Учебный год 22-23 / William_Simons_Private_and_Civil_Law_in_the_R

reform was not on this list as it was not considered to be the main area of reform in the early years of the post-communist transformations. Yet as economic and political reforms have progressed—in some countries faster than in others—a stage has been reached at which it has become clear that no market transformation can be complete without efficient administration and regulatory mechanisms that facilitate, rather than hinder, the operation of businesses. As the fundamental institutions of democracystartedfunctioninginthestatesintransition,itbecameequally clear that democratic consolidations could not be complete without effective administrations to enforce the rules of the democratic game. In the eyes of the public, the new democratic institutions themselves were often synonymous with state administrations.

New thinking in the academic field has mirrored the new insights based on the decade of democratic experience. More and more in recent years, debates in the scholarly literature on democratization have stressed the role of the state for the success of new democracies. Scholars such as Linz and Stepan and Hanson have gone further by suggesting that— alongside the basic condition of “stateness” as a way of defining a demos and citizenship in a democracy—the existence of a usable state bureau- cracy is also a must; without it, a state would not be able to carry out its crucial regulatory tasks related to the establishment of economic society.3 Given the increasing interest in the role of the state in post-communist transitions,thefirstpartofthischapterwillstartwithadiscussionofthe importance of developments affecting the state in the post-communist contexts and will link these to the difficulties of creating functioning and legitimate bureaucracies in the context of post-communist transformations. The following section will, then, look at some of the major problems and obstacles in reforming post-communist administrations and will address the question why reforms have remained—for the first five years of CEE transitions—more rhetoric than a reality.The next section will briefly outline the main direction of reform—namely the definition of civil services as separate systems through the passing of civil service legislation. Then I will dwell on the problems which remain and which

3 J. J. Linz and A. Stepan, Problems of Democratic Transition and Consolidation: Southern Europe, South America and Post-Communist Europe, Baltimore/London 1996. Starting from the premise that “without a state, no modern democracy is possible”, Linz and Stepan develop their analysis to suggest a usable bureaucracy is also vital for the functioning of the market (p.17, p. 13). Stephen E. Hanson suggests that an institu- tional definitionofaconsolidatingdemocracyshould involveademocracyin which there is a critical mass of officials to administer formally democratic institutions (S. E. Hanson, “Defining Democratic Consolidation”, in R.D.Anderson, Jr., M. Steven

Fish, S.E. Hanson and P.G. Roeder, Post Communism and the Theory of Democracy, Princeton/Oxford 2001, 141).

prevent the predominantly legal reform that has taken place so far, from leading to a change in bureaucratic behavior.

The chapter draws mostly on my research in administrative reform in Central and Eastern Europe and, in particular, focuses on the new EU member states as administrative reforms there have been under way for some time. However, two important points must be borne in mind when considering the differences and similarities of countries linked by a com- mon past of communist regimes. First, in terms of actual developments in the area, it has to be noted the trend towards reforming post-communist administrations is not restricted to EU member and candidate states. In the last five years, a number of reforms have been started in Russia with the goal of reforming the state administration. These have comprised significantrestructuringofMinistries,federalagencies,andotheradmin- istrative units, functional reviews and reforms of regional government. In the case of Russia, however, it is too early to assess in what direction this process will unfold and what obstacles will be put in its way by bureaucratic resistance and institutional inertia.

Second, talking about common post-communist problems in reforming administrations might seem too far-fetched today when different transi- tion trajectories have led to different outcomes in terms of democracy, but has a rationale, which is less historical than structural. Clearly small states like the Baltic countries, Hungary, Slovenia—where consolidated democracies seem to be already a reality for some time—present less of a challenge than, for example, Russia or the Ukraine. Yet there are still common features stemming from the common legacy that has been inherited by countries from the former communist bloc. Although geography nowadays appears to triumph over history in deciding the path and fate ofstates—especiallythosewithinthereachoftheEuropeanUnion—the common legacy has also meant common problems. So even though it is not justifiable any more to speak of states in the East of Europe as one group, the reflections on the challenges to public governance in Central

Europe and the shaping of the new administrations should have some validity and resonance further afield.

Administrative Reform in a Post-Communist Setting

Whatisthesignificanceofadministrativereforminthelightofthetheme ofthiscollection,thepublic-privatedistinction?Inthefirstplace,aspects of the public-private distinction have determined the character of reform inapost-communistsetting;afterall—whatevertheprecisestartingcon- ditions or the status quo atthestartofpost-communisttransformations— the subject of reform was the public sphere, which was all encompassing

under communism. Therefore, administrative reform in post-communist states of CEE has not, in the first place, been reform of the type seen in the West in the last several decades, that is, New Public Management (NPM) reform.4 It has not, like NPM, been a move of limiting bureau- cracy and the state’s involvement and replacing étatist practices with private management tools. The first priority in post-communist states has been different, namely to reclaim part of the public sphere that has to remain public. Metaphorically speaking, bureaucracies needed to be rescued from the vast totalitarian and authoritarian states in which they were embedded.The story of reform in a post-communist setting is—in the first place—the story of a struggle to find the boundaries and the legitimacy of public authority of administrations and civil servants that had served an oppressive state.

Starting reform from a system in which the public part of the public private equation dominated and became the sole controlling force of society meant that even states such as Hungary—which had historical experience with the emergence of a civil service based on professional principles—losttheconceptoftheserviceasaseparatepublicbody.Thisis hardly surprising, as outlining the function of public versus private service could have no real meaning under regimes in which there was officially very little “private”. At best, states like Hungary or Czechoslovakia had professional experts, technocratic elites, and capable managers in their administrations, but these ultimately served the regime and not the people: they were “state servants”. At worst, bureaucracies epitomized both the oppressiveness and arbitrary power of communist regimes and their inefficiency.

Not only were communist administrations indistinguishable from the all pervasive state, they were also penetrated structures in which the communist party bureaucracy served as a second tier of administration dealing with actual policy making.5 The communist party bureaucratic structures were integrated in the administrations and dealt with issues such as personnel policy; often, they were the only units to have some policy planning and strategic functions.6 The extraction of the parallel

4On trends in administrative reform, see T. A. J. Toonen, “The Comparative Dimension of Administrative Reform: Creating Open Villages and Redesigning the Politics of Administration”, in B.G. Peters and J. Pierre, (eds.), Politicians, Bureaucrats and Administrative Reform, London 2001, 181-201.

5See, for example,T.Verheijen andA. Dimitrova “Private Interests and PublicAdministration: The Central and Eastern European Experience”, 62 International Review of Administrative Sciences 1996 No.2, 197-218.

6An additional source of communist party domination of the civil service was the fact that training of top level officials took place only in communist party training institutions, “academies” that focused on ideology rather than management.

communist bureaucracy—at least from the higher levels of administra- tions—in CEE has been a difficult process fraught with normative and policy dilemmas. Attempts at passing lustration legislation, for example in the Czech Republic, have been criticized by the Council of Europe as potential infringements of human rights and discrimination. Ultimately, the dilemma of how to deal with communist functionaries who had been performing (sometimes with years of experience and in good faith) key tasks in administrations remained unresolved. Instead, new elites in gov- ernment engaged in large-scale dismissals—more often than not politi- cally motivated—which resulted in high turnover and great instability in

CEE administrations in the early 1990s. Even today, experts note the high politicization of personnel policy in the post-communist administrations.

The redefinition of the interface between politics and administrations remains a common problem for post-communist administrations.7

An even more difficult aspect of the creation of the new administra- tionswaslinkedtotheredefinitionoftheroleofthestateintheeconomy. The task of conceptualizingreform was all the more difficult as, after the collapse of communist regimes, the pendulum of ideas about the public/ private divide had swung to the side of the market, assuming that the cure for having had an all-pervasive state was for states to be pushed back as much as possible. At the same time, the multiple character of transformations in a post-communist setting and, in particular, the challenge of restructuring the system of property relations led to an unanticipated threat to the post-communist state. This threat arose early on in the process of extraction of state assets which took place parallel—and in some cases prior to—democratic transitions through privatization and restitution processes in which, on the one hand, state officials played a role and, on the other, the state was often stripped of its assets.8 These transformation developments resulted in weak states, as pointed out by Krastev, in at least two senses. In the first place, many post-communist states were weak states in the sense of Joel Migdal,9 lacking the capability of implementing their policy visions and of regulating society—a crucial

7T.Verheijen, “Introduction”, in idem, (ed.), Politico-Administrative Relations:Who Rules?, Bratislava 2001, 7.

8On the issue of separation of party and state see Venelin I. Ganev, “The Separation of Party and State as a Logistical Problem: A Glance at the Causes of State Weakness in Post-communism”, East European Politics and Societies January 2001 and I. Krastev,

“The Inflexibility Trap: Frustrated Societies, Weak States and Democracy”, Report on the State of Democracy in the Balkans,CentreforLiberalStrategies,Sofia(February)

2002.

9J. S. Migdal, Strong Societies and Weak States: State Society Relations and State Capabilities in the Third World, Princeton 1988.

capability in a period of reforms. The emerged democracies showed to varying degrees the state weakness problem also in their ability to deliver public goods, of securing the rule of law and human rights of its citizens. Second, these states have often been “captured states”, that is states in which a particular group of interests has dominated the policy process and shaped, often illicitly, the rules of the democratic game.10

The challenges to administrative reform were not identical with these forms of state weakness, but the functioning of administrations was clearly affected by them in terms of both the legitimacy of the postcommunistadministrationsandtheireffectivenessandefficiency.Inboth respects, post-communist bureaucracies had heavy legacies to overcome.

The overarching question of how far states’ weakness can be addressed by strengthening bureaucracies without damaging democratic account- ability and freedoms is still unresolved—a question which is more valid for Russia than for the Central and Eastern European states.

DefiningtheNewAdministrations

Given that the debate about the role of the state remained unopened throughout the 1990s, it is hardly surprising that administrative reform was not a priority in the early years of transition and in fact, as Verheijen claims, was practically neglected.11 And yet, in the late 1990s, it became clear that without civil service reform both the functioning of the market and the legitimacy of governments would be undermined. In fact, some analyses such as the above-mentioned essay by Stephen Hanson have gone as far as to claim that—without a corps of officials prepared to enforce the laws of the new regime and obey the rule of law—we cannot speak of the consolidation of a democracy.12

Reform was on the cards but what kind of reform? Given that civil services had to be extracted from the convoluted Kafkaesque corridors ofpowerofthecommuniststate,whatwasrequiredwasaclearvisionfor a real revolution in public governance. Such a vision did not materialize.

Instead, civil service reform, in particular, remained for quite a while the subject of empty rhetoric. Part of the problem was that, as mentioned above, the prevailing Western NPM model suggested limiting the role of the state and using a number of techniques from the toolkit of private management—and these were not directly applicable to the situation described above.

10Op.cit. note 5.

11Op.cit. note 4, 6.

12Hanson, “Defining Democratic Consolidation”, op.cit. note 3.

Administrative reform in Central and Eastern Europe had to confront a different set of problems than reform in OECD states. The most sig- nificantdifferenceisperhapsthat—whilefiscalcrisesaswellastheriseof neo liberal ideas have made New Public Management the most important administrative reform model for theWest13—intheCEEstates,NPMideas have been eclipsed by the task of creating or in some cases recreating a classical civil service of a type that could not exist in the communist period. NPM approaches started developing from exactly the opposite direction to correct perceived problems with established state administrations that already existed as neutral, professional, career systems.

As discussed in the previous section, the challenge of creating modern administrations was part of the bigger puzzle of how to dismantle the totalitarian state, but preserve important functions of the state in general. Hardly any government or post-communist elite, however successful, handled this challenge very well. The inapplicability (or inadvisability) of applying NPM in its full blown version, however, meant that it was not clear what ideas could inspire the much needed reforms in Central and Eastern Europe. Even though a coherent model could not be imported from theWest,nevertheless,administrativereformhasbeenled—inalmostall

Central and Eastern European states but Hungary and to a certain extent

Poland—by external advice and influences.

Thereasonforthiswasthat—evenwhenitbecameclearthatadmin- istrativereformwouldrequirethesecuring,throughlegislation,oftherole and place of the service vis-à-vis politics—political elites were reluctant to contemplate the adoption of legislation that would limit their power to hire and fire; a power that was used so widely in the polarized polities of CEE that every new government replaced not only the top but also middle level civil servants, thus weakening even more the administrations expert potential.14 The reforms, when they were finally introduced, were the result of substantial external pressure and conditionality which were especiallyeffectiveforthoseCEEstateshopingtobecomeEUmembers.

The push from outside helped reformers by changing the domestic struc- ture of opportunities and giving them a chance—even in states in which they were in a minority.

At their initial stage, reforms consisted above all of legislative change, adoption of laws on the administration and the civil services, which have outlined what a civil service is and who is a civil servant. These laws established—for the first time in modern history for most CEE states—

13Toonen, “The Comparative Dimension of Administrative Reform”, op.cit. note 4.

14For an illustration of these processes, see the chapters in the volume by Verheijen,

Politico-Administrative Relations: Who Rules?, op.cit. note 7.

the boundaries of their administrations as public bodies as well as creating some protection for the administration from political interference.15 It is remarkable that no CEE country with the exception of Poland, which had a law from 1980s, had such legislation. Apart from Hungary that started its reform in 1992, most CEE states did not really start defining their administrations in legislative terms until the midand, in most cases, the late 1990s. Poland adopted its law on the administration in 1996 only to abandon it in favor of new legislation in 1998. The Baltic states started in the 1995-1996; but reform was piecemeal in the mid-1990s, and they only intensified their efforts towards the end of the decade. Bulgaria and Romania adopted their laws in 1998-1999, Slovakia in 2000 and finally— after prolonged political disagreement over securing the position of civil servants—the Czech Republic adopted its law in 2002.The civil service legislation adopted is summarized in Table 1.

Table 1: Civil Service Legislation in Some Central and

Eastern European States16

15Remarkably, this initial move of securing civil service positions seemed a development in the opposite direction to NPM reform measures which inter alia aimed to re-establish the control of politics over administrations. This makes sense taking intoaccountthedramaticallydifferentstartingpositionsofreformsoutlinedearlier in this chapter.

16Reproduced with some updates from:A. Dimitrova “Enlargement, Institution Build- ing and the European Union’sAdministrative Capacity Criterion”, 25 West European Politics October 2002 No.4, 183.

Alongside these basic laws, new legislation on free access to information has been adopted in CEE as a democratic innovation and part of the administrative reform package. In adopting such legislation, CEE states have converged with a group of forerunners in transparency and administrative reform, as not all states inWestern Europe have access to information laws. Table 2 summarizes the adopted legislation and the restrictions imposed on it by another new wave of laws regarding classified information.

Table 2: Freedom of Information Legislation in CEE 17

17Sources:A. Roberts, “NATO, Secrecy and the Right to Information”, EECR 2002/2003 at <http://faculty.maxwell.syr.edu/asroberts/documents/journal/EECR_2003.pdf>, accessed 23 March 2004; Stability Pact for South Eastern Europe Media Task Force, summary by Y. Lange.