So far, little consideration has been given to the fact that a shift from ideologized and politicalized policy to factually oriented policy leads to increased demands on strategic decision-making and management. This is where the focus of the work of central government should lie. Documents assign this role to central government and put it in relations with measures to remove operative actions at this level. Numbers of administrative decisions of central government authorities are given, amounting to millions per year. However, this global figure says only a little about the actual workload of ministries. We can assume that this figure includes also decisions generated with a certain portion of automatism, with the use of information systems by specialized institutions, such as decisions concerning pensions. Neither can we expect that the conceptual function will start automatically as a result of releasing authorities from operative actions.
Within the framework of a "pragmatic" approach, doubts are often cast on the practical importance of conceptual approach and of clarifying the substance of a matter. Visions, strategic decision-making and even democratic institutions and principles are sometimes perceived as mere play of words without any practical consequences, or even as burdensome for the professional practitioner operation of state administration. The connection with the profanation of the former way of planning and socialist quasi-democracy is obvious (to be safer, the expression "participation" is used nowadays instead of the former "taking part in the administration").
This fact can be seen in the management of administration without any clear orientation, "based upon a feeling" of officials randomly appointed to their offices, and in the course of inadequate simplification of problems. If the halo-effect, well-known from psychology, and the impact of continuously repeated truths in a little informed environment are considered, no wonder that the statements of officials as well as of the public and politicians confirm attitudes and opinions which show lack of understanding of the sense of the issue and superficial evaluation. Emphasis is then laid more on non-interference of the self-government with bureaucracy rather than on primarily seeking ways of the full application of the role, powers and responsibilities of self-government and its elected representatives.
This can be proved by a certain kind of confusion and embarrassment concerning the role of public administration as public service. So far, all reform materials have declared this proposition, without interpreting the consequences and proposing concrete measures.
Research of the process of formation and implementation of public policy in the Czech Republic (1995, 1996) identifies also the following weaknesses in the functioning of public administration:
A significant disproportion between the need to strengthen the strategic dimension of decision-making and management in the Czech Republic in comparison with the practice in many countries of the world and recommendations of renowned world specialists and institutions can be eliminated only through creating the respective systemic institutional and personnel prerequisites. Primarily, it is necessary to change political and bureaucratic attitudes in order to abandon existing improvisation, to create necessary databases, a professional basis and to discontinue the reliance on the>routine experience only. Neglecting this area, the Government deprives itself of a service which is used currently by governments in the world for securing their success.
Public administration is, in fact, of decisive importance not only in the application and implementation of law but it is designed to fulfil a key role in creating the legislation, with a view to its economic, technical and other special expertise and to its legislative and technical facilities. Urgent needs of securing the democratic system, guarantees of rights and freedoms of citizens and the creation of a legal framework for free business activities and for the functioning of market economy led to extensive and hectic legislative activities after November 1989. This was intensified by an important task of applying the Constitution of the Czech Republic and, in the present and future development, with the far-reaching task of harmonizing the Czech legislation with that of the EU
This development led to an extensive quantitative increase in legal regulations in the past, frequent amendments to which led to confusion in the legislation, to a weakened regulatory function of law, to unstable legislation and thus to weakened legal certainty. Therefore, the criticism of this situation by citizens, the public and entrepreneurs has been justified.
The proportion of passed legislation and its amendments (i.e. acts containing only amendments to acts in force) in the past eight years is as follows:
| 1990 | 1991 | 1992 | 1993 | 1994 | 1995 | 1996 | 1997 | |
|---|---|---|---|---|---|---|---|---|
| Acts | 77 | 78 | 103 | 34 | 27 | 24 | 11 | 27 |
| Amendments | 42 | 45 | 47 | 74 | 42 | 53 | 27 | 27 |
The incomprehensibility of some legal regulations, the high administrative demands connected with their use, the ambiguity and inaccuracy of many legal concepts, the validity of numerous obsolete regulations from the times of the old regime and the federation, ambiguities ensuing from many indirect amendments etc. are particularly pointed out. The creation of laws often fails to consider the requirement that law should be formulated as clearly and in as a reproducible way as possible so that every citizen could know his rights and duties in advance; in addition, citizens must have the possibility of estimating in with sufficient certainty advance what standpoint a judge will keep when hearing his case.
Documents adopted within the framework of so-called regulatory reform are stimulating for improving the level of the preparation of legal instruments. In 1995, the OECD issued recommendations concerning the enhancement of quality of regulatory systems and activities with the aim of increasing the quality and transparency of legislation issued at all management levels and an overall reduction of amendments, improved regulatory co-ordination, the elimination of ineffective regulations and a reduction of bureaucratic formalities. For this purpose, the OECD prepared detailed methodology consisting of ten questions (principles) according to which each regulation should be assessed in the course of political decision-making whether or not it is necessary and useful and whether it should be used. The aim is here to restrict legal regulation, to apply it to a rational extent in which it is necessary and cannot be replaced by other means, especially by self-regulating mechanisms. In addition to basic approaches, which should either eliminate or justify the necessity of legal regulation, it is necessary to consider in advance the relation between regulation costs and expected benefits while the distribution of the regulation costs and benefits should be made transparent even in the cross-section of social groups.
The requirements that all parties (interest groups) involved in the prepared regulation should have an opportunity to apply their viewpoints and that means for fulfilling the aims of the regulation should be evaluated and assessed is an important methodological instruction.
These issues should be contemplated in the Czech Republic as well, especially at the beginning of a legislative process. Legislative rules adopted by the Government in March 1998 are prepared in a traditional way from the viewpoint of organizational procedure used for the preparation of legislation and legislative techniques, they do not contain, however, methodological viewpoints of the regulatory reform. It is necessary to achieve the adoption of new rules which reflect fully OECD recommendations concerning the regulatory reform and apply them to the conditions of the Czech Republic.
It would be reasonable in this connection that the Parliament and the Government should orient public administration and all entities participating in the preparation of legislation to a radical cleaning of the legal system to eliminate totalitarian and federal legal regulations, to deregulate or substantially simplify the legislation wherever possible, to rationalize, simplify and accelerate legal procedures and proceedings in favour of citizens and business with the aim of gradually accomplishing the requirement of functioning of public administration as a public service.
As far as the legal harmonization with EU legislation is concerned, real progress has already been made in a number of areas including legislation, and the ministries and other central bodies monitor this task quite systematically. The structure of ministries and the quality of their staffing, of course, still does not correspond to growing demands not only in respect of approximation of the legislation but also in relation to the securing and checking of its subsequent application. At the same time, there are growing requirements especially as regards the communication of Czech central government officials with the respective EU institutions. Supplementing and increasing the quality of administrative staff must be understood as urgent long-term tasks in this respect.
Public administration needs and utilises information and data of various nature for all its functions and activities. Communication within the framework of the individual public administration bodies, between institutions and various levels of public administration and with the public is important. The way of providing information and data and the reliability of their protection against misuse are important for the mutual relation between citizens and public administration.
The last quarter of the 20th century is characterized by a transition from a period of little- changing systems to a period of permanent and unusually fast changes due to the development of information and telecommunication technologies. Simultaneously, the price of these technologies keeps decreasing steadily. Information and telecommunication technologies and uniform information protocols can significantly strengthen the quality and extent of services provided by public administration, its efficiency, understandability, accessibility, flexibility and other important features. The compatibility of the respective Czech legislation (protection of personal data, electronic signatures etc.) with European rules and standards is becoming a prerequisite for this process.
There are many applications which have been created and are in standard use in the Czech Republic. The main areas of their use can be classified as follows:
Within the framework of the Analysis, information has been obtained about the equipment and ways of using information technology at ministries of the Czech Republic and selected central bodies (see the report prepared by the company Markent - "Survey of information technologies in public administration"). The report monitors the methods of decision-making, it shows a wide use of Internet and points out ambiguous ideas about further development of IT and its financing. In the above enumeration of application areas in central institutions, areas 1, 2 and 3 prevail. At present, individual bodies are building or have already built) extensive internal networks which provide vertical communication. Horizontal communication is provided ad hoc, or on the basis of bilateral agreements. The decisive moments for the further development of communications are not technologies and their limits but rather the defining of clear conceptions and strategies of utilizing IT in public administration. A follow-up of legislative adjustments, the arrangement for institutional changes and also adequate funds will be necessary.
From the viewpoint of security of the information systems, it is necessary to emphasize the confidential nature of the data, and also strategic security in the case of public administration. Following the principle of the weakest link, the level of protection of data confidentiality in one sector becomes dependent on data security in all other sectors if sectoral systems are interconnected (horizontal communication).
The decision-making concerning the rights and duties of natural persons and legal entities is governed by administrative rules and by a whole number of special laws. These legal regulations are undergoing a substantial review at present, with the aim of
Some improvements have already been achieved, e.g. the updating of building permit proceedings.
Basic changes should be introduced by means of legal regulation of the whole complex of interlinked institutes of administrative proceedings, administrative punishment and administrative judiciary which are being prepared at present. What is mentioned in this connection are usually the requirements of Article 6 of the European Convention on Human Rights for the full application of which the Czech Republic has sought the most suitable institutional and content solution. Until now, less attention has been paid to the Principles of Administrative Law relating to the relations between authorities and private persons. This document represents a culmination of many years of efforts of the Council of Europe in this area with the aim of formulating the basic principles expressing European standards in the area of administrative decision-making. The document defines and specifies the principles of legality, equality before law in accordance with the legitimate purpose, proportionality, objectivity and impartiality, legal certainty and protection of acquired rights and openness of the administration (material principles). Procedural principles are of equal importance, such as the accessibility of public administration, the right of hearing, the right of representation and help etc. The document also discusses some guarantees in respect of administrative punishment, personal data protection and control of the application of the above principles as well as public liability and indemnification.
The full projection of these documents not only into the legal regulations but also into the application of law belongs to the basic tasks of the public administration reform. It is that part of the reform which - provided that legislation is of a good quality and the discharge of duties of public administration is consistent - will mean substantial progress of public administration in the eyes of the public and bring a considerable increase in the effectiveness of administration.
To accelerate this process, it is necessary:
The modernization of administrative judiciary is a consistent part of the public administration reform. The fact that the issue of judicialization of public administration appears on the agenda, after many years of hesitation and doubts regarding the conceptual form of this reform, only in connection with the preparation of the Czech Republic for EU accession makes this issue much more serious for to be solved by our legislation.
There is still minimum direct experience of persons under the jurisdiction of Czech courts with the forms of protection provided by the European Court for Human Rights against incomplete and not concise exercise of administrative and constitutional justice. Nevertheless, it is necessary to say that, in contradiction to adopted international obligations, private persons in the Czech Republic have not had yet the fully guaranteed right to a fair process in the sense of the existence of a coherent court protection in administrative matters (Article 6(1) of the Convention on the Protection of Human Rights and Fundamental Freedoms, in accordance with the judgements of the European Court for Human Rights). The basic shortcomings are as follows:
The modernization of administrative judiciary is an important requirement from the viewpoint of the preparation of the Czech Republic for EU accession. The European Union is an administrative and legislative community, administrative acts issued by EU authorities as acts of the implementation and application of acquis communautaire are fully subordinated to judicial control and acts issued on the basis of the Treaty on the European Union are gradually "communautaurized" in this way if the possibility of their control was restricted or excluded in the past. Courts of EU member states interpreting or applying European law are bound by the "interpretation ruling" of the European Court of Justice in all cases when it is necessary to raise a preliminary question to the court based in Luxemburg prior to ruling on merits.
Administrative Law of the EU acknowledges the principle of full transparency of public administration, which has also led to the situation that obstacles impeding access to court, which the Czech legislation is still struggling with, have been eliminated in the area of judicial control of administration activities of municipal bodies. It is undoubtedly desirable for the legislation of the member states to approximate to such a state.
In this context it should be pointed out that items enumerated in connection with the implementation of the Convention on the Protection of Human Rights and Fundamental Freedoms should be supplemented by one more requirement, namely that our legislation should enable
For all the above reasons, it is necessary to propose that the intention stated in the introduction of the quoted requirement concerning the necessity of the implementation of judicial control of public administration in the spirit of European requirements should be implemented consistently. Support should be given primarily to the requirement of reviewing the present state of administrative judiciary as it was changed at the beginning of the 1990s by an amendment to the Rules of Civil Procedure. It will be adequate to provide for the position of the Supreme Administrative Court in the organizational system of administrative judiciary on the basis of this review, and to determine the links with a new procedural regulation of so-called non contentious administrative proceedings.
After 1989, the most serious deformation in the organization of control of public administration have been gradually eliminated. First of all, the institutes of parliamentary and judicial control of public administration have been renewed, the supreme independent institution of financial and economic audit has been reestablished - the Supreme Audit Office - with both the general and specialized responsibilities and competences, and the centralized system of peopleīs control authorities as executive bodies with general audit competence has been abolished. Simultaneously, new general procedural rules have been adopted for the exercise of administrative supervision in the Czech Republic (so-called inspection rules in the State Inspection Act). Prosecutorīs offices were abolished which meant the end of their general supervisory power. Functions of institutions of citizen control have been renewed or strengthened, especially with a view to the role of mass media and the application of the petition right of citizens.
However, one shortcoming of this process was that its implementation did not take place in a series of well-devised and interlinked steps which would be the result of an analysis of the overall situation of the state inspection mechanism but rather in a partial and random way, often only in connection with the solution of other, politically strongly perceived legal and social problems. Due to this fact, the process of the reform of the state inspection mechanism, commenced after 1989, can be considered to be neither problem-free, nor completed.
The following problem areas can be considered especially significant: