Lecture 9

Question 1

The models of public administrative bureauracy in the liberal/social-democratic states: classical ministerial model

Answer 1

• typical of the French adminnistrative system
• concentration of the administrative in the ministerial national bodies (organized in= offices, divisions, separtments)
• internal structure= hierarchy: the superior in office can take files from inferiors and decide regarding it
• minister= head of the ministerial apparatus; political decisions are in “continuity” with bureaucratic administration (in the sense that administrative bureaucracy concretelly translates political decisions into actions, thus pursuing the policies of the government)
• civil servants selected through public concourse; they pursue public interests; regulated by a special laws’ sector; with specialized administrative tribunals for controversies
• provides for a very limited number of agencies and independent authorities

Question 2

The models of public administrative bureaucracy in the liberal/social-democratic states: new ministerial model

Answer 2

• typical of the Anglo-Saxon administrative system
• concentration of administrative power in the ministerial national bodies (divisions, departments, offices)
• autonomous public organisms charged of specific economic or social activity, supervised by national or regional ministries (can be fully autonomous)
• internal structure of Ministry based upon autonomy: the superior office cannot take the file of the inferior and decide for it– so to better address local implementation
• political decisions are “separated” from the bureaucratic sphere of administration
• civil servants selected by public concourse , pursuing national public interests, ruled by ordinary law and contracts, controversis are assessed by ordinary courts
• provides for many Agencies and independent Authorities

Question 3

The models of public administrative bureaucracy in the liberal/social-democratic states: agencies’ model

Answer 3

• performs technical-operative activity in a position of autonomy, self-organization and self-management, possess their own budget and legal personhood: the activity is provided for all public administrations
• addressed and monitored by referring Ministry on specific standards of activity and result (only)
• they are created to handle specific functions and policy areas (health, transportation,…)
• autonomy in decision-making and operations to better solve specific and unique challenges
• REMAIN ACCOUNTABLE TO THE GOVERNMENT, and the judiciary and legislative as well
• they are independent, but need organization in collaborating with other Agencies to be effective

Question 4

The models of public administrative bureaucracy in the liberal/social-democratic states: independent authorities’ model (what are they, functions, relation to the Executive, accountability, limitations)

Answer 4

• public bodies, with a high level of technical competence, neutrally appointed– they are guided by expertise rather than political condiserations
• not dependent on a Ministry and outside the political address and control: fully autonomous with own budget, management and personhood– high degree of autonomy from the executive
• to separate the government (therefore political address and control) of rule-making from various sectors to safeguard public and private interests of constitutional nature– imply regulation activities and supervision in economy and areas of public policy
• they are still accountable before the legislature and the judiciary; they are required to follow procedures and act within their legal mandates

Question 5

The systems of guarantees in the liberal/social-democratic states: Judiciary (system)

Answer 5

• “unique judiciary”= only one judiciary system, organized in higher/lower courts and in different divisions, which but belong to the same organization system and are administred by the same authorities (can have specialized courts). Judges are selected in the same way and have same education. Distinction of courts is based upon both importance and divisions– every judgement must be pronounced by a higher court (second decree trial at least)
• “multiple judiciary”= two or more separated judiciary sytems in parallel: it is NOT a distinction upon higher/lower courts. Each system possesses its own structure, procedures and administration. Typically the division among the systems are: administrative, criminal, constitutional and civil law.

There are:
– ordinary courts: selected divisions, organized in different inner sections (like: civil/criminal/…); judges are selected through public competitions. Such courts have jurisdiction in wider range of legal matters like the judges, that possess a broader non-specific knowledge in multiple fields
– specialized courts: differ from the ordinary courts in the selection of judges and/or in the court panels composed by non-trained in law. They are trained in very specific matters that coincedes with the court’s jurisdiction limits

Question 6

The systems of guarantees in the liberal/social-democratic states: Judiciary (selection of judges)

Answer 6

• appointed judges (by other state’s body); requirements: law degree + experience as barristers for a long time (or law professors) + need to appoint for a “judgeship” and go through the hearings’ process
• elected judges (by the people); requirements: law degree + experience as barristers for a long time (or law professors) + need to appoint for a “judgeship” and go through the hearings’ process. In italy we have none.
• selected judges (by public concourse); requirements: law degree + experience as civil servant or having a LL.M. or having attended National Law School may be evaluated

Question 7

The system of guarantees in the liberal/social-democratic states: Judiciary (models of criminal justice: possible roles of public prosecutors and judges)

Answer 7

• public prosecutors (= representative of the state in the court):
  1. belonging to the judiciary branch (are independent; typical of civil law systems)
  2. belonging to the Executive branch (judges are under the government’s executive and report either to it or the ministry of justice)
• criminal judges:
  1. sitting judge: adversarial model: more liberal– evidences are produced in the trial; here the judge is only a regulating element, simply oversees the trial, ensures that legal procedures and principles are applied, interprets laws and lastly adjudicates the cases (innocence/guilt)
  2. investigating judge: inquisitional model; here the judge investigates by collecting evidences in the pre-trial phase– can call for testimonies, gain information, produce various warrants and ultimately decides whether there are enough evidences to proceed with the trial

Question 8

The systems of guarantees in the liberal/social-democratic states: Judiciary (independence)

Answer 8

• assured by specific “Superior Councils” (composed by judges)
  AND/ OR
• assured by specific guarantees: irrevocability, fixed tenure and term, internal career based on professional merits and qualifications; criminal and civil liability for actions taken in the performance of their judicial duties, allowing them to make impartial decisions

Question 9

The systems of guarantees in the liberal/social-democratic states: Constitutional Justice (body)

Answer 9

1. political system: members may not be trained in law– it is the legislative and the executive that are entitled to conduct constitutional review; this model can be:
   - monocratic: external to the legislative branch– head of state in a non-partisan position can conduct constitutional revision
   - collegial: internal to the legislative branch– parliamentary commission/ external to the legislative branch: constitutional council can carry out constitutional review
2. judicial: members must be judges or experts trained in law– refers the the judiciary branch of constitutional justice that sets constitutional disputes and checks the constitutionality of passed laws to ensure that the government complies with the constitution.
   - ordinary court: judiciary branch– centralized (only the supreme court)/ decentralized (all the judges)
   - specialized courts: Constitutional courts (can be only centralized and separated from the judiciary)

Question 10

The systems of guarantees in the liberal/social-democratic states: Constitutional Justice (lodging)

Answer 10

lodging= ability of submitting a complaint to a competent authority for constitutional review
1. time:
- preventive (a priori): before the act will be adopted
- repressive (a posteriori): needs a case as the act has been already adopted
2. access:
- incidental: during a pending trial; by all the judges/ by the supreme courts only– it means that the constitutional issue is raised as an incidental matter within the broader context of a legal dispute (during a trial)
- direct (without any pending trial): asking for a constitutional revision without trial– it means that it is possible for individuals and entities to directly petition the constitutional court to review
– by specific constitutional bodies (e.g. quota of members of Parliament, Government, Head of State,…;
– by national government/local governments (i.e. in the regional or federal forms of states for the regional/federal legislative attribution);
– by the people (recurso de ampara, verfassungsbeschwende: usually for protection of fundamental rights)

Question 11

The systems of guarantees in the liberal/social-democratic states: Constitutional Justice (decisions)

Answer 11

1. regarding the petition or question:
   - procedural: admissability/ inadmissability: the court(s) or tribunal(s) must often assess the admissability of the case before pronoucing judgements on the constitutional inquiry; this means checking if the petitioner has legal standinf to bring constitutional challenge, whether the case presents a justiciable controversy and whether the court has jurisdiction in the matter
   - merit: acceptance/ dismissal: once a question is deemed admissible the court/tribunal reviews the merits of the case– it implies: applying the constitutional principles to the case, considering the legal argument and evidences provided; if the case is deemed worth of attention, it is approved
2. regarding the effects:
   - acceptance= annulment (“erga omnes”): it means that the judgement of the court applies to all; the decisions established a legal standard or pciniple that must be observed by all individuals and entitits within the jurisdiction of the court. In such case the effects can be:
   – “ex tunc” (retrospective): it means that the decision applies retroactively to the time when the law was originally enacted, as if it never had legal force.
   – “ex nunc” (prospective): it means that the decision applies only from the time of the court’s decision, so without affecting past events and legal consequences
   - dismissal: “inter partes”– the court does not proceed with the case or petition; inter partes means that the decision applies only to the parties involved in the case that might be able to modify deficiencies in their petition (“without prejudice”), if they cannot present the case anymore= “with prejudice”
   - declaratory: “parliamentary privilege”(the legislative power is given time to intervene by modifying the laws): in declaratory decisions the court declares the constitutionality or unconstitutionality of laws; it does not have immediate legal consequences as it is a formal statement about a legal status– it serves rather to clarify the legal framework and provide guidance
3. regarding the motivation:
   - single motivation: “per curiam”– addresses to the common reasoning, conformity and decision of the court as a whole
   - plural motivation:
   – dissenting opinion: possibility of the minority of the constitutional court to write their dissenting opinion about the majority’s decision (highlight disagreements and possible reconsiderations)
   – concurring opinion: possibility of one or more judges of the constitutonal court who agree with the majority to write down their reasons for agreeing, which are but on different basis with respect to the majority (proposes alternative legal theories)
   – opinion of the Court: written document of the majority of the constitutional court for expressing their motivations; the document determines future and binding legal standards