THE PROCESS OF MAKING PROVINCIAL LAWS IN
DONG NAI PROVINCE
By
TUAN QUANG PHAN
A thesis submitted in fulfillment of the requirements for the degree of Professional Doctorate in Legal Science
University of Canberra
Trang 3ABSTRACT
Trang 7ACKNOWLEDGEMENTS
The milestones in this research have been achieved with intellectual contributions, kind assistance and magnificent support from a number of persons and institutions First and foremost, I must acknowledge my primary supervisor Dr Trevor Ryan, for his academic guidance, enthusiasm and invaluable support which has had great significance for my research All his support has been useful for me to complete this research on time I would like to thank my other supervisors: Dr Don Fleming and Prof Lawrence Pratchett, for their
valuable comments and suggestions
I wish to acknowledge the support of Dong Nai Department of Justice I am also greatly grateful to Mr Phan Van Chau and Dr Truong Dac Linh, who facilitated and supported my
pursuit of overseas study
I am thankful to all participants who gave their precious time to complete questionnaires and responded to my list of questions during interviews This research would not have been
possible without their assistance and generous time commitment
I also give special thanks to my colleagues and friends, Pham Nguyen Huy Hoang, To Dinh Tinh, Do Thi Anh Dao, Nguyen Thi Hong Phuoc who readily provided me with useful
support to complete the research
I would like to thank Project 165 and the Vietnamese Government, which provided the financial support for me to complete the research and achieve the degree of Professional
Doctorate in Legal Sciences
Finally, I cannot find words to express my thanks to my family members The successful
Trang 9TABLE OF CONTENTS
ABSTRACT i
CERTIFICATE OF AUTHORSHIP OF THESIS iii
ACKNOWLEDGEMENTS v
TABLE OF CONTENTS vii
LIST OF TABLES xiii
LIST OF FIGURES xv
LIST OF ABBREVIATIONS xvii
CHAPTER 1: INTRODUCTION 1
1.1 The Context for the Research 1
1.2 Description of the Research 2
1.3 The Research Aims and the Research Questions 5
1.4 Significance of the Research and Argument 6
1.5 The Research Methodology 7
1.6 Structure of the Research 8
CHAPTER 2: THEORETICAL FOUNDATIONS OF PUBLIC PARTICIPATION 11
2.1 Introduction 11
2.2 Part 1: Definition of Public Participation and its Classification 11
2.2.1 Definition of Public Participation 11
2.2.2 Forms of Public Participation 152.2.2.1 Information 162.2.2.2 Consultation 172.2.2.3 Involvement 172.2.2.4 Collaboration 192.2.2.5 Empowerment 19
2.2.3 Classification of Public Participation 20
2.2.3.1 Based on Flow of Information 20
2.2.3.2 Based on Continuum of Participation 23
2.2.3.3 Based on Levels of Empowerment 26
2.2.4 Tools of Public Participation 29
2.2.4.1 Tools for Information 31
2.2.4.2 Tools for Consultation 32
Trang 102.3 Part 2: Avoiding Tokenism in Public Participation 36
2.3.1 Lower Forms of Public Participation 36
2.3.2 Avoiding Tokenism and Higher Forms of Public Participation 38
2.4 Chapter Summary 42
CHAPTER 3: PUBLIC PARTICIPATION AND DEVELOPMENT 43
3.1 Introduction 43
3.2 Public Participation and its Role in Development 43
3.3 Public Participation in Local Governance 47
3.4 Public Participation in Local Law-Making Process 51
3.4.1 Framework for Public Participation in Law-Making 51
3.4.2 Public Comment 53
3.4.3 Statutory Duties to Present Draft Local Laws for Public Comment 54
3.5 The Experience of Selected Countries Using Public Participation in the Policy and Law-Making Process 583.5.1 Canada 583.5.2 South Africa 653.6 Chapter Summary 72CHAPTER 4: RESEARCH METHODOLOGY 734.1 Introduction 734.2 Research Methods Approach 734.2.1 Documentary Research 734.2.1.1 Documentary Approach 74
4.2.1.2 Case Study Approach 75
4.2.2 Empirical Research - Mixed Methods Research 76
4.2.2.1 Definition of Mixed Methods Research 77
4.2.2.2 Rationale for Choosing Research Design 78
4.3 Research Design 81
4.3.1 Research Site and Participants 81
4.3.1.1 Research Sites 81
4.3.1.2 Research Participants 81
4.3.1.3 Informed Consent and Confidentiality 85
4.3.2 Data Collection Methods 86
Trang 114.3.2.2 Semi-Structured In-Depth Interviews 88
4.3.2.3 Pilot of Data Collection 92
4.3.3 Data Analysis and Management 93
4.3.3.1 Data Analysis 93
4.3.3.2 Data Management 95
4.4 Chapter Summary 96
CHAPTER 5: THE LAW AND PRACTICE OF PUBLIC CONSULTATION IN THE PROCESS OF MAKING PROVINCIAL LAWS IN DONG NAI PROVINCE 97
5.1 Introduction 97
5.2 The National Regulations on Public Consultation 98
5.3 The Regulations on Public Consultation in Dong Nai Province 104
5.4 The Actual Implementation of Public Consultation 106
5.5 The Forms of Obtaining Comment on Draft Laws 109
5.6 Case Studies of Public Consultation in Dong Nai 114
5.6.1 Case 1: Lack of Public Consultation 114
5.6.2 Case 2: Deploying Conscientiously Public Consultation 117
5.7 Chapter Summary 121
CHAPTER 6: RESEARCH FINDINGS 123
6.1 Introduction 123
6.2 Results from Residents 123
6.2.1 Participating Residents‘ Information 123
6.2.2 Results from Residents‘ Questionnaires 126
6.2.2.1 The Experience of the Residents 126
6.2.2.2 Modes and Levels of Public Participation 126
6.2.2.3 The Residents‘ Evaluations of the Actual Public Participation 130
6.2.2.4 The Factors Can Impact on the Effectiveness of Public Participation 132
6.2.2.5 Residents‘ Awareness of the Benefits of Public Participation 134
6.2.3 Results from Residents‘ Interviews 138
6.2.3.1 The Importance of Public Participation in Making Provincial Laws 138
6.2.3.2 Public Participation Can Contribute to the Effectiveness and Feasibility of Laws 139
Trang 126.2.3.4 The Factors Help to Ensure the Effectiveness of Public Participation in the
Process of Making Laws 142
6.2.3.5 If Facilitated, the Public Will Have More Contribution to Effectiveness and Feasibility of Laws 144
6.2.3.6 Modes of Public Participation Which Are Appropriate and Useful for Peoples to Participate Effectively in the Process of Making Laws 145
6.2.3.7 The Cases in Which Public Participation Was Ineffective 147
6.2.3.8 Some Suggestion or Recommendation about the Issue of Public Participation in Making Provincial Laws in Dong Nai 147
6.3 Results from Officials 150
6.3.1 Participating Officials‘ Information 150
6.3.2 Results from Officials‘ Questionnaires 150
6.3.2.1 Modes and Levels of Public Participation 150
6.3.2.2 The General Evaluation of Public Participation 154
6.3.2.3 Assessing the Impacts of Public Participation 155
6.3.2.4 The Factors Can Impact on the Effectiveness of Public Participation 156
6.3.2.5 The Current Quantity and Quality of Public Participation 158
6.3.2.6 The Officials‘ Awareness of the Benefits of Public Participation 159
6.3.3 Results from Officials‘ Interviews 163
6.3.3.1 The Importance of Public Participation in the Making Provincial Laws 163
6.3.3.2 The Factors Help to Ensure the Effectiveness of Public Participation in the Process of Making Laws 164
6.3.3.3 The Contribution of Public Participation to the Process of Making Provincial Laws 166
6.3.3.4 The Residents‘ Satisfaction with the Current Mechanisms of Public Participation for Making Provincial Laws 168
6.3.3.5 If Given the Opportunity, the Public Will Participate More Than They Are Currently Participating 169
6.3.3.6 Modes of Public Participation Which Are Appropriate and Useful for Peoples to Participate Effectively in the Process of Making Laws 171
6.3.3.7 The Cases in Which Public Participation Has Had Positive Effects on Laws 1736.3.3.8 The Cases in Which Public Participation Was Ineffective 176
6.3.3.9 Some Further Suggestions or Observations Regarding Public Involvement in Making Provincial Laws 177
Trang 13CHAPTER 7: ANALYSIS 181
7.1 Introduction 181
7.2 What Are the Modes and Levels of Public Participation in the Process of Making Provincial Laws in Vietnam? 181
7.3 What Factors Have an Impact on Public Participation in the Process of Making Provincial Laws in Vietnam? 186
7.4 How Effective and Satisfactory Do Local Communities and Lawmakers Find Public Participation Mechanisms for Making Provincial Laws in Vietnam? 188
7.5 What Lessons Can Vietnamese Local Governments Learn from the Practice and Theory of Overseas Jurisdictions to Improve Community Satisfaction and Effectiveness of Public Participation in the Process of Making Provincial Laws in Vietnam? 190
Trang 15LIST OF TABLES
Table 2.1 - Tools for Information 31
Table 2.2 - Tools for Consultation 32
Table 2.3 - Tools for Interaction 34
Table 5.1 - Structure of legal normative documents of Vietnam 100
Table 6.1 - The residents‘ experience of public participation 126
Table 6.2 - Informed about new regulations of provincial laws or draft of provincial laws according to TRA 127
Table 6.3 - Levels of public participation according to according to TRA 129
Table 6.4 - Satisfaction with participation in the process of making provincial laws according to TRA 130
Table 6.5 - Public involvement influence on substance of laws according to TRA 131
Table 6.6 - Public involvement influence on form of laws according to TRA 131
Table 6.7 - Public participation to promote accountability, transparency and democracy according to TRA 135
Table 6.8 - Public participation to achieve acceptance and consensus among the people according to TRA 135
Table 6.9 - Public participation to ensure the feasibility of laws according to TRA 136
Table 6.10 - Understanding the role and benefits of public participation according to TRA 137Table 6.11 - Informed about new regulations of provincial laws or draft of provincial laws according to TOA 150
Table 6.12 - Levels of public participation according to TOA 153
Table 6.13 - Community satisfaction with participation in the process of making provincial laws according to TOA 154
Table 6.14 - Public involvement influences the substance according to TOA 155
Table 6.15 - Public involvement influences the form according to TOA 155
Table 6.16 - Positive effect of public involvement according to TOA 156
Table 6.17- Measuring the current quantity of public participation according to TOA 158
Table 6.18 - Measuring the current quality of public participation according to TOA 158
Trang 17LIST OF FIGURES
Figure 2.1 - Flows of information between participants and sponsors 20
Figure 2.2 - Three ways of information flows in public participation 21
Figure 2.3 - Types of flows of information in public participation 22
Figure 2.4 - Continuum of participation of Creighton 24
Figure 2.5 - Public participation continuum of Smith 25
Figure 2.6 - Five types of public participation of Bishop and Davis 25
Figure 2.7 - Ladder of participation 26
Figure 2.8 - A ladder of citizen empowerment 27
Figure 3.1 - Causal link block in local governance 50
Figure 4.1 - Concurrent Triangulation Model 80
Figure 6.1 - The residents‘ social information 124
Figure 6.2 - System of communication in the locality 125
Figure 6.3 - The modes are used to inform the public according to TRA 127
Figure 6.4 - The modes used in the process of making provincial laws according to TRA 128Figure 6.5 - Measuring the public participation according to TRA 130
Figure 6.6 - Factors can obstruct public participation according to TRA 132
Figure 6.7 - Factors that may help to increase the quantity and quality of public participation according to TRA 133
Figure 6.8 - The main benefits of public participation according to TRA 134
Figure 6.9 - The benefits of public participation in the making and implementation of laws according to TRA 136
Figure 6.10 - The modes are used to inform the public according to TOA 151
Figure 6.11 - The modes used in the process of making provincial laws according to TOA 152Figure 6.12 - Measuring the public participation according to TOA 154
Figure 6.13 - Factors obstruct public participation according to TOA 156
Figure 6.14 - Factors help to increase the quantity and quality of public participation according to TOA 157
Figure 6.15 - Modes that can help to improve the quantity and quality of public participation according to TOA 159
Figure 6.16 - The results of public participation according to TOA 159
Figure 6.17 - The main benefits of public participation according to TOA 160
Trang 19LIST OF ABBREVIATIONS
TOA The officials‘ assessment
TRA The residents‘ assessment
O Official
Trang 21CHAPTER 1: INTRODUCTION
1.1 The Context for the Research
Public participation in the process of policy decision making in general and in the process of making laws of local governments in particular is not a new issue It has been mentioned in the process of making regulations in the USA1 at least since the 1960s Nowadays, public participation has become an international movement and receives much interest in developed countries and some developing countries in the world when they wish to make policies or draft laws In this context, Vietnam is on the path to transition from a socialist economy to a hybrid market economy pursuant to the ‗Doi Moi‘ reforms alongside an international trend toward public participation in administration Therefore, when implementing a series of reforms in such areas as administrative management, law-making, the judiciary and the economy, Vietnamese authorities often encourage implementing ‗public participation‘ according to Vietnamese Communist Party‘s policy of ―the people know, people discuss, people execute and people supervise‖ This explains why the Constitution and local government laws have regulated in detail the issue of public participation in the process of making law
Nevertheless, the actual implementation of regulations related to public participation in Vietnam remains a problem Lawmakers have not yet recognized fully the significance and role of public involvement in the process of making law, especially making provincial laws.2This has an impact on the effectiveness of provincial laws when implemented in practice It also reflects another problem that Vietnamese local governments have not yet executed conscientiously the right to public participation in political affairs according to Article 21 (1) of the Universal Declaration of Human Rights: ‗Everyone has the right to take part in the government of his country‘
Consistent with global trends, Vietnam is also attempting to build gradually a ―Rule of Law‖ society Therefore, the recognition on the part of the State‘s responsibility of the role and significance of public participation in the management of government in general and in
1
S Shapiro, 'Does the Amount of Participation Matter? Public Comments, Agency Responses and the Time to Finalize a
Regulation' (2008) 41(1) Policy Sciences 33, 34-35
2
Truong Thi Hien, ‗Implement Conscientiously the Regulations of Consultation with People on Legal Documents‘ (21 May
2010) Dak Lak Online [44-64] <http://baodaklak.vn/channel/3485/201005/Thuc-hien-nghiem
Trang 22making provincial laws of local government in particular is very significant It not only helps enhance the effectiveness of provincial laws but also contributes as an element of the process of Vietnamese law reform generally
Vietnam in transition demonstrates partial progress in developing a rule of law concept that is responsive to local needs through encouraging public participation in the drafting of laws Therefore, in an attempt to determine whether the element of public participation has impacts on the effectiveness of laws or not, and how participation impacts on laws when implemented in practice, this research will assess the role and significance of public participation in the process of making provincial laws in Vietnam The findings of this research will lead to some suggestions for solutions to improve the public participation process; and enhance the effectiveness and feasibility of provincial laws and gradually improve the quality of local governance in Vietnam
1.2 Description of the Research
This research introduces and discusses a range of theories, articles and regulations relating to public participation to elucidate its role, significance and benefits in making policies and laws This is not only an international movement, but also the right of citizen that authorities should ensure according to the provisions of the Article 25 of International Covenant on Civil and Political Rights: ‗Every citizen shall have the right and the opportunity to take part in the conduct of public affairs‘.3
This is a right to be respected by legislators in the law-making process in order that citizens can enjoy their rights and know that their opinions are valued.4However, this research does not intend to focus on human rights per se; it merely wishes to demonstrate the value of participatory democracy and its effectiveness in law-making and thereby its contribution to development
Describing, reviewing, and discussing various definitions, forms and tools of public participation as well as benefits and roles of public participation helps the author to understand the value and significance of public participation The research then explores the actual situation of public involvement in the process of making provincial laws in Vietnam, specifically the process of making the provincial laws of Dong Nai Province To do this, the
3
Human Rights Committee, General Comment, No 25: The right to participate in public affairs, voting rights and the right
of equal access to public service (Art.25), 57th sess, UN Doc CCPR/C/21/Rev.1/Add.7 (12 July 1996)
4
K Czapanskiy and R Manjoo, 'The Right of Public Participation in the Law-Making Process and the Role of the
Trang 23investigation is conducted by questionnaires and interviews with residents5 and officials6 to understand the reality of people‘s involvement in the process of making provincial laws in Dong Nai Province in addition to learn the opportunities and the ways which local people7can give their feedback, opinion or comment on the draft provincial laws, and their perceptions of the effectiveness and fairness of participation
This research does not make this simplistic assumption that the models for public participation that have been successful in developed liberal democracies will translate directly to the Vietnamese context Indeed, some authors believe that Vietnam's socialist legacy by definition prevents any genuine civil society space from emerging in Vietnam, thus undermining the assumption of public participation models of a democratic, independent sector in which genuine public participation may take place.8 Others see great potential in a growing civil society space,9 which is the position taken in this research Nor is this research merely a report card of the Vietnamese experience using standards drawn from developed liberal democracies Despite the ultimate conclusion that Vietnamese efforts to implement public participation score poorly on scales developed by theorists writing mainly with regard to developed countries, the intention here is to indicate room for improvement rather than provide grounds for indictment It is true that these scales were designed with fully fledged liberal democracies in mind However, in a technical sense the scales can be regarded as providing objective descriptions of instrumentalities of public participation As such, they can be applied, with the necessary caveats, to the Vietnamese context While certainly not avoiding the deeper theoretical questions surrounding the use and significance of these scales—such as how public participation contributes to a more democratic, transparent society ruled by law—this research seeks to balance such theoretical questions with the pragmatic concerns suited to a professional doctorate, namely how to achieve greater effectiveness, efficiency, and satisfaction in public participation instrumentalities in the drafting of laws at a local government level in Vietnam
5
In this research, the word ‗Residents‘ refers to persons who are citizens who live in Dong Nai province and took part in the empirical research (questionnaire and interview) as participants
6
In this research, the word ‗Officials‘ refers to persons who are governmental officials or staff of agencies of Dong Nai Government and took part in the empirical research (questionnaire and interview) as participants
7
Trang 24Accordingly, the results of this investigation can help to (1) identify the level and modes of public participation as well as factors that can influence people‘s participation in making provincial laws and (2) assess the contribution of public participation is making to provincial laws When recognizing fully the benefits and significances of public involvement and identifying the factors affecting in public participation, some suggestions or resolutions are drawn to apply and improve the quality of public participation in processes of making provincial laws in Dong Nai Province Thereby, this research may contribute to enhance the effectiveness and feasibility of provincial laws and create greater effectiveness in local governance Furthermore, the research can help deepen understanding of the role and benefits of public participation in making laws of provincial governments, and Vietnam‘s transition to a ‗Rule of Law‘ society as well, as long as this concept is also contextualised to the
Trang 251.3 The Research Aims and the Research Questions
The primary aims of this research are to:
Understand the role and significance of public participation in the process of making provincial laws in Vietnam
Recommend some solutions to improve the effectiveness* and feasibility of provincial laws in Vietnam
The secondary aims of this research are to:
Identify levels and modes of public participation in the process of making provincial laws in Vietnam
Assess the influence of public participation on the effectiveness of provincial laws when implemented in practice
Assess the influence of public participation on satisfaction levels of provincial laws when implemented in practice
Find out possible lessons Vietnamese local governments can learn from the experiences of other countries
With these aims, the research seeks answers for following five research questions:
1 What are the modalities and levels of public participation in the process of making provincial laws in Vietnam?
2 What factors have an impact on public participation in the process of making provincial laws in Vietnam?
3 How effective* and satisfactory do local communities and lawmakers find public participation mechanisms for making provincial laws in Vietnam?
4 What lessons can Vietnamese local governments learn from the practice and theory of overseas jurisdictions to improve community satisfaction and effectiveness of public participation in the process of making provincial laws in Vietnam?
5 What role might public participation mechanisms for making provincial laws assist Vietnam‘s transition to a ‗Rule of Law‘ society?
Trang 261.4 Significance of the Research and Argument
There is an international movement toward public participation in administration Vietnam is part of this movement as it transitions from a socialist economy to a hybrid economy through the so-called ‗Doi Moi reforms‘ This transition entails both top-down and bottom-up elements On the one hand, the Vietnamese state wishes to manage a smooth transition On the other hand, the transition requires greater participation and autonomy on the part of citizens, especially at a local level This relates to the ‗Rule of Law‘ movement in the following way Some argue that Vietnam should adopt rules, institutions, and transparency mechanisms that mirror liberal democracies such as the United States, in part to encourage foreign investment Others argue that the law and development project reflects the domination of certain rich donor states such as United States, while other donor states, such as Japan, provide a more flexible model of transition to the rule of law In this light, it is arguable that Vietnamese law reform should incorporate the local responsiveness and bureaucratic discretion seen in Japan‘s earlier phases of post-War legal development.10
This may translate into a need for drafters of provincial laws to balance public participation and state imperatives This might be achieved through a process of consultation and negotiation and through clauses that balance accountability mechanisms and decision-maker discretion The significance of this research is that it may reveal how such balancing might be achieved at a local level in transitional economies such as Vietnam
The results of the research may be of great significance to help regulatory agencies of Vietnamese provincial governments recognize the role of public participation in making provincial laws in order to improve incrementally the effectiveness and feasibility of provincial laws Furthermore, it can help (1) implement effectively the right to public participation in governmental affairs according to the Article 21 of Universal Declaration of Human Rights and especially to build the ‗Rule of Law‘ society and ‗the government of the people, by the people, for the people‘,11
(2) enhance local lawmakers‘ awareness of the role and significance of public participation in the process of making laws, and (3) recommend some solutions to improve the quality and effectiveness of public participation in the process
10
See Michael K Young, 'Judicial review of administrative guidance: governmentally encouraged consensual dispute
resolution in Japan' (1984) Columbia Law Review 923
11
Constitution of the Socialist Republic of Vietnam 2013 (the Socialist Republic of Vietnam) National Assembly of Vietnam,
Trang 27of making provincial laws; thereby it will contribute to the effectiveness and feasibility of provincial laws in future
The argument of the thesis is as follows First, the ground work for public participation has been laid through codified obligations on the part of authorities to facilitate public participation Second, Vietnam's implementation of public participation has been deficient Third, however, this is because of a negative cycle of participation and bureaucratic values that, fourth, have been overcome in other jurisdictions through a number of strategies with the themes of openness, mutuality and partnership, awareness, and culture reshaping in relation to public participation Therefore, if it employs similar strategies, even accounting for contextual differences, Vietnam also has significant potential to greatly benefit from public participation and its potential to contribute to effective lawmaking, democracy, and the rule of law
1.5 The Research Methodology
+ Documentary Research
Documentary research methods can bring more effectiveness and help to improve the reliability and the validity of researcher‘s analyses.12
In order to achieve the targets of research, the documentary research was employed Thereby, various textbooks, articles, theories and regulations relating to ‗public participation‘ as well as its international contexts were reviewed
The aim of the documentary research was to build the foundation for evaluation of the case-study research, namely an exploration of the reality of making provincial laws in Vietnam through indicating and analysing the regulations for making provincial laws
In the documentary research for this research, the author used two approaches to gather data for analysing and evaluating the research issue, namely documentary approach and case study approach
12
Monageng Mogalakwe, 'Research Report: The Use of Documentary Research Methods in Social Research' (2006) 10(1)
Trang 28+ Empirical Research
In order to answer the research questions, questionnaires and interviews were conducted with 2 groups (the residents group and the officials group) This helps to produce more objective results
The residents group consisted of 90 persons who came from three districts of Dong Nai Province The latter group had 30 officials who are working in the justice sector or related to making laws in Dong Nai Province All of them were asked to complete the questionnaires When completing the questions in the questionnaire, the participants also indicated whether they agreed to continue to take part in an interview to discuss further the public participation issues Thereby, both participant groups participated in the interview component of the research These included 15 residents from the residents group and 15 officials with extensive experience in making provincial laws who are selected from the officials group
In this research, the quantitative and qualitative data were collected at the same time, with the purpose of comparing results to paint a more detailed picture, and the equal weighting was given to quantitative method (distributing questionnaire) and qualitative method (conducting interview) According to Creswell, mixed methods research is a methodology in which the researcher collects, analyzes and mixes or integrates both quantitative and qualitative data in a single study This form research supports the researcher to elaborate on or expand the findings of one method with another method in order to have a better understanding of a research issue.13
For data analysis, the quantitative data were calculated and analysed with the Statistical Package for Social Science (SPSS), while the qualitative data were analysed with the aid of NVivo to develop themes and codes
1.6 Structure of the Research
The research is organized into eight chapters as follows
Chapter 1 is a general overview of the research, including the context, description, aims, questions and methodology of the research
13
J.W Creswell and V.L.P Clark, Designing and Conducting Mixed Methods Research (Sage Publications, Incorporated, 2
Trang 29Chapters 2 and 3 present material that would traditionally be covered in a literature review Given the coverage of the material is divided into two chapters Chapter 2 presents the theoretical foundation of public participation by providing the diversity of definitions, classifications, forms and tools of public participation It then considers the nature of the lower level forms of public participation and suggests some principles to avoid tokenism and gain genuine public participation Chapter 3 explores further the literature review regarding public participation, namely benefits and roles of public participation in development and local governance Besides, it also shows mandatory regulations of public comment in the process of local law-making and introduces the experiences of Canada and South Africa in implementing public participation in the law-making process
Chapter 4 outlines research methods approach and the research design Based on the nature of the research a methodology is employed including documentary research and empirical research For the purposes of the research, the research design uses a mixed method for collecting information and analyzing data in order to answers five research questions
Chapter 5 introduces the legal framework of public participation in Vietnam, including the regulations on public participation in making laws at a national level and local level The chapter provides evaluation of public participation and presents two cases of public consultation in the process of provincial law making in Dong Nai
Chapter 6 presents results collected from local residents and officials through questionnaires and interviews The results of the questionnaires from two groups are gathered and organized into a number of common themes, while the results of the interviews are reported and interpreted through structured core questions
Chapter 7 answers five research questions based on detailed discussion of the results of questionnaires and interviews from the residents and the officials These results are combined with the material from the literature review chapters to discuss and obtain in-depth interpretation for every research questions
Trang 31CHAPTER 2: THEORETICAL FOUNDATIONS OF PUBLIC PARTICIPATION
2.1 Introduction
This chapter provides a general review of the literature on forms and methods of public participation in the process of making policies, decisions and laws The word ‗participation‘ evokes many related terms such as community participation, citizen participation, people‘s participation, public involvement, popular participation, civic engagement and public participation, and so on These are often used interchangeably, without clear definition In this research, terms such as citizen engagement, civic engagement, citizen participation, community participation and public participation are used in order to denote all activities of individuals, groups or community that contribute to the process of making decisions that affect their lives, ranging broadly from mere manipulation through to consultation and empowerment Broader definitions are available such as the ‗act of voting; lobbying to affect political decision or actual involvement in decision making‘.14 In this thesis, the author focuses on the dimension of actual engagement in government decision making, in particular over the content of making policies and laws at local-level
This chapter is organised as follows In Part 1, the chapter will describe the diversity of definitions of public participation and then classify and illustrate types of public participation The classifications of public participation are based on three typical elements of public participation They include flow of information, the continuum of participation, and level of empowerment Then, the chapter will present a number of tools which are commonly used in making policies, decisions and laws around the world In Part 2, the chapter returns to the ‗lower end‘ forms of participation, considering a number of critical approaches to public participation that are sceptical of the potential of the concept to either empower individuals and groups in society or enhance the quality of governance
2.2 Part 1: Definition of Public Participation and its Classification
2.2.1 Definition of Public Participation
There are many different definitions of public participation Rowe and Frewer state that ‗public participation is the practice of involving members of the public in the agenda-setting,
14
Mary M Timney, 'Models of Citizen Participation: Measuring Engagement and Collaboration' in Cheryl Simrell King (ed),
Trang 32decision-making, and policy-forming activities of organizations/institutions responsible for policy development‘.15
Meanwhile, the International Association for Public Participation states ‗Public participation means to involve those who are affected by a decision in the decision-making process.‘16 They have rights to take part in the process of seeking solutions for public issues or social problems The participation ‗promotes sustainable decisions by providing participants with the information they need to be involved in a meaningful way, and it communicates to participants how their input affects the decision‘.17
According to another simple definition suggested by Bonnemann, public participation is activity to conduct consultations with concerned individuals, governmental agencies, and other stakeholders before making a decision.18 This definition is accessible and elicits the arguably core purpose of public participation, namely that the citizens should be enabled to be involved in decision-making which has an influence on their life Similar to this view, Craythorne opines that ‗public participation is to ensure that the relevant ―publics‖ are approached on any particular issue‘.19
According to these views, public participation will assist on any particular issue when the relevant and interested members of the public are involved Parry defines public participation broadly as ‗taking part in any of the process of formulation, passage and implementation of public policies‘, especially within ‗political participation‘ This is a wide definition that generally encourages public involvement in decision-making and implementation of policies.20 These definitions do not, however, clearly designate the target of participation, nor the authority responsible for guaranteeing stakeholders‘ rights to take part in making decisions or solving public issues
Trang 33group[s]‘ Within this wider grouping, ‗citizen participation‘ refers to public involvement in the process of governing and decision-making, and ‗political participation‘ is the act of people taking part in political activities (i.e directed toward elections and influencing elected representatives) ‗Civic engagement‘, on the other hand, refers to people‘s engagement in community activities under many forms ‗from individual volunteerism to organizational involvement to electoral participation‘.22
Some researchers and organizations emphasise the process aspect of public participation Such definitions range from public participation as ‗a complex and ongoing process through which people are to exercise varying degrees of influence over development activities that affect their lives‘;23
to ‗the process by which public concerns, needs, and values are incorporated into government and corporate decision making.‘24; and ‗the processes in which individuals, groups, and organizations have the opportunity to participate in making decisions that affect them, or in which they have an interest.‘25
Others emphasise inclusiveness in this process, involving ‗all organized and unorganized groups of citizens or citizen representatives‘ to solve particular issues.26
Still others, such as the OECD, focus on the
independent avenues for participation and outcomes in terms of generating policy options. 27other definitions acknowledge the difficulty of separating process from outcome, for example Babooa's view that ‗public participation is the sum total of all citizens and communities deliberately taking part in a goal-oriented activity in which the members of the public are interested in solving issues in question‘. 28
Some writers stressed the benefits of public participation to government, rather than governance per se Langton, for example, defines citizen participation as ―initiated and controlled by the government to improve and/or to gain support for decisions, programs, or
22
Ibid 150 23
G.E.J Kellerman, 'Implementation of Development Projects and Programmes' in D.A Kotzé (ed), Development
Administration and Management: A Holistic Approach (J.L Van Schaik, 1997) 52 24 J.L Creighton, The public participation handbook: making better decisions through citizen involvement (Jossey-Bass, 2005) 7 25 B.L Smith, Public Policy and Public Participation Engaging Citizens and Community in the Development of Public Policy (Health Canada, 2003) 5 26
The International Water Centre, 'ACEDP River Health and Environmental Flows in China: Stakeholder Engagement and Public Participation - Project Code: P0018' (the Australian Agency for International Development (AusAID), 2011) 119 27
Marc R Gramberger and Organisation for Economic Co-operation and Development., Citizens as Partners : OECD
Handbook on Information, Consultation and Public Participation in Policy-Making, Governance (OECD, 2001) 15
28
Sanjiv Kumar Babooa, Public Participation in the Making and Implementation of Policy in Mauritius with Reference to
Trang 34services‘.29
Even within this definition, the government's perspective need not run counter to the interests of the public: feedback may be sought from the public to enhance the quality of its service as well as ensure the citizen‘s right of participatory democracy according to the Article 25 of International Covenant on Civil and Political Rights Yet this definition does not focus on the perspective of the government; it tends to emphasize the instrumental value of participation of citizens for plans, programs, policies and laws Participation of public members is thus branded as an opportunity to ‗provide feedback‘ as ‗a voice in government‘ This opportunity ‗allows members of the public to contribute ideas and expertise so that their government can make policies with the benefit of information that is widely dispersed in society‘.30 In the same vein, the United Nations Development Programme underlines that ‗the aim of people‘s involvement in decision-making is not only to ensure their benefits, but also to ‗enhance their role in promoting good governance‘.31
In contrast to this state-oriented perspective, others argue that public participation is primarily the ‗means [for] the chance of all those concerned and/or interested to present and/or stand up for their interests or concerns in the development of plans, programmes, policies, or legal instruments‘.32
This is linked to the idea that interested individuals or groups have the right to present their opinions on any plans, policies and laws which are relevant to their interests Participation thus affords the opportunity to present feedback so that government agencies know how to develop and implement these plans, programs, policies or legal instruments responsively In the Australian Capital Territory where, like many jurisdictions, the definition of public participation has been codified in law, a citizen-centred concept of public participation is reflected in the range of potential state and non-state targets of public participation: ‗conduct that a reasonable person would consider is intended (in whole or part) to influence public opinion, or promote or further action by the public, a corporation or government entity in relation to the issue of public interest‘.3329 S Langton, Citizen Participation in America: Essays on the State of the Art (Lexington Books Lexington, Massachusetts, 1978) 2 30
Carolyn J Lukensmeyer, Joe Goldman and David Stern, 'Assessing Public Participation in an Open Government Era'
(2011) IBM Center for the Business of Government , 11
31
Evaluation Office, 'Civic Engagement' (United Nations Development Programme, 2002) 1 32
The Austrian Federal Chancellery and the Austrian Federal Ministry of Agriculture, Forestry, Environment and Water
Management Standards of Public Participation: Recommendations for Good Practice (The Austrian Council of Ministers,
2008) 24 33
Trang 35In summary, there are many different definitions of public participation aligned to many different perspectives Many of these definitions overlap, or are broadly compatible, whereas others potentially conflict, especially where the difference is one of an instrumental state based perspective and an intrinsic, process-focused, citizen centric definition This chapter returns to this potential conflict below when considering views that are sceptical of the concept of public participation in governance Nevertheless, the starting point for a definition of public participation should return to the essential core, namely the involvement of members of the public in decisions that affect their interests
2.2.2 Forms of Public Participation
Forms of public participation are considered and classified according to the nature, goal and levels of citizen involvement and citizen impact There are many researchers depending on these criteria in order to give many different forms of public participation However, they all have the same view to recognize that there are many different stages and levels of public participation in the process of decision-making From these levels of public involvement, many researchers have considered and given different views to classify forms of public participation
To describe the levels of participation in the process of public participation in decision-making, some authors classify public participation into three forms: Information, Consultation and Public Participation One of the examples for this classification is the model of public engagement of Rowe and Frewer.34 They show that the public engagement in decision-making is conducted under three forms: Public communication, Public consultation and Public participation Similar to this, the European Institute for Public Participation35 also gives three forms of public participation: Information, Consultation and Public participation Also depending on the nature, goal and levels of public involvement, some researchers say that there are four forms of public participation, including Information, Consultation, Engagement and Collaboration.36 Similar to that view, Chris Skelcher and Jacob Torfing also classify into four forms of public participation but these forms are presented under different names, such as Data gathering through public surveys (Information), Opinion seeking through 34 Rowe and Frewer, above n 15, 255 35 EIPP, 'Public participation in Europe - An International Perspective' (European Institute for Public Participation, 2009) 6 36
Carolyn J Lukensmeyer and Lars Hasselblad Torres, Public Deliberation: A Manager's Guide to Citizen Engagement
Trang 36public consultation (Consultation), Policy exploration through deliberative forums (Engagement) and Interactive dialogue through governance networks (Collaboration).37Besides, there are also researchers to depend on the levels of participation in order to explain and give views with five forms of public participation equivalent five stances or five levels For instance, Spectrum of Public participation38 of International Association for Public participation (IAP2) or Wilcox‘s model39 with five stances is typical examples
There are many examples of classification for forms of public participation as aforementioned, but in this research, author generalizes and presents briefly about five forms of public participation in the process of decision-making as following: Information, Consultation, Involvement, Collaboration and Empowerment
2.2.2.1 Information
This form is to provide information for citizens that are concerned or affected The citizen participation in this case is conducted by the following way: The authorities share and provide useful and important information for the citizens to assist them in understanding related matters of plans, policies and legal instruments or social problems before these policies, decisions are implemented This activity helps the citizens understand and have an initial evaluation or comments on these issues of decisions that may affect their lives
In this form of participation, the information only flows one way from the authorities to citizens Here the citizens do not have any opportunities to create their influence on the final decisions Some tools are used to conduct this form of public participation, including fact sheet, brochures, open houses, public hearings and public notification strategies, media campaigns This form is also considered stage 'information giving' Its purpose is to 'ensure that people are well informed‘;40
thereby this will help citizens to increase their awareness and understanding of issues that the authorities are addressing and then it also bring positive views and sympathy of the citizens for policies or decisions when its implementing in the future This job will create favourable conditions for citizen participation in the next stage of public participation in the process of making policies and decisions
37
Chris Skelcher and Jacob Torfing, 'Improving Democratic Governance through Institutional Design: Civic Participation
Trang 372.2.2.2 Consultation
Consultation is the action of the authorities to discuss and seek information or advice from the citizens before making a decision The goal of the consultation is to obtain the citizens comments or feedback on drafts of decisions, plans, solutions or legal instruments In the process of decision-making, the authorities often seek comments, opinions from citizens as a good way to seek information or advice in order to improve the quality of decision This is also mandatory work according to regulations that the authorities must conduct seriously consultation activities in the process of making policies and decisions
In this form, the citizens also do not have any opportunities to give any impact on the decisions Their feedback or comments are only ―for reference‖ In fact, the authorities have little or no information available to help them understand public views; thus the consultation activities in this case are conducted to assist the agencies of authorities in seeking more information from segments of the public.41
It confirms that the consultation form of public participation is only a way to help decision-makers to obtain a better understanding in the process of making decisions However, it also has its own value for the citizens when it helps to educate the citizens and stimulate debate as well as allows them the opportunity to discuss and clarify values of issues related to their interest.42 In order to obtain the goals of the consultation, some consultation tools are often implemented to get citizens‘ comments or opinions such as, public comment, focus groups, opinion polls, surveys and public meeting
2.2.2.3 Involvement
Trang 38the contents or forms of these decisions, and their voices now take more notice from authorities and have more influences on decisions Some tools are often used in this form such as, workshop, public deliberation, deliberative polling, etc
Trang 392.2.2.4 Collaboration
Collaboration is the action of citizens to work with governmental officials to produce a common solution for decisions and/or policies In this form, the citizens are recognized as partners, collaborator to take part in the process of decision-making According to Wilcox, this is a stance ―Acting together‖.45
The citizens and the governmental officials will discuss, negotiate and share their opinions together in order to deal with problems, and then recommend solutions and general views that influence on final decisions.46 In this stage, the citizens‘ voices have more impacts on the decision as well as particular influence on the process of giving final decision-making The aim of this collaboration is to obtain consensus in the final decisions in order to get higher achievement in implementing policies or decisions in the future The responsibility of authorities is to hold deliberative forums and build consensus policy through setting up collaborative relationships with citizens by some tools such as Citizen Advisory committees, Roundtables, Task Forces, and Study groups
From the view to consider the citizens as collaborator in order to look directly advice and innovation from the citizens, the authorities must recognize the role and power of citizens in discussion as well as their impacts on the decisions and endeavour to maximize that impact extent possible for the citizens.47 This job is necessary to help authorities to have more information, advices, innovation from citizens in order to obtain a comprehensive view of issues related to decisions as well as to create the trust of citizens in government and cultivate long-term partnership because of the development and good governance
2.2.2.5 Empowerment
Trang 40With empowerment form, the authorities have given the power for the citizens as self-determination in the process of decision-making They discuss and seek solutions to deal with their problems The authorities only have the responsibility to facilitate convenient conditions, resources and supports in order that the citizens can obtain full of power in conducting right to determine by them in the process of decision-making Some tools are often used as means to conduct the citizen power in the process of decision-making such as Public advisory groups, Citizen Juries, Ballots, Community planning board and Delegated decision and then the authorities will also have a responsibility to implement and promulgate as what the citizens decide.48
2.2.3 Classification of Public Participation
When discussing public participation, political science theorists often refer to concepts such
as flow of information, continuum of participation and level of empowerment to classify the
types of public participation
2.2.3.1 Based on Flow of Information
Rowe and Frewer argue that the public participation is only one of three concepts of public engagement mechanisms They base their typology on the quality of the flow of information between participants and sponsors classifying under three forms:49
Figure 2.1 - Flows of information between participants and sponsors
Source: Rowe and Frewer (2005)
In Public communication, the public receives information one-way from the sponsor, for
example, a government department or agencies of authorities Under this type, ‗there is no involvement of the public per se in the sense that public feedback is not required‘
48 Ibid 49
Rowe and Frewer, above n 15, 255, 263