Structure of Public Administration in the Republic of Kosovo

ABSTRACT

Public administration, as a particular form of state activity practice, respectively as a particular form of practicing state executive power, represents a very important segment, both for the state that through the administration exercises its executive activity as well as for the subjects (primarily citizens) who through the administration realize their rights in relation to the state.

Each state aims to practice its state activity (executive power) in such a way that its citizens can be offered the public services in the most qualitative manner possible. As a result, a qualitative public administration, consistent towards any impact and transparent with its citizens, is a necessity that each state must realize. In this context, the development and evolution of the form of practicing the state activity, namely the development and evolution of its own public administration at the current level is a result of the citizens’ needs that their rights in relation to the state (receiving public services) to be implemented in the most advanced way, on the one hand and as a result of the state's obligation to respond to these needs (public service delivery), on the other.

The structural organization of the public administration in general, as well as the legal framework governing and defining this structure, are amongst the main factors influencing the advancement and reformation of public administration. In the Republic of Kosovo there is no specific law on organization of public administration, which would regulate the organization and activity of public administration, thus the structure of the organization of this administration is partially regulated by other laws that regulate the field of public administration generally. Apart from regulating the organization of state administration as a very important segment of public administration, via a special law, the rest of the organization of public administration in Kosovo cannot be stated that is not regulated however, it is partially regulated by laws and various acts, but not a special law.

In this paper will be presented a reflection of the organization of public administration according to the Constitution of the Republic of Kosovo, the Law on General Administrative Procedure and other laws that regulate issues from the field of public administration, but with particular emphasis on the organization of administration state according to the Law on State Administration in the Republic of Kosovo.

Key words: public administration, state administration, organization of administration.

INTRODUCTION

André Siegfried a well-known French economist and historian has named today’s era as “administrative era” (l’age administratif). Administration represent a phenomenon without which the society cannot be thought of. With the administration, we meet almost in every step and in each day.¹ The administration has a double historical role in the society, where at the same time it is an instrument of power and bearer of useful works that satisfy the citizens’ needs.² In this context, administration is organized in such a way that the state can carry out its power in an efficient way on the one hand and on the other hand that citizens can realize their rights in relation to the state in the most advanced form, it presents a conditio sine qua non for each state.

One of the criteria for the Republic of Kosovo to be a member in the European Union is practicing state executive power through a public administration that is apolitical, transparent, and accountable that functions in advanced international standards. Since the Republic of Kosovo has signed the Stabilization and Association Agreement (SAA)³ and it is in the process of implementing it, the public administration has been and remains one of the main focus of ongoing reform for the purpose of meeting EU standards, so we can continue to advance in the other stages of membership, to full membership, as a goal of the Republic of Kosovo. For this particular reason, the reform of public administration,⁴ has been a requirement in each progress report for Kosovo since 2005. One of the primarily requirements is the advancement of public administrations in terms of its organization.

The fulfillment of the criteria and the standards set form the EU for the countries that aspire the membership, that are also known as the criteria of Copenhagen and Madrid,⁵ is generally related to the organization of public administration and particularly of the state administration. Therefore the organization of the public (state) administration on one side and the normative legal framework in the other side that regulates and defines its organization on the other side, in line with EU’s standards and principles represent the basis of one of the basic criteria for EU membership, this criteria being related to the public administration.

It is crucial to differentiate the public administration and the state administration. The notion of the public administration is wider than the notion of state administration because it contains, not only the activity of the state administration, but also the activity of other relevant institutions, which do not have the expressive character of the state bodies, but perform public affairs.

Public administration in the administrative sense, besides to the state administration, includes the administration of all public and juridical entities and self-government, as well as the private entities, whom by law are entrusted to execute of public administrative authorizations.⁶

Thus, taking into consideration the variety of administrative bodies that practice public authorizations, and are ranked as bodies of public administration, can be concluded that there is no legal regulation, special law regulating the organizational structure of public administration in Kosovo. Consequently, the field of public administration organization in Kosovo, and in other countries of the region and beyond, is only regulated partially, not in a particular way, with laws and other legal acts. Apart from regulating the organization of state administration as a very important segment of public administration, via a special law,⁷ the rest of the organization of public administration in Kosovo cannot be stated that is not regulated however, it is partially regulated by laws and various acts, but not a special law.

Republic of Kosovo does not have a special law that regulates what are the public administration bodies. As a result, a structure of public administration bodies in the Republic of Kosovo can be derived from the provisions of the Constitution of the Republic of Kosovo (Constitution)⁸ and from the provisions of the Law on General Administrative Procedure,⁹ and other law that regulate issues of public administration in general. Whereas, the organization of state administration, as a segment of public administration, is regulated by the LSA.

1. Structure of Public Administration in the Republic of Kosovo

1.1. Structure of public administration according to the Constitution

The Constitution has not defined what are the public administration bodies in Kosovo, nor contains any provisions by which organization of public administration in Kosovo is proclaimed.

However, the Constitution defining the fundamental principles and values underlying the constitutional order of the Republic of Kosovo, foresees the rule of law as a fundamental principle and as a fundamental value of Kosovo society.¹⁰ Proclamation of the rule of law with the Constitution as a principle and value of the society has great importance for the functioning of the public administration, because the public administration respectively the public services are realized by the state through the public administration, implies nothing other than the functions of state power, whose purpose is to create and offer the conditions for the empowerment of citizens' rights in relation to the state. These services mainly have an administrative character and as such are part of the concept of the rule of law.

The concept of rule of law is based on the idea that the primary function of the state is the administration of public affairs. The state represents an organization that has its so-called social function and its primary task on providing public services to its citizens. The notion rule of law is usually expressed by the term "constitutionality", that implies the state's claim, namely, the state administration bodies to the objective right as well as to the guaranteed individuals rights.¹¹ Thus, the practice of state power by the public administration bodies, namely the services provided by these bodies, supported and limited only to the objective right, implies the realization of the rule of law principle.

Besides this, the Constitution in different provisions uses the term of public administration and other terms that are related to the public administration. Therefore, article 61 of the Constitution refers to the term “public administration”. Whereas, article 72 used the term “public administration or publicly owned enterprises”. Article 93 of the Constitution refers to the terms “administration bodies” and “public services”. In addition, article 135 refers to the term “public administration bodies and other state bodies”.

1.2. Public administration structure according to LGAP

LGAP with the provision that regulates the scope of Law (LGAP), also foresees the bodies respectively subjects that practice public authorizations and practice public authority. Therefore, form this provision, somehow can extract the general structure of the public administration.

In this context, according to article 2, paragraph 1 of LGAP, inter alia, it is foreseen that: “This law [LGAP] shall apply whenever a public organ while exercising public authority […]. But ,the LGAP does not define the notion “public organ” that exercises public authority. Therefore, form this definition, it cannot be understood what is actually included in the term "public organ", respectively which administration bodies that carry public authority are included in the sense of LGAP. This definition is very broad, as it still leaves open the issue of the precise definition of bodies and other subjects that fall under the term "public organ". However, one thing is clear, public authorities are carried out by administration bodies in general, which are governed by the right and the power to exercise administrative authorizations or to exercise services of public interest.

Besides that according to the provisions of LGAP the “public organ” exercises public authority, article 2, paragraph 2 of LGAP defines that: “This Law [LGAP] shall also apply whenever another public entity, or private person acting in the pursuance of public organ, […]. From this provision of LGPA, besides the public organ that practices public authority, it is foreseen that under the conditions and criteria defined in the Law, as carriers of public authority with rights on implementing the provisions of LGAP are also other public entities and private persons. Hence, with the provision of article 2 paragraph 2 of LGAP, “other public entity of private person” are defined as other organs besides the public organs that implement the provisions of LGAP in cases where, as a public authority, according to an authorization foreseen or given by law, practicing this authority, decide on the rights, obligations and legal interests of persons as well as every other case when the law provides expressly issuing an administrative act, or concluding an administrative contract, or implementing its powers through real acts related to the rights, obligations and legal interests of persons. However, even in this case the provisions of LGAP do not make a definition of other public entities and private persons that are defined as acting public authorizations in cases determined by law or any other act.

Form what has been said above, from the normative and semantic provisions of the LGAP, it results that the organs or entities for implementing the law, that can be also classified as part of the public administration structure, are as follows:

- Public organ that practices public authority, and
- Other public entities and private persons as subjects that in cases and criteria defined by the law practice duties and powers respectively administrative activity in public interest.

1.3. The Structure of Administration according to other Laws

Besides the provisions of the Constitution and LGAP, a structure of the public administration can be indirectly extracted from other laws that regulate matters of substantive and procedural administrative law. The other mentioned laws are: The Law on Administrative Conflicts (LAC)¹², Law on the Civil Service of the Republic of Kosovo (LCS)¹³, and the Law on Salaries of Civil Servants (LSCS)¹⁴.

Thus in the provisions of Article 1 [Scope of the Law] of LAC it is foreseen that: “With this law are regulated competencies, composition of the court and rules of procedure, based on which the competent courts shall decide on lawfulness of administrative acts by which the competent authorities of public administration shall decide on […] as well as for the lawfulness of actions of administrative authorities.” While Article 2 of this Law [Purpose of the Law] states that: “The aim of this law is provision of judicial protection of rights and interests for legal and natural persons and other parties, the rights and interests that have been violated by individual decisions or by actions of public administrative authorities.”

As can be seen, LAC uses the term "public administrative bodies" and "administrative bodies", whereas in the definition list defines only the meaning of the "body". According to the provision of Article 3 paragraph 1 of the LAC, with the term "body", means public administration bodies, central government bodies and other subordinate bodies, local self-government bodies and their subordinate bodies, that upon practicing their public authorizations decide of administrative matters.

Besides, from LCA, a structure of the public administration bodies can be indirectly extracted also from LCS. The provisions on Article 1, paragraph 1 of LCS [Purpose and Scope of Law] foresees that: "This law regulates the status of civil servants as well as their employment relationship with central and municipal administration institutions". Whereas paragraph 2 of the same article states that: "For the purpose of this law, the central and municipal administration institutions fall into the scope of this law and include: the administration of the Assembly, the Presidency Administration, the Office of the Prime Minister and the Ministries, executive agencies , independent and regulatory agencies and municipal administration", while paragraph 4 states: [...]" Institution of central administration, that are regulated by a special law, shall be subject to the provisions of this law, unless a special law contains provisions different from this one "

Based on the above-mentioned provisions, it can be concluded that the LCS categorizes the administration bodies into central and municipal administration institutions. In addition, it follows with defining the institutions that are part of these two groups: such as the Assembly Administration, the Presidency administration, the Office of the Prime Minister and the Ministries, executive agencies, independent and regulatory agencies and municipal administration. In the entire material the LCS refers to the term “public administration”.

LSCS besides using the tem public administration it does not make any other categorization from which any structure of the public administration bodies can be derived. It is worth mentioning that Article 3, paragraph 2 of the LSCS states that: "The public administration institutions of the Republic of Kosovo are obliged to pay the equal salary for work with the same value".

Genuinely, based on the above discussion regarding public administration, we can not establish an exact structure of which bodies and institutions exactly include the public administration due to lack of a special law. This complicates the fact that there is a lack of harmonization of laws regulating public administration issues, in terms of the structure of the bodies of this administration

2. Organization of the administration according to the Law on State Administration of the Republic of Kosovo (LSA)

2.1. General observation

State Administration represents one of the state’s instruments through which the state exercises its broad and comprehensive activity. That state activity covers various areas of social, political and economic life of a country. Therefore, it is understood that that activity can not only be practiced in one form, but in different and special forms. One of the special forms of practicing state activity, is the state administration.¹⁵

Based on the importance of state administration as a special form of practicing state activity, respectively as a special form of practicing state power, it is immensely needed that the its structure and competences to be regulated via e special law, and moreover its structure to be defined, especially nowadays that role and importance of the state administration is the purpose of the development of each country, through retaliating fundamental rights and freedoms of each individual, and for the principle of the rule of law.

In this context, unlike the public administration that in absence of a basic law that would regulate its organization, its organization was partially regulated by different laws and other legal acts, the organization of the state administration of the Republic of Kosovo, as part of the public administration and at the same time as one of the most important segments of public administration in Kosovo, because most of the public administration constitutes state administration, is primarily regulated by law special.

The approval of LSA has included notable innovations regarding the activity and organization of the state administration in the Republic of Kosovo. The first innovation is the approval of this law, for the fact that the activity, organization and structure of the state administration in Kosovo, was never before, until the promulgation of this law determined by a special law. On the other hand the approval of this law has brought the, harmonization of the administrative activity and the organizational structure of the state administration of the Republic of Kosovo with the Constitution, and more importantly is the fact that LSA is drafted in accordance with the EU standards for administration, which is a very important step in meeting the EU criteria in regard to the administration.

LSA, whose purpose is to define the legal framework for the organization, co-operation and management of bodies practicing executive powers, represents the legal basis , inter alia, for the organization of the state administration in Kosovo. This law determines the organization of administrative bodies that practice executive powers. Thus, the term "administrative bodies exercising executive powers" is a common denominator of all administrative bodies that are considered part of the state administration structure in Kosovo, in accordance with the provisions of this law. While other administrative bodies that do not exercise executive powers are considered as part of the public administration structure in general, as a broader notion, but are not considered part of the state administration structure in accordance with the LSA provisions.

[...]

¹ Stavileci, Esat, Introduction to Administrative Sciences, Pristina, 1997, pg. 7.

² Gjelmo, Zenaid, Theory of Public Administration, AAB, Pristina 2008, pg. 2

³ Law No. 05/L -069 On Ratification of the Stabilization and Association Agreement between the Republic of Kosovo and the European Union Atomic Energy Community, (Official Gazette of Republic of Kosovo / No. 34 / 01 December 2015, Pristina). Available at: https://gzk.rks-gov.net/ActDocumentDetail.aspx?ActID=11239 also the National Programme for Implementation of the Stabilization and Association Agreement (NPISAA), 2017 - 2021, Pristina, March 2017, available at http://www.mei-ks.net/repository/docs/pkzmsa20172021ang.pdf

⁴ More regarding the reforms on public administration in Kosovo shih: Batalli, Mirlinda, Reform of Public Administration in Kosovo, Thesis Kosova, University education Institution AAB, No.01/2012, http://www.universitetiaab.com/repository/docs/01-2012-EN-03_-Mirlinda_Batalli.pdf.

⁵ On Criteria of Copenhagen and Madrid: Rezler, Paulina, The Copenhagen Criteria, Are they helping or hurting the European Union, In Touro International Law Review, Vol 14, no. 2.2011, pg. 392; Also: Glossary for European Integration, Institutions and Policies of the European Union, Published by the Ministry of European Integration, available at http://www.mei-ks.net/repository/docs/Glosar_per_Integrim_Evropian,_Institucionet_dhe_Politikat_e_BE-se.pdf, pg. 60.

⁶ Baraliu, Mazllum / Stavileci, Esat, Commentary – Law on Administrative Procedure, Pristina, 2014, pg. xxiii.

⁷ Law No. 03/l-189 On State Aministration of the Republic of Kosovo, Official Gazette of Republic of Kosovo / Pristina: Year V / No. 82/21, October 2010, hereinafter LSA.

⁸ Constitution of Republic of Kosovo, entered into force on June 15 2008, https://gzk.rks gov.net/ActDetail.aspx?ActID=3702.

⁹ Law N0. 05/L -031 On the General Administrative Procedure, Official Gazette of the Republic of Kosovo, / No. 20 / 21 June 2016, Pristina, hereinafter LGAP.

¹⁰ Article 7, paragraph 1 of the Constitution of Republic of Kosovo 2008.

¹¹ Hasani, Enver / Čukalovič, Ivan, Commentary- Constitution of Republic of Kosovo, Pristina, 2013, pg. 43. Furthermore, regarding the rule of law (rule of law), compare: Zaganjori, Xhezair / Anastasi, Aurela / Methasani - Çani, Eralda, Rule of Law in the Constitution of the Republic of Albania, Adelprint Publishing House, Tirana 2011; Omari, Luan, Separation of Powers and Independence of Constitutional Institutions, ASHSH, Tirana 2011; Omari, Luan, Rule of Law, ASHSH, Tirana 2012

¹² Law no. 03/l-202 On Administrative Disputes, Official Gazette of the Republic of Kosovo / Pristina: Year V / No. 82 / 21 October 2010.

¹³ Law No. 03/l-149 On the Civil Service of the Republic of Kosovo, Official Gazette of the Republic of Kosovo / Pristina: Year V / no. 72 / 25 June 2010.

¹⁴ Law no. 03/l-147 On Salaries of the Civil Servants, Official Gazette of the Republic of Kosovo / Pristina: Year V / no. 72 / 25 June 2010.

¹⁵ Stavileci, Esat, op. cit., pg. 30.