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Some Preliminary Observations from Reform Initiatives in Latvia and Bosnia-Herzegovina Malcolm Russell-Einhorn IRIS Center, University of Maryland The World Bank, June 8, 2004.

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Some Preliminary Observations from Reform Initiatives in Latvia and Bosnia-Herzegovina

Malcolm Russell-Einhorn

IRIS Center, University of Maryland

The World Bank, June 8, 2004

Strengthening Administrative Accountability Through Improved Administrative Appeals Systems: Opportunities and Challenges
  • Potential significance of administrative appeals systems (and administrative procedures generally) to promotion of ‘everyday justice’ and governmental integrity
  • The specific purposes served by an effective administrative appeals (internal review) system
  • Use of a questionnaire in Latvia to assess functioning of various ministries’ appeals systems; additions to such a questionnaire through work in Bosnia
  • Public sector management and political economy challenges to implementing administrative appeals reform efforts: picking appropriate targets of opportunity
a sound administrative procedure system
A sound administrative procedure system
  • Concerned with constraining bureaucratic discretion
  • Encompasses procedural rules for initial administrative decision-making as well as an opportunity to appeal to administrative body; may also encompass court review (e.g., everything from tax to pension appeals)
  • Through substantive and procedural protections, ‘evens the playing field’ between the state and citizens
  • Is concerned with both efficiency and fairness, which has a potential impact on citizen trust in government and the investment climate
recent worldwide attention paid to administrative procedure reform
Recent worldwide attention paid to administrative procedure reform
  • Major new laws on administrative procedure passed in Korea, Japan, and Taiwan in the early 1990s
  • Major new codes adopted in past several years in transition countries, including Latvia, Estonia, Georgia,
  • Coincides with political realignments and greater contestation; and EU accession efforts
Relative priorities: first-instance decision-making and deregulation vs. administrative appeals vs. court review
  • Complementary parts of an integrated system of administrative justice
  • Deregulation and first-instance decision-making significantly more important
  • Significant public sector management challenges and demand-side usage problems attend administrative appeals systems
purposes of an administrative appeals system
Purposes of an administrative appeals system
  • Provides quick and inexpensive way for public to challenge administrative decisions without going to court
  • Raises public trust in the administration
  • Provides agencies opportunity to use expertise to check lower instance decision-making for correctness and consistency
  • Clear interpretation of law and procedure discourages unnecessary second instance and court appeals by public; and incorrect case processing by first instance decision-makers
internal review systems are generally neglected
Internal review systems are generally neglected
  • Not accorded as much attention or prestige as court review as source of substantive legal interpretation
  • Second instance decision-makers in ministries or agencies often under-staffed and under–resourced; often lack appropriate expertise
  • Also sometimes lack sufficient organizational independence and/or political support by agency
  • Hard for agencies and government as a whole to share information/good practices on internal review
progress of administrative procedure reform in latvia
Progress of Administrative Procedure Reform in Latvia
  • Historical antecedents of the new Administrative Procedure Law (Inter-war period, Soviet period, 1990s)
  • Among many reasons for a new law, most crucial was improving court procedure and enunciating modern European substantive review principles
  • Drafting of new law began in 1999; law enacted in 2001, effective date February 2004
  • Implementation grant from World Bank in 2003: five components, incl. assessment of admin. appeals
latvia s new administrative procedure law apl 2004
Latvia’s new administrative procedure law (APL)(2004)
  • A framework law that provides a ‘floor’ for proper administrative decision-making
  • Features decision-making based on democratic principles (equality, proportionality, lawful basis), introduces new court procedural rules
  • Also features decision-making informed by clearer procedural regularity (opportunity to be heard, to present evidence, to be given reasons for a decision)
key obligations of civil servants under the new apl
Key obligations of civil servants under the new APL
  • Provide citizens relevant information and obtain such information from other agencies if necessary
  • Clarify and assess arguments of citizens seeking an administrative decision
  • Issue decisions that contain arguments of the parties and a reasoned justification for the decision
  • Give citizens a right to be heard on appeal in a ‘higher institution”
translating the apl s promise into reality
Translating the APL’s promise into reality

As usual, an ‘implementation gap’ may exist:

  • Legal norms need to be harmonized
  • Commentaries need to be written
  • Internal guidelines and forms need to be developed
  • Civil servants need training
  • Public needs information
  • Better recordkeeping and monitoring needed
use of a survey to clarify apl implementation issues
Use of a survey to clarify APL implementation issues
  • Designed to gather information about existing internal review procedures and plans for implementing the APL
  • Drafted with input from, and administered to, members of a Prime Minister’s Working Group
  • Two separate questionnaires: one for ministries and one for subordinate institutions
  • Basically limited to supply-side concerns
key topics of the surveys
Key topics of the surveys
  • Types and volume of administrative decisions
  • Levels and avenues of appeal
  • Volume of appeals and recordkeeping
  • Internal processes for handling appeals
  • Review/monitoring of appeals practices
  • Training of civil servants
  • Public information practices
  • Retrieval of information between agencies
  • Resource needs for implementation of the law
survey responses
Survey responses
  • 15 out of 17 ministries responded (88%)
  • 83 out of 95 subordinate institutions (87%)
  • High response rate can be considered comprehensive for national-level government
  • Survey not administered to municipalities, but results are suggestive for them as well
types and volume of administrative decisions
Types and volume of administrative decisions
  • Many institutions could not supply full list of types of administrative decisions they issued
  • Information on volume of administrative decisions was better, but still understated
  • Most agencies failed to identify procurement, freedom of information, or civil service decisions as decisions
  • Failure to fully identify types and volume of decisions reduces agency ability to comply with law and ensure good management practices
levels avenues of appeal
Levels & avenues of appeal
  • Special legal norms often govern avenues of appeal
  • Ideally should have one internal appeal level, but 38 of 83 institutions reported more than one
  • Appeals often made to head of a regional or structural unit, and then to the head of an institution or to ministry
  • For fairness and efficiency, better to focus on quality of review and limiting number of appeal instances (avoiding “appeal fatigue”)
volume recordkeeping of appeals
Volume & recordkeeping of appeals
  • Few institutions keep statistics on numbers or outcomes of appeals
  • Many institutions that do keep statistics on appeals have very low figures
  • Of those that keep statistics, several have very high affirmation rates, possibly problematic
  • Dearth of statistics prevents analysis, learning, and improvements in quality of service
organization and processes for handling appeals
Organization and processes for handling appeals
  • Only 16 out of 83 subordinate institutions have a dedicated unit to handle appeals
  • 8 had standing appellate commissions with collegial decision-making
  • Dedicated appeals units or boards may be required where large numbers of appeals are filed and/or special expertise is needed
considerations affecting location nature of internal appeals units
Considerations affecting location & nature of internal appeals units

To ensure quality review, set up appeals units that have:

  • Reviewers with adequate legal and technical expertise and writing skills
  • Reviewers with adequate political support and resources/salaries
  • Functional independence from line agency personnel
procedures and guidelines for handling appeals
Procedures and guidelines for handling appeals
  • 50 institutions reported having no external or internal guidelines for handling appeals
  • Number is probably higher, since only 9 institutions clearly reported having guidelines
  • Only 4 institutions reported guidelines governing substantive review of appeals
  • Only 4 institutions reported using checklists of necessary elements for rendering decisions
forms and information for the public on appeals procedures
Forms and information for the public on appeals procedures
  • Although many agencies have standardized forms for issuance of administrative acts, most relate only to administrative violations cases
  • Most forms do not provide clear guidance on where appeals will be lodged and processed under the APL
  • 21 agencies have web sites that explain something about appeal rights, while 12 institutions have brochures on the subject.
systemic reviews monitoring of appeals practices
Systemic reviews/monitoring of appeals practices
  • 51 out of 83 responding institutions said they conducted no systemic analyses
  • How ‘systemic’ actually are such reviews?
  • Value of such reviews: identifying problems in policy, procedures, practices
  • Helpful to periodically survey staff & appellants
  • Appeals should be analyzed to identify trends and rectify recurrent problems
retrieval of information between institutions
Retrieval of information between institutions
  • APL requires institutions to gather all information necessary to a decision, rather than requiring citizens to obtain it. Many don’t.
  • 82 out of 98 institutions said they will use letters of request to fulfill this obligation; 54 said they will use access to online government databases to obtain data;
  • 44 said they will also use phone calls to track down needed data
as a result of the surveys
As a result of the surveys
  • Ministries have better understanding of what the implementation issues are
  • Agencies can advocate more persuasively for resources and/or legal and regulatory changes
  • Individual agencies can engage in priority-setting as well as joint initiatives (special norms, training, information exchanges)
  • Government as a whole is sensitized to need for more resources, donor support, and relationship of APL reform to other public sector management & legal reforms

Mapping Procedures and Writing/Publicizing Guidelines to Eliminate Vagueness & Discretion

  • Avenues of appeal; designation of internal review
  • Procedures for reviewing appeals, including taking of evidence and conduct of hearings; publicizing same
  • Procedures and forms to document appeals
  • Minimum requirements for recordkeeping
additional diagnostic emphases in bosnia
Additional Diagnostic Emphases in Bosnia
  • USAID project focused on administrative procedural reform at local and national level
  • Intensive internal review work with a few ministries (strategic planning, training, case management)
  • More emphasis in surveys on probing pay, education, and independence of 2nd instance decision-makers
  • Additional survey emphasis on probing other reasons for failure to decide appeals on merits
challenges for administrative appeals systems reform
Challenges for administrative appeals systems reform
  • Political economy considerations (sufficient political contestation; ministry leadership, corruption dynamics)
  • Need for concomitant civil service and other public sector management reforms
  • Need demand-side pressures from civil society, esp. the media and ombudsman, if any
  • Judiciary can also be a source of pressure
picking the right targets of opportunity
Picking the right targets of opportunity
  • Generally best to take a sectoral, ministry-focused approach based on demonstrated ministry leadership and a motivated community of system users
  • Better if it’s part of, and complements, a broader public sector management initiative
  • Better if public users of system can be surveyed or otherwise provide input on procedures