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WORKSHOP: PUBLIC ADMINISTRATION AND
THE
CONSTITUTION
CAPE TOWN 25/6 JANUARY 1995
PUBLIC
ADMINISTRATION IN FRANCE
FRANCOIS
DREYFUS
The ambition of this paper is not to explain in details what is the french
system of public administration and how it works but better
to focus on the
manner such a system deals with the various questions concerning public service
which are currently debated in South
Africa.
Before entering into the detail
of these topics, a brief survey of the general principles on which the french
system of public administration
is grounded may be made. Very few provisions of
the constitution of 1958 concern directly public service; however the rights and
freedoms stated within the Preamble of the Constitution are applicable to public
service as well as to people. Since 1946, the status
of State civil servants
has been provided by acts of Parliament, as many other matters concerning public
service. Civil servants
are ruled by both provisions of the general status and
of the specific decrees concerning each "corps". Since1983-86, the local
civil
servants and people working in public hospitals (all together around 4 millions
of persons) as well as the state civil servants
are entitled with the same
rights and subjected to the same obligations; grosso modo the same principles
rule the access to service
(equally open to all qualified people on the basis of
public competitive examination) and the carrier ( which means the ways of
promotion
from the entrance until the retirement at the legal age of 65).
In
short, public service Is compelled to respect two main principles: equality and
neutrality, both within the civil service and towards
the people; according to
the wide scope of these rules, we may assert that the whole working of public
service is, more or less,
subject to them.
As an organization the features of
the french system of public service fits Max Weber's theoritical pattern of
bureaucracy, according
to which
- civil servants are recruited through
examination or competition,
- the organisation of the administration
being hierachical, at each level civil servants are entitled with specific
jurisdiction according
to legal provisions and are subordinated to their
superiors
- the appointement in a position is made according to the
skills required to occupy such a position, the orders given to the civil
servants are unpersonal
- civil service is a permanent and full time
occupation,
- the civil servants are not owning their office and therefore
they receive a salary, for their work.
This broad framework having been
designed, It is time to address the topics tabled by the committee of the
Constitutional assembly.
- -Professionalism
results from the facts that
a) at each level and grade civil
servants are recruited through adequate competitive examinations
b) In
numerous corps, the candidates who have gone successfully through the
competition will be trained during two or three years
in specialized "schools'
before being appointed In a position, and
c) most civil servants will
perform for long years (all life) their specific job and that It Is forbidden
for them to have, in the
same time, another occupation.
- To be neutral and
impartial towards people, to treat them equally is a compulsory obligation for
public service; administrative
decisions breaching such a rule will be annuled
when refered to the administrative courts. The civil servants have also the
duty
to give all informations to the people who are asking for (this last duty
conveyed in the Bill of 1983 , section 27, reinforces the
provisions of the 1978
Bill concerning the access of public to administrative material); such an
obligation has however to be balanced
with the provision Imposing to civil
servants to keep professional discretion concerning their knowledge of
administrative facts
or informations .
- The equal access according to merit
combined with the principle that neither civil servants' political, unionist,
philosophical
or religious opinions, race, gender or health can, be taken into
account to establish distinctions between civil them garantees -at
least
theoriticaly- that civil service has a good chance to be representative of the
whole society. Of course for sociological reasons,
all sections of the
population are not represented within civil service; but it must be recalled
that to become a civil servant is
considered in France as being a valuable
position and a good way to promote social mobility. Affirmative action does not
exist in
France, with a tiny exception concerning disabled
persons.
2) The ability of the public service to implement the policies
of the government of the day may be seen from a twofold point of view,
legal and
empirical.
- Given the hierarchical principle which governs the organization
of the service public as well as the way it works, the civil servants
must obey
the orders of their superiors whatever they are (except "when it is obviously
Illegal and contradictory with a public interest");
they are also responsable of
the performance of their duties and subjected to disciplinary sanctions in case
of faulty professional
behaviour.
On the other hand, the principle of
neutrality means that the civil servants have to implement the policies of the
government of the
day out of consideration of any personal political
preferences. The wide freedom of opinion enjoyed by french public servants
cannot
be understood as allowing them to let prevail their Political choices
against government policies.
Among the legal duties which are conveyed by the
status, must be mentionned what is called "obligation de reserve; it means that
civil
servants must be moderate in their public statements (not to criticize the
government, for instance). The contents of such an obligation
is not stated by,
the law and the administrative courts have elaborated It through the numerous
cases of disciplinary sanctions refered
to them; according to a constant case
law the extend of this deny is wider and stronger for high rank civil servants
than for the
lower and unionists are not compelled to respect it.
- Whether
the hierarchical authorities have means at their disposal to constrain public
servants to act in conformity with their orders,
bad will may exist. The
experience of the french leftist government which came into power in 1981 after
23 years of right wing domination
may be interesting to mention. Most of the
service public has behaved with loyalty and have Implemented the new policies.
In some
cases, civil servants in high positions (but not in such positions to be
filled through discretionary appointements) have tried not
to obey the orders;
the best ways not to fulfil their duties were generaly indirect as to delay the
implementation by keeping from
sending the files to the people supposed to deal
with them. More dangerous was the signing by civil servants, empowered to do it
on behalf of the minister, of decisions in contradiction with the new policies.
In this respect, the role of the minister's cabinet
checking how the service is
acting is quite important
3) The responsiveness of the public service
towards the needs of its people Is meet in the french system through
unions.
Civil servants unions are powerful and their role Is recognized by
the status which provides that they take part into the decisions
concerning the
public service at various level. They are Involved within consultative
processes concerning the organisation of their
departement, the promotion of
civil servants all along their carriers, the discipline, matters, the health and
safety, of conditions
of work. They are also members of the Superior council of
civil service which Is compulsorily consulted each time a new bill or
decree
concerning the status will be passed. In this respect, we may say that the
unions are the channel through which the needs
of civil servants are
expressed.
Concerning the always hot question of salaries, the situation is
the following: according to the fact that civil service Is ruled
by the status,
no civil servant has the right to discuss how much he or she will be paid: the
salaries depend on the hierarchical
rank of the civil servants and they are
established according a scale. But the custom had raised (and is now embodied
within the
statuss) to organize, generaly once a year, a forum between the
minister of Civil service and the unions in order to negotiate the
rise of
salaries;of course the final decision is taken by the government.
4) The
civil servants enjoy the same political rights that ordinary citizens: they are
not politicaly mutilated. It means that they
have the right to belong to every
Political party, and to have a high position within their party ( in such a
case, civil servants
are subjected to a weaker duty of moderation when they
express themselves).
Probably the most striking feature concerns the possibility to run for an
election (local or national level), without resigning.
Each civil servant Is
able to campaign and in case he or she Is elected as a member of Parliament, he
will continue to belong to
public service in what we call "detached positions ;
such a position means that he will not serve during the time of his or her term
(according to the rule of separation of powers between executive and legislative
branchs), but the rights for pension and regular
promotion (only according to
seniority) will be maintained as well as the right to get back an active
position within public service
after the end of his or her term. As far as
local elections are concerned, it is possible to be a State civil servant and in
the
same time to be member of a local body (for Instance to be the mayor of a
village). The fact that in France a significant proportion.
of members of the
Parliament comes from the civil services must be explained. On the one hand the
prestige of high civil servants,
trained in National school of administration is
very, high and within the governments (from right or left wing) number of
ministers
(Prime ministers included) have belonged to higher ranks of civil
service. (On, the other hand, the fact that civil servants will
find back a job
after having been MP is an Important feature; for people working in private
sector the probability to find a job
after five or more years is narrow and
therefore to be elected as an MP is not probably less attractive.
As they have all political rights, civil servants have also the right to
belong to an union and to strike (except some particular
corps like policemen or
jail keepers).
-5) The separation of powers between the administrative and executive
functions must be seen from a legal point of view. According
to section. 21 of
the Constitution, the executive function belongs to the Prime minister, his
power to make decrees is shared with
the President of Republic when the decrees
must be approved in the Council of ministers which is chaired by the
President(section
13).
The ministers have a limited power in this respect. A minister is only
enabled to act when an bill or a decree has stated that it
is within his
jurisdiction to Issue executive acts(arretes) concerning the matters of his
department. Actually, each minister Is
issuing numerous acts; most of them are
not signed directly by him but by the high civil servants empowered (by
delegation intuitu
personna) to sign on his behalf.
Within the french system, the distinction between executive and
administrative acts does not exist very clearly; each administrative
authority
must be empowered by the Constitution, a bill or a decree to take decisions.
All of them may be refered for judicial review
before administrative courts and
may be annuled If they are illegal.
Such a rule concerns the acts of the
President of Republic, Prime minister, ministers as well as of a local
decentralised authorities.
One the other hand, civil servants within the
ministries participate to the drafting of decrees and bills; their work is a
technical
one and it is under the command of the ministers' "cabinet" and the
concerned director of the ministry.
6) The ministerial or cabinet
appointements concern civil servants who occupy “functional position". A
distinction must be
made between two kinds of people.. those who are chosen to
work in the minister's "cabinet" and those who are appointed by the minister
himself, and those who are occupying the highest positions in the ministry (the
directors) whose appointement -according discretion-
Is dependant upon the
Council of ministers (signature of the President + Prime minister + minister
concerned).
The members of a minister's cabinet are chosen for their
technical skills as well as for their political preferences for the government
of the day; they may be or not civil servants. Their functions end when the
minister goes out.
Being the minister's advisors they play quite an role
Important in policy formulation and they are often monitoring the civil
servants'
drafting work (mentionned in 5). They attend, generaly, with a high
civil servant of the department, the interministerial meetings
chaired by a
member of the Prime minister's cabinet; in such meetings, bills and decrees, are
discussed between all the concerned
departments and the Prime minister's
representant takes the decision in case of conflict between the partners.
The
high civil servants appointed by the Council of ministers are chosen
discretionary according, more than less, to their political
preferences. Given
the discretion of the appointement, the person may be dismissed at every moment,
it does not mean he has lost
its quality of civil servants but only that he goes
back to a regular position within its corps.
We see that a kind of spoil system has been established since about 25 years,
it is not as crude as in USA as there is not automatic
changes when a minister
or the government Is leaving. The main changes take place when the political
line of a new government is
in opposition with the previous one.
Therefore, because the way the directors are appointed, ministers may rely on
them and involve them in policy formulation-It Is quite
important to make them
participate to the policy formulation as far as It is one of the best way to
mobilize through them the civil
servants of lower ranks. However It must be
emphasized that sometimes, conflicts of power may happen between directors and
cabinet;
such a situation is bad and in my opinion, the cabinet does not have to
infringe upon the director's authority.
7)The content of the topic regarding the connection between public servants
and employees of non government or semi-governmnent institutions
is not clear
for me. Regarding status, they are in different situations: employees of semi
government or non government institutions
are ruled by labor law which is not
the case for civil servants. In public enterprises, the managers are appointed
in Council of
ministers according to discretion, but the rest of the employees
are under labour law like the employees of private corporations.
8) The
role of advisory bodies, etc... has already been mentioned in 3 as far as the
"life" of civil servants is concerned; but there
are, within the ministerial
departments but also at local level numerous other bodies which are to be
consulted during the making
process of texts.
These bodies are mostly created
by bills or decrees ; their composition (with various types of people according
to the mayors they
have to deal with), their working, the compulsory (or not)
duty for the ministries to consult Them and eventually to follow their
advices
are provided by decree, Such bodies include people like representatives of the
concerned "interests", experts, members of
the public service, consumers,
etc.
Given their number and their diversity it is impossible to describe
them but two main kinds may be designed.
a) A first category comprises the
consultative bodies which are involved In the decision making process concerning
policies within
the public service itself. They are generaly composed with an
equal number of members of representative unions of civil servants
(appointed by
the unions themselves or elected) and of members Of the concerned administration
plus some qualified persons (appointed
by administrative authorities); the
Superior council of civil service belongs to this category, as many others in
ministerial departments
(in National educator, the Health department, etc ... )
.
b) The second type is involved in the policy making concerning specific
sectors acting within civil society- in such cases, the bodies
comprise people
representing the concerned interests (professional unions or consumer's
associations, etc ... ), experts and members
of the administration may be cited
as belonging to this kind, for instance, the comitee giving its advice about the
drugs allowed
to be sold on the market, or the comitees dealing with
agricultural policies.
The formal role of all these bodies, whatever they
are, is to give advices to the administration; from a political scientist's
point
of view, such bodies increase the legitimacy of administrative policies as
far as the participation of representative people directly
concerned by them
have the opportunity to give their opinions and to influence (more or less) the
decisions.
8) The rationalisation and transformation of public service is
a recurrent proposal in France, and since about 30 years each government
implements some reform and intend to reorganize the State structures. Whether
the agreement about the goals -increased effectiveness,
better services provided
to the public, better relations between public services and the public etc...-
is doubtless, the ways to
meet them are, in some respects, highly controversial.
The debate regards the civil service which is qualified by its detractors
as a
rigid system -because the public servants' status- unable to adapt itself to the
changing needs of a modern administration Therefore
to avoid to increase the
number of civil servants, the appointment of people on a contractual base and
for temporary jobs Is an usual
way adopted by all governments.
Actually the
main problem, In France as elsewhere, is to find the best method in order to
reduce the cost of the administration;
The introduction of news methods of
control over public expenditures, the evaluation a posteriori of the costs and
benefits is fruitful
in order to get a better information and to correct some
deficiencies of the system; but it leads also to implement technocratical
norms,
in various services, which are not always adapted to the specific situations the
service have to deal with.
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