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THE CAUCASUS & GLOBALIZATION
Eldar MAMMADOV
Ph.D. in Law, Vice President of the International Association for Court Administration for the Central Asia/India region, Judge of the Constitutional Court of the Republic of Azerbaijan being in resignation (Baku, Azerbaijan).
THE RULE OF LAW AS A KEY FACTOR OF PUBLIC ADMINISTRATION
Abstract
This article analyzes the role and place of the rule of law in the public administration system in contemporary conditions.
It reveals the close collaboration between the efficient functioning of the government and the actual implementation of this principle.
KEYWORDS: the rule of law, principles, factors and
subfactors of the rule of law, public administration.
Introduction
Public administration affects different institutional and non-institutional processes in the public administration system and is carried out with the help of a variety of political-administrative, value-ideological, legal, and other mechanisms, including the use of diverse methods of forming, adopting, and implementing government strategies, programs, plans, as well as political-legal and personnel decisions.
Since the second half of the 20th century, dramatic changes have been going on in public administration, which is seen as the activity of the government and its officials aimed at the practical implementation of public policy drawn up on the basis of corresponding procedures.
These changes have not only enriched the idea of public administration, but also significantly changed the functions of the public administration bodies themselves. For example, in some countries
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(for examples in socialist-oriented states) planning, material-technical supply, social security functions, and so on, are narrow, while in others (including in developed countries), they are broad. New approaches are universally being practiced to functions that relate not only to maintaining and strengthening the market economy, but also to performing anti-monopoly measures, combating unemployment, decentralizing enterprises and institutions in various spheres, and others.
State regulation is currently a key function of public administration in sociopolitical, economic, and sociocultural spheres, having become a juridical reality in the modern state. Its main tools are taxes, standards, state orders, customs tariffs and duties, as well as state contracts, state registration, state licensing, privatization, business bankruptcy procedures, and so on.
The content and mechanism for carrying out state regulation include:
(1) adopting legal regulations (establishing common rules);
(2) ensuring that legal regulations correspond to the real tasks that the administration must solve;
(3) coordinating and general monitoring of the activity of public administration bodies, etc. to ensure adherence to the established code of behavior by all physical and legal persons;
(4) monitoring the implementation of legal regulations adjusting various courses of relations;
(5) carrying out state protection of the rights and legal interests of the participants of public relations regulated by corresponding legal regulations (rules).
Public administration in current conditions is inconceivable without the active use of different forms of legal regulation of public-legal relations performed by laws and by-laws, as well as judicial acts.
However, today it is important not only to adopt correct laws and by-laws that do not contradict each other, but also to ensure their strict observance and unconditional performance by all physical and legal persons in society.
Therefore, the rule of law is one of the most important tasks of public administration and is just as important as the best embodiment of the will of the people and the proper guarantee of the efficient, economic, and productive functioning of the government.
Essence of the Rule of Law
The rule of law is traditionally understood as the supremacy of the law in the regulatory legal acts system. Laws that are regulatory legal acts not only regulate public-legal relations, establish mandatory rules of behavior, and are set forth by measures of public enforcement, but also have a higher legal force, and all other regulatory legal acts must comply with them and cannot contradict them.
Since the Constitution sets forth the most important fundamental provisions relating to the essence, goals, and conditions relating to the functioning of the state in the political, economic, and social spheres, as well as the fundamentals of legal relations among the state, society, and the individual, it is considered the main law and all other laws and by-laws (regulatory legal acts) must comply with the Constitution.
In current legal systems, there is a strict legal hierarchy, in respect to which laws must comply with and be subordinate to the constitution, regulatory legal acts to the constitution and laws, and law-enforcement acts to the constitution, laws, and regulatory legal acts.1
1 When I say that one legal act complies with another legal act that possesses greater legal force, I mean not only the content of the legal act, but also the activity carried out to create it.
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Therefore, the rule of law and the strict legal hierarchy that functions in compliance with it create a stable regime of legal legitimacy, as well as establish a just legal order and ensure legal stability in the state and society.
However, the rapid development of legal views in the last decade has led to the rule of law being perceived as much broader than its initial traditional understanding. Therefore, the rule of law today also acts as one of the attributes of a legal state and as an independent legal doctrine that has become a powerful way to protect human rights and freedoms.
It is obvious that recognizing the rule of law only as the law having greater legal force and bylaws (regulatory legal, including departmental) not contradicting or standing above it cannot be grounds for recognizing such a state as legal, since the laws adopted and adoptable might be both illegal and unjust. So it is very important to also understand the rule of law from the viewpoint of a legal state in which the law governs the state.
A legal state is bound and limited not only by legislation, but also to the law as a whole, and all of its law-making and law-enforcement activity should be based on legal requirements, remain within the boundaries of the law, and not contradict the law. In so doing, laws should not only be based on the law and not contradict the law (i.e. laws should not only be legal), but also only be adopted by authorized bodies (i.e. legislative power bodies) in strict correspondence with the procedure set forth in the Constitution.
What is more, according to the doctrine of the rule of law, no one may be above the law, everyone must be equal before the law, no one can be punished other than for violating the law and only in the procedure set forth by the law. The law must be in full force without any constraints in space (throughout the entire territory of the country), time, or range of people and apply equally to all entities of legal relations (without any exceptions).
The term "the rule of law" was first used in England at the beginning of the 17th century,2 however, the concept itself appeared much earlier, although it was never related to the ideas of democracy in the contemporary sense.3 But it was precisely thanks to Anglo-Saxon legal tradition, beginning in the 18th century, that it came to be understood that the freedom of action of those endowed with power should have legal limitations.4 Despite several differences (mainly in legal customs and their history), the ideas of the rule of law are close to the ideas developed in Roman-German legal philosophy about a legal state.5
Principles and Factors Determining the Rule of Law
In contemporary legal systems, the rule of law is defined by the following principles:
(1) The governmental bodies and its officials and agents as well as other persons are accountable under the law.
2 In the petition to James I from the House of Commons in 1610, while prior to this the idea was voiced in the decision of the Court of Common Pleas under the chairmanship of Edward Coke, although the king himself thought this view of his power to be "treason."
3 For example, Aristotle claimed that "the law should govern," while Cicero said, "We are all servants of the laws." The law was made absolute by ancient Chinese "legalists"—followers of the school of Han Feizi, although they also believed that the law should not be a means for the people to keep the rulers in check, but rather a means for the rulers to govern the people. But as early as the 13th century, Thomas Aquinas claimed that the rule of law was the "natural order" established by God.
4 Very characteristic of the views of John Locke, Samuel Johnson, Thomas Paine, and John Adams.
5 In German—Rechtsstaat and in French—Etat de droit.
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(2) The laws are clear, widely and timely publicized, stable, and just; are applied evenly; and protect fundamental rights, including the security of persons and property.
(3) The process by which the laws are enacted, administered, and enforced is accessible, fair, and efficient.
(4) Justice is delivered timely by competent, ethical, and independent representatives and neutrals that are of sufficient number, have adequate resources, and reflect the makeup of the communities they serve.
As can be seen from the principles mentioned above, the rule of law prevents the government and its officials from being above the law, from possessing extremely broad powers, and, in so doing, acting independently or arbitrarily. These principles also demand that the laws are enacted, administered, and enforced in an accessible, fair, and efficient way. In so doing, the legal system should be available and independent of other branches of power, while judges should be impartial and issue verdicts based only on facts and the laws.
Today, two main concepts of the rule of law can be singled out—formalistic and substantial. The first does not apply to the justice of the regulations themselves, but affects the procedural attributes that the legal system should have (this separates how efficiently and predictably the system works from ethical questions about being accountable for the result). The other concept (its different interpretations) focuses on the content of laws and includes fundamental human rights and freedoms that ensue from principles of legitimacy, morals, and justice.6
On the basis of the abovementioned four universal principles, the main factors determining the rule of law7 in contemporary legal systems are singled out, which I will look at in turn below.
Constraints on government powers is one of the most important factors of the rule of law in the state and society. Modern societies have developed systems of checks and balances, both constitutional and institutional, to limit the reach of excessive government power, and to subject the government power, or ruler, to legal restraints. Long since it is considered that authority is distributed in a manner that ensures that no single organ of government has the practical ability to exercise unchecked power, while in the event of violation of the law the government, its officials and agents will be accountable under the law.
The following subfactors are delineated as constraints on government power:
1. Government powers are defined in the fundamental law—Constitution.
2. Government powers are effectively limited by the legislature, the judiciary, independent auditing and review (including study, analysis, expert assessments, investigation, and inquest).
3. Government powers are subject to non-governmental checks by independent experts.
4. Transition of power is subject to the law and carried out peacefully in compliance with the requirements and procedures set forth by the law.
Absence of corruption8 as one of the hallmarks of a society governed by the rule of law is a manifestation of the extent to which government officials abuse their power or fulfill their obligations under the law.
6 In order not to confuse the formalistic interpretation with the substantial, the Parliamentary Assembly of the Council of Europe recommends using the term "the supremacy of statue law" for the first, and "the rule of law" for the second.
7 Based on a study of these factors, the World Justice Project publishes a rule of law index annually for 99 countries around the globe.
8 From the Latin corrumpere—to defile, corruption—bribery, waste. Today bribery and the corruptibility of officials is called corruption.
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Corruption is conventionally defined as the use of public power for private gain and is viewed as a dangerous and significant obstacle to economic development and the stability of the state, while its absence is equal to the victory of progress and justice in the state and society.
Officials who have discretional power over the distribution of resources that do not belong to them may be subject to corruption. They are prompted to abuse their powers by the possibility of obtaining economic gain (rent), while the main restraining factor is the risk of exposure and punishment.
Forms of corruption vary, but include abuse of power, improper execution of duties, bribery, extortion, improper influence by public or private interests, and misappropriation of public funds or other resources.
In terms of the rule of law, the absence of corruption among government officials in the executive branch, the judiciary, the legislature, the police, and the military is especially important because this dangerous phenomenon is not simply undermining the credibility of the government, justice or defense capability of the country, but also leads to a reduction in national wealth and decrease in living standards.
Corruption interferes with business, causes a decrease in the funds necessary for economic development and implementing social programs, and creates conditions for people who have money and connections to be able to change the laws and other acts in their interests.
Although no one can guarantee rapid and complete victory over corruption, from the experience of countries with a low corruption level (for example, Singapore, Hong Kong, Sweden, and others), the following main subfactors for successfully combating corruption can be given:
(1) establishing an efficient public administration system, disbanding corrupted administration bodies, simplifying bureaucratic procedures aimed at ensuring free business and equal conditions for conducting business, introducing competition in rendering state services (including the duplication of functions of different administration bodies);
(2) ensuring the transparency of government bodies and openness of departmental systems, open access and free discussion of all departmental operations and documents, including those relating to conducting tenders, issuing licenses and certificates, entering state contracts, and so on (providing the disclosure of state, military, and commercial secrets is kept at the necessary level);
(3) reviewing (cancellation or change) of non-constitutional (potentially corrupt) regulatory legal acts that violate the human and citizen rights and freedoms enforced in the Constitution;
(4) introducing economic or other sanctions for bribery or refusing to participate in anti-corruption investigations, the toughening up of criminal legislation relating to the manifestation of corruption, strict adherence to universal equality under the law and the inevitability of punishment;
(5) training qualified administrative personnel, ensuring high material and social provision of officials (including a good salary, high-quality medical services, interest-free loans for buying real estate, high pensions, etc.), using economic mechanisms for increasing the incomes of officials without violating regulations and laws;
(6) establishing strict standards for fulfilling one's obligations, as well as high ethical standards for officials, strict surveillance over the implementation of these standards at each level of the bureaucratic machine, presentation of regular reports on the part of all civil servants about their income and spending, minimalization of conditions that make it possible to carry out corruptive acts;
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(7) maintaining the independence of courts from the legislative and executive power branches, as well as non-interference of representatives from these power bodies in the work of the law-enforcement bodies, raising the efficiency of the judicial-legal system;
(8) improving the election process aimed at encouraging the voter to vote for a particular candidate not only for ideological reasons, but also keeping in mind his potential for being subjected to corruption;
(9) protecting freedom of speech and the media as efficient tools for fighting corruption;
(10) providing citizens with constant, laconic, and understandable explanations of their rights and obligations, carrying out thorough investigation of citizens' complaints about corruption and unreliable performance of obligations by civil servants, including demands to compensate for losses.
Open government has become essential to the rule of law in the state and society. An open government offers mechanisms and principles that ensure efficient collaboration between the government and its citizens, high-quality and balanced decisions on the part of the government, and engagement of civil society and business in making these decisions.
The main components of an open government are transparency, administrative proceedings that are open for public participation, and collaboration between the government and its citizens.
An open government also ensures that its actions are publicized and understandable, provides open data, guarantees the transparency and accountability of government spending, purchases, and investments, and carries out efficient public control.
Thus, an open government empowers citizens by giving them a way to voice their concerns and demand accountability from their governments.
The most important indications of an open government are as follows:
(1) laws and other regulatory legal acts are publicized and accessible;
(2) laws and other regulatory legal acts are stable;
(3) the public has the right to petition the government and participate in its affairs;
(4) official information is available upon request.
An open government is far more than transparency and encompasses such subfactors as:
(1) clear laws that are publicized in a timely fashion;
(2) stable laws and other regulatory legal acts;
(3) official drafts of laws and regulations that are available to the public before they are adopted; and
(4) administrative proceedings that are open for public participation;
(5) the availability of official information.
The observation of fundamental human rights and freedoms is the most important factor of the rule of law in the state and society. A system of positive law9 that fails to respect core human rights established under international law is at best "rule by law."
9 Officially recognized law that is valid within the boundaries of a state and enforced in the legislation, that is, law expressed in the legislation. Positive law has an official and documental form of expression and is embodied in laws and other regulatory legal acts; positive law is law that boils exclusively down to the law. Positive law proceeds largely from the state and its power structures: it is constructed in the image and likeness of the state, expresses the interests and will of those groups and social strata that it primarily represents and protects.
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The absence of rights and freedoms might not only be a great blow to a specific person, but also arouse opposition and disorder in society, which in turn will inevitably entail the emergence and increase of social, economic, and even political conflicts in the state.
Some specialists formulate the concept of human rights and freedoms simply and laconically:
(1) every authority is limited by the law;
(2) every person has the right to his or her own privacy, in which no one can interfere, including the authorities;
(3) every person may protect this privacy by legal means, by making complaints, including to the state.
Today in the civilized world, respect for human rights and freedoms is perceived as an initial condition of permanent peace and sustainable development. States consider it their duty to assume international obligations on the recognition and guarantee of human rights and freedoms.
The rule of law in a legal state and law abiding societies should guarantee the rights embodied in the Universal Declaration of Human Rights including:
(1) the right to equal treatment;
(2) the absence of discrimination;
(3) the right to life;
(4) the right to personal immunity;
(5) the right to the due process of the law;
(6) the right to freedom of opinion and expression;
(7) the right to freedom of belief and religion;
(8) the absence of any arbitrary interference of privacy;
(9) the right to freedom of assembly and association; and
(10) the protection of fundamental labor rights.
In order to recognize the effective guarantee of basic human rights and freedoms from the viewpoint of the rule of law, a large number of variables are combined to form the following sub-factors:
1. Equal treatment and absence of discrimination;
2. The right to life and security of the person is effectively guaranteed;
3. Due process of law is observed;
4. All rights of persons accused are observed during administrative and criminal proceedings;
5. Freedom of opinion and expression, freedom of belief and religion, and freedom from arbitrary interference with privacy are effectively guaranteed;
6. Fundamental labor rights are effectively guaranteed.
Order and security is one of the important factors of the rule of law in the state and society.
Ensuring public order and security is a fundamental function of the state, the main goal of which is to create favorable conditions for the normal coexistence, labor, and rest of citizens, as well as the respect of their honor, human dignity, property, and public morality.
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The establishment and maintenance of public order and security presumes the adoption of the necessary measures in order for all the actions, deeds, and behavior of citizens in the places of their socialization do not go beyond the regulations of the law, morals, or social norms.
The state must effectively prevent crime and violence of every sort, including political violence and vigilante justice. Violence not only harms society, it also prevents it from reaching such goals as executing fundamental human rights and freedoms and ensuring access to existing opportunities and justice. If legal regulations are not adopted, violence in extreme situations might become the norm.
The following aspects are indicators of a normal state of affair in the state in this area:
(1) the low level of crime;
(2) the absence of civil conflict, including terrorism and armed conflict; and
(3) the absence of violence as a socially acceptable means to redress personal grievances.
The main subfactors for ensuring order and security in the state and society, as well as indicators of the level of activity of the government in this area are the following:
(1) crime is under efficient control;
(2) civilian conflict is essentially limited;
(3) people do not resort to violence to redress personal grievances.
Regulatory enforcement as an important factor of a rule of law society presumes that the government not only upholds regulatory legal rules (adopt laws and other regulatory legal acts), but also properly enforces them.
Regulatory enforcement is closely related to legality, which can be viewed as the state of social life in which qualitative, non-contradictory legislation exists, and the adopted laws are respected and executed by all government bodies, officials, organizations, and citizens.
Legality is the most important manifestation of democracy and the main principle of a legal state. A vital warranty of legality is its precise and unconditional enforcement not only during the execution of legal regulations, but also when drawing up and adopting legal regulations.
In the terms of rule of law in a state and society, the public enforcement of government regulations has become a pervasive method to achieve good behavior of all society members. The proper public enforcement for complying with legal provisions (norms) helps to detect the real responsibility scale for negligence and abuse by officials pursuing their own interest.
The purpose of the state care of compliance with the rules established by its legal regulation is to ensure effective law enforcement without undue public or private intervention by the timely creation of regulatory procedures that can simultaneously assert in society respect for due process.
The rule of law in the state and society in terms of regulatory enforcement implies the following subfactors:
(1) government regulations are effectively enforce, as well as applied and enforced without improper influence;
(2) administrative proceedings are conducted without unreasonable delay;
(3) due process is respected in administrative proceedings;
(4) the government does not expropriate without just (adequate) compensation.
Civil justice is an important factor of the rule of law in the state and society. In a rule of law society, ordinary people should be able to resolve their grievances and obtain remedies in conformity with fundamental rights through formal institutions of justice in a peaceful and effective manner, rather than resorting to violence or self-help. Civil justice requires that the system be accessible, affordable, effective, impartial, and culturally competent.
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Accessibility includes general awareness of available remedies; availability and affordability of legal advice and representation; and absence of excessive or unreasonable fees and hurdles.
Impartiality includes absence of arbitrary distinctions, such as social and economic status, as well as decisions that are free of improper influence by public officials or political, economic and private interests.
In a rule of law society, it is essential that alternative dispute mechanisms provide effective access to justice, while refraining from binding persons who have not consented to be bound by the mechanism.
Efficient civil justice from the viewpoint of the rule of law is characterized by such subfac-tors as:
(1) people can access and afford civil justice;
(2) civil justice free of discrimination, corruption, improper government influence, and unreasonable delays;
(3) civil justice is effectively enforced, and legal proceedings are accessible, impartial, and effective.
Efficient criminal justice system, as one of the key factors of the rule of law in the state and society, is a natural mechanism for dealing with complaints of victims and taking measures against persons who committed crimes, which also involves the resolution of conflicts in a legal way to ensure all persons remedies.
Reliable functioning of criminal justice will make it possible not only to solve crimes committed and expose and punish criminals, but also to prevent the innocent from being wrongly accused, reduce tension in society, and, in the event of civil justice, peacefully and efficiently resolve conflicts that arise without resorting to violence.
In a rule of law society, the criminal justice system should be capable of effective preliminary investigation and judicial examination of criminal offenses within reasonable deadlines guaranteeing the protection of rights of the suspects and victims of crimes on the basis of legal proceedings, impartiality, and without improper influence.
The subfactors of the rule of law in criminal justice are:
(1) accessible, timely, and competent criminal investigation and legal proceedings;
(2) criminal justice is free of corruption;
(3) criminal investigation and legal proceedings free of charge;
(4) criminal investigation and proceedings are carried out independently, without any pressure from the outside and without improper government influence;
(5) criminal justice and correctional supervision are effective.
Informal justice has also recently been considered a factor of the rule of law. This entails acknowledging the role played by traditional, or "informal," systems of law, including traditional, tribal, and religious courts, as well as community-based systems , in resolving disputes. These systems often play a large role in cultures where formal legal institutions fail to provide effective remedies for large segments of the population or when formal institutions are perceived as foreign, corrupt, and ineffective.
This is why different forms of informal justice providing they are effective, impartial, and protect fundamental rights, and are held to the same standards of fairness in resolving disputes as formal systems (i.e. they are timely and effective, impartial and free of improper influence, and respect and protect fundamental rights) are a significant factor of the rule of law.
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Conclusion
The rule of law is a vitally important element in forming public administration based on the law. It is of principal importance for the advanced development of the state and society, and in recent years has become a kind of indicator of the state's attitude toward corresponding legal values and the maturity of society.
The regime of the rule of law is an essential condition for building a democratic legal state and successful carrying out the reforms needed to modernize the political, legal, economic and social systems and raising public administration to a qualitatively new level.
In this way, the rule of law serves not only the establishment of law and order and legal stability in a state, but also makes public administration ordered, transparent, and less subject to abuse by officials. This, in turn, removes the artificial obstacles to the country's socioeconomic development, stimulates the creation of a prosperous society, and promotes the active progress of the nation toward a better future.
