Assessing the Status of Administrative Law (CR 09-005)

8/14/2019 Assessing the Status of Administrative Law (CR 09-005)

1/20

Assessing the Statusof Administrative LawINPROL Consolidated Response (09-005)

With contributions from Vivienne OConnor, Richard Zajac Sannerholm, Christina Murtaugh,

Carsten Weber, Scott Carlson, and Howard Fenton

Initial draft prepared by Eve Grina, William & MarySchool of Law, finalized by Scott Carlson, ROLFacilitator


2/20

INPROL is a project of the United States Institute of Peace with facilitation support from the Center of Excellence for Stability

Police Units, the Pearson Peacekeeping Centre, the Public International Law & Policy Group, the Swedish Police Peace Support

Operations and the United States Department of State's Bureau of International Narcotics and Law Enforcement Affairs.

ASSESSING THE STATUS OF ADMINISTRATIVE LAWINPROL Consolidated Response (09-005)

July 2009

Submitted by:Carsten Weber, Chief, Rule of Law Unit, ODIHR-OSCE

Drafted by: Eve Grina, William & Mary Law School, Research Assistant, Rule of LawProgram, U.S. Institute of Peace,finalized by Scott Carlson, ROL Facilitator

With contributions from:

1. Vivienne O'Connor, Rule of Law Advisor, U.S. Institute of Peace2. Richard Zajac Sannerholm, PhD Candidate, School of Law, rebro University3. Christina Murtaugh, William & Mary School of Law, Class of 20094. Scott Carlson, Senior Rule of Law Advisor, U.S. Institute of Peace5. Howard Fenton, Professor of Law and Director, Democratic Governance and Rule of Law LL.M

Program, Ohio Northern University College of Law

The full text of the responses provided by these INPROL members can be found athttp://www.inprol.org/node/1628. INPROL invites further comment by members.

Note:All opinions stated in this consolidated response have been made in a personal capacityand do not necessarily reflect the views of particular organizations. INPROL does not explicitlyadvocate policies.


3/20

July 2009 INPROL Consolidated Response (09-005) Page 1 of 18

Background:

The Organization for Security and Cooperation in Europes Office for DemocraticInstitutions and Human Rights (ODIHR) is currently involved with administrative lawreform in the OSCE region, focusing specifically on the Commonwealth of IndependentStates (CIS). In preparation for a conference to review CIS countries administrative lawreform progress, the office sought resources for assessing administrative law indeveloping countries. An important aspect of administrative law reform in CIS countriesis the decriminalization of administrative codes, to prevent administrative law frombecoming a government tool to circumvent procedural safeguards in criminal law.

Query:

I am looking for documents related to assessments of administrative law systems(questionnaires, assessment reports, etc.). Is there anything out there?

Response Summary:

Administrative law is increasingly emphasized in rule of law programming, but theassessment of administrative legal machinery is a relatively new area of study.This subject is complicated by the fact that there is a wide variation among majorlegal systems in their approaches to, and formulations of, administrative law.Nevertheless, various international organizations have begun to formulategeneric principles and guidance on the topic, and this emerging body of material

displays a significant degree of agreement on basic areas of focus and concern.Consequently, these principles and guidance constitute an appropriate startingpoint for designing and implementing an assessment tool for capturing a pictureof the key features of a particular jurisdictions administrative legal system, aswell as identifying potential strengths and weaknesses.


4/20


Introduction

Traditionally, administrative law, also known as public administration, hasbeen a subordinate topic in reform and development programming. When it hasbeen addressed, assessments and reforms have tended to focus on the systems

operational efficiency. Recent studies and scholarly works have promotedimporting rule of law concepts into administrative reform, citing the fact that theadministrative system is generally the main interface between the governmentand individual citizens, and has a long-lasting and direct effect on individualsrights to government services.1

I. Generally Accepted Administrative Law Requirements

Administrative law systems differ greatly among countries, and thus, there is nosingle model that can be used as a yardstick for assessments. Each state mustdevelop a system of administrative law that best suits its cultural, economic, and

stability needs.Two basic purposes of administrative law are to enable effective administrationand to promote respect for the rights of individuals vis a vis the government.2 Inassessing an administrative law systems capacity to achieve these basic goals,the first foundational questions should be:3

What are the rules of eligibility for services? What are the procedures for applying for services? How do administrative agencies assess and respond to applications for

services? What opportunity is there to object or appeal an administrative action or

inaction?

1 Per Bergling, Lars Bejstam, Jenny Ederlov, Erik Wennerstrom, and Richard Zajac Sannerholm,Folke Bernadotte Academy, Rule of Law in Public Administration: Problems and Ways Ahead inPeace Building and Development, 12-15 (2008) [hereinafterRule of Law in Public Administration].2 The first objective of administrative law is to coordinate and guide administrative agencies

fulfillment of obligations. The second objective is to create procedures and rules that govern howindividuals are to be treated in the administrative system. See SIGMA & OECD,AdministrativeProcedures and the Supervision of Administration in Hungary, Poland, Bulgaria, Estonia andAlbania. SIGMA Papers: No. 17, 12-13 (1997) [hereinafterAdministrative Procedures and theSupervision of Administration].3 Malcolm Russell-Einhorn & Howard N. Fenton, USAID, Using Administrative Law Tools andConcepts to Strengthen USAID Programming: A Guide for USAID Democracy and GovernanceOfficers, 6 (February 2008) [hereinafterAdministrative Law Tools and Concepts]. For the basicprocess of an administrative law system, seeId. at 7, figure I. For general mechanisms andobjectives of administrative law systems, seeId. table at 2.


5/20


II. Special Considerations for Assessing Administrative Law Systems inPost-Conflict and Developing Countries

Certain characteristics tend to make it easier for a society to establish andmaintain an effective administrative law system. When beginning an assessment

of administrative law, an examination of certain societal conditions can be veryrelevant to determining capacity for administrative reform:4

Is there a significant degree of democratization? How competitive is the political system? What domestic or regional economic integration pressures exist for

reform? How developed is civil society? Is the administrative bureaucracy conditioned to respond to citizen needs?

Developing countries and societies emerging from conflict tend to lack sufficient

strength in the above areas.

5

Some experts encourage those countries to focusthe administrative system and administrative reforms on meeting the countrysmost pressing needs before concentrating on the broader goals of administrativesystems in stable, developed states.6

In a post-conflict setting, the administrative law system could be assessed interms of its capacity to meet these more immediate goals. For example, each ofthe following categories:

A. Strengthen Governance and Participation7

This goal traditionally concerns an administrative agencys ability to extend basicgovernmental office services. Questions to consider include:

What is the administrative systems capacity to build physicalinfrastructure necessary for delivering office services?

What is the status of local governing systems? How much reconstructionassistance will they need?

What is the status of the public information systems? What are the administrative tools for controlling corruption? To what extent are all societal segments involved with administrative

agencies?

4Id. at 3, 33, 38. For a table on opportunities and obstacles by context seeId. at 38-39 table 2.5 Richard Sannerholm. Legal, Judicial and Administrative Reforms in Post-Conflict Societies:Beyond the Rule of Law Template. 12 J. Conflict & Security 65, 71-72 (2007) [hereinafterLegal,Judicial and Administrative Reforms].6 Dennis A. Rondinelli, USAID, Reforming Public Administration in Postconflict Societies:Implications for International Assistance, 6, figure 1 at 7 (January 2006) [hereinafterReformingPublic Administration in Postconflict Societies].7Id. at 8-9. See also COUNCIL OF EUROPE. Recommendation CM/Rec(2007)7 of the Committee ofMinisters to Member States on Good Administration art. 8 (Jun. 2007).


6/20


Current research and reports suggest the need for rule of law8 concepts to playa more prominent role in administrative reform and assessments.9 Whenassessing the administrative system in terms of the rule of law, these questionsmay prove helpful:10

Does the administrative system comport with the principle of legality11?o Are the laws precise and concretely drafted?o Can the public understand the laws?o Is the administrative law system predictable and is there legal

certainty?12 Are administrative acts or decisions retroactive? Do administrative acts interfere with individual vested rights or

final judicial decisions?o Is the administrative system procedurally transparent?13

Are processes, institutions, and information accessible to

individuals concerned with administrative actions? Are individuals informed of actions and decisions? Is the information provided sufficient for the public to understand

the actions and decisions?o Is administrative law applied equally and impartially?14

Are individuals in the same situation treated the same way? Is there discrimination based on sex, ethnicity, religion, or

another category? Are differences in treatment objectively justified?

8 The rule of law is defined as a principle of governance in which all persons, institutions andentities, public and private, including the State itself, are accountable to laws that are publiclypromulgated, equally enforced and independently adjudicated, and which are consistent withinternational human rights norms and standards. Report of the Secretary-General on the Rule ofLaw and Transitional Justice in Conflict and Post-Conflict States (2004) UN Doc S/2004/616,para. 6.9Rule of Law in Public Administration, supra note 1, at 12-15. Twelfth Meeting of Experts on theUnited Nations Program in Public Administration and Finance, The Legal and RegulatoryFramework of Public Administration (1995).unpan1.un.org/intradoc/groups/public/documents/UN/UNPAN000761.pdf10Rule of Law in Public Administration, supra note 1, at 8, 12.11 The principle of legality requires that all laws be clear, understandable, and not retroactive.See also COUNCIL OF EUROPE. Recommendation CM/Rec(2007)7 of the Committee of Ministers to

Member States on Good Administration art. 2 (Jun. 2007).12 SIGMA & OECD, European Principles for Public Administration, SIGMA PAPERS no. 27, 9-11(1998). COUNCIL OF EUROPE. Recommendation CM/Rec(2007)7 of the Committee of Ministers toMember States on Good Administration art. 6 (Jun. 2007).13 COUNCIL OF EUROPE. Recommendation CM/Rec(2007)7 of the Committee of Ministers toMember States on Good Administration art. 10 (Jun. 2007). Rule of Law in Public Administration,supra note 1, at 79-80.14 COUNCIL OF EUROPE. Recommendation CM/Rec(2007)7 of the Committee of Ministers toMember States on Good Administration art. 3, 4 (Jun. 2007). International Covenant on Civil andPolitical Rights art. 14. 2200A (XXI) of 16 December 1966.


7/20


Do administrative officials restrict their consideration only torelevant matters?

Are administrative officials affected by personal biases incarrying out their official duties?

Is the administrative system politicized?15

Are there problems with access to justice, especially for vulnerable groups?

16

o Are provisions on the right to appeal administrative decisions clear?o Do agencies and individuals comply with procedural rules?o Are administrative decisions written? Are these decisions reasoned?o Is the public aware of administrative rights and responsibilities?o Is there an implementation gap17?

Are there are clearly elaborated implementing regulations andoperating guidelines?

How much attention is paid to organizational and proceduralchanges?

Is training and reference material available to bureaucrats

adequate? What efforts do agencies make to inform the public? Are administrative actions proportionate to the aim pursued?18

o Does the administrative system avoid restricting individual rights?o Do administrative actions balance individual interests against public

interests?

B. Stabilize Economy and Build Infrastructure19

Assessments in this area center on the administrative systems efforts toestablish legal frameworks for regulating financial and economic functions of thestate.20 The first question an assessment should answer is: what frameworkscurrently exist? In understanding the current status, these further questions couldguide an assessment:

How much confidence does the public have in the currency? How efficient and effective is the revenue collection system? In what condition are the debt management and resource allocation systems? How liberalized are the trade policies?

15Rule of Law in Public Administration, supra note 1, at 15.16Id. at 17. See also UNDP,Access to Justice Practice Note, 2004.17

An implementation gap is the difference between the rules advertised by the laws and theactual situation on the ground. Grard Marcou, Department of Development Support andManagement Services, UN Secretariat, The Legal and Regulatory Framework of PublicAdministration, UN Doc. ST/SG/AC.6/1995/L.4, para. 19. See alsoAdministrative Law Tools andConcepts, supra note 2, at 41.18 European Ombudsman, European Code of Good Admin. Behavior art. 6 (2005).COUNCIL OFEUROPE. Recommendation CM/Rec(2007)7 of the Committee of Ministers to Member States onGood Administration art. 5 (Jun. 2007).19Reforming Public Administration in Postconflict Societies, supra note 7, at 11.20Id. at 8.


8/20


How easy to navigate is the legal framework for businesses?

C. Provide Emergency Humanitarian Relief and Social Welfare Services21

Commonly, a significant amount of aid flows into post-conflict or developing

countries from international donors. The administrative systems absorptivecapacity is thus important. Assessments of the administrative systemsabsorptive capacity should determine the sufficiency of physical infrastructure,human resources, domestic financial resources, and administrative power toeffectively distribute incoming aid?22

Under this category of tasks, assessments should also look at whether theadministrative system has established resettlement programs for ex-combatantsand internally displaced persons (IDPs). Also helpful would be to determine if andhow the administrative systems ability to promote human capital, reduce poverty,and promote social equality can be improved.

III. Assessing the Reform Needs of Functional Administrative LawSystems

Some assessments of administrative law systems may be aimed at determiningwhat needs to be reformed and how, beyond the context of a post-conflictenvironment. These assessments explore more long-term goals andperspectives than those emphasized in the previous section. The first step inexamining more comprehensive reform of an administrative law system is toassess the existing mechanisms.

A. Strategic Conditions and Needs23

As a foundational element, assessments of administrative law systems shouldask: What are the strategic goals for the next 5-10 years and what are the majorchallenges?

B. Legal Framework24

Determining the legal framework that underlies the administrative system is thefirst step in an assessment. Administrative law can be framed in different ways,including constitutional provisions, national legislation, specialized administrativecodes, and precedent from administrative decisions. Assessing the current status

21Id. at 10.22Id. at 8.23Id. at 15. For assessments of the major challenges to administrative reform across a widebreadth of developing countries, see International Monetary Fund, Poverty Reduction StrategyPapers, http://www.imf.org/external/NP/prsp/prsp.asp (Jun. 8, 2009).24Reforming Public Administration in Postconflict Societies, supra note 7, at 15.


9/20


of the legal framework involves identifying all the sources of administrative lawand determining how the sources interact.

1) Foundations of Administrative Law

What form of constitutional authority exists?

25

o To what extent has public respect for constitutional authority eroded?

Under the current constitutional framework, what are the power-sharingprovisions?

o Particularly, what is the extent of the executive power?26 Is the power centralized or decentralized?

o How clear is the division of responsibility among the agencies andbranches of government?

What level of general understanding do the administrativeagencies have about the legal framework and coordination?27

What is the role of constitutional or supreme courts and how do they relate to

administrative laws?

28

What national statutes govern the administrative system? Is there an administrative code? What is the role of local governments?

2) Administrative Decisions29

The extent to which the principle of legality plays a role in administrative law isespecially important in assessing the administrative decisions process.30 Thefollowing questions would be helpful:

What mechanisms exist in the legal framework to provide individuals the rightto be heard prior to an agency decision?

What regulations exist to ensure that impartial actors make administrativedecisions?

o What regulations exist governing conflicts of interest? In terms of discretion in decision-making, what regulations are in place to

ensure that decisions are not arbitrary and thus comport with the principle oflegality?31

How does the administrative law system provide for meaningful review ofadministrative decisions? 32

25

Id. at 27.26Administrative Law Tools and Concepts, supra note 4, at 13-15.27Id. at 42.28Rule of Law in Public Administration , supra note 1, at 28.29Administrative Law Tools and Concepts, supra note 4, at 15-17.30 The basis for legality of administrative decisions can be drawn from several sources, includingthe countrys constitution, substantive laws giving authority to administrative bodies,administrative codes, and judicial decisions on administrative issues. SeeAdministrativeProcedures and the Supervision of Administration, supra note 3, at 14-15.31Id. at 12-13, 71.


10/20


o Is the decision reviewed at a higher level within the administrativeagency?

o Is there then an opportunity to appeal the administrative decision to thejudicial system?33

Are there separate specialized administrative courts to hear

appeals? Is an individual required to exhaust all administrative reviewoptions before appealing to the judicial system?

o Are there problems within the judicial system with judicialindependence and expertise? 34

o Is judicial review of administrative decisions substantive orprocedural?35

o What level of deference does the judiciary give administrativediscretionary decisions?

o Does the judicial process allow for review of agency rules andregulations?

Is there an ombudsman system to review administrative decisions?

36

To what extent is an agency liable to adversely affected individuals?

3) Administrative Law Factors Affecting Vulnerable Groups37

A lack of established practices and principles in an administrative law system,and a lack of public awareness of rights, can open the door for arbitrarytreatment. Social conditions can also lead to discrimination by non-state actorsagainst the poor and minority groups.

An assessment of the oversight/appeals system with a focus on how vulnerablegroups are treated within the system could ask:

Is there a lack of provisions defining the right to appeal? Is there failure to comply with existing procedures? Is there a lack of written decisions? Is there a large backlog of cases? Is there refusal to comply with court decisions?

32Administrative Law Tools and Concepts, supra note 4, at 13-15; Administrative Procedures andthe Supervision of Administration, supra note 3, at 77-82, 132-134.33Administrative Procedures and the Supervision of Administration, supra note 3, at 72-73.34

Administrative Law Tools and Concepts, supra note 4, at 32.35 Substantive judicial review involves the judiciary ruling on the core matter of the administrativedecision or rule, while procedural review restricts the judiciarys oversight to making sure thatadministrative agencies followed the correct procedure in creating the rule, or reaching thedecision. For a discussion on the balance of interests at play in allowing or disallowingsubstantive review, see David H. Rosenbloom, ADMINISTRATIVE LAW FOR PUBLIC MANAGERS,Westview Press, 9-10 (2003).36Administrative Law Tools and Concepts, supra note 4, at 133-143. See alsoRule of Law inPublic Administration, supra note 1, at 33-34.37Rule of Law in Public Administration, supra note 1, at 16-19.


11/20


4) Decriminalization of Administrative Law

In some countries, both developed and developing, certain traditionally criminaloffenses have been decriminalized by making them administrative offensesinstead. Decriminalization can in some cases effectively go around the

procedural safeguards that protect individual rights in the criminal justicesystem.38 Decriminalization can also generate concern that the criminal actionwill become widespread without a criminal penalty.39

In assessing an administrative law system, it is important to determine ifindividual rights would be better protected if certain administrative offenses wereput into the criminal code, and vice versa. An assessment of this aspect couldinclude questions such as:

Are the penalties for administrative violations more like civil law penalties orcriminal penalties?40

Are administrative offenses malum prohibitum (wrong because prohibited),whereas criminal offenses are malum in se (wrong in itself)?41 How severe are the sanctions imposed for the offenses? What is the stigma associated with the offense? Does the penalty have a punitive purpose?42

38 Often, the main problem is that administrative code violations tend to have a less rigorousappeals process. Malcolm L. Russell-Einhorn, Strengthening Access to Information and PublicParticipation in Government Decisionmaking in Transition Countries: Procedural Underpinnings of

Enhanced Regulatory Reform and Administrative Accountability, ADMINISTRATIVELAW REFORM INLATVIA, Abt. Associates, Inc., 5 (2001). Additionally, the European Court of Human Rights hasdealt with cases where administrative procedures have not been adequate due to the guaranteesin Article 6 of the European Convention on Human Rights. See Case of ztrk v. Germany,Application no. 8544/79 (1994) (declaring that article guaranteed the right to a state-providedinterpreter for an administrative offense); Case of Salabiaku v. France, Application no. 10519/83(1988) (finding that administrative proceedings must guarantee individuals a presumption ofinnocence under Article 6); Affaire Bendenoun c. France, Application no. 12547/86 (1994) (findingthat an administrative penalty may be high as long as the individual has the right to bring thematter before a court that upholds Article 6). For a discussion of what guarantees should beincorporated into administrative law from criminal law, see Rafael A. Benitez,AdministrativeJustice in a World in Transition: Pan-European Values in Administrative Justice, COMM. L. WORLDREV. 30(434), 15 (2001).39

Gijs van Oenen, Citizenship and Informal Rule of Law: How Lax Enforcement Can Sustain theRule of Law, 23, Prepared for delivery at the meeting of the Latin American Studies Association,Washington, D.C. (Sept. 6-8, 2001).40 Laura J. Kerrigan et al., Project: The Decriminalization of Administrative Law Penalties, CivilRemedies, Alternatives, Policy, and Constitutional Implications, 45 ADMIN. L. REV. 367, 371-79(1993).41 Scholars argue that regulatory infractions should not incur criminal punishments. Stuart P.Green, Why It Is a Crime to Tear the Tag Off a Mattress: Overcriminalization and the MoralContent of Regulatory Offenses, 46 EMORY L.J. 1533, 1535 (1997).42 Laura J. Kerrigan et al., supra note 41, at 370-74.


12/20


C. Obstacles and Spoilers43

1) Corruption and Patronage

There are a significant number of resources available for assessing corruption

and patronage in the administrative law system.

44

Important among the factors toassess are the publics awareness of corruption and existing incentives forkeeping administrative law practices opaque.

2) Spoilers

An assessment of the current conditions in and administrative system shouldaddress what obstacles will slow down reform and which groups or actors willoppose reform. Also important to ask would be:45

Are reform strategies technocratic prescriptions or do they recognize the

importance of cultural factors in creating an administrative law system? What are the levels of public and government support for reform? Are there silo mentalities among the agencies that lead them to hoard

resources and impede efficient coordination with other agencies?

D. Damage to Physical Infrastructure and Resources46

Even after a country has entered a developing stage, the administrative lawsphysical infrastructure may have scars and limitations that are a legacy of theconflict. An assessment should therefore determine the condition of physicalinfrastructure, particularly concerning official registries, archives, communicationfacilities, and the loss of human resources. Assessments should also take note ofwhat resources and supplies are needed for the administrative system to performadequately and efficiently, including office supplies, furniture, computers, etc.

E. Civil Service47

The civil service should be committed to accountable and transparent delivery ofadministrative services to the public.48 An assessment of the civil service and its

43 Spoilers are actors who are against reform and change.44 For tools to assess corruption, seeRule of Law in Public Administration , supra note 1, at 38;

World Bank, Public Sector and Governance, Strengthening World Bank Group Engagement onGovernance and Anticorruption, 24-28, Annex C (2007); Legal, Judicial and AdministrativeReforms, supra note 4, at 90-91; World Bank. Worldwide Governance Indicators Project. 2008.http://info.worldbank.org/governance/wgi/index.asp 45Reforming Public Administration in Postconflict Societies, supra note 7, at 15-16.46Rule of Law in Public Administration , supra note 1, at 12-15.47 For a comparative case study of civil service reforms see UNDP, Civil Service Training in theContext of Public Administration Reform: Comparative Study of Selected Countries from Centraland Eastern Europe, and the Former Soviet Union (1989 to 2003) (June 2003).48Id. at 3.


13/20


role in the administrative system should consider the following:

Does administrative law governing the civil service clearly define civilservants authority, responsibilities, and individual rights?

Does it facilitate good governance, and ensure impartial and efficient delivery

of services?

49

Isthe civil service accountable to legitimate elected officials?50o What codes of conduct exist?o Is there a formal disciplinary system in place?

How productive are civil servants?o Are there too many civil servants or too few?o Do civil servants have sufficient resources and materials to perform

their responsibilities? How transparent is recruitment? 51 What is the civil service training system? 52 Are salaries an adequate living wage?53

F. Information Dissemination54

An assessment should determine what duty administrative agencies have todisclose information about their activities.

Do agencies have an affirmative duty to provide information to the publicabout their acts under a Freedom of Information Act55 or other legislation?

o Do agencies have a duty to provide information upon request? Do agencies have a duty to gather information about public opinion?56 Are agencies required to notify individuals and/or the public about proposed

action?o Does the public have an opportunity to respond to proposals?

49Id. See alsoReforming Public Administration in Postconflict Societies, supra note 7, at 3.50

Reforming Public Administration in Postconflict Societies, supra note 7, at 14.51Reforming Public Administration in Postconflict Societies, supra note 7, at 3.52Id.53Id. at 3, 14.54Administrative Law Tools and Concepts, supra note 4, at 17-20; See alsoAdministrativeProcedures and the Supervision of Administration supra note 3, at 70.55 5 USC 552 (2007).56 For an in depth discussion of potential roles for public opinion in administrative law reform, seeSIGMA & OECD, Public Opinion Surveys as Input to Administrative Reform, SIGMA Papers: No.25 (1998).


14/20


IV. International Principles, Guidance, and Recommendations forAdministrative Law Systems

A) UN Recommendations57

Although they have not been codified into an official recommendation from theGeneral Assembly, the UN had put forth certain general principles and proposedguidelines for administrative law.

The principle of legality:58o Is administrative action subject to law?o Does the law limits public officials discretion in decision-making?o Are public officials liable for damage caused by actions?o Is the independence of the judiciary ensured?59o What are the costs of accessing the courts?o Is the waiting period for judgments reasonable?

The principle of equality before the law and the prohibition of discrimination:

60

o Are arbitrary or unreasonable distinctions unlawful? The principle of proportionality: 61

o Are administrative measures taken proportionate to the pursued goal? The principle of legal certainty and of reliance on legitimate expectations:62 The principle of administrative procedure based on the rule of law:63

o Is there a right to a fair hearing?o What is the duty to provide reasoning behind an administrative

decision?

The UN also sets out individual rights that must be protected by administrativelaw:64

Fair hearing before decisions affecting individual rights; Participation in administrative procedure; Judicial review of administrative decisions; Access to official documents (as governed by laws); Provision of relevant information by administration; and Administrative liability for harm caused.

57 Grard Marcou, Department of Development Support and Management Services, UNSecretariat, The Legal and Regulatory Framework of Public Administration, UN Doc.

ST/SG/AC.6/1995/L.4; Rule of Law in Public Administration, supra note 1, at 23.58 Grard Marcou, Department of Development Support and Management Services, UNSecretariat, The Legal and Regulatory Framework of Public Administration, UN Doc.ST/SG/AC.6/1995/L.4, para. 23a.59 Id at para. 5760 Id. at para 23b61 Id. at par. 23c62 Id. at para. 23d63 Id. at para. 23e64Rule of Law in Public Administration, supra note 1, at 23.


15/20


B) European Administrative Law Principles

1) OECD & EU

Support for Improvement in Governance and Management (SIGMA), a jointinitiative of the Organization for Economic Cooperation and Development(OECD) and the European Union (EU), published a paper discussing variousfactors to consider in determining what administrative structure would best suit adeveloping country.65 Although SIGMAs main purpose is to guide countriesseeking entrance into the EU, the guidelines they present may serve as usefultools for practitioners in other regions.

SIGMA has set out general standards for administrative law to guide countriesseeking accession into the EU. 66 The key requirements are that the system bereliable and predictable, open and transparent, accountable to other

administrative bodies, the judiciary, or legislature, efficient and effective, andproportional. Additionally, SIMGA has published several checklists to aidpractitioners in reforming the administration system.67 Within the Checklist for aGeneral Law on Administrative Procedures, the main points can be summarizedas:68

Legalityo Does law safeguard reliability and predictability in the administrative

system?o Must administrative activity be in accord with the law?

Impartialityo Are administrative agencies governed by the principle of equality?o What are the regulations governing conflicts of interest in

administrative decisions? Procedural Fairness

o Are individuals guaranteed notice of the facts and issues of the caseagainst them?

o Do administrative officials have a duty to inform individuals ofopportunities to appeal the decision?

Openness and Transparencyo Do individuals and interested parties have a right to access agency

information?

65 Francisco Cardona, SIGMA, Organizing the Central State Administration: Policies andInstruments, SIGMA Paper no. 43 (2007).66 SIGMA & OECD, European Principles for Public Administration, SIGMA Papers: No. 27, 8(1998).67 SIGMA & OECD, Checklist for a General Law on Administrative Procedures (2005); SIGMA &OECD, Checklist on Law Drafting and Regulatory Management in Central and Eastern Europe ,SIGMA Papers No. 15 (1997); SIGMA & OECD, Civil Service Legislation: Checklist on SecondaryLegislation (and Other Regulatory Instruments), SIGMA Papers No. 14 (1997).68 SIGMA & OECD, Checklist for a General Law on Administrative Procedures (2005).


16/20


o Do administrative agencies have a duty not to disclose personal orbusiness information?

Accountability and Liabilityo Under what circumstances are civil servants liable for their actions?o Under what circumstances is the administrative agency liable to

individuals? Scope of the Lawo To whom do administrative laws applyo How is a dispute over agency responsibility resolved?o What interested parties may be involved in an administrative

procedure?

2) European Ombudsman

The European Ombudsman has published a Code of Good AdministrativeBehavior that offers fundamental standards for administrative law.69 A non-

exhaustive list of the concepts addressed in the Code are listed below: Lawfulness;70 Absence of discrimination;71 Proportionality;72 Absence of abuse of power;73 Impartiality and independence;74 Objectivity;75 Legitimate expectations, consistency and advice;76 Right to be heard and make statements;77 Reasonable time-limit for making decisions;78 Notification of the decisions;79 and Right to complain to the European Ombudsman.80

69 European Ombudsman, European Code of Good Admin. Behavior (2005).70 Id. at art. 471

Id. at art. 572 Id at art. 673 Id at art. 774 Id at art. 875 Id at art. 976 Id at art. 1077 Id at art. 1678 Id at art. 1779 Id at art. 2080 Id at art. 26


17/20


3) Council of Europe

The Council of Europe has issued several recommendations pertaining toadministrative law systems. According to the Council of Europe, the guidingprinciples for good public administration are the following:81

The principle of lawfulness, meaning administrative law officials should alwaysconform to the applicable law, even when using their discretionary powers82;

The principle of equality, meaning people who are in the same situation should betreated in the same way;

The principle of impartiality, meaning that public authorities should not act upon abias, but should regard cases objectively;

The principle of proportionality, meaning that measures taken should only infringe onindividual rights when necessary and the least amount necessary83;

The principle of legal certainty, meaning that administrative law should not beretroactive and should be legally justified;

The principle of participation, meaning that the public should have an opportunity toinfluence the development of administrative law; The principle of respect for privacy, meaning that public authorities should take

measures to protect peoples personal information; and The principle of transparency, meaning that the public should be informed about

administrative law decisions and that documents should be accessible.

81 COUNCIL OF EUROPE. Recommendation CM/Rec(2003)16 of the Committee of Ministers toMember States on the Execution of Administrative and Judicial Decisions in the Field ofAdministrative Law(Sept. 2003).82See also COUNCIL OF EUROPE. Recommendation CM/Rec R(80)2 Concerning the Exercise ofDiscretionary Powers by Administrative Authorities (Mar. 1980).83

See also COUNCIL OF EUROPE. Recommendation CM/Rec(2007)7 of the Committee ofMinisters to Member States on Good Administration (Jun. 2007)


18/20


V. Conclusion

Though administrative law enjoys a great degree of variation globally, theemerging body of principles and guidance on what constitutes an appropriateand effective system of administrative law demonstrates a convergence of legal

opinion. This significant degree of agreement on core values is sufficient tosuggest that there exists a basis for assessing administrative law systems on anumber of basic aspects and functions. How these criteria are applied in aparticular context may depend more upon the status of that jurisdiction, e.g.,post-conflict v. developing country, more so than any other single factor.

________________

Compilation of Resources:

This Consolidated Response draws from many of the following resources. Alllisted documents with a hyperlink are uploaded to the INPROL Digital Libraryunless otherwise noted.

Affaire Bendenoun c. France, European Court of Human Rights, Application no.12547/86 (1994).

Rafael A. Benitez, Administrative Justice in a World in Transition: Pan-European

Values in Administrative Justice, Comm. L. World Rev. 30(434) (2001).

Per Bergling et al., Folke Bernadotte Academy, Rule of Law in PublicAdministration: Problems and Ways Ahead in Peace Building and Development(2008).

Francisco Cardona, SIGMA, Organizing the Central State Administration:Policies and Instruments, SIGMA Paper no. 43 (2007).

COUNCIL OF EUROPE. RECOMMENDATION CM/REC(2007)7 OF THE COMMITTEE OFMINISTERS TO MEMBER STATES ON GOOD ADMINISTRATION (JUN. 2007).

European Ombudsman, European Code of Good Admin. Behavior (2005).

Stuart P. Green, Why It Is a Crime to Tear the Tag Off a Mattress:Overcriminalization and the Moral Content of Regulatory Offenses, 46 Emory L.J.1533 (1997).


19/20


International Monetary Fund, Poverty Reduction Strategy Papers (Jun. 8, 2009).

Laura J. Kerrigan et al., Project: The Decriminalization of Administrative LawPenalties, Civil Remedies, Alternatives, Policy, and Constitutional Implications,45 Admin. L. Rev. 367 (1993).

Grard Marcou, Department of Development Support and ManagementServices, UN Secretariat, The Legal and Regulatory Framework of PublicAdministration, UN Doc. ST/SG/AC.6/1995/L.4.

OSCE, Mission in Kosovo, Report on the Administrative Justice System inKosovo (April 2007).

OSCE Mission in Kosovo & Office of the Prime Minister of Kosovo, The Anti-Corruption Action Plan: Social and Economic Necessity for Kosovo (Oct. 2006).

Case ofztrk v. Germany, European Court of Human Rights, Application no.8544/79 (1994).

Report of the Secretary-General on the Rule of Law and Transitional Justice inConflict and Post-Conflict States (2004) UN Doc S/2004/616.

Dennis A. Rondinelli, USAID, Reforming Public Administration in PostconflictSocieties: Implications for International Assistance (Jan. 2006).

David H. Rosenbloom, Administrative Law for Public Managers, Westview Press,9-10 (2003).

Malcolm L. Russell-Einhorn, Jeffrey Lubbers & Vedat Milor,StrengtheningAccess to Information and Public Participation in Government Decisionmaking inLatvia: An Assessment of Current Institutional Processes and A SuggestedProgram to Implement the Laws on Administrative Procedure and Information

Access, Abt. Associates, Inc., 28 (2001).

Malcolm Russell-Einhorn & Howard N. Fenton, USAID, Using Administrative LawTools and Concepts to Strengthen USAID Programming: A Guide for USAIDDemocracy and Governance Officers (Feb. 2008).

Case ofSalabiaku v. France, Application no. 10519/83 (1988).

Richard Sannerholm, Legal, Judicial and administrative Reforms in Post-ConflictSocieties: Beyond the Rule of Law Template, 12 J. Conflict & Security 65 (2007).

SIGMA & OECD, Administrative Procedures and the Supervision ofAdministration in Hungary, Poland, Bulgaria, Estonia and Albania, SIGMAPapers no. 17 (1997).


20/20

J l 2009 INPROL C lid t d R (09 005) P 18 f 18

SIGMA & OECD. Checklist for a General Law on Administrative Procedures(2005).

SIGMA & OECD, European Principles for Public Administration, SIGMA Papersno. 27 (1998).

SIGM & OECD, Organizing the Central State Administration, SIGMA PAPER no.43 (2007).http://www.olis.oecd.org/olis/2007doc.nsf/LinkTo/NT00002C42/$FILE/JT03229368.PDF

SIGMA & OECD, Public Opinion Surveys as Input to Administrative Reform,SIGMA Papers no. 25 (1998).

Twelfth Meeting of Experts on the United Nations Program in PublicAdministration and Finance, The Legal and Regulatory Framework of Public

Administration (1995).UNDP, Access to Justice Practice Note, 2004.

UNDP, Civil Service Training in the Context of Public Administration Reform:Comparative Study of Selected Countries from Central and Eastern Europe, andthe Former Soviet Union (1989 to 2003) (Jun. 2003).

UNDP, Commission on Legal Empowerment of the Poor, Making the Law Workfor Everyone (2008).

Gijs van Oenen, Citizenship and Informal Rule of Law: How Lax EnforcementCan Sustain the Rule of Law, 23, Prepared for delivery at the meeting of theLatin American Studies Association, Washington, D.C. (Sept. 6-8, 2001).

World Bank, Public Sector and Governance, Strengthening World Bank GroupEngagement on Governance and Anticorruption (2007).

World Bank, Worldwide Governance Indicators Project (2008).

Note: All opinions stated in this consolidated reply have been made in a personalcapacity and do not necessarily reflect the views of particular organizations. INPROL does

not explicitly advocate policies.

Information:New Queries: To send a new query, please send an email to [email protected]: To submit a document to INPROL, please login to INPROL and visithttp://www.inprol.org/uploadcontent or send an email (with the document attached) [email protected].

Documents

Assessing the Status of Administrative Law (CR 09-005)