PUBLIC ADMINIATRATION LEGAL DIMENSION

PUBLIC ADMINISTRATION’S LEGAL DIMENSIONS THE CONCEPTUALIZATION OF KEYTERMS Professor defined administration as a detailed and systematic execution of public law. Administration is an art of getting things done. The theory of administration should focus with the process of decision as well as with the process of action whereby administration is not only basically concerned with the technology of methods selected but also is concerned with such questions as how the method was chosen. For example, how the two people moving the stone were selected and introduced to cooperate in carrying out such task, how the task was divided between them, how each of the people involve d learn to perform the task and how individual efforts are coordinated with the efforts of the other. According to , public administration is a public leadership of public affairs directly responsible for executive action. In a democracy, it has to do with such leadership and executive action in terms that respect and contribute to the dignity, the worth and potentials of the citizen. The North America Industry Classification System (NAICS 91) defined public administration as comprises establishments primarily engaged in activities of a governmental nature, that is the enactment and judicial interpretation of laws and their pursuant regulations and the administration of programs based on them. This includes legislative activities, taxation, national defense, public order and safety, immigration, services, foreign affairs, international assistance and the administration of government programs are activities that are purely government in nature. Public Administration as a discipline is not very old and it is only a hundred years.. It was emerged in the USA in 1887 by Woodrow Wilson who is regarded as the father of the discipline of public administration. During these years public administration has passed through several phases of development. We can broadly divide the history of public administration into the following five periods; period 1 (1887-1926) Public Administration Dichotomy, period 2 (1927- 1937) Principles of Administration, period 3 (1938-1947) Era of Challenge, period 4 (1948-1957) Public Administration As Management and period 5 (1971- Continuing) Public administration. Public Administration legal is law in action in the form of statutes, regulations, ordinances, procedures, codes and other various issues. CHARACTERISTICS OF PUBLIC ADMINISTRATION It is people: Public administration involves planning; managing, organizing, staffing, directing and controlling of people within the organization people normally as a human resource are responsible to predict the future and development inside and outside of organization in managing financial, physical, and technological and allocation of other public resource. It is always a servant of policy: policies are the continuously acknowledge rules of conduct that guide administrative decisions. Policies are formed by the legislature and public administrators are responsible to execute those policies for the purpose of bringing social, economic and political development to the public. So that, public administration is the most important to the people Public administration is common to both public and private affairs. Also, it refers to that part of administration which pertain to the administrative activity of the government which consist four dimension which are explained as follows, Political dimension of Public administration; refers to those activities that government does. It exists within a political environment, and it is this political context that makes it “public.” Public administration is about implementation of the public interest. It is also about doing collectively what cannot be done individually or by private institutions without profit making (Pollitt (1995). Example public administrators tend to implement the policies which are already formulated by the politicians. Always public administrators put policies into actions by applying their expertise knowledge. Managerial dimension of public administration; means that the process of planning organizing staffing and controlling different resources for the aim of archiving the public interests. As public administrator may act as the executive manager, the executive nature of public administration enables the public will or interests to be translated into action by the people responsible for running the public bureaucracy like civil servants. Occupational dimension of public administration; Public administration includes many occupational fields or professions’ like medicine, engineering, social welfare, economics. Occupation it is the same to profession so, it is within the framework of each of these fields that the political, legal, and managerial aspects of public administration are transformed by public administrators into the work of government. Without public administration, that professions or human resources cannot be utilized well as the administrator act as the compass direction to them in implementing the work of government. Legal dimensions of public administration; The foundations of public administration in any country are legal ones and are bound by instruments of law thus why Public administration is reefed as law in action in the form of statutes, regulations, ordinances, codes, etc. always public administration is bounded by rules and regulations and thus why it was refers to bureaucracy by max Weber. Nothing can be done by administrators without adhering to the constitution of the state. Also to prove that there is labor law which guides the way administrators should behave and the standards of their work SOURCE OF THE PUBLIC ADMINISTRATIONS The constitutions. contain some of the provisions dealing with the manner and principle opf the government administrations ad accountability of the public body and officials .it main provide board principles has to the conduct and the accountability of the government, the principle of the direct democratic participation by the citizens and the rule of the law, it also embody the principle of then separation of power but allocating to the house of the people of the representative and executive power Legislations. Laws adopted by the parliament which may have the effect of creating administrative agency, specify specific procedure to be complied by the specific authority in exercising its power, can be considered as primary source of the administrative law. Judicial opinion. Much, but not the most, of the doctrine that envelops and control administrative power is found in judicial analysis of then other source. However much of the administrative law will not be found solely in judicial opinion furthermore the opinions themselves must be careful per sued to avoid generalizations about control on agency behavior that may not be appropriate as the outcome of the main case may turn into then particular statutory. LEGAL DIMENSION Legal dimension is concern for formal rules which govern organizational, governmental, national conduct methods of creating rules, laws, policy and methods for rule enforcement, electoral or position appointment practices, executive or administrative influence and adjudication processes. RELATIONSHIP BETWEEN PUBLIC ADMINISTRATION AND LEGAL DIMENSION There is no efficiency without an appropriate legal regulation of the organization or public administration activities. Law has to be considered as a frame work, object and tool. Therefore public administration and legal dimension link together as follow, Law is a tool with which some specific goals can be achieved by public administration: Most of public policies require rule making. The allocation of rights and duties is expected to orient behaviors and individual choices in order to achieve the goals pursued. Some policy programs are law intensive (e.g. labour relations, labour safety and environmental protection), where others are money intensive (social welfare programs) or money and labor intensive e.g. (education and health) or medium high in money and employment. Generally law can provide a basis of legitimacy to public policies, since it assumed to reflect the broad agreement of society on the rules according to which society is governed. Acting within the law implies acting within this agreement and accepting the possibility of being contested on question of law, example when person uses remedies provided by the law to enforce his rights. Law as a frame work paramount importance for public management: Public administration is vested with public powers specifically exercised by authorities designed by the law. Since public administration is public, the law regarding it is not only to determine the number of rights and duties in its relations with other legal subjects within the limits of public order, but also to make public interest prevail for the common good. As opposed to private organizations, public administration does not act for its own benefit but for the benefit of the community, and it is therefore subject to the rules and goals determined by political body of that community. Institutions of public administration are established by law, their competences and powers are defined by law, and their duties regarding the rights guaranteed to legal subjects are regulated by law. This function of law as a framework for public administration is essential, it determine what kind of relationships will exist between the various public authorities, and consequently the conditions subject to which they must pursue their own goals and efficiently perform their tasks. Law can be an object of public policy in several respects: compliance with the law is not assured by the law itself, and can never be reduced to a matter of police or penalties. However compliance matters if the law is to work. Various actions can be undertaken in order to enforce the law beyond the means of the judiciary, such as information, persuasion, incentives, the training of public officials etc. enforcing compliance can be part of a policy programme, just as rule making. Also law making and law implementation can give rise to specific public policies by an appraisal of the need for rule making, by simulation or experimentation, by setting time limits for the validity of the rules or by evaluating the impact of the rules, which is nowadays frequently provided for by the laws themselves. Principles of legal dimension in public administration Principle of Legality; this means that administrative actions are subjected to law, and the law determines what a public administrator should do, it clearly explain the job description of each personnel and its jurisdictions so, whatever actions of a public administrators should be right as explained in law otherwise he/she will be hold accountable. Furthermore, law shows the limits of discretionary power vested to public authorities who are liable in exercising certain activities for example the minister is accountable to take actions whenever the situation needs in his area of jurisdictions this means in a specified ministry to all employee and activities under that ministry but he cannot take any actions to the worker who is appointed by the president , rather he will only explain the situation and let the appointing authority to make a decision to that person. So, it’s very important to study public administration’s legal dimension because help to understand different actions as explained by law and its remedies which are there when the power is exercised beyond the limits to the public administrators. (Greenberg 1980). The principle of proportionality, this principle was first started to be used in German law and then to the international law. This principle stated that ‘all measure taken by any legal system including public administration it must be proportioned to the pursued goal’. Administrative law systems differ in terms of how extensively they employ proportionality review. In some systems, proportionality is regarded as a constitutional or general principle of law that applies, in principle, to the whole corpus of law. In others proportionality applies only to certain areas within administrative law or crops up unpredictably. And some administrative law systems do not recognize proportionality as a governing legal standard at all. The principle of legal security (or certainty) and of reliance on legitimate expectation, these two principles is closely related, since they both imply a weighing up with this principle of legality with which there may be a conflict. The doctrine of legitimate expectation was first developed in English law as a ground of judicial review in administrative law to protect a procedural or substantive interest when a public authority rescinds from a representation mode to a person. It is based on the principle of natural justice and fairness and seeks to prevent authority from abusing power. There are recognized two legitimate expectations which are procedural and substantive legitimate expectation. A procedural legitimate expectation rests on the presumption that a public authority will follow a certain procedure in advance of a decision being taken. Substantive legitimate expectation arises where authority makes a lawful representation that and individual will receive or continue to receive some kind of substantive benefit. The principle of equality before the law, and the prohibition of discrimination, as per Dicey rule of law, equality of law or equality of law or equal subjection of all classes of people to the ordinary law of the land which is administered by the ordinary law courts. In this sense rule of law conveys that no man is above the law. Even the government officials are under a duty to obey the same law and there can be no other special courts for dealing specifically with their matters. All government officials are subject to the same laws of justice, equality in the eyes of the law or legal equality. Prohibition of discrimination could be avoided if the principle of equality before the law. The principle of administrative procedures based on the rule of law; it is more difficult to establish here really common principles , however the right to a fair hearing or to present one’s defense is widely recognized, and to give the ground of an individual decision is still widely controversial, and is usually recognized in specific situation, in the sense that the administrative procedures can only be practiced through their tribunals within their limits in the bases of the rule of the which is the constitution. In addition to that all legal rights being practices by administrative tribunals to the administrators use the common rather than the civil law because in countries like Tanzania the civil laws acts as the basic law of the constitution and the use of common law have been stipulated within the common law. Hence the principle of administrative procedures based on the rule of law Strengths of legal dimensions in public administration Legal dimensions in public administration, helps to regulate people’s behavior. Each and every regulation brings with it new changes or restrictions to the individual rights and liberties. This is necessary because, a balance must be stricken between the powers given to the administration and the security provided to the public. This is why it is imperative that public administration should operate within the limits of law. This is also the natural result of the rule of law which governs the administration. For instance, the Turkish constitution stipulates that the administration can take actions which interfere with the rights and liberties of individual or involve personal or material sacrifices only as provided by law. When public body affects individual rights such as imposing a personal or financial burden, it can only do so if authorized by law. It is the law which delimits the precise boundaries of such burdens. In a state of emergence, the administration needs an open legal sanction for the public burdens or any other measures restricting rights and liberties. Article 123 of the Turkish constitution stipulates that, “procedures governing the imposition of financial obligations, the seizure of the property and compulsory labor on citizens, in the state of emergency, shall be regulated by law, including the proclamation, enforcement and termination of such public burdens. Accountability and Commitment, Accountability concerns the processes by which “those who exercise power whether as governments, as elected representatives or as appointed officials, must be able to show that they have exercised their powers and discharged their duties properly. defines accountability as the “responsibility of government and its agents towards the public to achieve previously set objectives and to account for them in public”. It is also regarded as a commitment required from public officials individually and collectively to accept public responsibility for their own action and inaction. In this case, the burden of accountability rests on each public functionary to act in the public interest and according to his/her conscience, with solutions for every matter based on professionalism and participation. Accountability for performance and the obligation that public functionaries (elected and appointed officials) have to give a satisfactory explanation over the exercise of power, authority and resources entrusted in them on behalf of the public (tax payer). Subsumed with this definition is a myriad of legal, oral and ethical obligations that come with the occupancy of any public office (Sarji, 1995). In short, it is the obligation to carry out assigned activities in a responsible and responsive manner, and being held answerable for success or failure. As such when we talk about “accountability” in the public service, we cannot but consider the question of bureaucratic responsibility. Internal accountability means that at each level in the hierarchical organization, public officials are accountable to those who supervise and control their work. On the other hand, external accountability means answerability for action carried out and performance achieved to other relevant and concerned authorities outside his/her department or organization. Accountability is therefore an ethical virtue provided by the law, since ethics and law concern principles and rules that govern the moral value of people’s behavior. Improving ethics and law is crucial to enhancing accountability and commitment and vice-versa. Also the law is very important in implementation of the public administration activities because it ensures accountability and commitment through different ways like; full subjection of public officials and administrative units to a wide set of constitutional, legal and administrative rules and procedures that govern tightly their performance, evaluation based on the fulfillment by public officials and administrative units of the provisions and procedures set by formal rules and regulations and also on the correct use of public resources, establishment of law possible consequences of accountability which may include a revision of the administrative act, compensation and a sanction or a reward for the public official involved. It creates efficiency, Effectiveness, and Equity in Public Administration; due to establishment of law led to the increase of efficient, effectiveness and equity in Public Administration helps different workers such as managers, Directors, Supervisors and workers to works with high efficient due to the fear of the law established can punish them also due to the different public administrative law formed help to provide public services to community effectively. Legal dimension also provides security to the public and substantive efficacy to administrative activities; through the process of law established in public administration peoples in different organization obey the rule and regulation also most them fear to do evil because of punishment formed to those who will misuse of resources in public administration this led to the security in public administration. Challenge of public administration legal dimensions Interference of politician with public administration: this is another challenge facing legal dimension in public administration whereby public administration is to be separated from the politics as politicians interfere in administrator’s activities including appointment of administrative works in regard to profession and the execution of the policies. Frank Goodnow (1900) states that Politics makes the policies and Administration executes the policies, but this is not considered. Sometime interference of politician interference to public administration leads inefficiency and ineffectiveness of work, unaccountability, fail to monitor quality and quantity service delivery corruption and other various problems. For example in Tanzania the president appointed the Member of Parliaments become director executive office. Corruption in public administration; Corruption is defined as the abuse of public power for private benefit (world bank ) and not all corruption results in the payment of bribes, thus corruption can be classified as Briber-initiated or bribe-initiated, Cost-reducing(to the briber) or benefit-enhancing, coercive or collusive, etc. In administrative system public servants are responsible to work according to their ethics which govern their conduct and behaviors to ensure they value and meet the public expectations by providing best services, but unlikely is seen the public officials are the ones who are corrupted because they use their positions to gain personal benefits by conducting activities which are against the law, Example in recruiting of public employees the public officials responsible in recruitment process ask for bribes in order to offer them employment opportunities. Financial crisis; also financial problems seem as the challenges to legal dimension in public administration. Sometimes rule and regulation organization did not have enough capital that can help legal dimension to work effectively to different public administration such as in education sector, political sector and economic sector. Managers of public institutions were obligated, due to lack of funds, to concentrate on developing various mechanisms in order to optimize the internal processes with the intention of assuring the development of their activities and obtaining their overall objectives. Public debt is expected to continue to rise reducing the net worth of the government. Maintaining financial buffer overtime is necessary for the Government to absorb future shocks to the wider economy, such as those arising from the recent recession and the Canterbury earthquakes. Lack of constitutional authority, hence lack of constitutional authority can be stated as one among of the challenges to legal dimension in public administration . this means fundamental problems in many crisis and post conflict societies leads to erosion of the respect for the legitimate of constitutional authority , this problem cuts through and has implications for all branches of the state in basis of security sector, the justice system and the administrative system at large . In some cases violation of constitutional authority inevitable or to be expected for example where there are no provisions for power sharing , excessive power are given to executive or the oversight agency and accountability mechanism are weak. Weakness of legal dimension in public administration Centralized system of public administration, centralization means concentration of authority at the level of the administrative system. In a centralized system of administration, the lower levels cannot act on their own initiative; they mostly refer most of their problems to the higher level for decision making. In most developing countries the public administration is not stable this is due of lack of institutionalization of public administration. For example in Tanzania whenever a new regime comes in power, it comes with its own system of administering the public administration sector. When the 4th regime of President Kikwete was on the office of local government authorities was under the Prime minister’s office but in the 5th regime of president Magufuli it has been shifted to the office of the president, this implies that there is no stable authority that governs the public administration. Lack of clear separation of power, public administration in Tanzania it lack the separation of power between state pillars. The presence of one pillar to dominate another pillar affects the whole process of legal dimension in public administration. The government (executive) is the organ which has more power than other organ. Is the executive who is select the judges of judiciary the executive can survive without the other pillars? Example in Tanzania the President is one who is legitimacy authority of appointing all judges of high court and court of appeal as well as chief justices. The regional commissioners/district commissioners also are the appointee of the President this affect the whole system of Public Administration in their respectively areas although those leaders are the head of executive in their area but in other side they serve for the interest of ruling party therefore sometime they can be act as the politician. Lack of politics administration dichotomy, this principle was firstly proposed by the former president of united state of America Woodrow Wilson. He said that, administration as a field of business must be separate from the hurry and strife of politic, in order to make administration free to make their function without any interference from any other organ. In Tanzania for example, public administration, lack the full autonomy to make their function independently, due to the fact that, politics interfere the function of administration. In order to improve this situation, administration and politics must be separate so that to allow each organ to perform their function independently Generally; public administration and law are two things which are inseparable because both depend on each other. Public administration makes the function of enforcing the public laws while law guide public administrators on how to function their duties. 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