Veřejná služba na prahu 21. století

Over the past decades, in most countries, public service has undergone the process of substantial reforms which met an adequate response in legal theory. The dual arrangement of employment relations resulting from the autonomous public law regulation of the public officials’ status as it was adopted in most European countries, has recently been put to question. The point is as follows: does the public service – the specific regulation of the public employees’ legal relations – belong to those outdated legal concepts of the 19th century that should no longer be preserved or, should it be re-introduced, as it is the case in our country? The author endeavours to give her answer to this question by pointing out the ways of resolving the legal problems connected with qualified and efficient performance currently required of modern public administration and its staff. This article was completed in spring 2001, when in the Czech Parliament a debate was launched on the bill concerning the Civil Service Act. Comments on some problems related to the proposed legislation are presented in this article, especially in Chapter 5, preceded by a short introduction into the legal concepts and terminology and the systems of public service adopted in the democratic countries (the situation, the trends, the European principles). Differentia specifica of public service can generally be based on criteria connected with institutions or with the public employees’ functions including the performance of public duties (public interests). In some definitions, those persons are considered to be public officials who perform their duties for “public administration proper” or sensu stricto only those who exercise public authority. The most pragmatic criterion consists in recognizing as public officials all those who are paid from public funds notwithstanding their legal status – whether statutory or contractual. According to the opinion of the European Court of Human Rights on current practice, either category of employees often perform equal or similar functions, and that is why it is appropriate to apply the functional criterion based on the nature of the employee’s functions and responsibilities. In the process of internationalization and subsequent globalization, the approximation trends show also in public administration which has remained a domain of sovereign regulation by the national states even in such supranational community as is the EU. It is the effect of the need to adjust the functioning and to some degree also the organization of public administration to meet the tasks arising from international and, in case of EU communitarian, obligations. A certain process of standardization, at least in terms of accentuation of basic common, elements and principles, can also be seen in the area of public service. In the post-communist countries, due to the efforts to achieve professionalism, to minimize political influences and to promote integrity of public service, the main stress is put on unification, stabilization and provision of strong legal guarantees, all this resulting in tendency to adopt some kind of modernized model of the career system. The basic principles of public service were most recently formulated by the Council of Europe (the status of public officials in Europe, Recommendation No. R/2000/6). The translation of these principles and a commentary are included in the present article. Chapter 5, dealing with the Czech public service de lege ferenda, includes an evaluation of the development of the public administration reform, an analysis of the constitutional regulation and the concept of a public servant’s status incorporated in the bill relating to the Civil Service Act. The bill promotes professionalism, political neutrality and stabilization of the civil service. It introduces public law status of a civil servant, sets conditions and requirements for recruitment, duties and rights of civil servants, their disciplinary responsibilities, etc. It provides for remuneration and compensations and establishes the social protection of civil servants. Doubts and objections on the part of experts and politicians are primarily concerned with the highly centralized civil service organization and a high degree of rigidity combined with inadequately open-ended nature of the proposed system. Both personnel management and public management are concentrated in the hands of personnel directors and the General Director of the civil service who is located in the Government’s Office. The specialization is one-sidedly promoted, not allowing necessary mobility and innovations. The proposed system is overprotective towards members of the present staff, who would be appointed to the new civil service without any evaluation nor examination. Apparently, the parliamentary debate indicates that the bill should be substantially revised before it is ready for acceptance. The studies on the prognoses of public service developments indicate mostly erosion of the career system as well as tendencies of the public employees’ status coming closer to general labour law relations. But it is too early to draw definite conclusions, especially as regards the speed of the future changes. The growing need to promote, both on the national and international basis, the means and ways of supporting public ethics and reinforcing the legal remedies in order to prevent or to punish unethical and/or illegal behaviour may lead to preferences generally given to models promoting traditional values. The era of building a “great architecture” of the civil service as an extensive, closed and rather rigid system has gone by. Nowadays it is very unlikely that public administration could avoid the processes spurred by modernization, exploitation of new technologies, free movement of labour, etc. It is important to ensure chat the Civil Service Act should not impede the possibilities of such development.