Rule of Law in Public Administration: Confusion and Discrimination in a Post-Communist Bureaucracy
Europe Report N°84
15 Dec 1999
To date, little attention has been paid to the role public administration plays in enforcing or violating the human rights and civil liberties of Bosnia and Herzegovina’s citizens. Instead, much effort is concentrated on reforming the court system. Yet, the justice system in Bosnia and Herzegovina (BiH) comprises far more than the court system. It also consists of “administrative justice,” where small-scale rulings by seemingly minor municipal and cantonal officials in a variety of public administrative organs, exercise a huge influence on the lives and legal rights of ordinary citizens. Many of these rulings prevent citizens from exercising their legal rights and gaining access to due process of law.
In BiH relatively few people come into contact with a court of law. In contrast, the system of public administration sees a constant flow of individuals through its various layers. Whether obtaining birth certificates or identity papers, registering a car, completing property documentation, obtaining a telephone line, or attempting to acquire the numerous permits and certificates required by the complex and often non-transparent BiH administrative system, virtually all BiH citizens queue in front of municipal and cantonal officials at some point. It is there that the citizenry and government meet, and it is there that the vast majority of legal abuses occur, as government officials – protected by a wall of seemingly incomprehensible laws and regulations – intimidate ordinary people.
Public administration in BiH is a labyrinth of pre-war, wartime and post-war institutions, often exercising overlapping administrative authority. As problematic as they may have been, these practices were exacerbated by wartime prejudices and bitterness. The large, cumbersome, bureaucratic apparatus appears to the average citizen to be overly complex, intimidating, and non-user-friendly. The techniques and technology of public administration place people in Kafka-esque situations when attempting to seek justice through the appropriate administrative channels. The bureaucrats who oversee “administrative justice” – most of whom operate on the municipal level – appear prone to misinterpret laws and mistreat individuals. Often, these minor bureaucrats dispense a form of justice that contradicts written law and accepted standards of legal practice.
A number of factors influence the performance of the BiH public administration services. The administrative organs operate within a complicated constitutional and governmental structure that often proves confusing to both legal professionals and bureaucrats alike. Federation Mayors wield more authority in their municipalities than their two counterparts in RS municipalities – the President of the Municipal Assembly and the President of the Executive Board. The power of Mayors in the Federation is diluted by the strong authority given to cantonal officials.
Procedures followed by public administrative bodies often leave citizens in a form of legal limbo. Bureaucrats burden citizens with arbitrary demands to produce documents, most of which already exist elsewhere as public records. Petitions and claims are often ignored as citizens face a state wall of “administrative silence," a legal concept often used as a weapon by bureaucracies against ethnic minorities and other petitioners who attempt to exercise their rights. Many primary and secondary jurisdiction organs are clogged by the refusal of appeals bodies to re-visit and investigate cases, as they instead prefer to return appeals back to the originating body, with instructions to reinvestigate the procedure. In this manner numerous cases float back and forth on the administrative procedural ladder, before finally ending up back at the organ of primary jurisdiction.
Resources in public administration are scarce and the supply of experienced and qualified civil servants is limited. Both in the judiciary and municipal administration, many pre-war officials have been replaced by inexperienced and untrained political appointees. Often displaced persons hold official positions and take out their aggressions on ethnic minorities. When coupled with the woeful under-funding of municipal departments, arbitrariness, inertia, and corruption are endemic.
Political cronyism has a severe impact on the functioning of public administration. Many local administrative positions are filled with “apparatchiks” appointed by the ruling political party. These appointments pay little heed to qualifications or experience. These politically appointed officials answer almost exclusively to their municipal level party bosses. Protected by layers of political appointees, the local party boss can effectively rule untouched by any appeals process, shielded from the public by the enormous bureaucracy. The pervasive nepotism and the tendency to use contacts to achieve ones rights has become endemic. The standards and practices of the BiH civil service system are all but ignored.
The presence of parallel, illegal institutions creates a duality of law, where rights earned under legislation passed by former, or present day illegal authorities, are not recognised in other areas. This is primarily the case with the derivatives of the former Croatian Republic of Herzeg-Bosna. Weak inspection methods and the susceptibility of many inspectors to succumb to bribery, or to work outside the bounds permissible by law, is another feature of post-Dayton BiH public administration. In addition to the public administration, the various public utility companies maintain monopoly positions, in which they reproduce most of the inefficiencies outlined above.
The unsatisfactory functioning of municipal and cantonal administrations has a negative effect on both the legal system and the rule of law, and drastically affects the administration’s main role – the implementation of laws and regulations. Many laws go partially or entirely un-enforced.
This report makes specific recommendations to strengthen the functioning of public administration. By and large these build on already-existing civil service procedures on the books, both in Republika Srpska and the Federation. These include: enforcing existing civil service laws, enforcing existing hiring procedures, increasing the degree of governmental “user-friendliness,” increasing public access to records and documents, de-linking the public administration financing from political party control, and strengthening the municipal oversight system under existing JSAP authorisation.
Sarajevo, 15 December 1999