Democracy with no decentralisation.
The analysis of the public administration in our country, in point of decentralisation requires the detailing of aspects of this phenomenon, considering the current reform process of the public administration in Romania, the passage from a strongly centralised structure of the public administration to a decentralised one.
The decentralisation of the public administration represents an administrative organisation system, which enables human collectivities to administrate themselves, under the state's control, which provides them with legal status, enables them to set up their own authorities and endows them with the required means.
By decentralisation, the public administration becomes more efficient and more operative, the problems which population is interested in are no longer filed in ministerial offices, but they are settled at local levels, in fast operativeness conditions.
The modern form of expressing the principle of decentralisation is represented by the local autonomy, principle established through the Constitution and the Law of Local Public Administration (4), which confers to local collectivities the right and ability to settle and manage, within the law frame, under their own responsibility, to the interest of their population, an important part of the public affairs (5).
Local autonomy concept manifests within the limits of material and territorial competence established by the law, but especially, through the free initiative of local administration authorities to settle collectivity problems in their capacity of civil legal entities, of goods owners from the private field and of public law legal entities, of goods owners from the local interest public field.
The multitude of social requirements raises before the administration a variety of problems that need to be solved. The society knows a continuous process of multiplication and diversification of administration's tasks that require permanent improves in the administration's structure and activity, by using modern methods and techniques.
Administrative doctrine considers that, in the complex contents of the administration there are included the following requirements: to provide, to organise, to lead, and to control. It is required that this contents of the administration should be developed on scientific basis.
The perfecting of the structure and administration's activity is possible through application of scientific principles and criteria of the field that researches the whole contents of the phenomenon, for the purpose of optimisation, using sociologic investigations and other modern forms of knowledge.
For a better understanding of the complexity of the researched process, the administration science is not limited only to studying the legal aspects of the administration, but it also examines the interferences of the public administration subsystem with the other elements forming distinct subsystem and which together compose the social environment or framework of the public administration. Knowing relationships between the public administration and the other elements of the social system, especially of mutual influences between them, allows the shaping of the public administration role, of its missions.
Public administration is, at the same time, a social environment and a part of the social environment (6). Its purpose consists in serving the society which created it, in satisfying its general interest.
Being a whole within a set of social structures, it holds a primordial place within the overall society (7), where it is inserted, as compared with other structured and hierarchised organisations or human groups.
The social environment exerts a considerable influence upon structures, upon form and contents of activities of public administration bodies, upon individual and collective psychology and behaviours of the public administration personnel.
The social environment of the administration is the set of outer factors influencing the structure, the form and contents of its action, the psychology and behaviour of the clerks and of its inner bodies (8). It can be stated that any administration is the result of the social environment.
More than that, the relationship is mutual, the social environment determines its administration and the latter influences the very social environment (9). The Administration together with its institutions are imaged as a structured set with clerks and associated bodies, which communicate with the other social structures through cooperation, subordination or even constraint relationships, so that, taken in relation with the social environment, the administration within a given society should be able to appear either in harmony or in opposition with the whole social environment or with certain structures of it (10).
Social dimensions of the administration can be established based on ample remarks and deep checks. For this purpose there can be used some criteria that concern the adjustment modality of the public administration to the social environment. These are deducted from the exteriorisation of the administrative phenomenon in time and space (11). These criteria concern the duration and the rhythm, the mobility and the dispersal of the public administration in relation with the social environment.
By its nature, the administrative fact has got the mission to provide a certain continuity and stability of the social environment in which it is achieved.
And yet, changes occurring in the social environment can trigger changes also in the public administration, in its structures or within the personnel they use. This type of administration is characterised through plasticity, since it manages to adapt to changes occurred in the social environment. But, there is also another type of administration, characterised through rigidity and insularism in relation with modifications taking place within the social environment.
The action of the public administration structures has got a certain rhythm, which can be related with the rhythm of the social activity. Thus, the rhythm of the public administration action can be supple and can coincide with the alert action of the social environment. Or, on the contrary, the administration action is complicated by ample procedures; therefore the administration rhythm is rigid and slow in relation with the social environment rhythm.
The period of time in which the public administration action is achieved is a problem of rhythm, but also of the administration action duration. The period of time in which administration action is achieved coincides or not with the social time. For instance, the working time of a service of the public administration can coincide with the time that its beneficiaries has got available, or there can occur the disagreement between the time of this service and the social time. This is why it is required that the public administration should permanently adapt to modifications taking place within the social environment, as compared with the social life rhythm.
II. Local Autonomy Concept
Local autonomy (12) is the modern form of expressing the principle of decentralisation. Indeed, administrative decentralisation represents a principle claimed by the doctrine and by a tendency in the evolution of the public administration so as to achieve the local autonomy. At the basis of any decentralisation there lies the idea of a certain local autonomy (13).
Local autonomy principle is the basic principle governing the local public administration consisting of "the right of territorial-administrative units to satisfy their own interests without the intrusion of central authorities, principle that entails administrative decentralisation, the autonomy being a right, and decentralisation a system that implies autonomy." (14)
The notion of "autonomy can only be righteously understood if it considered the fact that within a modern society there is a hierarchy of juridical standards depending upon their legal force either larger or smaller. Starting with this diversification of the juridical standards, the degree of autonomy of the body issuing them shall be able to vary in their turn, as authorised, to issue laws or normative instruments subordinated to the laws.
Thus, there shall be "a legislative autonomy, in the case in which there is acknowledged to a human collectivity the right to exert itself or by its appointed representatives the legislative function. This is the case of the member states of the federal states, in the structure of which the own legislative bodies are authorised to pass laws in all fields, except the already passed ones, through the Constitution text, in the competence of the federal legislative body. If a human collectivity is acknowledged only the right to adopt, either directly or through representatives, juridical norms having a juridical power subordinated to laws, we shall found ourselves in the presence of "an administrative autonomy".
The competence area of local collectivities shall be established by constitution or by law, and the initiative within these competences cannot be limited.
Regarded exclusively from the administrative perspective, local autonomy appears as a last step of development of the administrative decentralisation, a form of expression of this principle.
According to the opinion of an author (15), local autonomy consists in assigning decision power between the government, on one hand and local agents, on the other hand (mayors, local councils), that, to a certain extent, the are independent of the central power, having the right to take certain steps, without asking for the Government's approval or being censured.
The specific contents of the local autonomy concept manifests within the limits of the material and territorial competence established by the law, but especially through the liberty to settle collectivities problems, in their capacity of public law legal entities, owners of goods form the public field of local interest.
Local autonomy manifests at several levels (16), juridical, institutional and decisional. Thus, at the level of the juridical capacity, local territorial collectivities are distinct law subjects, having their own public interests; at the institutional level, they have available their own administrative authorities, external to the central administrative apparatus and at the level of the decisional autonomy, these authorities have their own competences and make decisions for the best interest of the collectivities they represent. At the same time, the local autonomy cannot be effective, autonomy presence being felt at the level of the human, material and financial means.
Local public administration authorities are autonomous, but not sovereign. On one hand, autonomy manifest only at the administrative level, not the legislative one, as not being a political autonomy, as it is the case of federalism.
On the other hand, the local public administration authorities are submitted to a specific administrative control, the administrative trust control, on behalf of the central public administration, control aiming at protecting state's public interests, laws abiding by, being a legality control not an opportunity one. The administrative trust control is a special control, which can be exerted only if the law expressly sets it up and only in the forms, with the procedures and by the effects expressly established by law.
An important aspect of the local autonomy concerns the right of local collectivities of associating with other local collectivities for the purpose of carrying out joint interest tasks under the laws. Also, they can cooperate with other state's collectivities.
Legal protection of the local autonomy is achieved through the right of local collectivities to resort to judicial bodies so as to provide the free exercise of responsibilities and to follow the rights conferred by the Constitution and by the law.
III. External Dimension of the Local Autonomy
The external, cross-border dimension of the local autonomy has evolved together with the traditional dimension of the local autonomy and has in view the local collectivities capacity represented by their own administrative authorities, to establish juridical relationships with public law subjects which are located outside the borders of the country to which they belong. Mainly, the monopoly of relationships with external political societies is held by the state. Local collectivities, in capacity of infra-state political societies cannot participate in the classical international relationships (17). The over-border relationships problem of local collectivities is relatively recent.
After the Second World War, over-border relationships concerned the union between localities. But, under the influence of numerous factors, such as geographic conditions, economic, cultural exchanges, local collectivities began to establish direct relationships with their foreign homologues and international organisations (18).
The over-border relationships of local collectivities can only be conceived within the frame of local autonomy. To satisfy local public interests, the administrative authorities of local collectivities can act not only at the internal level, but also at the external level. Their external action can only concern local public interests (19); it has to comply with state's international commitments (20) and it should not to be detrimental to conditions of exercising state's sovereignty.
In the foreign specialty literature it has been underlined the double legitimacy of the external activity of local collectivities. It is about, on one hand, a political legitimacy, written in the local democracy extension, and, on the other hand, a functional legitimacy which reveals the effectiveness and responsible exercise of local business.
It is to mention that the external activity of local collectivities should not be misinterpreted as being the participation of federal states in international relationships, according to constitutional provisions, which is a classical situation in the public international law.
Analysis of constitutional provisions regarding the local public administration (21), of local public administration law provisions (22), of those of local elections law, as well as of some opinions expressed in the Romanian doctrine, stresses out the main features of the local public administration, as follows: the local public administration has at the base of its organisation and operation the local autonomy principle and that of public services decentralisation, representing the expression of the administrative decentralisation regime applied at the level of the Romanian public administration; it includes within its area the autonomous administrative authorities; communal, town and county areas--local councils and town halls, county council and public services organised in the suborder or under the authority of these local public authorities; the relationships between the public administration organised at the level of communes and towns and that at the level of the county have as basis the following principles: autonomy, legality and cooperation in settling joint problems, their relationships are not subordination ones; they settle local public affairs and achieve public services of county interest, through elected administrative authorities and also local referendum, under the laws.
There can be appreciated that the role of public administration consists in settling public affairs and providing interests of local collectivities, in accordance with their needs, tightly related to the specificity of the territorial administrative unit they belong to.
It cannot be denied the fact that meeting national community's general interests can only be entrusted to the central public administration. In this way, villages' unity is provided by their administration which develops a rational activity, discouraging any hostile tendency from inside or outside the country (23).
Decentralisation means to acknowledge local interests; its purpose is to create own life of local collectivities, the only ones able to appreciate their interests and to naturally meet them. This regime has got clear advantages, thus, through decentralisation, legality acquires its plenitude and the administration becomes more juridical. Only through decentralisation the state can fulfil its two large responsibilities: nation's preservation and progress.
More than that, decentralisation provides the favourable climate so that local interests should naturally develop, in accordance with natives' habits and in accordance with their real requirements. No one can know any closer and in more detail the needs of a locality than the very local authority and, also, no one can know the most adequate means to satisfy them. In this manner there can be settled in much better conditions local interests, local public services being conducted more efficiently by local authorities, in a regime in which they do not have the obligation to obey the orders and instructions from the centre.
Another advantage is that electors' participation in the appointment of local authorities stresses out its responsibility character and initiative spirit for the public life of the locality and makes them look for and find themselves solutions to problems they encounter (24). Decentralisation generates the individual initiative spirit, while centralisation reduces the role of inhabitants to only that of administrated people.
From the subjective perspective, decentralisation appears as a special means for citizens' political education. "They shall know that they must rely on their own forces", "developing their liberty and solidarity feelings, as well as their initiative spirit" (25).
By its nature, decentralisation can provide advisable administration of localities, since it only uses the strictly required number of clerks to satisfy local interests, while in a centralised regime the number of clerks is much larger, and their working time is consumed in order to draw up materials required by the central authority and to enforce the orders they are to receive from it. In the administrative decentralisation regime, public clerks remove, to a higher extent, bureaucratic and routine-like phenomena in the local activity.
On the other hand, under the decentralisation regime, taxes acquire the character of "contributions", being returned to the taxpayer as a benefit of different public services (26). Local collectivities have available by themselves their budget under the control and guidance of the state's representatives and their own responsibility. At the same time, in the decentralisation regime, the local authority can operatively settle and meet local requirements, unlike the centralised regime, in which the central authority act from a distance, slowing down on purpose problems settlement, asking for explanations through administrative mailing.
Decentralisation generates the feeling of local liberty, the interest for the locality well being, fact that determines a special development of human collectivities from the administrative-territorial units. Despite all these mentioned advantages, it is to note the fact that decentralisation has got certain limits and even disadvantages. Regardless of the form it gains, decentralisation is a problem exclusively of administrative nature, unlike federalism, which is a problem of political nature, implying the existence of a constitution and powers separation. No matter how wide the elected local authorities' competence would be in settling local problems, they perform their activity within a unitary state nut not outside it (27). There are two distinct aspects that is: the nature of authorities which are autonomous to the state of local authorities, by which it is achieved administrative decentralisation and the state's limits of their activity (28).
If this limit was not admitted, and which is given by the Constitution, by the law and by the documents of the specialised central authorities, the autonomous local authorities would turn into political authorities, just as in the case of a federation, evolving within genuine independent state's structures, having evil consequences at both the national and the international levels (29).
With regard to the disadvantages of decentralisation, from the political perspective, being a principle of autonomy, it diminishes the force of the central power. From the administrative perspective, since it is a system designed to defend local interests, it gives priority first to these specific interests, prevailing over the country's interests. In a clean decentralised regime, the central power action is much loaded since not in all cases it is fully connected with the local authorities' actions. According to the opinion of an author, electing decentralised authorities introduces into the local administration the party's politics which sizes and vitiates everything.
With regard to the management of patrimony and finances, decentralisation enhances the number of authorities having their own patrimony and budget, fact that makes difficult the achievement of an efficient control over the public money use and the shaping of an outlook on the country finances as realistic as possible.
Regardless of the specific forms under which it is practiced in different countries, public administration decentralisation represents a trait of both the present and future society, with important implications both at the economic and social level. Advisably applied, it can contribute to a significant improvement of efficiency of resources allotment and of administrative function quality of the state.
(1) J., Vermeulen (1946), Evolution of Administrative Decentralisation in Romania, p. 30 and the following.
(2) Anibal, Teodorescu (1926), Administrative Law Treaty, vol. I, Bucharest, p. 286.
(3) Romania's Constitution of 2003 revised published in the Official Journal no. 767 from October 31st 2003.
(4) Law 215 2001 of the local public administration updated and republished in the Official Journal no. 123 from 20.02.2007. The most recently updated by: Law no. 59/2010--to amend art. 55 of Local Public Administration Law no. 215/2001 April 11th 2010 Official Journal 222/2010 and Law no. 375/2009--to amend paragraph (2) of art. 53 of Local Public Administration Law no. 215/2001.
(5) Art. 3 from the European Charter of Local Autonomy signed in 1985 in Strasbourg and drawn up on the initiative of the permanent conference of local and regional powers from Europe. Article 1, a 1 in. 2 of Law no. 69/1 99 l establishes: "Autonomy concerns both the organisation and operation of the local public administration, and the management, under own responsibility, of interests of collectivities they represent ".
(6) Mihai, Oroveanu (1996), Administration Science Treaty, Bucharest, Cerma Publishing House, p. 41.
(7) G., Gurviteh (1962), Sociology Treaty, ed. IInd, vol. I, Paris, P.U.F.,
(8) Claude, Goyard (1966), Le milieu social, in Traite de science administrative, Paris, Mouton, p. 146.
(9) Traian, Herseni (1982), Sociology. General Theory of the Social Life, Bucharest, Scientific and Encyclopaedic Publishing House, p. 658.
(10) Alexandru, Negoita (1977), Administration Science, Didactic and Pedagogic Publishing House, Bucharest, 1977, p. 28.
(11) Claude, Goyard (1966), Le milieu social, in "Traite de science administrative", Paris, Mouton, p. 152 and the following.
(12) The word "autonomy" derives from the Ancient Greek, in which the prefix "auto" means alone, by oneself, independent, and "nomos"--law. As etymology, by the notion of "autonomy" there shall be understood the liberty (the right) of governing oneself by own laws.
(13) Andre de Laubadere, Jean, Claude de Venezia, Yves de Gaudemet (1983), Treaty of Administrative Law, vol. I, L.G.D.J., Paris, p. 104.
(14) Anibal, Teodorescu (1935), Treaty of Administrative Law, vol. II, Bucharest, Institute of Graphic Arts, E. Marvan Publishing House, p. 286.
(15) Cristian, Ionescu (1997), Constitutional Law and Political Institutions. General Theory of Political Institutions, vol. I, Lumina Lex, p. 70 and the following.
(16) Paul, Negulescu (1925), Roman Administrative Law Treaty, edition IIIrd, vol. I, Charter I, United Typographies, Bucharest, p. 563-564.
(17) Jean-Marie, Auby, Jean Bernard Auby (1996), Droit public. Droit constitutionnel. Libertes publiques. Droit administrate, tom. 1, 12-eme edition, Sirey, Paris, p. 13, taken over from Corneliu-Liviu, Popescu (1999), Local Autonomy and European Integration, AII Beck Publishing House, Bucharest, p. 226.
(18) Corneliu, Liviu, Popescu (1999), Local Autonomy and European Integration, All Beck Publishing House, Bucharest, p. 226.
(19) Corneliu, Liviu, Popescu, op. cit., p. 227.
(20) Andre de Laubadere, Jean, Claude de Venezia, Yves de Gaudemet (1983), op. cit., p. 156-157.
(21) IInd Section chap. V of IIIrd Title of Constitution of Romania, art. 120-122.
(22) Law no. 69/1991, published in Official Journal of Romania, Ist part, no. 238/28.11.1991, reissued in the meaning of art. IIIrd from Law no. 24/13.04.1996, published in Official Journal of Romania, Ist part, no. 76/13.04.1996. 1 Law no. 70/1991, published in Official Journal of Romania, Ist part, no. 239/28.11.1991, reissued in 1996 in Official Journal of Romania, Ist part, no. 77/13.04.1996, amended by Emergency Ordinance no. 28/2000, published in Official Journal of Romania, no. 153/13.04.2000 and Emergency Ordinance no. 63/2000, published in Official Journal of Romania, no. 240/31.05.2000.
(23) Alexandru Negoita (1996), Administrative Law, Sylvi Publishing House, Bucharest, p. 58, 62; M., Oroveanu (1996), Administration Science Treaty, Cerma Publishing House, Bucharest, p. 389.
(24) M., Oroveanu (1996), Administration Science Treaty, Cerma Publishing House, Bucharest, p. 390.
(25) Ioan Vida (1994), Executive Power and Public Administration, Bucharest, p. 21.
(26) Andre de Laubadere, Jean, Claude de Venezia, Yves de Gaudemet (1983), op. cit., p. 90.
(27) Alexandru Negoita (1996), Administrative Law, Sylvi Publishing House, Bucharest, p. 60.
(28) George, Vedel, Pierre, Delvolve (1984), Administrative Law, P.U.F., Paris, p. 850.
(29) Andre de Laubadere, Jean, Claude de Venezia, Yves de Gaudemet (1983), op. cit., p. 100.
Paul Iulian NEDELCU, University of Craiova, Faculty of Social Sciences
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|Title Annotation:||ORIGINAL PAPER|
|Publication:||Revista de Stiinte Politice|
|Date:||Oct 1, 2012|
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