Administrative Procedures and Democracy: The Italian Experience

Introduction

The link between participation and democracy is evident: democracy means participation (at least), and participation is ensured by procedures whose goal is to ensure that a "good" decision is made. With regard to democracy, even if the Italian Constitution does not lay down a general rule that refers to administration,¹ there is no doubt that democratic principles also apply to administration, given how important it is.² Participation is the presence, within public bodies, of nonprofessional subjects. According to Italian scholars, we can either have institutional participation, which involves people within administrative organs, or functional participation, which relates to procedure.

Over the past few years, administrative procedures, and the role of private individuals within them, have been emphasized by Italian administrative science. There is a special reason for this: the approval of an administrative procedure law, which contains a set of minimum principles that apply to the relationship between authorities and citizens, is a basic measure of democracy. I am referring to Law n. 241 of August 7, 1990,³ which has tried to incorporate the results of a debate that has been going on for many years. Hence, this law is a kind of codification. This debate, which dealt with the crisis of the classic liberal model, was aimed at providing citizens with new channels for representing their interests.

Before this law was enacted, a hearing for individuals who were concerned with administrative procedure was compulsory only in certain cases established by case law, such as in disciplinary proceedings and especially in Consiglio di Stato⁴ decisions.

Now, under current Italian law, the right of access to information and the right to be heard represent the two discrete aspects of participation: the right to enter the procedure by requesting the disclosure of administrative documents and the right to submit written opinions and comments. Once a decision is made, the pertinent results of public participation are taken into account. These powers are conferred on those members of the public who are affected, or likely to be affected, by the final act or those who have an interest in the decision, provided that they can be easily traced. This is not dissimilar to Article 41 of the Charter of Fundamental Rights of the European Union.

I. Weakening the Link Between Democracy and Participation

A. Participation And Democracy Or Participation And Inequality

Could participation produce inequality between citizens? This is a fundamental question. Most of the time, people represent their own points of view. People concerned with a given procedure are usually trying to limit public power that seems to be dangerous for individual interests. More participation appears to be a positive move toward solving administrative problems because it takes into account public needs, and more opinions and comments will have the chance to be accepted by decisionmakers. But not everybody has the same capacity to elaborate his interests and to put forward proposals and opinions in the pursuit of the public interest. In this scenario, decisionmakers, who are obliged to pursue the public interest, or to find a balance between public and private interests, have fewer limits in rejecting the submitted opinions, which means authorities have more discretion. As I said above, the effort to elaborate an alternative requires, among other things, capacity, money, time, and expertise. Thus, participation could become a dangerous device used only by strong, private powers.

In order to avoid this risk, the role of local ombudsman should be strengthened. In Italy, the ombudsman is vested with the power to assist people and facilitate their interaction with public authorities. This helps ensure public bodies are obliged to listen to individuals and take into account the individuals' interests. The following expression could be applied to these proceedings: freedom exists when the people can speak, democracy exists when the government listens. In this manner, participation can enhance good administration.

B. Participation and Legitimization: Is It Authentic Democracy?

According to Niklas Luhmann's reflection, the legitimization of public action is also given by participation.⁵ Luhmann's view stresses "legitimization through process." The link with democracy is evident, because by acting in...